Smith v. Louisiana Dept. of Corrections

• Decision Date: 28 February 1994
• Citation: 633 So.2d 129
• Parties: 93-1305 La
• Court: Louisiana Supreme Court

Page 129

633 So.2d 129

93-1305 La. 2/28/94

Edward SMITH v. LOUISIANA DEPARTMENT OF CORRECTIONS.

No. 93-C-1305.

Supreme Court of Louisiana.

Feb. 28, 1994.

Arthur Cobb, Jr., Cobb & Cobb, Baton Rouge, for applicant.

Robert J. Collins, Baton Rouge, for respondent.

[93-1305 La. 1] HALL, Justice. ^*

In this worker's compensation case, the issue is whether plaintiff has proven that his disability prevents him from earning 90% of his pre-injury wages so as to entitle him to supplemental earnings benefits under LSA-R.S. 23:1221(3). The administrative hearing officer held plaintiff had not made such a showing, instead finding that "claimant is restricted more by his trepidation than by his disability." The court of appeal summarily affirmed. We granted plaintiff's writ application and remanded the case to the court of appeal for a full opinion. On remand, the court of appeal found no manifest error in the hearing officer's finding that plaintiff had not sustained his burden of proof. We granted plaintiff's writ application a second time and now reverse.

I.

Plaintiff was employed as a correctional officer for the Louisiana Department of Corrections at the Louisiana Training Institute (LTI). On January 11, 1988, while in the course and scope of his employment, plaintiff was struck by an inmate in the left eye. As a result of the blow, plaintiff lost 95% of his vision in that eye. The defendant paid compensation benefits for 95 weeks according to the schedule payments provided by LSA-R.S. 23:1221(4)(o) ¹.

[93-1305 La. 2] Plaintiff returned to work approximately three months after the accident, with his doctor's warning "that he avoid any physical confrontation that may involve trauma to his eye." Any further trauma to the eye, the doctor cautioned, could result in total blindness in the left eye. When he returned to LTI, plaintiff was placed in the position of a perimeter security guard. This position was in a guard tower outside the fences of the institution, as far away from the prison population as possible. The job required that plaintiff watch the grounds and radio for help if an inmate approached the fence. Likewise, he was also required to help capture any prisoner that attempted to escape. Plaintiff remained in this position for approximately two years. At that time, it was discovered by Zbigniew S. Cypel, Human Resources Administrator, that there was an "erroneous conclusion ... [made] that Mr. Smith would be able to hold a security position at one of our units without having physical contact with student offenders." In a letter to Whit King of the Office of Risk Management, Cypel noted that there was no way the facility could comply with Mr. Smith's restriction to avoid confrontation since correctional officers are required to be able to work at any post and conduct any assignment needed to maintain the safety of the facility. As of February 16, 1990, plaintiff was placed on sick leave and on June 25, 1990, he was terminated after exhausting that sick leave.

Plaintiff collected unemployment benefits from the date of his termination until December, 1990. A rehabilitation officer with the Office of Risk Management, Jeanette Felps, worked with plaintiff in an attempt to find him employment. Plaintiff was given various job possibilities by the officer and plaintiff testified that "the ones that I thought I could most likely handle, I applied for them. But the ones that would cause a risk, I didn't apply for them...." Plaintiff inquired into these positions with no success. Bertha Held, the vocational rehabilitation expert that worked with the plaintiff, testified that concentration was placed on state employment as plaintiff was entitled to non-competitive reemployment rights. This meant that for five years after his termination he was given preferential treatment for state jobs and did not have to compete with other applicants if he met the qualifications. This also entitled him to begin employment at the salary he was making in his old job if the state agency agreed and that amount was not above the maximum pay for the new employment. Plaintiff claims that he never was informed of his non-competitive status. Ms. Held found two job opportunities with state agencies that were hiring. The first was a dormitory counselor assistant at the Louisiana School [93-1305 La. 3] for the Deaf, which plaintiff did not inquire about, and the second was for an unarmed facilities and grounds guard at Southern University, which plaintiff was told by a university employee not to apply for because of his restriction.

Plaintiff also testified that during this time he called several grocery stores and retail establishments seeking employment, but none were hiring. He did not put in applications with any of these businesses. However, plaintiff did assist his wife in the operation of a business out of his home, including the task of driving her to pick up merchandise.

Doctor Breaud, plaintiff's treating physician, testified by deposition as to plaintiff's ability to work and specifically his ability to work as a guard. He stated:

Let me answer that this way, I don't know what a guard has to do, other than what you and I assume a guard has to do, but on the other hand, I have a lot of patients that I've treated and followed and know of their uniocular status, and their occupations, and there is virtually no occupation--well, I wouldn't say none, but there are very few occupations that one cannot pursue with one eye, okay?

The doctor further testified that he told plaintiff not to get hit in the eye because, due to the weak tissue from the trauma, any further blow could cause complete blindness in the left eye.

Plaintiff filed suit seeking supplemental earnings benefits under LSA-R.S. 23:1221(3). The hearing officer denied plaintiff's claim and the court of appeal affirmed. After our remand for a full opinion, the court of appeal once again affirmed finding no manifest error. Smith v. Louisiana Dept. of Corrections 618 So.2d 1065 (La.App. 1st Cir.1993). The court reasoned that there were two jobs found for plaintiff that he did not apply for. The court noted with regard to plaintiff's fear:

While we sympathize with the plaintiff's fears, we believe that Dr. Breaud's testimony clearly indicates that the degree of fear which the plaintiff was displaying was medically unfounded.

We granted plaintiff's writ application, 620 So.2d 855 (La.1993).

II.

In a worker's compensation case, as in other cases, the appellate court's review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530, p. 4, 630 So.2d 733 (La.1994); Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). Therefore, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. [93-1305 La. 4] State Through DOTD, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Freeman, supra; Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Stobart, supra.

Entitlement to supplemental earnings benefits is governed by LSA-R.S. 23:1221(3) ². In order to recover, the employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. LSA-R.S. 23:1221(3)(a); Peveto v. WHC Contractors, et al, 93-1402, p. 5-6, 630 So.2d 689 (La.1994); Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage. Daigle, supra, 545 So.2d at 1007. "In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Daigle, supra, 545 So.2d at 1007, quoting Gaspard v. St. Paul Fire & Marine Insurance Co., 483 So.2d 1037, 1039 (La.App.3d Cir.1985). See, Pinkins v. Cardinal Wholesale Supply, 619 So.2d 52 (La.1993). [93-1305 La. 5] Once the employee's burden is met, the burden of proof then shifts to the employer, who, if he wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce supplemental earnings benefits, bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. LSA-R.S. 23:1221(3)(c)(i); Freeman, supra, at p. 7; Daigle, supra, 545 So.2d at 1008-9; Allen v. City of Shreveport, 618 So.2d 386, 389 (La.1993).

III.

It was stipulated by the parties that plaintiff's average monthly wage was $1334.72 ³. Therefore, in order to be entitled to supplemental earnings benefits, plaintiff had to prove by a preponderance of the evidence that he was unable to earn $1,201.25 a month, 90% of his average monthly pre-injury wage.

Plaintiff contends that he is unable to earn 90% of his pre-injury wages because he is limited due to the risk that further trauma could lead to complete blindness in his left eye. He argues that the jobs defendant found for him were unacceptable, as they were jobs that included risks of further blows to the eye. The state argues, and the hearing officer and the court of appeal found, that plaintiff's fears were unreasonable.

Doctor Breaud stated in his letter to defendant that "it would be dangerous for him [plaintiff] to have any blunt trauma to the eye at this...