Palisi v. City of New Orleans Fire Dept.

690 So.2d 1018 (1997)

Frank PALISI, et al.

v.

CITY OF NEW ORLEANS FIRE DEPARTMENT.

No. 95-CA-1455.

Court of Appeal of Louisiana, Fourth Circuit.

March 12, 1997.

Order Denying Rehearing April 15, 1997.

*1033 Neil J. Kohlman, Assistant City Attorney, Milton Osborne, Jr., Deputy City Attorney, Avis Marie Russel, City Attorney, New Orleans, for Appellant The City of New Orleans.

Frank A. Bruno, New Orleans, for Plaintiffs/Appellees.

Before BYRNES, ARMSTRONG and WALTZER, JJ.

BYRNES, Judge.

This case involves the consolidated workers' compensation claims of fifty-one unrelated plaintiffs, based on unrelated injuries, sustained at unrelated times and places. The plaintiffs are: Jack Alexander, Paul Joseph Alline, Gerald A. Barattini, Maurice Robert Blondeau, Robert Buisson, William F. Dillenkoffer, Robert H. Dudenhefer, John F. Duncan, Edward Eiermann, Ed Gallagher, Francis Paul LaSalle, George Francis, Peter Gondrella, Jr., James Hennegan, Lawrence Hendrickson, Lucien LeBlanc, Ronald Hughes, Joseph Jevic, Jerry Ladner, John Marcade, Charles Marque, John Niehues, Frank Palisi, Donald Perkins, Paul Raschke, Eugene Ravain, John Renaud, Harold Rodrigue, Raymond Schwarkhardt, Louis Serpas, John Varnado, Ralph L. West, Jr., Albert Baldwin, Robert Anthony Bouterie, Charles Casrill, Donald Conrad, Reno Jean Daret, III, Lester Dufrechou, Branch John Ehrhardt, Sam Joseph Fradella, Jr., Don W. Lindsey, Samuel A. Montalbano, Warren Martin, Patrick McGittigan, Jerry A. Meyer, E.W. Sanders, Terry R. Smith, Ray Squires, Burnell Stewart, Charles Wagner, and Joseph M. Williams.

CONSOLIDATION ISSUE

The plaintiffs have in common the fact that they were all employees of the defendant, the New Orleans Fire Department, hereinafter frequently referred to simply as the "City." The City has objected to the consolidation of these claims.

The hearing officer consolidated these claims because he felt that the question of the applicability of the Cousins v. City of New Orleans, 608 So.2d 978 (La.1992), decision to the City's claim to the right of offset provided a common question of law that transcended all other issues presented by the cases. We also note that there is one common defendant and common representation on both sides.

LSA-C.C.P. art. 1561 provides that two or more separate suits involving a common issue of law or fact pending in the same court may be consolidated. We find no instance in the jurisprudence allowing consolidation where the facts of each case were as disparate *1034 and distinct as they are here. There appears to be an even greater diversity among the claims of the various plaintiffs in this case than there was in the companion case of Rapp v. City of New Orleans, 95-CA-1638 (La.App. 4 Cir. 9/18/96); 681 So.2d 433 . [1]

There is evidence in the record to support the City's complaint that the hearing officer failed to take individual factual differences into account in certain instances. However, if the decision of the hearing officer to consolidate was error, we find that it was harmless error, or at least not an error requiring a remand in toto and complete retrial on the merits because the separate record made for each plaintiff enables us to address errors on appeal. Each plaintiff was given the opportunity to present his case separately. Although the hearing officer rendered one judgment, that judgment was, in effect, a series of mini-decrees addressing each plaintiff's claim individually, separately and by name.

Therefore, regardless of the original wisdom of the decision of the hearing officer to consolidate, it would serve no useful purpose and would not be in the interest of judicial economy to deconsolidate at this stage of the proceedings.

The plaintiffs answered the appeal requesting additional attorneys fees and penalties for the "preparation and defending" of this appeal. Plaintiffs also filed a supplemental and amended answer to this appeal alleging errors in the calculations for Burnell Stewart and Joe Williams.

PRESCRIPTION DOES NOT BEGIN TO RUN WHEN BENEFITS WERE SUBJECTED TO THE LSA-R.S. 23:1225 OFFSET

LSA-R.S. 23:1209 provides that an action for Supplemental Earnings Benefits (SEB) be commenced within three years from the date benefits were last paid. The City contends that the claims of Joseph Jevic and William Dillenkoffer have prescribed because the times of making the last payments of benefits pursuant to R.S. 23:1221(3) were, respectively, September 19, 1987 and March 21, 1988. However, this Court would characterize what happened on those dates as implementation of offsets rather than cessations of benefits.

Offsets can be distinguished from terminations of benefits. A termination of benefits ordinarily indicates that the employer made the determination that the employee had no right of recovery, or that the employer refused to pay benefits regardless of that right. On the other hand, implicit in the offset is an acknowledgement that benefits are in fact due the employee, but the employer is entitled to credit for payments the employee receives from certain statutorily designated collateral sources. Therefore, the exercise of the right of offset is a tacit acknowledgement of an entitlement to benefits that continues as long as the offset continues. Consistent with our recent holding in the companion case of Rapp v. City of New Orleans, supra, we find that this continuing acknowledgement interrupts prescription on the employee's underlying claim for benefits as long as the offset persists. Therefore, we find that the claims of Jevic and Dillenkoffer have not prescribed. [2]

In its memorandum in support of its application for rehearing in Rapp the City argued that the Louisiana Supreme Court case of Gary v. Camden Fire Ins. Co., 96-0055 (La.7/2/96); 676 So.2d 553 , which was handed down subsequent to the time that Rapp was argued, stands for the proposition that the voluntary payment of compensation benefits does not interrupt prescription. In anticipation of the City's raising this same argument in this case, we note that Gary dealt only with the question of whether voluntary compensation payments by the employer are sufficient *1035 to interrupt prescription as to the claim of the injured employee against a third party tort feasor. The Gary court found not. However, the Gary court was not dealing with the question of whether voluntary payments by the employer interrupt prescription as to the employee's compensation claim against the employer. The effect of the City's argument would be to require an injured employee to file suit against his employer for compensation payments he is already receiving voluntarily or risk having the employer cease paying them as soon as the prescriptive period has run. The Gary court clearly could not have intended such an absurd result. There would be no reason for the Workers' Compensation legislation to encourage voluntary claims payment by the employer if, in effect, it mandated the filing of suit by the employee in order for the employee to be protected from the loss of benefits through prescription.

PRESCRIPTION OF MEDICAL BENEFITS

The City filed an exception of prescription for the first time in this Court for the claims for reinstatement of medical benefits for Palisi, Hennegan, Jevic, Sanders, Montalbano, Raschke, Blondeau, Dudenhefer, Dufrechou, Serpas, Alline, Casrill, Eiermann, Francis, Hughes, LaSalle, Meyer, Smith, Rodrigue, West, Marque, Stewart, and Williams.

An exception of prescription may be considered for the first time in the appellate court pursuant to LSA-C.C.P. art. 2163:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.

If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

The applicable prescriptive period in connection with this aspect of the plaintiffs' claims is three years from the time of making the last payment of medical benefits under LSA-R.S. 23:1209C. Cf. Rapp, supra. [3]

As the instant case involves trials on the merits with a complete transcript we have decided this issue after reviewing the record in connection with each plaintiff individually.

We note as a matter of general application throughout this opinion, that the burden of proof rests on the party pleading prescription. Rivard v. Petroleum Transport Co., 95-0431 p. 6 (La.App. 4 Cir. 9/28/95); 663 So.2d 755, 759 .

PRESUMPTION OF WORK-RELATED CAUSATION: HEART AND LUNG DISEASE

LSA-R.S. 33:2581 states in pertinent part:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment... regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during the employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment. [Emphasis added.]

In the trial court the City argued strenuously that the hearing officer did not have the authority to extend the presumption of work-related causation created by this statute to those plaintiffs herein claiming worker's compensation benefits based on heart or lung ailments. The City appears to have abandoned that line of argument on appeal. In the event that the City has not abandoned this argument, then we find that there is no merit to the City's argument. Rapp, supra.

MEDICAL RECORDS

Plaintiffs argue in brief concerning the admissibility of certain medical records. The *1036 hearing officer ruled in favor of plaintiffs and admitted those records over the City's objection. The City has not re-urged its objection on appeal. Therefore, this Court will treat the records as properly admitted.

THE MEANING OF COUSINS

The City claims the right to offset the disability benefits plaintiffs receive against their compensation benefits. LSA-R.S. 23:1225C(1)(c).

In Cousins v. City of New Orleans, supra , the Louisiana Supreme Court held that the indemnity benefit set-off to which an employer is entitled under LSA-R.S. 23:1225C(1)(c) is not available when the employee, despite having received the very disability benefits described in that statute, is vested in and could alternatively receive equal payment amounts through a tenure-based retirement benefit plan.

Additionally the City contends that regardless of Cousins the City is still entitled to the right of offset for all claimants who were not eligible for regular retirement at the time of their injuries (those who had less than 20 years of service and those hired on or after January 1, 1968 [4] who were not 50 years old with 20 years of service.). The City contends that the following claimants are not entitled to the benefits of Cousins because they did not qualify for regular retirement benefits equal to their disability pensions:

Jack Alexander, Albert Baldwin, Robert Bouterie, Charles Casrill, Donald Conrad, Reno Daret, Lester Dufrechou, Branch Erhardt, Sam Fradella, James Hennigan, Joseph Jevic, Don Lindsey, Warren Martin, Patrick McGittigan Jerry Meyer, Paul Raschke, E.W. Sanders, Louis Serpas, Terry Smith, Burnell Stewart, Charles Wagner, Joseph Williams.

DUPRE MAKES THE EFFECT OF COUSINS RETROACTIVE

The plaintiffs's claims arose before Cousins was decided. The City entreats this Court not to give retroactive effect to Cousins . But this Court has ruled that Cousins is retroactive in its effect. Dupre v. City of New Orleans Through New Orleans Fire Dept., 94-1185 (La.App. 4 Cir. 12/28/94) ; 648 So.2d 503, 508 . We are not persuaded that Dupre should be overruled as to the retroactivity.

The hearing officer ruled that the City's failure to implement the Cousins decision on a retroactive basis was arbitrary and capricious, *1037 warranting an award of attorney's fees and penalties. LSA-R.S. 23:1201.2. At the time the hearing officer rendered the decision and reasons for judgment that are the subject of this appeal, this Court had not yet rendered its decision in Dupre declaring that Cousins should be applied retroactively. Dupre held that the failure of the City to recognize the retroactive nature of Cousins was neither arbitrary nor capricious:

Because a legitimate question existed as to the retroactivity of the Cousins decision, the City was not arbitrary or capricious in waiting for this issue to be resolved before reinstating full worker's compensation payments without offset to these plaintiffs.

Dupre, p. 7, 648 So.2d at 508 .

As the City had no definitive notice of the Dupre holding prior to the hearing officer's actions in this case, the City is no more arbitrary nor capricious in this case than it was in Dupre. Rapp, supra.

THE CITY OF NEW ORLEANS BORE ITS BURDEN OF PROOF REGARDING THE AMOUNT OF OFFSET TO WHICH IT WAS ENTITLED

Pursuant to LSA-R.S. 23:1225C(1)(c) the City is entitled to a credit for disability retirement benefits in the proportion funded by the employer, but this does not include retirement benefits based on tenure. Matthews v. City of Alexandria, 619 So.2d 57, 60 (La.1993).

In Matthews v. City of Alexandria, 619 So.2d at 60 -61 the Supreme Court dealt with the firemen's pension plan for the city of Alexandria, which was a "pay-as-you-go" plan similar to the old plan in the instant case. The Supreme Court reasoned in Matthews :

The main issue, then, is whether the City proved the proportion in which it contributed to the plan and thereby the amount of the credit to which it was entitled. The court of appeal based its decision on a 10-year average of contributions by the employees and the City ending in 1987, when the plaintiffs retired. The plaintiffs contend that the City failed to carry its burden of proof because the records relied on by the City did not extend to the full period of the plaintiffs' employment and did not disclose the amounts the fund paid out in regular retirement and death benefits, as well as disability retirement.

Clearly, the disability benefits are principally funded by the employer/City. In the ten years prior to plaintiffs' disability, the City paid $4,887,759 in to the pension and relief fund as compared to $1,671,435 paid in by employees. Thus, the City's proportionate part of the funding over this period of time was 74.52%. The percentage of payments into the fund varied from year to year, and there are no records available prior to fiscal year 1978, including the first four years Nugent worked for the City. The records do cover virtually the entire length of Matthews' employment. There is no reason to believe the proportionate contributions during the four years prior to 1978 varied in any substantial degree from the proportionate contributions during the next ten years.

The City has borne its burden of proof that a substantial portion of the disability benefits was funded by it. Taking an average of the proportionate contributions for the prior ten years is a fair and reasonable method of calculating the City's proportion. Plaintiffs' [sic] do not suggest any other method and their argument that no credit should be given because the City's proportion cannot be established with mathematical precision ignores the reality of the situation. An average of the past ten years, taking into account the type of pension plan involved and the availability of the records, fairly reflects the City's proportion of funding of the disability benefits due these plaintiffs.

Finally, plaintiffs urge that since the fund pays out other types of benefits, such as widows and regular retirement benefits, the percentages relied on by the court of appeal are in error. However, even if the City had provided a breakdown of the amounts paid for each type of benefit, the percentages of contributions to the fund would remain the same. [Emphasis added.]

*1038 Mr. Nicolay, secretary/treasurer and a member of the Board of Trustees of the Fire Fighter's pension system, produced figures showing how much the City and the firemen contributed to each plan in the aggregate each year from 1965 through 1992 for the old plan, and from 1968 through 1992 for the "new" plan. [5] As all employees who retired under the old plan are exempt under Cousins from the offset provided by LSA-R.S. 23:1225C(1)(c) we need only concern ourselves with the "new" plan plaintiffs in our analysis of the City's right of offset.

For the years 1968 through 1991 the "new" plan employee contributions aggregated $13,795,367.02 and the City's contributions aggregated $32,232,158.92. In 1992 the City contributed $2,169,453.00 and the employees contributed $930,213.00.

Mr. Nicolay testified that interest earnings in the "new" plan through 1991 aggregated through 1991 amounted to $53,676,182.00. His testimony did not include interest figures for the year 1992. However, following the philosophy of Matthews we feel that the lack of complete figures for the year 1992 is not sufficient basis for denying the City's right of offset in view of the substantial contributions it incontestably made.

The City would have this Court calculate its LSA-R.S. 23:1225C(1)(c) right of offset using only the proportion of City contributions versus those of the employees for the years 1968 through 1992 without factoring in the interest. In City of Natchitoches v. Williams, 94-1411, p. 5 (La.App. 3 Cir. 5/24/95); 657 So.2d 320 , 323 the credit due the employer was figured on the ratio of the employer contributions to those of the employee. But in City of Natchitoches the question of interest was apparently not raised by either party and the opinion is silent on that issue. In Matthews, supra, there apparently was no interest as it was a "pay as you go" plan, i.e., there was no accumulated corpus upon which interest could be earned. The Matthews court is likewise silent on the issue.

LSA-R.S. 23:1225C(1)(c) gives the employer a credit "in the proportion [the benefits are] funded by the employer." [Emphasis added.] We find that the use of the term "funded" instead of "contributed" was intentional and not accidental. "Funded" is not a synonym for "contributed", although contributions may be as in Matthews coincidentally coextensive with funding where they constitute the sole source of plan assets used to pay benefits. In the instant case contributions are not the sole source of benefit funds. Interest on those contributions according to the testimony of the City's own expert is a significant source, indeed the most substantial source, of benefit funds in the "new" plan. We hold that the term "funded" in LSA-R.S. 23:1225C(1)(c) includes interest. For the years 1968 through 1991 the funding for the "new" plan consisted of $53,676,182.00 in interest, $13,795,367.02 in employee contributions, and $32,232,158.92 in City contributions. It is reasonable to assume that the interest is earned in the same proportion as the contributions made by the City and the firemen, respectively. Therefore, the interest will not change the proportion, it just increases the amount of dollars to which the proportion is applied. In this case the firemen contributed 29.97% and the City contributed 70.03%. [6] The City is entitled to have its right of offset calculated on this basis.

This Court considered but rejected a formula that would have treated the interest as a separate source of funding, i.e., plan funding including the $53,676,182.00 in interest totalled $99,703.707.94 of which the City's contribution of $32,232,158.92 amounted to only 32.33%. Such a formula would, in effect, treat all interest as having been earned by the employee contributions which would be especially inequitable under the particular facts of this case where the City's contributions were more than twice those of the *1039 firemen. This analysis only reinforces our conclusion that when the legislature used the phrase "funded by the employer" the term "funded" is broader than "contributed" and logically includes the interest earned on the city's contributions.

The hearing officer found that the City had not borne its burden of proving its proportion:

[The City] would be allowed an offset based on what it contributed to each of the claimants' retirement disability plans for the period during which each claimant is not fully vested. But [City]'s witness on this issue, Bernard Nicolay, could not compute the amount of contribution made by [City]. He stated that an actuary would be needed, and no actuary has been procured to provide the contribution numbers. In other words [City] has not met its burden. [Emphasis added]

As the City's aggregate contribution is clear from the record, we assume that when the hearing officer stated in his reasons that Bernard Nicolay could not compute the amount of contribution made by the City the hearing officer must have meant that Nicolay was not capable of determining how much of the City's aggregate contribution was contributed for the account of any specific plaintiff in this case. It was not necessary that the City do so. The pension plan is clearly not a defined contribution plan where a separate account is kept and invested for each fireman who then receives as his retirement whatever has accumulated in his account at the time he retires which can vary according to how much was contributed for his account and how well his account was invested. Instead, both the "old" and the "new" plans are defined benefit plans in which the firemen are promised a pension calculated as a fixed percentage of their pre-retirement compensation based on their years of service regardless of how poorly plan assets are invested. If plan contributions and the earnings thereon are not sufficient to pay the employee his promised retirement the City, must fund the shortfall. The payments to each employee are made from the aggregate of plan assets and are not deducted from any separate account set aside for any particular fireman.

In the "defined benefit" plan, the employer promises to pay the employee, upon the occurrence of certain conditions, stated benefits based upon the length of the employee's service. The contributions of the employer and employee to the fund which secures this promise are based upon actuarial computations, but they are not otherwise related to the particular benefits payable or to the length of any particular employee's service. [Emphasis added.]

Sims v. Sims, 358 So.2d 919 , 923 at fn. 5 (La.1978).

Note that the emphasis in the defined benefit plan is on the fact that neither the contributions of the employer nor those of any particular employee are related to the benefits payable to any particular employee. To say that a particular employee was factored into the actuarial computation of the sum contributed to the pension fund is not the same as saying that any particular amount of money was contributed for the "account" of any particular employee. The employee's pension benefit in a defined benefit plan is not the aggregate of contributions made on behalf of an employee plus any earnings, interest, or appreciation thereon accounted for separately for each employee. Such a plan would be a defined contribution plan:

In the "defined contribution" plan, the employer promises to pay the employee, upon the occurrence of certain conditions, stated benefits from a sum compromised of contributions to a trust for the employee's account. The ultimate value of the "pension" or payment to the employee, therefore, is directly related to the total of the sums contributed by the employer and sometimes, by the employee as well. [Emphasis added.]

Id.

As Chief Justice Sanders explained concerning the nature of a defined benefit pension plan in his concurring opinion in T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834, 857 (La.1975):

In the retirement plan, separate employee accounts are not maintained. The employer's contributions are to the total pension *1040 fund, determined by actuarial calculations. No portion of the contribution is allocated to a specific employee. [Emphasis added.]

Mr. Nicolay testified that the City determined how much each of the plaintiffs had contributed to the pension plan and once that amount had been paid out in disability benefits the City then stepped in and offset in full without any proportionality, apparently on the theory that the employee had received full credit for his contribution.

It is true that under this method the employee would be given the full benefit of his contribution, with the added advantage of receiving it on the front end. [7] However, that is not what LSA-R.S. 1225C(1)(c) and Matthews mean by "the proportion funded by the employer." As counsel for plaintiffs so ably pointed out on cross-examination, rather than using "the proportion funded by the employer" in calculating the offset, the City has instead used "the contribution that the firemen didn't make." This makes a big difference in the result because much more money was going into the two plans than just the contributions made by the firemen and the City. Millions of dollars in interest were earned on the combined contributions to the "new" plan over the years. Additionally, Mr. Nicolay testified that from 1965 to 1990, $11,014,122.00 was contributed into the "old plan" from a tax on fire insurance. In effect, the approach taken by the City treats all plan income and contributions from outside sources as though contributed by the City. The statute and the Supreme Court both call for the offset to be calculated based on the proportion contributed by the employer.

The reliance by the hearing officer on Vallery v. State Through Dept. of Health & Hospitals, 605 So.2d 1380 (La.App. 3 Cir. 1992), writ denied, 609 So.2d 225 (La.1992), was misplaced. Vallery was a school employee who took disability retirement through the Louisiana State Retirement System. Vallery received a benefit that was "equivalent to the regular retirement formula without reduction by reason of age." Vallery, 605 So.2d at 1382 . The Vallery court held that the benefits, therefore, had both a retirement component and a disability component, making it incumbent on the employer to prove the disability component and the proportion the employer funded. [8] In the instant case, where the employees were not fully vested in the new fund, their disability benefits were not "equivalent to the regular retirement benefit" as in Vallery . It is this equivalency that the Supreme Court directs us to seek:

[W]e construe 1225 C as inapplicable to a disabled employee who is eligible for retirement with the same amount of benefits under both the disability benefit plan and the tenure-based retirement plan, especially when the latter controls the amount of benefits payable.

Cousins, 608 So.2d at 981 .

The most important factors to be considered when comparing a disability plan with a retirement plan in order to determine whether the employee's disability pension should be treated as a retirement pension for purposes of the offset are: dollar or economic equivalency of benefits; identity of years of service formulae in computing benefits; identity of source of pension benefit funding, i.e, do the disability and pension benefits come out of the same pool or are they drawn from segregated accounts; and the identity of pension benefits contributions, i.e., whether the contributions to the pension fund made by the employer and the employee are earmarked to distinguish between retirement and disability benefits. See also Rapp , p. 53-58 (La.App. 4 Cir.1996); 681 So.2d at 457-60 .

Ultimately the money paid out to the employee, not the money paid in by the employee is to be categorized. City of Natchitoches v. Williams, supra, 657 So.2d at 323 . In City of Natchitoches , the Third Circuit found that the burden of proof is the same regardless of whether the plan is actuarially sound and expressly rejected the conflicting *1041 viewpoint that same court had previously expressed in Vallery, Nugent v. Dept. of Health & Human Res., 617 So.2d 1347 (La.App. 3 Cir.1993), writ denied, 624 So.2d 1226 (La.1993), and Spinks v. Dept. of Health & Human Resources, 605 So.2d 1384 (La. App. 3 Cir.1992). In addition to our natural instinctive reluctance to use as precedent a decision that has since been repudiated by the very court that originally rendered it, our own independent analysis of the reasoning in Vallery and similar cases leads us to reach the same conclusion as was reached by the Third Circuit as expressed in City of Natchitoches . Thus it was error for the trial court to determine based upon the authority of Vallery that the City was required to have an actuary explain the nature of its contributions. Once the City showed that the benefits paid out were disability benefits and not tenure based retirement benefits, the City must show only the proportion of its contribution to the fund. A breakdown as to each individual is not required and is not appropriate in a defined benefit plan. The City's witness, Mr. Nicolay, was qualified, competent, and knowledgeable. His testimony and evidence were sufficient to carry the City's burden of proof. The services of an actuary may be necessary to help the City decide how much it needs to contribute to the firemen's defined benefit plan, but once that amount has been determined by the actuary and the contribution made, actuarial testimony as to the amount contributed after the fact is not required. A witness need only be competent to testify as to the amount contributed by the City to the fund and to supply evidence from which the City's proportion of funding may be determined. Mr. Nicolay was qualified to give such testimony and did so.

Plaintiffs rely on Dupre v. City of New Orleans, supra at p. 9, 648 So.2d at 509 , wherein this Court held that the burden was on the City to provide a breakdown of its funding for each individual employee, and composite figures representing total funding are insufficient:

However, this exhibit merely shows the total sum contributed by all employees to the fund and the total sum contributed by the City for all members of the fund. No showing was made at trial or in the record as to the City's contribution to each individual fireman's pension plan.

The employer has the burden of proving the amount of credit to which it is entitled under R.S. 23:1225 C(1). [Emphasis added.] Matthews v. City of Alexandria, 619 So.2d 57 (La.1993). The City did not satisfy its burden of proof at the hearing on remand.... The clear wording of that statute [LSA-R.S. 23:1223C(1)(c)] and the jurisprudence establish that the City's burden of proof includes proving the proportion of the disability plan funded by the City for each of these plaintiffs.

Dupre 's application of Matthews is incorrect. It is true that the Supreme Court in Matthews placed the burden on the employer to prove the proportionate funding, but Matthews specifically permitted the employer to bear its burden by the use of composite figures in no way broken out as to individual employees, i.e., in Matthews the court specifically upheld proof that showed only the City's overall funding.

Secondly, contrary to Dupre, the "clear wording of the statute" does not say that the employer must provide a breakdown on an employee by employee basis. LSA-R.S. 23:1225C(1)(c) provides for an offset for "[b]enefits under disability benefit plans in the proportion funded by the employer." The statute does not specify how the "proportion funded by the employer" is to be calculated.

Where an actuarially determined defined benefit plan is involved, only overall funding proportions have any meaning. Such plans are funded on an overall basis, i.e., the pool as a whole is funded, not individual accounts for each employee as would be the case in a defined contribution plan. Earnings on employer contributions are not individually allocated in a defined benefit plan. Benefits are paid out of a pool based on a formula unrelated to how much may have been contributed by or on behalf of any individual employee. Employer contributions are intended to meet plan obligations as a whole, not to fund any individual employee's particular benefits. *1042 The fact that the actuary may factor in each employee in making projections of plan funding needs is not the same as saying that a certain amount was contributed for each employee. An actuary tries to project the needs of the group as a whole, which is not the same as the sum of each individual risk. The projections are modified every time a new contribution amount is determined in order to take into account the amount by which actual plan experience varied from the previous projection. Some firemen may retire early, some late, some will be disabled, some will quit, some will be terminated and some new ones will be hired, and some years the plan investments will perform either better or worse than projected. All of these deviations affect pool funding. As even the most skilled actuary does not have a crystal ball such deviations from projections are absolutely certain to occur. But it does not matter how much the experience of any individual fireman deviates from projections. It is only the performance of the pool that counts. The benefits of each individual are funded by the pool, not by funds accumulated, set aside, segregated, or accounted for separately for that individual.

A contrary interpretation would be detrimental to the potentially disabled because plan funding is an ongoing process. If the formula suggested by Dupre is carried to its logical conclusion it would ultimately result in a much higher allocation of plan funding to the disabled (who are not exempt under Cousins ) as increasingly greater proportions of employer funding would have to be allocated to cover the disability payout at a time when employer contributions are reduced to zero. In other words, were we to follow through on the reasoning in Dupre the result is ever increasing offsets against the disabled. In essence, Dupre leads to a costly result for the category of disabled persons. We find that the application of the Matthews formula which would require the City to show only its overall funding proportion at the time the pension benefits commence to be the most equitable. Trying to determine individual allocations when dealing with an actuarially determined pooled fund will mean incessant litigation every time another contribution to the fund is made based on each year's new set of actuarially determined calculations which must inevitably result in an ever decreasing proportion of funding allocable to the disabled employee no longer making contributions. We read Matthews as prescribing calculations based on overall pool funding proportions instead of separate individual calculations, and that proportion is fixed when the fireman begins receiving pension benefits. We adopt this method for defined benefit plans and reject the approach previously adopted by this Court in Dupre. Therefore, pursuant to the requirements for overruling previous opinions of this circuit, this opinion has been submitted to all twelve judges of this court and they have voted unanimously to overrule Dupre v. City of New Orleans, 94-1185, p. 9 (La.App. 4 Cir. 12/28/94), 648 So.2d 503 , to the extent that it is inconsistent with this opinion.

IT WAS ERROR FOR THE HEARING OFFICER TO CONCLUDE THAT THE RIGHT OF OFFSET IS NOT EFFECTIVE UNTIL THE DATE OF JUDICIAL DEMAND

Citing Cross v. Travelers Ins. Co., 619 So.2d 610 (La.App. 2 Cir.1993) the hearing officer in its reasons for judgment stated, "[The] law ostensibly only allows offset prospectively from the date of judicial demand." In this case that would mean that the City was entitled to an offset only from August 23, 1993, the first date on which the City plead the right of offset.

The hearing officer is half right. Very soon after having decided Cross , the Second Circuit explained that where the employer voluntarily pays benefits without the necessity of resort to the courts, the Cross rule does not apply, and the employer may unilaterally claim the offset without first seeking court authority. Louisiana Ins. Guar. Ass'n v. Cloud, 627 So.2d 758, 760 (La.App. 2 Cir. 1993). See also: Bellard v. South Louisiana Contractors, Inc., 563 So.2d 1319 (La.App. 3 Cir.1990); Duke v. Rapides Sr. Citizens Center, 94-621 (La.App.3.Cir. 12/7/94); 647 So.2d 648 ; Hebert v. CIGNA, 93-1400 (La.App. 3 Cir. 5/25/94) ; 637 So.2d 1221 .

However, we agree with the hearing officer that the offset may be taken only prospectively. *1043 An employer who has been voluntarily paying full benefits for some period of time may not retroactively assert that right of offset at the point in time when he finally decides to execute that right. In this case it appears that the City used an approach that effectively not only circumvented the requirement that the offset be prospective only, but also violated the rule that to the extent that benefits under disability benefit plans are used in calculating the offset, only "the proportion" of those disability benefits funded by the employer be used in the calculation. LSA-R.S. 23:1225C(1)(c); Matthews v. City of Alexandria, supra, 619 So.2d at 60.

SUPPLEMENTAL EARNINGS BENEFITS ANALYSIS

As amended and effective in July, 1983, LSA-R.S. 23:1221(3) provided for SEB as follows:

(3) Supplemental earnings benefits.

(a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at the time of injury, supplemental earnings benefits equal to seventy-four percent of the difference between ninety percent of the average monthly wages at the time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10). [Emphasis added.]

The law of SEB in this form would apply to the claims of Joseph Jevic, Don Lindsey, Patrick McGittigan, and Joseph Williams, all of whom had claims arising during the period between July, 1983 and January 1, 1986, the effective date of the following amendment:

(3) Supplemental earnings benefits.

(a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at the time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment....

This amendment applies to the claims of the balance of the plaintiffs.

Applicable to all plaintiffs as being in effect continuously throughout the relevant time are the following two subparagraphs of LSA-R.S. 23:1221(3):

(d) The right to supplemental earnings benefits pursuant to this paragraph shall in no event exceed a maximum of 520 weeks, but shall terminate: (iii) when the employee retires [emphasis added] or begins to receive old age insurance benefits under Title 2 of the Social Security Act, whichever comes first; however, the period during which supplemental earnings benefits may be payable shall not be less than 104 weeks.

(f) Any compensable supplemental earnings benefits loss shall be reported by the employee to the insurer or self-insured employer within thirty days after the termination of the week for which such loss is claimed....

In determining eligibility for Supplemental Earnings Benefits, the burden initially is on the plaintiffs to show that they are unable to earn wages equal to ninety percent or more of the wages they earned before they sustained job related injuries. Rapp, supra at p. 6 , 681 So.2d at 438 . It was error for the hearing officer to place this initial burden on the City in reliance upon Hebert v. Grey Wolf Drilling Co., Inc., 611 So.2d 674, 677 (La.App. 3 Cir.1992). Rapp, supra at p. 5 , 681 So.2d at 438 . Once the employee's burden is met, the burden of proof then shifts to the employer who must show that the claimant is physically able to perform a certain job and that that job was offered to the employee or that job was *1044 available to the employee in the employer's community or reasonable geographic region. Id., quoting from Herty v. City of New Orleans, 94-1960 p. 5 (La.App. 4 Cir. 4/13/95); 654 So.2d 785, 788 .

The City cites Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir.5/31/95); 657 So.2d 449 , in support of its contention that the plaintiffs failed to make the initial prima facie showing of entitlement to SEB. This is a fact based question, and the facts in Comeaux reveal that it has little relevance to these consolidated cases:

In the instant case, the hearing officer concluded that claimant was not entitled to supplemental earnings benefits because he had presented no evidence that his work-related injury left him unable to earn ninety percent of his pre-injury wages. In support of this conclusion, the hearing officer noted that claimant admitted that he had earned approximately $4,000 as an investigator for a law firm after his work injury in December of 1991, that employer had made a light-duty position available to claimant which claimant left after a single day on the job, and that claimant had made no attempt to apply for other jobs. [Emphasis added.]

* * * *

This court has previously held that an employee is not entitled to supplemental earnings benefits when an employee has been released by his treating physician to engage in light duty work and has refused his employer's offer of a light-duty position.

Comeaux, p. 9, 10; 657 So.2d at 455.

In the instant case the City introduced no evidence that it had offered any light duty alternatives to any of the plaintiffs.

The City contends that the plaintiffs failed to prove what their average monthly wages were as defined by LSA-R.S. 23:1021(10), citing Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). The hearing officer stated in his reasons for judgment that: "This issue is not important to the great majority of claimants since their wages under any calculation are high enough so that they are entitled to full SEB compensation, even if their earning capacity was deemed to be minimum wage rather than zero." We find no fault with this reasoning. It is not necessary for the employee to establish the precise amount of his compensation where a showing is made that his compensation must have been at least equal to or greater than the amount minimally necessary to qualify that employee for the amount claimed. Although the plaintiffs in the instant case may not have proved to the penny exactly how much their wages were, they did show that at a minimum they were entitled to the maximum benefits based on their wages. This is sufficient. It is not necessary that they prove the exact amount by which they exceeded the minimum necessary to qualify for the maximum benefit as long as they show that they did, indeed, exceed that minimum. [9] The City offered nothing to contradict the testimony of the plaintiffs concerning their wages. There is nothing in the record that tends to cast doubt upon the testimony of the plaintiffs in this regard.

TEMPORARY TOTAL DISABILITY (TTD) BENEFITS

Effective July 1, 1983, LSA-R.S. 23:1221(1) provided for TTD Benefits as follows:

(1) Temporary total. For injury producing temporary total disability of an employee to engage in any self-employment or gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

*1045 Effective January 1, 1989 this provision was amended by adding a second paragraph:

(b) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required.

This paragraph "(b)" applies only to plaintiffs Duncan, Gondrella, Perkins, Schwarkhart, Varnado, Squires, and Wagner. The claims for temporary total disability benefits for all other plaintiffs fall under the law as it existed between 1983 and the end of 1988.

This part of the workers' compensation law was again amended effective January 1, 1990, but that amendment lies outside the time frame relevant to these plaintiffs. [10]

In his reasons for judgment the hearing officer found:

For those who are not employed, defendant has provided no rehabilitation as required under La. R.S. 23:1226. Those claimants are entitled to full supplemental earnings benefits (SEB).

Assuming only for purposes of argument that the City had an obligation to provide rehabilitation to some or all of the claimants, the failure of the City to provide such rehabilitation is not a basis for awarding SEB to those claimants.

ATTORNEY'S FEES AND PENALTIES

The trial court awarded the plaintiffs as a group $204,000 in attorney fees plus 12% penalty for all back compensation benefits due based on findings that the City had acted in an arbitrary and capricious manner and did not evaluate any of the claims in good faith. The City says that this was error, but offers in support of that contention nothing other than the fact that the burden of proof is on the plaintiffs. In his reasons for judgment the hearing officer found that:

Defendant has never formally admitted liability to the claimants under worker's compensation. Therefore, it has the apparent right to dispute each claim, but this still must be done in a reasonable, good faith manner.

The record makes it clear that the City made no serious attempt to investigate any of these claims even though it had knowledge of sufficient facts to put it on notice of the necessity to do so, apparently choosing instead to rely entirely upon its overly optimistic expectation that plaintiffs would be unable to bear their burdens of proof.

An employer cannot choose to remain in deliberate ignorance of facts that would justify a claim by failing to investigate the claim and then rely on that ignorance as justification for a good faith refusal to pay claims.

Sterling v. Orleans Parish School Board, 96-0107 p. 11 (La.App. 4 Cir. 6/26/96); 679 So.2d 167, 174 .

Additionally, during the course of the consolidated proceedings after all but nine plaintiffs had testified 46 [11] of the plaintiffs were sent the following letter:

We have been instructed by Milton Osborne, City Attorney, to stop all disability and medical benefits. If you have any questions call your attorney.

Without further explanation benefits were terminated for the following 46 plaintiffs: Barattini, Blondeau, Alexander, Alline, Arnold, Baldwin, Buisson, Casrill, Conrad, Daret, Dillenkofer, Dudenhefer, Dufrechou, Duncan, Ehrardt, Eiermann, Fradella, Francis, *1046 Gallagher, Gondrella, Hennegan, Lawrence, Hughes, Jevic, Ladner, Lassalle, Leblanc, Lindsay Marcade, Marque, Martin, Gittigan, Meyer, Montalbano, Palisi, Perkins, Raschke, Renard, Rodrigue, Sanders, Serpas, Smith, Stewart, Varnado, West, and Williams. [12]

The plaintiffs were given no explanation for the terminations of benefits. When asked to explain the termination of medical benefits the attorney for the City informed the hearing officer that it was done to prevent the blanket paying of medical bills many of which the City felt might turn out to be unwarranted. This explanation is inadequate. This blanket termination of benefits can best be characterized as arbitrary and capricious consistent with the findings of the hearing officer.

Our review of the record indicates that the conduct of the hearings below was extraordinarily onerous from the perspective of the plaintiffs' attorney. Clearly, the hearing officer took this into account when he calculated the award of attorney fees. To the extent that the attorney fees awarded below might arguably exceed what would normally be warranted, we note from the record that the reason that the conduct of the trial was so onerous was that the City made the trial unnecessarily protracted.

The same cannot be said for the conduct of the City on this appeal. The City raised a number of relevant issues on appeal and prevailed on several of them. We, therefore, do not feel that additional attorney fees are warranted in connection with this appeal.

STATEMENT OF FACTS AND ANALYSIS RELEVANT TO EACH PLAINTIFF

1. JACK ALEXANDER

Jack Alexander testified that he was an apparatus operator with the fire department for twenty-one years, a job that he said entailed "quite a bit" of lifting. He was hired on January 29, 1968 and became eligible for retirement under the "new system" on August 3, 1991 when he reached age fifty. He is a high-school graduate, but has no college training. He was in the U.S. Army Reserve until 1969.

Alexander twisted his knee on July 1, 1988 while fighting a fire. He was in good health prior to the accident and had never before sustained an on the job injury. He never went back to work as a fireman.

Alexander sought medical treatment from Dr. Ruel, an orthopedic surgeon. He declined Dr. Ruel's recommendation of knee surgery, fearing that he might experience the same unsatisfactory result as had his wife.

He testified that he had been advised not to return to firefighting because his knee could give way on a ladder, endangering his life and that of others.

Alexander stated that he had been a mechanic prior to becoming a fireman, but his knee would prevent him from returning to that type of work.

The City makes much of the fact that Dr. Ruel's report dated March 19, 1991 shows no instability in Alexander's knee. This is not significant. Dr. Ruel had noted that there was no instability from the outset when he first examined Alexander in 1988 and he found him unable to work. What is significant about Dr. Ruel's report of March 19, 1991 is his stated opinion that Alexander's "condition is unchanged in regard to his left knee," which means that he was still unable to work. The City also argues that Dr. Ruel's report dated February 14, 1991 indicated that Alexander could bowl. What that report actually said was that Alexander "complained of discomfort in the knee aggravated with activities such as bowling." Dr. Ruel concluded that Alexander should remain out of work and that his "condition may even worsen if he develops degeneration of the medial compartment of his joint." Dr. Ruel opined that:

"I do think that he can work at a job that would allow for him to sit and stand at will and avoid carrying objects. Activities such as squatting, climbing and rotatory movements of the leg should also be avoided. I *1047 am sure there are jobs available that could fit his need." [Emphasis added.]

Dr. Ruel's report dated July 19, 1988 stated that Alexander was unable to work until reexamined. Dr. Ruel's report of October 14, 1988 stated that he was not fit for duty. In Dr. Ruel's opinion Alexander had a torn medial meniscus. Because Alexander would not agree to an operation Dr. Ruel reported that he could not allow Alexander to return to firefighting. Dr. Ruel recommended that he take medical retirement. On September 18, 1989 Dr. Ruel reported that:

This patient remains disabled because of a torn medial meniscus in the left knee. He will in all likelihood undergo degeneration of the medial compartment with time.

Based on the foregoing, and the City's failure to introduce any countervailing evidence, we cannot say that the finding of the hearing officer that Alexander was temporarily totally disabled from the time he was injured in July of 1988 until he went on disability pension in January of 1989 was manifestly erroneous.

He started receiving a disability pension in January of 1989, prior to the time he would have been eligible for retirement. He received compensation until June of 1990 at which time his benefits were reduced because the City offset his pension benefits against his compensation benefits. He was receiving 52½% of his salary, i.e., 2½% for each year of employment, and was fully vested in his retirement. Alexander testified that retirement benefits are calculated according to the same formula. His testimony is consistent with the formula set forth in LSA-R.S. 11:3384.

Alexander received the same amount of disability pension he would have received when he retired, but he started receiving it much sooner. Therefore, he not only received approximately twenty months of payments (eighteen months prior to the time the offset went into effect) because of disability in addition to the payments for which he qualified in the form of regular retirement at the time he left the Fire Department. By the mere fact of receiving the money sooner it was a greater benefit.

Alexander's benefits must be distinguished from those of Willie L. Johnson in the companion case of Rapp v. City of New Orleans, supra at pp. 56-57, 681 So.2d at 460 . In Rapp the hearing officer found that Johnson's benefits had been adjusted so that they were the actuarial equivalent of what he would have received had he waited until his normal retirement date. No such finding was made in this case and Alexander's own testimony asserts that he received the full 52 1/2% benefit. There is no evidence of any actuarial adjustment having been made. Therefore, his benefit will not be considered a retirement benefit exempt from offset under Cousins . We find that the City has a right of offset against Alexander, but that it has not exercised that right properly. He has continued to receive the reduced benefit of thirty-five dollars and sixty-seven cents instead of the five hundred and twenty-four dollars every two weeks he had originally received prior to the pension offset. Therefore, we find it appropriate to remand this case to the trial court for a calculation of the City's right of offset in accordance with this opinion.

Alexander contends that he earned $33,000.00 the year before he was injured, but he gave no testimony concerning compensation. However, he did testify that he was receiving a pension of $1401/month based on 52½% of his salary. This would indicate compensation of $32,023.00. His documentary evidence consisted only of medical reports, a report of first injury and a New Orleans Rosenbush Claims Services, Inc. Worker's Compensation benefits calculation form dated April 19, 1989. The benefits calculation form shows compensation of $538.75 per week at the time of injury which is $28,015.00 on an annualized basis. 90% of $28,015.00 is $25,213.50. The question then boils down to: Did Alexander make out a prima facie case of entitlement to SEB because of his inability as a result of his on the job injury to earn 90% of his pre-injury compensation?

We find that Alexander's proof that he has only a high-school education and the restrictions on sitting, standing, carrying, squatting, climbing and rotatory movements of the leg *1048 indicated by Dr. Ruel are sufficient to establish a prima facie case that Alexander is unable to earn 90% of $28,015.00 or $25,213.50.

Based on the foregoing, and the failure of the City to introduce any countervailing evidence, we cannot say that the hearing officer's award of maximum temporary total [13] and supplemental earnings benefits in the amount of $263.00 per week was manifestly erroneous.

There is no statement from a doctor that Alexander cannot work in any capacity. There is no reason to believe he cannot do sedentary or light work.

The hearing officer stated at the conclusion of Alexander's testimony:

Now, concerning the lighter duty work, there's a clear standard that once an employee shows he's incapable of earning ninety percent of his pre-injury wage, or has a physical disability that prevents him from going back to his old job and earning ninety percent of his wage, then the burden shifts to the employer to provide rehabilitation, which is usually guided by Louisiana revised statute 23:1226.

The hearing officer noted that the City offered no evidence of any attempt to provide rehabilitation to Alexander. The City's right of offset is not contingent upon an offer of rehabilitation. Plaintiffs do not contend otherwise on appeal.

The hearing officer also noted that the City had introduced no evidence of offset other than Alexander's testimony that his benefits had been reduced. On this appeal it is uncontested that the City did offset the benefits of Alexander and the other plaintiffs.

The city contends that Alexander is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. When LSA-R.S. 23:1221(3)(d)(iii) speaks of retiring it is not referring to the failure to work because of disability. Allen v. City of Shreveport, 93-2928 (La.5/23/94); 637 So.2d 123 . It is referring to the worker who has no intention of returning to work regardless of disability. Id. The fact that a worker may receive some form of pension or retirement benefits in connection with his retirement from a job because of disability does not constitute retirement under 23:1221(3)(d)(iii). Id.; Breaux v. Travelers Insurance Co., 526 So.2d 284 (La.App. 3 Cir.1988). Where a worker has retired from a heavy work duty job such as the firefighter plaintiffs in these consolidated cases, but is still willing to take on light duty employment within the scope of the limitations imposed by their disabilities, then that worker is said not to have withdrawn from the work force and is not considered to have retired under the statute. A worker retires under LSA-R.S. 23:1221(3)(d)(iii) when: (1) the worker withdraws from the work force; or (2) the worker draws old age social security benefits, whichever comes first. Allen, supra. This is a question of fact reviewable on appeal under the manifest error standard of review.

At the time of trial Alexander was not on any medications. He has made no attempt to find employment since the time that he was injured. Alexander explained that other than his experience with the Fire Department, the only other jobs for which he considered himself qualified involved lifting which he could no longer do as a result of his disability. On cross-examination when asked if he considered himself retired he responded, "No, I don't consider myself retired other than being disabled." The City offered no other evidence to prove that he had retired. Thus we find the facts concerning Alexander to be closer to those found in Glynn v. The City of New Orleans, 95-1353 (La.App. 4 Cir. 4/3/96) ; 672 So.2d 1112 , where the plaintiff was found not to have retired than to Lytle v. City of New Orleans through the New Orleans Fire Department, 96-0039 (La.App. 4 Cir. 9/11/96) ; 681 So.2d 12 , writ denied, 96-2466 (La.12/13/96); 692 So.2d 372 , where this Court found that the plaintiff had withdrawn from the work force. We find that the City has failed to carry its burden of showing that the implicit finding of the hearing officer that Alexander had not *1049 withdrawn from the workforce was manifestly erroneous.

The hearing officer awarded Alexander TTD benefits of $263.00 per week from July 1, 1988 when he was injured and ceased working through January 17, 1989 after which time he went on pension and was awarded SEB. In view of medical reports declaring Alexander unable to work during the period covered by the TTD benefits, and the failure of the City to offer any countervailing evidence we find no manifest error in the hearing officer's award of TTD benefits to Alexander.

2. PAUL JOSEPH ALLINE

Alline worked for the City Fire Department from 1961 when he was discharged from the Navy until May of 1988 when he stepped in a hole and twisted his left knee and injured his back while fighting a fire at a landfill. Therefore, he came in under the "old" plan and no offset of his benefits is permissible under Cousins .

His only other job experience was of a mechanical nature that he testified he was no longer capable of doing as a result of his injury. He was a fire captain when he was injured and was fifty-three at the time of the trial.

He testified that his job required heavy lifting and climbing at times.

He took a disability pension in August of 1988. Alline received compensation until the end of February of 1989 when the City offset. He received a letter telling him that his compensation benefits would be cut off at the end of February, 1989 because of the disability pension offset.

Dr. Guidry was his treating physician.

A report dated August 11, 1988, from Dr. Charles W. Krieger, Jr. stated that Alline's ability to return to light duty work was, "Undetermined at the present time."

Alline testified that at the time of the accident, "I was making somewhere in the forty thousand dollars a year.... We was paid on a twenty-six week basis."

He testified he now earns two hundred dollars a month or less since the accident, but his tax return showed an income from wages, salary and tips of $4,199.00 derived from doing occasional golf cart maintenance. This job allows him the flexibility of working only when he feels able to do so. The only medicine he was taking at the time of the trial was Naprosyn which he said he was taking two to four days a week depending on how much his back was bothering him. He testified that he could not do any repeated bending or lifting of "weight of any consequence." Standing or sitting for long periods was painful.

Alline stated that he is still seeing Dr. Guidry. He is not being billed for Dr. Guidry's medical services so he assumes that the City is paying the bill. The City contends that Alline's claim to medical reimbursement has prescribed, but has offered no evidence in support of that contention. Instead, the City argues that Alline has offered no recent medical bills and that his testimony of ongoing treatment is inadequate. It is the City's contention that if there were more current medical treatment it would have shown up in the discovery from the Rosenbush claims agency. The City failed to call anyone from Rosenbush or any other witness to confirm the fact that there had been no payments within the three year prescriptive period. Moreover, the information furnished by Rosenbush was furnished in 1990. This creates no presumption that Alline did not get reimbursed for medical treatment subsequent to that date. At the time Rosenbush furnished that information Alline's claim had not prescribed. In effect, the City argues that the burden is on Alline to disprove prescription. We disagree. The burden is on the City to prove prescription. The City has failed to do that.

Dr. Guidry wrote that:

Due to the nature of Mr. Alline's work, he has been advised, by me, to avoid any future bending, lifting, climbing, pulling, or pushing.

Alline was referred to Dr. Gordon Nutik by the City who examined him on September 28, 1988. Dr. Nutik agreed with the recommendation that the patient retire from firefighting because of his back. Dr. Ruli wrote *1050 that he concurred with Dr. Guidry's opinion and recommended that Captain Alline be considered totally and permanently disabled from engaging in fire duty. However, Dr. Nutik noted that walking would be a good exercise for Alline. The only inference that may be drawn from Dr. Nutik's report is that regardless of Alline's fire fighting disability he was not totally disabled at the time he saw Dr. Nutik.

Alline did not testify concerning his educational background. However, the answers to interrogatories introduced by the City show that Alline had only a high-school equivalency degree, an Associates Degree in "Fire Tech" from Delgado and a stint in the United States Navy. Alline's "Fire Tech" education at Delgado in 1980 may be presumed to be of little value to Alline now that he is no longer able to work as a fireman, and the City has failed to show otherwise. He established a prima facie case of his inability to find employment within the range of his disability that would enable him to earn at least 90% of his pre-injury income. At this point the burden shifted to the City to show what kinds of jobs he could do. The City failed to offer any countervailing evidence on this issue. Therefore, Alline has established his entitlement to SEB benefits.

Based on the foregoing and the City's failure to offer any countervailing evidence we cannot say that the hearing officer was manifestly erroneous in awarding Alline temporary total disability benefits at the maximum rate of $262.00 per week for the short period of time between when he was injured in May of 1988 until he went on disability pension on August 17, 1988. This is borne out by Dr. Krieger's report of August 11, 1988 stating that Alline's ability to return to light duty work was undetermined at that time. For the same reasons we find no manifest error in the hearing officer's similar award for SEB thereafter. [14] The approximately $4,200.00 in earnings shown on Alline's tax return were not sufficient to alter the SEB award.

3. GERALD A. BARATTINI

Barattini was hired by the Fire Department in 1962 and worked there for twenty-seven years prior to his injury. Therefore, he came under the "old" plan and no offset is permissible under Cousins .

Prior to that time he "sold cars, did a little income tax work which didn't work out, and I worked as an [sic] civilian employee for the Air National Guard for approximately three or four years." He also testified that he sold boats. He twisted his left shoulder moving fire equipment on December 11, 1987. On October 14, 1988, Dr. Ruel recommended that Barattini retire as a fireman because of his shoulder problems. Dr. Ruel opined that at some time in the future an operation on the shoulder might be indicated.

In his November 2, 1992 report Dr. Ruel noted that on October 29, 1991 Barattini had increasing symptoms in his left shoulder and on December 26, 1991 he had "persistent symptoms in the left shoulder." The same complaints were again noted on March 27, 1992 and on June 16, 1992. Dr. Edmund Landry observed in a report dated August 5, 1988 that Barattini had acute tendonitis at the left elbow and "has a chronic tendonitis of the left shoulder following his past injury.... He is unable to work at this time...."

Barattini testified that he could not do a job involving work with his knees and arms. Dr. Landry's reports dated August 21, 1988 and September 27, 1988 make no further mention of elbow problems and none of his reports make any mention of knee problems.

The oldest report in the record from Dr. Ruel is dated October 3, 1988, and describes the results of an examination of September 26, 1988. This report refers to an injury to Barattini's left shoulder and the ensuing problems affecting that shoulder. No mention *1051 is made of the injury's affecting any other part of his body, nor is any mention made of any problems related to any other part of his body whether injury related or otherwise. Reports of examinations by Dr. Ruel on December 12, 1988 and January 30, 1989 note some tenderness of the biceps tendon. Dr. Ruel's most recent report shows that at examinations taking place between October 29, 1991, through June 16, 1992, most "of his complaints were in the biceps tendon groove of the left shoulder...." But Dr. Ruel also noted that: "He was getting ready to go skiing in Colorado."

Barattini testified that he had been making between twenty-eight and thirty thousand as a fireman prior to his retirement. 90% of the low end of that range, the figure that would be most favorable to the City, is $25,200.00.

His benefits were cut off on August 18, 1989 because of offset.

Based on Barattini's undisputed testimony that he had only a high-school education and that he had failed at sales jobs in the past, we conclude that Barattini presented a prima facie case of entitlement to SEB, i.e., it is reasonable to assume that Barattini will not find light duty or sedentary work that would pay him $25,200.00 per year. At this point the burden shifts to the City to show otherwise. In view of the City's failure to offer any countervailing evidence we must find for Barattini on the question of SEB with a basis of zero.

Barattini admitted on cross-examination that Dr. Landry had said that he could return to work as a fireman, but Barattini felt that he could not. We cannot say that the hearing officer was manifestly erroneous in preferring Dr. Ruel's diagnosis of disability and Barattini's testimony to that of Dr. Landry.

Although we cannot say that the hearing officer was manifestly erroneous in concluding that plaintiff could no longer work as a fireman and was entitled to SEB, the record will not support a finding of temporary total disability. Evidence in the record that can withstand a manifest error review on the question of returning to plaintiff's regular job as a fireman is insufficient to create an inference of total disability where the burden to do so is on the plaintiff, even in the absence of countervailing evidence from the City. The plaintiff admitted that he could do work that did not involve heavy manual or physical labor in spite of the fact that he presumably could not earn 90% of his former compensation doing so. The record will not support an inference of total disability for any period of time. Therefore, it was error for the trial court to award Barattini TTD benefits from the date he last worked in December of 1987 until he was placed on disability pension on December 22, 1988. His SEB award of $262.00 per week was in the same amount as his TTD benefits.

He also admitted that he has not looked for any type of work since he injured his shoulder. The city contends that Barratini is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. Barattini testified that although he had had sales jobs in the past, they had never worked out which is why he became a fireman in the first place. He has only a high-school education. The hearing officer apparently found Barattini to be a credible witness. The City called no witnesses to contradict his testimony and evidence. Barattini's testimony persuades us only that he can no longer work as a fireman and that he cannot reasonably expect to find work earning 90% of his former compensation. However, Barattini's failure to seek any kind of employment for several years during which he was not totally disabled compels us to conclude that he withdrew from the workforce. Lytle v. City of New Orleans through the New Orleans Fire Department, 96-CA-0039 (La.App. 4 Cir. 9/11/96); 681 So.2d 12 . Therefore, it was error for the hearing officer to award Barattini more than 104 weeks of SEB.

4. MAURICE ROBERT BLONDEAU

Blondeau was hired by the Fire Department under the "old" plan in September of 1961. He worked for the Fire Department for over 20 years until April of 1987. Therefore, under Cousins the City has no right of offset.

*1052 Blondeau twisted his back while removing burglar bars from a burning home in April of 1987. Dr. Ruel's initial report dated May 5, 1987, found "minimal sprain to the low back." Dr. Daniel Seltzer's examination of June 22, 1987, revealed "multiple abnormalities in his MRI scan." After running additional tests, Dr. Seltzer concluded in his report dated January 4, 1988 that Blondeau "would be a poor candidate for return to work which involves heavy lifting and manual activity." Dr. Seltzer also felt that Blondeau would have difficulty returning to work as a firefighter and that retiring would be a good alternative for him. The City argues that Dr. Ruel told Blondeau he could return to work because Blondeau testified to that effect, but none of Dr. Ruel's reports found in the record bear this out. We do note that Dr. Ruel's initial reports noted nothing of great significance, but his report dated November 22, 1987 after reviewing the results of an MRI, implied the possibility of greater problems and recommended that further tests be done. Blondeau retired after twenty-six-and-a-half years with the fire department.

Blondeau was fifty-nine at the time of trial. He testified that the City had never refused to pay any of his medical bills. He said that he had paid many of them himself in order to avoid the paper work of claims forms, not because the City refused to pay.

Blondeau testified that he last saw Seltzer in February of the year of trial. The City argued that his claim for medical reimbursement had prescribed, but failed to cross-examine him on this issue when it had the opportunity to do so. We find that the City has failed to carry its burden of proof in regard to this exception of prescription for the same reasons assigned in connection with Alline.

Blondeau testified that he has fished all of his life and now runs a family fishing boat. He said that he made a net profit in 1992 of $12,000.00 from fishing. He testified that the physical demands of his fishing activities were minimal:

I do some fishing but I got them boys to help with me anything heavy. All I do is run the boat.

Dr. Seltzer's reports through the end of 1987 classify Blondeau as having a "no work" status. The hearing officer awarded Blondeau TTD benefits at the maximum rate of $261.00 from the date he last worked when he was injured in April of 1987 until he was placed on disability pension on December 27, 1987, and SEB thereafter at the same rate. Blondeau testified that for some time prior to his injury, in addition to being a fireman he was also a commercial fisherman. He further testified that within a month of his injury he was back at work as a commercial fisherman, although perhaps on a more limited scale as a result of his injury. Therefore, the hearing officer's award of TTD benefits to Blondeau was manifestly erroneous.

The form filled out by New Orleans Rosenbush Claims Service, Inc. shows that Blondeau's average weekly compensation rate was $525.90, or approximately $27250.00 annually. Blondeau testified that the figure should be closer to $30,000.00 but he was unable to be any more specific. Blondeau's contention in brief that he was earning over $35,000.00 per year is not supported by his own testimony. The hearing officer made no specific finding on this issue. Assuming the figure most favorable to the City which can be supported by the record of $27,250.00, the burden was on Blondeau to establish that he could not find a job within the limitations of his disability that would pay him at least 90% of $27,250.00 or $24,525.00.

Blondeau's 1988 tax return shows earnings of $25,138.00 from an unnamed employer, $2,500.00 from the Flamingo Hilton, and $6,170 which, although it is not specifically designated as such on the tax return, was acknowledged by Blondeau's attorney at trial as attributable to the fishing business. As Blondeau's 1988 tax return shows earnings which in the aggregate exceed what he had been earning as a fireman, we are forced to find that he failed to carry his burden of proving for the year 1988 that he was unable to earn at least 90% of his pre-injury earnings which is a prerequisite for entitlement to SEB.

Blondeau's 1989 tax return shows earnings of only $10,043.00 which were acknowledged *1053 to be attributable to his fishing business. Similarly his 1990 return shows earnings of $9,906.00, and his 1991 return shows earnings of $12,303.00. The record indicates that he had earnings of $8,453.00 for 1992.

Mr. Blondeau did not testify as to his educational background or other job experience; however, the answers to interrogatories introduced by the City show that he had only a high-school education and had served in the Marine Corps. By showing that he had only a high-school education and no special job skills Blondeau established a prima facie case that he could not find light duty employment within the range of his disability that would pay him at least $24,525.00, which is 90% of his pre-injury earnings, for the years following 1988. [15]

The only question is whether his earnings in 1989, 1990, 1991, or 1992 were sufficient to deprive him of the right to receive SEB at the maximum rate for those years as was awarded by the hearing officer. For the year 1989 SEB would be calculated on the difference between $24,525.00 and his actual earnings of $10,043.00 or $14,482.00. For the year 1990 SEB would be calculated on the difference between $24,525.00 and his actual earnings of $9,906.00 or $14,619.00. For the year 1991 Seb would be calculated on the difference between $24,525.00 and his actual earnings of $12,303.00 or $12,222.00. For the year 1992 SEB would be calculated on the difference between $24,525.00 and his actual earnings of $8,453.00 or $16,702.

Based on 66.67% [16] of these figures the maximum to which Blondeau would be entitled would be: In 1988, $-0-; in 1989, $9,655.14; in 1990, $9,746.49; in 1991, $8148.00; and in 1992, $11,135.22. The hearing officer's award of $261.00 per week on an annualized basis equals $13,572. To the extent that the hearing officer's award exceeds the figures determined by this Court to be the maximum SEB amounts permissible, those awards are reduced accordingly.

5. ROBERT BUISSON

Buisson injured his back while changing a tire on a fire truck on February 2, 1987. He retired on May 17, 1987 after having worked for the Fire Department for over twenty-three years. He was originally hired on December 14, 1963 under the "old" plan. Therefore, under Cousins the City has no right of offset.

On May 18, 1989, Dr. Gordon Nutik reported that:

I did not feel that this patient was capable of working in his job as a fireman and I felt that he would be restricted from any moderate to heavy lifting, climbing or excessive stooping.

Subsequent reports by Dr. Nutik noted no material improvement in Buisson's condition.

The record contains copies of reports from Dr. Edmund Landry indicating that he examined Buisson several times throughout 1987 and again on December 1, 1988. On all such occasions Dr. Landry noted that Buisson was unable to return to work as a firefighter because of his back injury. He expressed no opinion about what other kinds of work Mr. Buisson might be physically able to do.

The record also contains reports of Dr. Thomas H. Grimstad showing "mild airways obstruction without obvious response to bronchodilators." There is nothing in Dr. Grimstad's reports that would suggest that these pulmonary symptoms were serious enough to be disabling. The City stated that it was paying medical bills for Buisson in connection with the lung condition. However, Buisson testified that:

Well, [Dr. Grimstead] never came out and said I couldn't work, but I never did ask him. But he knows that—He says he can see in the X-rays that I have emphysema and I shouldn't work, I don't think.

Prior to becoming a firefighter, Mr. Buisson did welding and plumbing work but he *1054 maintains that he hasn't looked for work for fear of hurting his back. His education did not go beyond the second year of high-school and the only training he had was in "heavy work." He testified that he was one of the few firemen who had never even had any formal fire training.

The City offset his pension in April or May of 1988, reducing his compensation to $32.14 every two weeks. Buisson estimated that he was earning $500.00 per week prior to the time that he was injured. Buisson was fifty-nine years old at the time of trial.

The hearing officer apparently believed Buisson's testimony concerning his inability to work. Although this is a close case, we find that the medical records were sufficient to establish a prima facie case of Buisson's disability as a fireman, and his own testimony, lack of education and training in the absence of any countervailing evidence from the City was sufficient to establish a prima facie case of his inability to find other employment paying at least 90% of his pre-injury income. Once the burden of proof shifted to the City and the City failed to produce any evidence of any jobs paying any amount, much less 90%, of Buisson's pre-injury income, Buisson is entitled to have his SEB calculated on a basis of zero. His compensation clearly exceeded the amount minimally necessary to entitle him the maximum level of benefits.

The hearing officer awarded him TTD at the maximum rate of $261.00 per week from the time he was injured in February of 1987 through the time he was placed on disability pension on May 17, 1987. Thereafter, the hearing officer awarded him SEB in the same amount. The City has failed to show that the hearing officer's finding of temporary total disability for the period of approximately two and one-half months from the date of injury on February 2, 1987 through May 17, 1987 was manifestly erroneous.

6. WILLIAM F. DILLENKOFFER

Dillenkoffer worked for the Fire Department from July of 1957 until he was disabled in September of 1987. He took a pension in late December of 1987. He worked thirty-and-a-half years as a fireman. Dillenkoffer testified that the City was paying for both his prescriptions and medical treatment. He said that his compensation was approximately sixty-four thousand dollars as a fireman. He testified that his benefits would have been the same whether based on retirement or disability. Under Cousins the City would not be entitled to an offset.

On June 15, 1987, Dr. Charles B. Moore wrote a report stating that:

According to the tests that were performed, I would have to say that we have no significant evidence to suggest that Mr. Dillenkoffer is at risk from his heart as far as working.

I would think that it is reasonable for him to continue with his normal job requirements, but I would caution him to be cautious about his carbohydrate and fat intake. I would also suggest that he probably needs more exercise as well.

A report by Dr. Jack P. Ruli dated January 12, 1987, describing the results of an examination performed on October 6, 1987 noted premature heart beats which needed investigation. Dr. Ruli advised Dillenkoffer to give up smoking and to reduce the fat content of his diet. Dr. Ruli suggested the possibility of an underlying cardiac problem which could lead to serious arrhythmias when subjected to the stresses of fire duty in his report dated June 9, 1987.

In his last reports dated June 29, 1993 and August 2, 1993, Dr. Ruli no longer noted any irregular heart beats. The most persistent concern expressed by Dr. Ruli over the years was for Dillenkoffer's cholesterol levels, but he never suggested that any type of disability was implied as a result.

Dillenkoffer worked in a hardware store from the age of seventeen until he was twenty-one. He was in the armed services off and on from 1958-1961. He testified that his job was supervisory in nature and did not require heavy lifting, but might require climbing many steps.

Dillenkoffer started having chest pains and bronchitis in 1986. Dr. Ruel laid him off work temporarily, but he went back to work in January of 1987. Tests done later in 1987 *1055 at Ochsner revealed blockage in the heart. Dillenkoffer retired from the Fire Department in December of 1987. The record contains the following testimony by Dillenkoffer:

Q.... Did Dr. Ruel say you could go back to any type of work at all, or he said no work?

A. He said fire duty.

Q. Okay. Have you gone back to work at all since that time?

A. No, I haven't.

The city contends that Dillenkoffer is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the workforce. Dillenkoffer testified that he has not looked for any type of employment since retiring and has not been told that he is totally disabled. He did not explain why he had never sought other employment after leaving the Fire Department. The City introduced a copy of his tax return, but unlike the tax return referred to in Lytle, supra, Dillenkoffer's tax return does not show that he has retired. He did not testify that he considered himself to be retired. On the other hand, in responses to interrogatories from the City he stated that: "Since my retirement, I have not sought or intended to seek employment." We find that when Dillenkoffer retired from the Fire Department he withdrew from the work force.

Moreover, in view of his failure to present any evidence concerning his educational background and his failure to establish that he was disabled from nonfire fighting types of employment we find that he has failed to establish a prima facie case of inability to find employment providing at least 90% of his pre-injury income in order to qualify for SEB benefits.

Nor is there anything in the record to establish that there was any period of time during which Dillenkoffer qualified for TTD status. Therefore, we must reverse the awards of SEB and TTD benefits to Dillenkoffer.

7. ROBERT H. DUDENHEFER

Dudenhefer worked for the Fire Department for thirty years under the "old" plan. Therefore, under Cousins the City has no right of offset.

Dudenhefer also injured his back in April of 1987 which Dr. Seltzer considered as disabling him from employment as a fireman. Dudenhefer experienced shortness of breath in May of 1987 and took a disability pension in December of 1987. Dudenhefer testified that no doctor said that he cannot return to some work. He does some work on a family farm that he said involved no heavy lifting and was done just for tax purposes. At the time of his retirement he was making twenty-four hundred dollars per month which is more than enough to qualify him for the maximum TTD benefits and SEB benefits of $261.00 per week awarded him by the hearing officer, assuming he met the other criteria for qualification.

In a report dated June 23, 1987 Dr. Bruce Iteld stated that Mr. Dudenhofer had "no significant coronary artery disease" and that "the chest pain syndrome was not life-threatening, nevertheless, it may at times be disabling and debilitating as well as annoying." Dr. Iteld recommended early retirement and other less stressful employment. He concluded that Dudenhefer was "not at risk for sudden death from cardiac causes but nevertheless over a prolonged period of time chest discomfort syndrome may psychologically alter the patient's condition in view of the debilitating nature of the symptoms."

The record contains a radiologist's report from Dr. H. Denny Taylor to Dr. Daniel Seltzer, but it expresses no opinion as to whether any of the images of Dudenhefer's back revealed anything of a disabling nature.

Dr. Seltzer's reports showed that Dudenhefer sustained lumbar strain while pulling a fire hose. He reported that Dudenhfer's CT and MRI scans showed multi-level discogenic disease in the lumbar and cervical spine. On December 21, 1987, Dr. Seltzer reported that Dudenhefer was "not a candidate for return to work as a fire fighter."

Dudenhefer testified that he is still seeing Dr. Seltzer. The City contends that his claim for medical benefits has prescribed because he offered no recent medical records. We find that the City failed to carry its *1056 burden in regard to this exception of prescription for the same reasons assigned in connection with Alline.

After finishing high school, Dudenhefer attended 3 years of college, but did not graduate. In view of his lack of education and the nature of his disability, he has succeeded in establishing a prima facie case that he is unable to find employment earning at least 90% of his pre-injury income. At this point the burden shifts to the City to show the existence of jobs within the range of Dudenhefer's disability. The City offered no evidence in this regard. Therefore, the record supports Dudenhefer's claim to SEB calculated on a basis of zero.

The hearing officer awarded Dudenhefer TTD benefits of $261.00 per week for the period commencing with his injury in April of 1987 until he went on pension on December 28, 1987. SEB was awarded at the same rate picking up where the TTD benefits stopped.

Dr. Seltzer's reports on Dudenhefer list three categories of work capability: "Regular Duty"; "Light Duty"; and "No Work." His reports through January 7, 1988 all place Dudenhefer in the "No Work" category. [17] The City introduced no countervailing evidence. Therefore, we find no manifest error in the hearing officer's award of TTD benefits.

The city contends that Dudenhefer is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the workforce. The City did not produce any documents showing that Dudenhefer had retired. Dudenhefer testified that he does some farming. The burden is on the City to show that the hearing officer was manifestly erroneous in his implicit finding that Dudenhefer had not withdrawn from the workforce. The City failed to carry this burden.

8. JOHN F. DUNCAN

Duncan started work with the Fire Department on September 15, 1964 under the "old" plan, and was a Captain at the time he hurt his shoulder fighting a fire in December of 1989. He was fifty years old at the time. Therefore, under Cousins the City has no right of offset.

Duncan testified that his job sometimes required heavy lifting. He said that he thought that the City was paying his medical expenses. Prior to becoming a fireman he sold dental supplies. He also had an electrical contracting business on the side while he was a fireman. On occasion he was an expert witness and an investigator in fire related lawsuits. He continues to do this on an infrequent basis.

He made approximately thirty-eight thousand dollars as a fireman in the last year he worked in that capacity. His workers' compensation benefits ceased after seven or eight months after he took his pension. He has earned only nominal amounts since his retirement, including several hundred dollars in real estate transactions as well as occasional opportunities to testify as an expert. He said that he could not return to work because he could not do heavy lifting. He did not mention any other limitations. No doctor has told him that he is totally disabled.

In a report dated May 22, 1990, Dr. Ruel opined that Duncan had acromial impingement syndrome and recommended that he retire from the fire department. In a report dated November 26, 1991, Dr. Ruel noted:

I had a rehab conference on him on September 30, 1991 and essentially the discussion involved the patient's ability to do light work with no overhead lifting or repetitive use of his left arm.

The record contains a rehabilitation form signed by Dr. Ruel showing that Duncan could sit for six hours a day intermittently, stand for four hours a day intermittently, drive for two hours a day intermittently and *1057 walk without any limitations. He could occasionally lift 50 pounds from the ground, 40 pounds from knee height and 40 pounds from overhead. He could bend and squat frequently, and he could kneel, climb, twist, balance, and push/pull occasionally.

Dr. Nutik felt that Duncan had an element of subacromial impingement about the left shoulder. He could not predict how long it would take to resolve. He noted that Duncan was asymptomatic about the left knee and felt that this was consistent with a resolved strain about the left knee.

The report of radiologist Dr. Robert C. Baird, III showed no abnormalities.

Duncan gave no testimony or other evidence concerning his educational background. The record showed experience in a number of fields involving light duty work. The only conclusion that can be drawn from the record is that he is capable of light duty work. Without knowing his educational background it is impossible to know for what type of jobs he might qualify. Duncan failed to make a prima facie showing of his inability to find employment within the range of his disability that would pay him at least 90% of his pre-injury compensation. He, therefore, is not entitled to SEB benefits.

Dr. Ruel's reports through the date that Duncan was placed on disability pension indicate that he advised Duncan not to work. Therefore, in the absence of any countervailing evidence from the City we find that Duncan has made a sufficient showing of entitlement to TTD benefits. Consequently, we sustain the hearing officer's award of TTD benefits to Duncan.

9. EDWARD EIERMANN

Eiermann injured his back in October of 1988 while pulling a fire hose. He worked for the Fire Department for twenty-four years. He was hired on December 6, 1964 under the "old" plan. Therefore, under Cousins the City has no right of offset.

He was forty-eight at the time of the trial. He testified that his medical expenses had been paid.

He started taking his disability pension of $1,833.00 in February of 1989.

Prior to becoming a fireman he was a tack welder at Avondale and had a high-school education.

Dr. Ruli's report of February 6, 1989 found Eiermann to be permanently and totally disabled from being a fireman. Dr. Ruli's report noted Dr. Jackson's recommendation that Eiermann avoid any heavy lifting and bending because it may aggravate his weakened lumbar spine. However, Dr. Jackson's report of January 1, 1989 states that Eiermann should consider getting back into some type of activity that would not put a strain on his back. This is a clear indication that Dr. Jackson did not feel that Eiermann was totally disabled. Dr. R.T. Ribando's report of January 11, 1989 was similar to that of Dr. Jackson.

Eiermann testified that he continues to see Dr. Ribando, but that he has not seen him "since last year." The City claims that Eiermann's claim for medical benefits has prescribed. For the same reasons assigned in connection with Alline we find that the City has failed to carry its burden in regard to this exception of prescription.

Eiermann failed to introduce any evidence of his educational background. As it is clear from his own medical evidence that he is not totally disabled, he has failed to establish a prima facie case that he is unable to find employment that would pay him at least 90% of his pre-injury income. Therefore, we must reverse the hearing officer's award of SEB.

All of the medical evidence suggests that Eiermann is capable of employment that does not put undue strain on his back. There is nothing in the record to show that this was not the case for any period of time. Therefore, we find the award of TTD benefits by the hearing officer to Eiermann is not supported by the record. Accordingly, we reverse that award.

10. ED GALLAGHER

Gallagher worked for the Fire Department for twenty-one years, commencing in June of 1967, but he was given credit for previous *1058 employment with the City from 1966. He was hired under the "old" plan. Therefore, under Cousins the City has no right of offset.

Gallagher was born on August 31, 1943. He had to lift heavy loads as part of his job. He pulled his back on a fire truck in July of 1988. He made thirty-six thousand dollars the year prior to his injury. The City has been paying his medical expenses. Gallagher was fifty years old at the time of trial.

Gallagher testified that he could no longer work as a fireman. He also said that in his mind he could not work in any other capacity. He testified that he applied to be "fire prevention or state fire marshall" but was never hired. He has made no other attempts to find employment. He said that his back bothered him every two or three weeks, but sometimes did not bother him in the intervals.

In several reports rendered in 1988, Dr. Russell Levy recommended that Gallagher give up firefighting because of his heart and back injuries. In his report on his examination of Gallagher on August 10, 1988, Dr. Levy stated that he had asked Gallagher to seriously consider going into some type of retirement and look for a lighter type job.

In a report date stamped "Dec 20 1989", Dr. Levy stated:

This chronic back pain is continuing to give him problems off & on and I think it will for the rest of his life. Certainly he is disabled from ever going back to work as a fireman with this. This combined with his heart condition will probably prevent his going back to gainful employment.

In a report dated August 31, 1992 Dr. Levy stated:

The patient is certainly disabled from ever returning to work as a captain in the New Orleans Fire Department. Sedentary work at times is certainly within his capability. However frequent absenteeism may be a problem with the long term nature and intermittent flare ups of this lumbar spine injury.

In a report dated September 15, 1988, Dr. Gordon Nutik recommended that Gallagher take early retirement and consider retraining for lighter work.

In a report dated October 6, 1988, Dr. Jack Ruli opined that Gallagher was permanently and totally disabled from engaging in fire duty. In a report dated January 29, 1990, Dr. Ruli said that he considered Gallagher to be "totally and permanently disabled from engaging in gainful employment." (Emphasis added.)

There is no evidence in the record concerning Gallagher's educational and training background. However, the medical reports are sufficient to establish disability and to shift the burden to the Fire Department to show that he is capable of working at a job that would pay at least 90% of his pre-injury compensation. The City produced no countervailing evidence. Therefore, we find that Gallagher has succeeded in establishing his entitlement to SEB.

The hearing officer awarded Gallagher TTD benefits in that same amount as the SEB ($262.00 per week) for the period from the date of his injury in July of 1988 through the date he was placed on disability on August 2, 1988. The aforementioned medical evidence supports this finding.

11. FRANCIS PAUL LASALLE

Mr. Lasalle commenced work for the Fire Department on January 22, 1963 under the "old" plan. He sustained a number of on the job injuries that resulted in his eventual retirement from his job as a fire captain on a pump. Lasalle was fifty-three at the time of the trial. His final injury occurred on December 25, 1987, when he "wrenched the knee sideways and it popped again." He never went back to work after that. Therefore, under Cousins the City has no right of offset against his compensation.

He earned forty thousand dollars in the year prior to his retirement. His compensation was cut off on March 1, 1989.

Lasalle has had no surgery since his last accident and the City has been paying for his medical expenses. He testified that he could no longer do fire fighting work because of the hundred and ten pounds of equipment the job required him to carry. He also testified *1059 that: "Steps really do me in, I can't climb steps." He also testified that he was "on a disability pension with lung disease and knees." He attributed the lung problems to "scar tissue from fires and stuff."

A report from Medical & Vocational Rehabilitational Consultants, Inc. notes that Lasalle has a high-school diploma, military experience in the Army Reserve, and holds a valid Louisiana chauffeur's license.

Dr. Victor Chisesi's report of March 24, 1988 stated that he felt that Lasalle could perform a more sedentary job and also do some lifting. Dr. Chisesi stated that Lasalle had 12 to 14 injuries to his knees as a result of firefighting.

Dr. Jack Ruli's report of April 1, 1988 stated that Lasalle should be considered totally and permanently disabled from engaging in fire duty. Dr. Henry Philibert's report of May 4, 1988 noted that Lasalle had a chronic lung infiltrate in the right chest cage in particular.

Lasalle testified that he continues to see Dr. Chisesi and has seen him as recently as August 15, 1993. The City contends that Lasalle's claim for medical benefits has prescribed. For the same reasons assigned in connection with Alline we find that the City has failed to carry its burden regarding this exception of prescription.

It is reasonable to conclude that with only a high-school education and the ability to do only light duty work Lasalle is unable to find employment earning at least 90% of his pre-injury compensation pay. Therefore, we find that Lasalle was successful in presenting a prima facie case of entitlement to SEB. As the City failed to offer any countervailing evidence of any kind of employment at any level of compensation, Lasalle is entitled to have his SEB calculated on a basis of zero.

The hearing officer awarded Lasalle TTD benefits in the sum of $262.00 per week for the period from his date of injury on December 25, 1987 until the date he was placed on disability pension on May 24, 1988. The hearing officer awarded SEB to Lasalle for the period commencing with the expiration of the TTD benefits. We find that the record supports the award of TTD benefits only through March 24, 1988 when Dr. Chisesi found Lasalle capable of sedentary employment. Therefore, we amend the judgment of the hearing officer to provide for TTD benefits only through March 24, 1988 with SEB benefits to commence from that date.

12. GEORGE FRANCIS

Francis originally filed separate claims for heart and low back injuries. The claims were consolidated. Francis testified that he had injured his back on several occasions. The back injury which is subject to this suit occurred on the job in July of 1988. The heart condition was claimed in August of 1988. At that time he had been working as a fireman for twenty-six years under the "old" plan. He was fifty-five at the time of trial. Therefore, under Cousins the City would have no right of offset.

The City does not contest Dr. Brian Nacarri's report of February 23, 1990 declaring Francis to be permanently and totally disabled as a result of his heart condition. The medical records support the awards of both SEB and TTD benefits.

Francis testified that he saw Dr. Nacarri as recently as three months prior to trial. The City contends that Francis' claim for medical benefits has prescribed. For the same reasons assigned in connection with Alline we find that the City has failed to carry its burden regarding this exception of prescription.

Francis earned forty-eight thousand dollars the year before he retired.

The city contends that Francis is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the workforce. As evidence of this the City points to the fact that Francis shows himself as retired on his tax returns. [18] However, *1060 in the context of the record as whole we find that he has "retired" only from the Fire Department, and that only because of his disability. Unlike the fireman in Lytle, Francis did not testify that he has made no attempt to find other employment. Moreover, the inference to be drawn from the record is that any failure to seek other employment can be attributed to the severity of his disability. Inability to work because of the work related injury is not what is meant by "retirement" in LSA-R.S. 23:1221(3)(d)(iii).

13. PETER GONDRELLA, JR.

Gondrella was hired by the fire department on June 29, 1967 under the "old" plan, and last worked on May 24, 1989. Therefore, under Cousins the City has no right of offset. Gondrella was born on July 8, 1941.

He fell off a ladder at a fire in May of 1989, dislocated his hip, hurt his back and sustained some nerve damage which he described as a "dead spot in my leg." He made either forty-one or forty-two thousand dollars during the year leading up to the injury.

Gondrella testified that he can see an orthopedist, but he cannot see his chiropractor "until it's okayed by workman's comp, and they can't okay it because the files are tied up in this court." Gondrella further testified that:

"I can't stand or sit for long periods; I can't stoop without having something to hold on to pull myself up. I can't lift anything heavy.... I don't have the range of motion to bend over."

Gondrella notes on his tax return that he is retired.

Gondrella testified that he tried to find other work within the scope of his physical limitations. He was under medical care at the time of the trial which caused prospective employers to reject him. He testified that the only thing that he is trained for is physical labor. He testified that he has not looked for employment in the fast food industry because he can neither stand nor sit for long periods of time. The City introduced no evidence to contradict Gondrella's testimony on the question of his employability, nor does the City challenge his medical condition.

Based on Gondrella's testimony that he has tried unsuccessfully to find other employment within the scope of his disability and that he is trained only to do physical labor, we find that he has made a prima facie showing that he is unable to find employment earning at least 90% of his pre-injury compensation. He established his right to SEB. As the City failed to put on any countervailing evidence showing the availability of employment at any level of compensation, Gondrella is entitled to have his SEB calculated on a basis of zero.

The hearing officer awarded him TTD benefits of $267.00 per week from May 24, 1989, when he last worked until he was placed on disability pension on October 16, 1989 and from October 17, 1989 he was awarded SEB at the same rate. The medical evidence contained in Dr. Winters's reports shows no material improvement in Gondrella's condition during the period for which he was awarded TTD benefits. After reviewing the record we cannot say that the hearing officer was manifestly erroneous in making the award of TTD benefits. The City introduced no countervailing evidence.

14. JAMES HENNEGAN [19]

Hennegan was fifty-one years old at the time of the trial. He was hired on August 14, 1968 under the "new" plan. As a chief he directed other firemen, but he did not fight fires himself and the only equipment he had to carry was a radio and a hand light. He added that there were times when he had to carry a tank. Climbing, stooping and bending were all part of his job. On September 2, 1988 as he was responding to a fire alarm he experienced chest pains. He went to the Mercy Hospital intensive care unit and ceased work for the Fire Department.

*1061 Hennegan was born on June 18, 1942. He was not yet fifty years old and, therefore, he was not eligible for retirement at the time he started receiving his Fire Department pension on March 17, 1989. Therefore, his benefits will not be considered a retirement pension exempt from the right of offset under Cousins . We find that the City has the right of offset against Hennegan, but that it has not employed the proper methodology in the exercised of that right. We find it appropriate to remand his case to the hearing officer for a calculation of the City's right of offset in accordance with this opinion.

Hennegan testified that he is restricted from climbing because of his heart condition and he had to discontinue the part time construction work he had been doing for the fire department.

In his last year of working for the Fire Department he made thirty-eight thousand dollars.

Hennegan started college in 1989 and said at the trial that he was attending Delgado full time taking respiratory therapy. Immediately after leaving the fire department he got certificates from Jefferson Vo-Tech School in commercial electricity and programmable motor controllers, but his inability to climb ladders or tolerate physical labor of the type required in those fields has prevented him from pursuing employment in those fields. Since leaving the fire department he has experienced angina pains on several occasions and he has had fluid build up in his ankles causing them to "swell up to the size of golf balls." The swelling was attributed to his heart condition. He stated that the City has continued to pay for his medical expenses.

At the time he took disability retirement he was not qualified for regular retirement. He testified that he has returned to school in order to go into some other line of work. Hennegan also testified that neither of his doctors told him that he was permanently and totally disabled from all types of work.

At the time of his accident he was not eligible for regular retirement, but he became eligible subsequently. He testified that he had been with the department for twenty years at the time of the accident. The City produced no evidence to the contrary. Dr. Jack Ruli's report of September 12, 1990 opined that Hennegan was totally and permanently disabled from fire duty, but that he could do sedentary or clerical work. No one disputes that opinion.

Hennegan testified that Dr. Ruli continues to treat him. The City contends that Hennegan's claim for medical benefits has prescribed. We find that the City has failed to carry its burden of proving this exception of prescription for the same reasons assigned in connection with Alline.

Considering Hennegan's unsuccessful efforts to acquire skills in other areas of employment compatible with his disability, which efforts he continues to pursue through his education, the fact that he can no longer do heavy work, and his lack of a college diploma, we find that Hennegan has successfully made a prima facie case of his inability to find employment earning at least 90% of his pre-injury income. The City has offered no countervailing evidence of potential employment at any compensation level, much less at 90% of his pre-injury compensation level. Therefore, Hennegan has proven his entitlement to SEB.

The hearing officer awarded him TTD benefits in the sum of $262.00 per week for the period from the date he last worked until the time he was placed on disability pension on March 17, 1989. The medical evidence supports this finding.

The city contends that Hennegan is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. The City noted that he listed himself as retired on his tax return. In the context of the record as a whole it is reasonable to conclude as the hearing officer must have done that Hennegan's tax return meant only that he considered himself retired from the Fire Department because of his disability. At the time of trial Hennegan testified that he was studying respiratory therapy at Delgado. The following exchange took place when Hennegan was cross-examined on this issue:

*1062 Q. But you're not permanently and totally disabled from doing other kind [sic] of work, huh?

A. That's why I'm going back to school, so I can go back to doing employment and becoming productive again.

Hennegan's testimony that he was exerting a good faith effort to get back into the workforce is uncontradicted. We, therefore, find no manifest error in the hearing officer's implicit finding that Heenegan had not withdrawn from the workforce.

15. LAWRENCE HENDRICKSON

Hendrickson went to work with the Fire Department in August of 1967 under the "old" plan where he worked for twenty-one years before his last day of work on December 24, 1988. Therefore, under Cousins the City has no right of offset.

He has a high-school education and an "associate in fire technology." He was born on December 22, 1939. Hendrickson was injured in December of 1987 [20] when he fell off a fire ladder, spraining his back and shattering both of his wrists.

Hendrickson testified that he has continued to see Dr. Ruel since the accident, most recently in June or July immediately preceding the accident. Hendrickson was making forty-two thousand dollars at the time of his injury. At the time of trial he was doing part time work for Proctor and Gamble earning approximately $180 per week. He makes sure that their products are straight on the Schwegmann grocery shelves and that the tags are up. Dealing with the shelf stock requires only very light lifting, in the two to three pound range. He has no lateral movement in his right wrist and required an operation on his left wrist at the time of trial. The City was continuing to pay for his treatment.

In the report of his March 21, 1991 examination of Hendrickson, Dr. Ruel stated that: "He remains disabled as a fireman." In the most recent report from Dr. Ruel dated June 10, 1993, Dr. Ruel continued to note wrist problems. He also noted that Hendrickson was taking Motrin "and I gave him another prescription." However, Dr. Ruel expressed no opinion about disability at that time. [21]

It is reasonable to assume that his education beyond high-school, i.e., "associate in fire technology" is of little value to him now that he can no longer pursue his career as a fireman. Considering his disability and lack of useful education, we find that Hendrickson has established a prima facie case of his inability to earn at least 90% of his pre-injury income. The City failed to offer any countervailing evidence of employment opportunities available at any level of compensation, much less at 90% of his pre-injury compensation level.

The hearing officer awarded him TTD benefits from the time he ceased working until he was placed on disability pension on August 17, 1988. Because for the nature of his injury and treatment we find no error in this award.

16. LUCIEN LEBLANC

LeBlanc went to work for the Fire Department in October of 1962 or 1963 under the "old" plan, and continued working there for over twenty years until August of 1987. Therefore, under Cousins the City has no right of offset.

The City does not contest the fact that LeBlanc was injured in August of 1987 when he fell and twisted both knees. He completed high-school and has taken some college courses in the field of industrial safety and fire technology. He was fifty-five at the time of the trial. He was earning forty thousand dollars at the time he was injured.

*1063 LeBlanc testified that his last visit to Dr. Ruel was in June or July of 1993. The City contends that Dr. Ruel's medical records indicate that he last saw Leblanc on July 30, 1991, implying that LeBlanc was either in error or untruthful. However, the City's contention is contradicted by a report from Dr. Ruel dated June 27, 1992 which states that he had examined Leblanc on June 16, 1992. At that time Dr. Ruel prescribed two pain killers to help LeBlance deal with his knee problems. The City failed to cross-examine LeBlanc concerning this alleged inconsistency and produced no countervailing evidence to support its contention. There is nothing in the record that would cause this Court to doubt Leblanc's testimony that he saw Dr. Ruel in 1993.

The City continues to pay for LeBlanc's medical treatment.

At the time of trial he was averaging 25 to 30 hours per week at eight dollars an hour driving a delivery truck for his nephew's business. He testified that he had taken the job out of necessity to pay his terminally ill wife's medical bills. He further testified that he has to take pain pills to do so and no one experiencing his kind of pain would work unless compelled to work by necessity. He testified that Dr. Ruel had advised against doing work like this that aggravated his knee.

In his report of July 19, 1988 Dr. Ruel recommended that LeBlanc retire from fire duty.

In view of the medical testimony, LeBlanc's lack of a college degree or other valuable non-firefighting job training, and his current compensation level, we find that he has made a sufficient prima facie showing that he is unable to earn at least 90% of his pre-injury compensation. Therefore, in the absence of any countervailing evidence from the City, LeBlanc proved his entitlement to SEB.

In view of the nature of his injuries, his treatment and surgery, we find that the record also supports the hearing officer's award to him of TTD benefits from the date he last worked in August of 1987 until he was placed on disability pension on August 27, 1988.

17. RONALD HUGHES

Hughes started work with the Fire Department on March 31, 1963 under the "old" plan and continued working there for over twenty-four years until April of 1987. Therefore, under Cousins the City has no right of offset.

The City does not contest on appeal the fact that Hughes injured his left knee when he fell and twisted it while fighting a fire on March 16, 1987. Hughes testified that he had an eleventh grade education and that he had last seen Dr. John McLachlan in the January preceding the trial. The City continuously paid for his treatment. He testified that he has developed degenerative arthritis, that he has no cartilage in his knee, and that his knee swells "all the time."

Hughes testified that he has not returned to work as a fireman because he cannot climb, lift heavy objects, stand for long periods, and that if he walks much his knee gives way. He estimated his prior earnings to be between $35,000.00 and $40,000.00 per year prior to his injury.

Hughes attributed his lack of success in obtaining other employment to his limited formal education. The last effort he had made to find employment was six or seven months prior to trial, at which time he applied unsuccessfully for a casino job he had seen advertised in the newspaper. On cross examination he explained that he had never applied for fast food or convenience store jobs because of the requirements for physical work, lifting, walking and standing that his knee could not tolerate. At the trial the attorney for the City suggested that a job as a parking lot attendant might allow him to sit, but Hughes had never applied for such a job. The City made no attempt to show that any such jobs were available, and it is safe to assume that no such job would offer compensation anywhere approaching 90% of Hughes's pre-injury compensation.

Finally, Hughes testified that no one had told him that he was totally disabled from doing any kind of work.

In his report dated April 26, 1987, Dr. John McLachlan stated that Hughes's decision *1064 to retire from firefighting "is a reasonable decision in view of the patient's occupation."

Dr. McLachlan concluded that:

I would estimate at the present time that on the basis of the loss of his medial meniscus, the chondral defect of the femur, and the chondral defect of the patella that a fifteen percent permanent physical impairment of the lower extremity has resulted.

I feel that Mr. Hughes will be improved subsequent to his recent surgery. He should be capable of sedentary-type work. He will require intermittent treatment and may in the future require additional surgical procedures.

In his report of July 13, 1987, Dr. McLachlan noted that the anticipated lessening of Hughes's degree of disability had failed to occur. There were several subsequent written reports from Dr. McLachan in the record, the last dated July 23, 1990. All of those reports noted continued complaints of pain and degeneration in the knee, and none noted any lessening of disability. The City's brief implies that the last time that Hughes actually consulted Dr. McLachlan was on September 12, 1989, but we find that Hughes's testimony that he saw Dr. McLachlan as recently as January prior to the trial is believable even in the absence of a medical report for that date. The City made no effort to introduce any evidence to the contrary at the trial. The City contends that Hughes' claim for medical benefits has prescribed. We find that the City failed to carry its burden of proving this exception of prescription for the same reasons assigned in connection with Alline.

Considering Hughes's testimony concerning his lack of even a high-school education and his inability to perform heavy work, we find that he has made a prima facie case of being unable to obtain employment at a compensation level equal to at least 90% of his pre-injury income. The City failed to offer any countervailing evidence of employment opportunities that would pay 90% of Hughes's pre-injury income. The suggestion by the City that Hughes should seek employment as a parking lot attendant was not supported by any evidence of potential compensation from such a source. Therefore, Hughes succeeded in proving his entitlement to SEB calculated on a basis of zero.

The hearing officer awarded Hughes TTD benefits from the date he last worked until he was placed on disability pension on April 17, 1987, approximately one month later. We cannot say that the hearing officer's finding of temporary total disability for such a short period of time was manifestly erroneous.

The city contends that Hughes is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. The City based this contention on the fact that Hughes refers to himself as retired on his tax return. However, Hughes' testimony on cross-examination makes it clear that what he put on his tax return was not intended to mean the same thing the City means when it uses the term "retired" as a term of art:

Q. Now, on your income tax return, you have put—been putting in the block where they say occupation, retired; is that correct?

A. I'm retired from the Fire Department only. That was my occupation.

Q. Right.

A. My career, yes; I'm retired from the Fire Department.

Q. Right, but you just put retired on your income tax return?

A. That's all you can put.

In view of this testimony and the discussion of Hughes's efforts to find other employment discussed above, we find no manifest error in the hearing officer's implicit determination that Hughes had not withdrawn from the workforce.

18. JOSEPH JEVIC, JR.

Jevic went to work for the Fire Department on January 5, 1965 and continued working there until August of 1986, a period of over 20 years. Therefore, under Cousins the City has no right of offset.

*1065 Jevic injured his knee on the job, eventually requiring a total knee replacement in 1987. He has not worked since August of 1986, and has made no effort to find any kind of work. He testified that he had additional surgery for a rejected prosthetic device used in his knee replacement in 1992, but there are no medical records in support of that contention. The trial court made no finding disparaging Jevic's credibility, and we find nothing in the record to cause this Court to do so.

Jevic testified that he made between $32,000.00 and $33,000.00 per year prior to the time he stopped working. He also testified that he continues to take Vicodin two or three times a day.

When asked why he had not attempted to obtain other employment, Jevic stated:

A. Between the surgery and the rehabilitation, I did try [to] go to school for computers, which right after I did take that, I wound up back into the hospital again. And I have been doing nothing but trying to get back on my feet from these surgeries.

Q. But I've got your doctor's report here, Mr. Jevic and not one [of] these doctors say that you are totally disabled from doing any kind of work.

A. No, sir, I'm totally disabled from performing fire fighting duties.

Q. Okay, but as far as other work, there—you could probably do it?

A. I'm disabled from the fire department, yes, sir.

The medical reports in the record expressed no opinion regarding the degree of Jevic's disability, other than Dr. Ruli's opinion dated October 7, 1986 that "Joseph Jevic, Jr. is totally and permanently disabled from performing fire duty." However, the nature and frequency of treatments and operations and complications arising from those operations over the years are such as to leave no doubt that it is highly unlikely that Jevic could perform anything but sedentary work.

Jevic testified that he is currently being treated by Dr. Melvin Parnell whom he had seen most recently during May prior to trial. He testified that the City paid for all of his treatments. The City elicited no contrary testimony on cross-examination. The City contends that his claim for medical benefits has prescribed. We find that the City has failed to carry its burden in regard to this exception of prescription for the same reasons assigned in connection with Alline.

Jevic offered no evidence of educational background or other training or lack thereof. However, in view of the ongoing and debilitating nature of his treatments and surgeries we find that Jevic succeeded in proving a prima facie case of his entitlement to the benefits awarded to him through the date of trial. The City failed to offer any countervailing evidence. Naturally, should Jevic become able to work in the future, nothing in this judgment precludes the City from pursuing whatever remedies it may have to challenge Jevic's right to continued payments.

19. JERRY LADNER

Ladner last worked for the Fire Department in August of 1987. Prior to that time he had held the rank of captain. He started with the fire department in March of 1961 under the "old" plan. Therefore, under Cousins the City has no right of offset. He injured his knee in training school in the course and scope of his employment. He was born on March 9, 1934 and testified at trial that he had, "Twelve years of high [school]."

He testified that Dr. Ruel had recommended surgery but that he did not want to submit to it. He last saw Dr. Ruel in June of 1993, but had not seen him for some time prior to that visit because Dr. Ruel had told him that short of surgery there was really nothing that he could do for him. Ladner gave the following testimony on cross-examination:

Q..... Have you attempted to go back to work since you left the fire department?

A. No, sir.

Q. Dr. Ruel didn't say you were totally and permanently disabled from doing anything, right?

A. No, sir.

Q. He just said you couldn't work as a fireman?

*1066 A. Could not be a fireman.

In his report dated April 12, 1988 Dr. Ruel stated:

[Ladner] is not in favor of operative intervention, and has decided to apply for retirement which I feel is medically indicated.

The City's brief states that "the record ... indicates that [Ladner] last saw Dr. Ruel for treatment in April of 1988", but there is a copy of a report from Dr. Ruel in the record dated June 14, 1993 stating that he examined Ladner on May 20, 1993 and that Ladner "had an appointment to see me on June 10, 1993, which was not authorized", but which we infer was kept anyway. Dr. Ruel concluded that report by expressing the following opinion:

This patient will continue to have ongoing problems with both knees and will need periodic evaluation and observation.

We can reasonably infer from the record that Ladner can do only light duty work as a result of his injuries. As he has only a high-school education he has succeeded in establishing a prima facie case of his inability to obtain employment earning at least 90% of his pre-injury compensation. The City failed to offer any countervailing evidence to rebut his prima facie case. Therefore, Ladner has established his entitlement to SEB to be calculated on a basis of zero.

The hearing officer awarded Ladner $261.00 per week for TTD benefits from August 3, 1987, the day he was injured and ceased working until he was placed on disability pension on May 18, 1988. Thereafter, he was awarded SEB at the same rate. The medical evidence indicates that Ladner cannot return to work as a fireman. The medical evidence does not suggest that he was totally disabled at any time. Ladner did not testify that he was totally disabled at any time. The record indicates that his knee injuries make climbing steps difficult, precluding the further pursuit of his career as a firefighter, and that he experiences difficulty getting up from a seated position—nothing more. We find no basis in the record for the hearing officer's award of temporary total disability benefits to Ladner.

The city contends that Ladner is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. Ladner has made no attempt to find employment since he gave up his career as a fireman. There is no evidence that he is making any attempt to obtain skills that could potentially lead to employment. When asked what his normal day was like he said, "Well, not much of nothing." He admitted that he shows himself as retired on his tax return, but did not attempt to explain it away unlike other plaintiffs in these consolidated cases. We find that he has effectively withdrawn from the work force. Lytle, supra. Therefore, we find that he is limited to 104 weeks of SEB.

20. JOHN V. MARCADE, JR.

Marcade last worked for the Fire Department on October 15, 1988 when he held the rank of Lieutenant. He started with the Fire Department on September 23, 1961 under the "old" plan. Therefore, under Cousins the City has no right of offset.

He did administrative work, but he also fought fires.

While fighting a fire in October of 1988 he experienced chest pains. He testified that in addition to his heart problem he has three spurs in his neck [22] as a result of a ceiling having fallen in on him while fighting a fire about a year before his heart problem arose. The City continued to pay for his treatment up until August 2, 1993. He testified that when he called to find out why his claims subsequent to that date had not been paid, he was told that it was because the City attorney had his records and his claims could not be paid without those records. He said that he had two prescriptions for his neck and three or four for his heart. He fills his prescriptions every two months. On this basis, it is impossible to tell from the record whether there was any material delay in paying his claim at the time of trial, as the *1067 trial date was only slightly more than two months past August 2, 1993.

Prior to his injury Marcade said that he was making $36,000.00 per year.

Marcade has an associate of science degree in fire technology from Delgado. He was born on April 6, 1939.

He testified that he is getting a regular retirement pension, but that he is entitled to disability. He testified that he cannot return to firefighting because of his heart condition. He received compensation for approximately six months before he was cut off.

He made only one attempt to get a job since he left the fire department and that was in 1990. He testified that when he told the prospective employer that he had a heart problem they did not want to hire him.

In his report of September 25, 1989, Dr. Robert Ruel stated that:

This patient has been examined on multiple occasions since my last report dated November 28, 1988. As you recall, Mr. Marcade has cervical spondylosis and is not working as a fireman because of neck discomfort. A CAT scan of the cervical spine was performed at Humana Hospital on February 22, 1989. The test indicated bilateral lateral spinal stenosis at C4-5 and C5-6....

If he were to put his hands overhead, he would experience numbness in his arms....

Mr. Marcade is disabled, unable to work as a fireman.

It is apparent that Marcade could be expected to do no more than light duty work, if that. In view of his physical limitations and the fact that his degree from Delgado can be presumed to have but little value outside of his career as a fireman, we find that he has succeeded in proving a prima facie case of his inability to earn at least 90% of his pre-injury compensation. The City offered no countervailing evidence. Therefore, Marcade has established his entitlement to SEB calculated on a basis of zero.

The hearing officer awarded him TTD benefits in the sum of $267.00 per week from October 15, 1988, the date he last worked until he was placed on disability pension on April 23, 1989. The hearing officer awarded SEB at the same rate to commence immediately following the expiration of the TTD benefits. The medical records do not provide much detail, but in view of Marcade's combination of orthopedic and cardiac problems and the failure of the City to introduce any countervailing evidence we cannot say that the hearing officer was manifestly erroneous when he awarded TTD benefits to Marcade.

The city contends that Marcade is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. Marcade has only made the one attempt described above to find work since he left the Fire Department. However, Marcade explained this by saying:

Well, if you can tell me somebody that wants to hire me with my heart problem, I'll go see about working for them. Because as soon as you tell somebody, I have heart trouble; you're a liability, they can't handle you. They can't insure you so they can't handle you; you cannot get a job. Now, if you can tell me somebody that's going to hire me—

The City failed to respond with any evidence of available jobs for someone in Marcade's position. The City offered no documentary evidence, no tax return, tending to show that Marcade had retired. We find no manifest error in the implicit finding of the hearing officer that Marcade has not withdrawn from the workforce.

21. CHARLES MARQUE

Marque ceased working for the Fire Department on April 7, 1988 [23] when he started experiencing chest pains after 31 years with the Fire Department under the "old" plan. Therefore, under Cousins the City had no right of offset.

*1068 He has only a ninth grade education. He had open heart surgery (a triple bypass). He last saw his heart doctor approximately two months prior to the trial and sees him at least four times a year.

He testified that he made approximately $30,000.00 per year prior to his retirement as a fireman.

Marque's attorney elicited the following testimony from him:

Q. What about with reference to your heart condition? Does that give you any problems now?

A. Right now, not really. I have been going to [Dr. Bernstein] regularly. I go walking every day.

Q. Did he restrict you from going back to work at strenuous activities?

A. I can't do anything too strenuous anymore I've noticed, you know, around the house; cutting grass and so forth, I get fatigued.

Q. Did the doctor restrict you from doing those types of things?

A. He didn't restrict me. He didn't tell me, but I just—I can only do so much and I have to quit.

Q. Okay, what did he tell you you couldn't do?

A. Really he didn't tell me I couldn't do anything; he just told me to do what I could.

Dr. Marc Bernstein's report dated July 1, 1988 states that:

[Marque] underwent a three vessel coronary artery bypasses [sic] on May 12, 1988.... However, on a visit immediately post operatively in the office, he was noted to have a large left pleural effusion in which the patient had to under go a thoracentesis. He had been progressing nicely however, I have recommended to him that he not engage in any strenuous or physical activity and because of this I feel he should not return to work.

In another report that is undated, but obviously of a much later date, Dr. Bernstein observed:

In July of 1990 the patient under went cardiac testing which revealed marked abnormalities standard with carotid artery disease. Mr. Marques then under went left carotid endarterectomy. In October of this year Mr. Marques had an ultrasound of carotid which revealed high grade stenosis on the right. He then under went carotid endarterectomy on the right. His current diagnosis is coronary artery disease, coronary artery bypass grafts.

Both this undated report by Dr. Bernstein and another similarly undated report note continued complaints of increased shortness of breath on exertion and numerous cardiac complaints from which we may reasonably conclude that Marque's condition is chronic.

Marque testified that he continues to see Dr. Bernstein at least four times per year and last saw him about two months prior to trial. The City contends that Marque's claim for medical benefits has prescribed. For the same reasons assigned in connection with Alline we find that the City has failed to carry its burden of proving prescription.

In view of the fact that Marque does not have a high-school education and the serious nature of his heart condition, we find that he has succeeded in proving a prima facie case of his inability to find a job earning at least 90% of his pre-injury compensation. As the City failed to offer any evidence to rebut Marque's prima facie case, we find that he has successfully established his entitlement to the SEB awarded him by the hearing officer.

The hearing officer awarded him TTD benefits in the sum of $262.00 per week for the period from April 8, 1988, the date he last worked, until July 17, 1988 when he was placed on disability pension. He was awarded SEB benefits at the same rate to commence as soon as the TTD benefits ceased. Because of the severity of Marque's condition and the seriousness of his operation we cannot say that the hearing officer was manifestly erroneous in finding that he was temporarily totally disabled for at least the period of time encompassed by the TTD award.

The city contends that Marque is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn *1069 from the workforce. Marque described a normal day:

Now I go—in the morning I go to the Chalmette Battle Field and I walk for an hour or so of exercise. The doctor recommended that. Then I come home and fool around the house, take my wife shopping if she has to go. And then watch T.V. in the evening.

Marque testified that he had no intention of looking for a job, "Not unless I have to. I mean right now I'm getting along on my disability." We find that the only reasonable conclusion to be drawn from Marque's own testimony is that he has withdrawn from the work force. Lytle, supra. As long as his disability payments are adequate he has no intention of returning to work even if a compatible job should present itself. If he can walk for an hour every day for exercise, he can look for work. He offered no excuses to the contrary. Therefore, he is only entitled to 104 weeks of SEB.

22. JOHN NIEHUES

Niehues was injured on May 26, 1988 after having worked for the Fire Department since April 28, 1957 under the "old" plan. Therefore, under Cousins the City has no right of offset.

He made several attempts to return to work, but by November of 1988 found that as a result of the May injury he could no longer work. He testified that he had a year and a half of high school at Holy Cross and about a year at Delgado. He never finished high school. He was a fire apparatus operator, a job requiring much heavy lifting, prior to retirement.

Niehues injured his neck and lower back when he slipped and fell while fighting a fire. He saw Dr. Ruel at the time and he continues to see him. Prior to his injury he was earning approximately $34,000.00 per year.

He testified that Dr. Ruel had advised him not to do any heavy lifting or to make any sudden movements, which prevents him from returning to work as a fireman. Niehues was born on September 24, 1935.

Niehues testified that he has made no attempt to look for work since he retired from the fire department. He admitted that he was not totally disabled, but went on to explain:

Q. So, you never intend to work again in your life?

A. No, I can't tell you that. I mean, I don't know what would come up. I mean, as it stands now, that—when I go shopping with my wife, my back hurts. If I stay around—I've got to go and sit on a bench in the hall. I mean, there's only—who's going to hire me and ask me to work while my back is not hurting, while my neck is not hurting?

In his report dated November 21, 1988, Dr. Robert Ruel recommended that Niehues apply for medical retirement. In his report dated February 7, 1993 which is the most recent found in the record, Dr. Ruel noted complaints of discomfort in his neck especially when sitting as well as continued lower back complaints. Dr. Ruel expressed no further opinion concerning the extent of Niehues' disability, but it can be inferred that jobs involving standing or sitting for long periods, or heavy lifting should be ruled out at the very least. That does not leave many opportunities for someone without a high-school diploma. We can safely assume that were Niehues to be able to obtain some form of work within the range of his limitations that any such job would pay substantially less than 90% of his pre-retirement income. Therefore, we find that Niehues has succeeded in proving a prima facie case of his entitlement to SEB. As the City has failed to produce any countervailing evidence Niehues has established his right to SEB calculated on a basis of zero.

The hearing officer awarded him TTD benefits in the sum of $262.00 per week from the date he last worked [24] up until the time he was placed on disability pension on December 28, 1988, a period of a little over one month. There is no evidence in the record of total disability. The medical records indicate disability in connection with Niehues's strenuous job as a fireman. Niehues *1070 testified that he could no longer work as a fireman. But his testimony does not permit the inference that he was at any time totally disabled. The record does not support the hearing officer's award of TTD benefits.

The city contends that Niehues is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. Niehues explained that when he put "retired" on his tax returns it meant that he was receiving a disability pension. He gave the same explanation for the doctor's reports describing him as retired. He explained that he has made no attempt to find work because he thought no one would hire him because of his disability. These facts are remarkably similar to those of Lytle where this Court rejected such explanations. Therefore, we find that Niehues has withdrawn from the workforce and is only entitled to 104 weeks of SEB.

23. FRANK PALISI

Palisi last worked for the Fire Department on December 16, 1988 at which time he was a captain. He started with the Fire Department on July 25, 1963 under the "old" plan. Therefore, under Cousins the City has no right of offset. Palisi's job involved a lot of heavy lifting. On December 16, 1988 while fighting a fire he was hurt when something fell on him, again when he slipped and fell, and again when he strained his neck while handling the water hose. He testified that as a result he can neither stand nor sit for long periods, and he frequently has trouble bending over. At the time of trial he was taking no prescription drugs, but he was taking Ibuprofen. Palisi testified that the City paid his medical expenses.

Prior to his injury Palisi was earning between $36,000.00 and $37,000.00 per year.

Palisi testified that in 1991 he had applied to a hardware store for a part-time job and that later that same year he applied to Home Depot. Neither would hire him because of his back condition.

Palisi testified that he is currently under the care of Dr. Schiavi whom he last saw about two months prior to the trial. He said that he was still taking muscle relaxants which was the purpose of his most recent visit to Dr. Schiavi.

Mr. Palisi gave the following testimony on cross-examination:

Q. No doctor has told you that you are unable to engage in any gainful employment or self-employment for wages, have they?

A. They've never told me that, no.

Q. And you don't believe that that's the case, right? You can do something?

A. Oh, I'm sure I can.

Q. Have you ever applied—you've not applied at McDonalds or Burger King or any of those places to work?

A. No, sir, I haven't.

Q. Was there any reason.

A. No, sir, there's no reason.

Palisi testified that he hoped to find a job after the case was over. He testified that he did bench presses once or twice a week with about forty pounds because he could do them lying on his back.

Palisi finished high school and went on to Delgado for two years where he studied a course in safety engineering and firefighting and another in fire technology. It would seem that those courses taken at Delgado long ago would be of little value to Palisi outside of his job at the fire department.

In his report dated February 15, 1989, Dr. Jack Ruli recommended that Palisi be considered totally and permanently disabled from engaging in fireduty. Dr. Schiavi indicated in his report dated February 2, 1989 that if Palisi continued to do the kind of heavy work required at the Fire Department he risked additional problems and possible disc rupture. The most current report in the record from Dr. Schiavi states that:

Impression was cervical spondylolysis, degenerative disc disease of the lumbar spine with some reactivation of symptomatology.

The patient seemed to be doing well taking Aspirin. He was given some muscle relaxants and advised to use heat to the back. I see no change in his status from the last report.

*1071 The City contends that Palisi's claim for medical benefits has prescribed. Palisi testified on cross-examination that he had been to Dr. Schiavi as recently as two months prior to trial. The City offered nothing to rebut this testimony. We find that the City has failed to carry its burden of proving its exception of prescription for the same reasons assigned in connection with Alline.

The most reasonable conclusion to be drawn from the record is that any future employment that Palisi might undertake would be limited to light duty. In view of the fact that the two years of courses he took at Delgado after high school can be presumed to be of little value outside of his career as a fireman, we find that he has succeeded in proving a prima facie case of his inability to earn at least 90% of his pre-injury compensation. The City offered no countervailing evidence to rebut this prima facie case. Therefore, we find that Palisi has established his entitlement to SEB calculated on a basis of zero.

The hearing officer awarded him TTD benefits in the sum of $267.00 per week, the same amount as his award for SEB. The medical evidence does not support a finding of total disability for any period of time. Dr. Ruli's report stated that Palisi was disabled from "fireduty" but did not imply total disability. We infer from Dr. Schiavi's report dated February 2, 1989 that Palisi's injury did not prevent him from doing light work:

I recommended he resume the therapy and refrain from doing any type of heavy work. Since there is no available light duty [with the Fire Department] he will be kept off of work until he improves enough to return to regular duty.

Palisi testified that he could no longer work as a fireman, but he did not testify that he was totally disabled. The record does not support the hearing officer's award of TTD benefits.

The city contends that Palisi is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the workforce. The burden was on the City at the hearing to show that Palisi had withdrawn from the workforce, and on appeal the burden is on the City to show that the hearing officer was manifestly erroneous in reaching the implicit finding that Palisi had not withdrawn from the work force. The City relies on the facts that Palisi's efforts to find employment were limited and he showed himself as retired on his tax return. Regarding his tax return Palisi testified that, "I don't consider myself retired but what other word could I put on my income tax? No longer employed—." However, in view of Palisi's admission that he was capable of some kind of work and his failure to explain why he apparently has made no attempt to find suitable employment we find that he has withdrawn from the workforce. Therefore, Palisi is eligible for only 104 weeks of SEB.

24. DONALD PERKINS

Perkins started working for the Fire Department on November 12, 1962 under the "old" plan. He ceased working for the Fire Department on June 7, 1989 after injuring his knees fighting a fire in his capacity as a captain. Therefore, under Cousins the City has no right of offset.

He had injured his knees on the job several times previously. Perkins testified that he had seen Dr. Victor P. Chisesi, the only physician who had treated him for his knee problems, in the month prior to the trial. On that occasion Dr. Chisesi gave him a cortisone shot in his right knee and two cortisone shots in his left knee and opined that he might require a total left knee replacement within the next two to three years.

Prior to the accident Perkins was earning approximately $37,000.00 dollars.

Perkins testified that he can neither sit nor stand for long periods, he cannot kneel and he cannot climb ladders.

In his report dated July 20, 1989, Dr. Chisesi stated in pertinent part:

Mr. Perkins has been under my care since June 7, 1989, when he re-injured his knees while fighting a fire. His diagnosis is medial collateral ligament syndrome of both knees and osteoarthritis of the knees, the left greater than the right.

* * * *

*1072 Because of his present condition, he cannot stoop, climb, bend, or crawl with ladders. I feel my patient is unfit for future fire duty.

The most reasonable conclusion to be drawn from the record is that Perkins is fit only for light duty. He attended only one year of college. Therefore, we find that he has proved a prima facie case of his inability to find employment that would pay him at least 90% of his pre-injury income. The City failed to offer any countervailing evidence to rebut this prima facie case. Thus Perkins has established his right to SEB.

The hearing officer awarded him TTD benefits in the sum of $267.00 per week commencing on June 7, 1989, the date he was injured and ceased working, through August 18, 1989, the date he was placed on disability pension. We find no manifest error in the award of TTD benefits for this short period of time.

The city contends that Perkins is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the work force. The only evidence offered by the City is that Perkins's tax return shows him to be retired. However, we do not give much weight to this evidence in the absence of corroborating evidence. We note that in general when the plaintiffs in these consolidated cases have shown themselves as retired on their tax returns they mean only that they have retired from their chosen profession of fire fighting as opposed to having withdrawn entirely from the workforce as contemplated by LSA-R.S. 23:1221(3)(d)(iii). We give greater weight to the fact that when questioned Perkins testified that if he could find work he was capable of doing he would take it. The City offered no proof of the existence of such jobs. The City offered no proof that Perkins had not attempted to find other work. Perkins did not testify that he had, but neither did he testify that he hadn't. The mere designation of "retired" on Perkins's tax return is not sufficient in itself to carry the City's burden of showing that Perkins has withdrawn from the work force. We find no manifest error in the implicit finding of the hearing officer that Perkins has not withdrawn from the work force.

25. PAUL RASCHKE

Raschke was born on January 13, 1949. He has only a high-school education. He last worked for the Fire Department on December 20, 1988 when he injured his neck in his capacity as a captain, which was a physically demanding job requiring heavy lifting. He started work with the Fire Department on January 14, 1968 under the "new" plan. He has not worked in any capacity since the date of his injury.

Raschke is not old enough to retire under the "new" plan. Therefore, his will not be considered a retirement benefit exempt from offset under Cousins . We find that the City has the right of offset against Raschke, but that it has not exercised that right in accordance with the proper methodology. We find it appropriate to remand his case to the hearing officer for a calculation of the City's right of offset in accordance with this opinion.

Raschke testified that his injury had deteriorated from a herniated disc to extruded disc, very close to the nerve running to his arm. He has bad headaches and any strenuous activity inflames and enlarges the injured area causing it to impinge on the nerve "and then my [left] arm goes dead." He experiences constant aches and pains that interfere with sleep and he experiences discomfort either sitting or standing. He cannot do any significant lifting and at least twice a day "I have got to get off my feet completely and lay down with a little round pillow under my neck to take the weight of my head off of my neck or the disc becomes inflamed and my arm goes numb and I start getting severe headaches."

He testified that he has made no attempt to look for employment since he was injured because he knew of no job that would accommodate the limitations imposed by his injury, especially his need to lay down twice a day to take the pressure off of his neck. He sees Dr. Ruel regularly, every month or two.

Dr. Ruel's report of February 18, 1989 states that:

*1073 A CAT scan of the cervical spine was performed on January 31, 1989, and demonstrated a large disc herniation at C5-6 on the left side.... I recommend that he apply for medical retirement.

Dr. Ruel noted on more than one report that Raschke was opposed to surgical intervention. Dr. Ruel's last report in the record dated August 13, 1990 prescribed intermittent cervical traction twice weekly in addition to heat packs and ultrasound.

The City contends that Raschke's claim for medical benefits has prescribed. Raschke testified that he is still seeing Dr. Ruel. On cross-examination he stated that he sees Dr. Ruel on an average of once every two months. Raschke did not claim any unpaid medical expenses. The City offered nothing to rebut this testimony. We find that the City has failed to carry its burden regarding this exception of prescription for the same reasons assigned in connection with Alline.

Prior to his injury he was earning approximately $33,000.00.

The most reasonable conclusion to be drawn from the record is that Raschke is limited to light duty work at best. That coupled with his limited education is sufficient to prove a prima facie case of his inability to earn at least 90% of his pre-injury compensation. The City failed to offer any countervailing evidence to rebut Raschke's prima facie case. Therefore, Raschke has succeeded in establishing his right to SEB calculated on a basis of zero.

The hearing officer awarded Raschke TTD benefits in the sum of $267.00 per week from December 20, 1988, the date he last worked until he was placed on disability pension on April 17, 1989. Thereafter he was awarded SEB at the same rate from the date the TTD benefits were to terminate. The extent of his disability as described previously is such that we cannot say that the hearing officer was manifestly erroneous in awarding TTD benefits.

26. EUGENE RAVAIN

Ravain last worked for the Fire Department in May or June of 1988. He started with the Fire Department on September 2, 1962 under the "old" plan. Therefore, under Cousins the City has no right of offset.

He had two years of college at Delgado where he studied fire technology. He was born on June 29, 1938 and was fifty-five years old at the time of the trial. He was a district chief at the time he ceased working for the fire department. He stopped working because of injuries he sustained in the Cabildo fire on May 11, 1988 when a ceiling collapsed on his head, causing injury to his neck. He tried to continue working for approximately two weeks afterwards, but his condition got progressively worse until he had to quit work on either June 3 or June 4, 1988.

Ravain saw Dr. Nutik first and then switched to Dr. Ruel whom he was continuing to see at the time of trial. Ravain testified that Dr. Ruel told him:

... if I didn't do anything at a fire except just raise my head and look at a fire for a while, I would have problems with my neck.

As a district chief his job frequently entailed heavy lifting and climbing.

In 1990 Ravain got a job as a seasonal park ranger with the National Park Service. He works as a fee collector in the Great Smoky Mountains for six months out of the year. The job requires no physical effort. He merely collects fees and explains park rules and regulations. At the end of each season he has no guarantee that he will be rehired the following season. He makes $8,000.00 per year. Ravain stated that he cleared the job with Dr. Ruel prior to taking it. He further testified that he does hike in the mountains.

In 1989 he attempted to get a law enforcement commission but could not get a medical clearance to do so.

He testified that at the time of trial the City had ceased paying for his medical expenses.

The most recent report by Dr. Ruel found in the record is dated February 26, 1990 and states that:

*1074 On examination, his lateral bending motion was severely restricted to both right and left sides. Extension was likewise restricted. There was no muscle spasm and no radicular pain in the upper extremities. X-rays of the cervical spine showed marked narrowing of the C5-6 disc space with posterior narrowing. He remains disable[d] and unable to work.

This report is consistent with all prior reports from Dr. Ruel commencing in 1988.

Ravain testified that at the time he ceased working for the fire department that he was making $3,472 per month, or $41,664.00 per year.

The most reasonable conclusion to be drawn from the record is that Ravain is limited to light duty work. His two years at Delgado are presumably of little value to him outside of his career as a fireman. Therefore, we find that he has proved a prima facie case of his inability to earn at least 90% of his pre-injury compensation. The City failed to offer any countervailing evidence to rebut his prima facie case. Ravain has succeeded in establishing his entitlement to SEB. However, it is necessary to remand Ravain's claim to the hearing officer for purposes of calculating the extent to which Ravain's benefits should be reduced, if at all, in view of his earnings as a park ranger.

The hearing officer awarded him TTD benefits in the sum of $262.00 per week from the date he last worked until he was placed on disability pension on December 27, 1989. Dr. Ruel's reports indicate that Ravain was no longer able to work as a fireman. His reports do not imply that he was totally disabled at any time. On the stand Ravain was asked:

Q. Dr. Ruel, does he recommend you not work; or restrict activities.

A. Restrict my activities, yes.

Ravain did not testify that there was any period of time during which he was totally disabled. The record does not support an inference of total disability for any period of time. Therefore, it was error for the hearing officer to award TTD benefits to Ravain.

The city contends that Ravain is limited to 104 weeks of SEB under LSA-R.S. 23:1221(3)(d)(iii) because he has withdrawn from the workforce. The fact that he has obtained a job as a park ranger as described above shows that the City's position on this issue is without merit.

27. JOHN RENAUD

Mr. Renaud has only a high-school education. He stopped working for the fire department on September 21, 1987 following a heart attack he suffered at a fire on that date. He was born on December 12, 1938 and started with the fire department on September of 1

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