The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-469
BARBARA RICHARD
VERSUS
CALCASIEU PARISH SCHOOL BOARD
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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTICT 3
PARISH OF CALCASIEU, NO. 07-03060
SAM LOWERY, WORKERS’ COMPENSATION JUDGE
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ON REHEARING
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JAMES T. GENOVESE
JUDGE
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Court composed of John D. Saunders, J. David Painter, and James T. Genovese,
Judges.
REHEARING GRANTED; AFFIRMED IN PART,
REVERSED IN PART, AND RENDERED.
Christopher M. Trahan
Raggio, Cappel, Chozen & Berniard
1011 Lakeshore Drive, Suite 500
Lake Charles, Louisiana 70601
(337) 436-9481
COUNSEL FOR DEFEDANT/APPELLANT:
Calcasieu Parish School Board
Mark Zimmerman
4216 Lake Street
Lake Charles, Louisiana 70605
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Barbara Richard
GENOVESE, Judge.
We revisit this case pursuant to the application for rehearing by the
employer, Calcasieu Parish School Board (School Board), relative to the workers’
compensation claim of the employee, Barbara Richard. We grant this rehearing
solely on the issue of whether the workers’ compensation judge (WCJ) erred in
restoring Ms. Richard’s workers’ compensation benefits to temporary total
disability (TTD) status. In our original opinion, we affirmed the decision of the
WCJ reinstating TTD benefits to Ms. Richard. Pertinent hereto is the decision of
this court by another panel rendered the same day as the instant case entitled James
Sharp v. Landscape Management Services, 11-340 (La.App. 3 Cir. 10/5/11), ___
So.3d ___.
In the instant case, we affirmed the WCJ’s reinstatement of TTD benefits in
favor of Ms. Richard and his award of $7,000.00 in attorney fees, plus we awarded
$3,500.00 in attorney fees for work done on appeal. However, the sole issue
before us on this rehearing is whether Ms. Richard is entitled to TTD benefits or
supplemental earnings benefits (SEB).
The law pertaining to SEB was recently set forth by our supreme court in
Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, pp. 4-6 (La. 1/9/11), 56
So.3d 170, 174-75 (footnote omitted):
“The purpose of [SEBs] is to compensate the injured employee
for the wage earning capacity he has lost as a result of his accident.”
Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840
(La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive
SEBs if he sustains a work-related injury that results in his inability to
earn ninety percent (90%) or more of his average pre-injury wage.
La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of
proving, by a preponderance of the evidence, that the injury resulted
in his inability to earn that amount under the facts and circumstances
of the individual case. Banks, supra at 556. “In determining if an
injured employee has made out a prima facie case of entitlement to
[SEBs], 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 v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989)
(quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d
1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee
overcomes this initial step that the burden shifts to the employer to
prove, by a preponderance of the evidence, 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 employee’s community or reasonable geographic location. La.
R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.
The analysis is necessarily a facts and circumstances one in
which the court is mindful of the jurisprudential tenet that workers’
compensation is to be liberally construed in favor of coverage.
Daigle, supra at 1007. Further, factual findings in workers’
compensation cases are subject to the manifest error or clearly wrong
standard of appellate review. Smith v. Louisiana Dept. of Corrections,
93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed
Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the
manifest error-clearly wrong standard, the appellate court must
determine not whether the trier of fact was right or wrong, but
whether the factfinder’s conclusion was a reasonable one. Freeman,
supra at 737-38; Stobart v. State through Dept. of Transp. and
Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d
1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding
that an employee has met his initial burden of proving entitlement to
SEBs is manifestly erroneous, a reviewing court must examine all
evidence that bears upon the employee’s inability to earn 90% or
more of his pre-injury wages.” Seal v. Gaylord Container Corp.,
97-0688 (La.12/2/97), 704 So.2d 1161, 1166.
As set forth in Poissenot, as quoted in Sharp, and La.R.S. 23:1221(1),
Ms. Richard bears the burden of establishing by clear and convincing evidence,
unaided by any presumption of disability, that she is physically unable to engage in
any employment as a result of a work-related injury in order to be awarded TTD
benefits. The record clearly indicates that the most current functional capacity
evaluation (FCE) performed on Ms. Richard was completed on October 17, 2009.
The FCE indicated that she was capable of performing a sedentary level job.
Therefore, it was not error for the School Board to convert Ms. Richard’s benefits
to SEB, and the WCJ erred in reinstating Ms. Richard’s TTD benefits.
However, once it was determined that SEB were the appropriate benefits
payable to Ms. Richard, then the burden shifted to the School Board to establish by
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a preponderance of the evidence that a particular job was available to her and that
she was physically able to perform that particular job. Given the restrictions
placed on Ms. Richard by Dr. Bernauer as set forth in the record, the jobs
presented to Ms. Richard were not jobs that were actually physically available to
her. Therefore, the SEB are to be paid based on a zero earning capacity.
DISPOSITION
The WCJ erred in restoring Ms. Richard to TTD benefits status. Our
original judgment and that of the WCJ restoring Ms. Richard to TTD benefits
status are reversed, and judgment is now rendered awarding Ms. Richard SEB at a
zero earning capacity rate as of May 1, 2010. All other aspects of our original
judgment are affirmed.
REHEARING GRANTED; AFFIRMED IN PART,
REVERSED IN PART, AND RENDERED.
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