JAMES F. McKAY III, Judge.
Worker's Compensation claimant, Derrick Hall, seeks a review of the judgment from the Office of Workers' Compensation ("OWC"), District 8, Docket # 09-10143, Diane R. Lundeen, Office of Workers' Compensation Judge ("WCJ"), rendered in favor of the defendant, MacPapers Inc. For the reasons set forth below, we affirm the judgment.
On August 19, 2009, Derrick Hall was involved in a motor vehicle accident while in the course and scope of his employment, as a truck driver, for MacPapers Inc. ("MacPapers"). As a result of this accident, he essentially sustained injuries to his neck and back and was prescribed a series of pain medications, to wit, Lorcet 10 mg. and Darvocet-N-100. Pursuant to La. R.S. 23:1121(1), he received Temporary Total Disability ("TTD") indemnity benefits from the date of the accident until November 19, 2009 when his employer, MacPapers, requested that he return to work. Mr. Hall was released to return to work by various treating medical specialist with the caveat that the work be sedentary with light duty jobs. MacPapers, in an attempt to accommodate these work restrictions, offered several sedentary positions to Mr. Hall with a pay scale comparable to his pre-accident pay. Mr. Hall never accepted any of the positions, nor did he return to work. In the months that followed the accident and until the trial one and a half years later, Mr. Hall continued visits with various medical physicians. Mr. Hall maintains that his primary reason for not returning to work is that he is in pain and cannot perform his job duties because the prescribed medications produce side-effects. These side-effects include complaints of nausea, dizziness and sleepiness, which he asserts essentially prevent him from performing any job, even sedentary work, and make any means of transportation to and from work impossible.
The deposition testimonies of his various treating physicians were admitted into evidence, including the following: Jason Kennedy D.C., Mr. Hall's chiropractor; Dr. Robert Steiner, MacPapers' independent medical examiner ("IME") physician; Dr. Elliot Greenberg, Mr. Hall's choice of physicians; Dr. Charles Billings, Mr. Hall's orthopedist; and Dr. Ralph Katz, the court appointed physician.
The WCJ held: (1) that Derrick Hall suffered an accident while in the course and scope of his employment when he was
On appeal, Derrick Hall ostensibly asserts that the WCJ erred in failing to find that MacPapers was arbitrary and capricious in terminating his TTD benefits, in failing to award SEB benefits and in failing to assess attorney's fees and penalties.
It is well settled that factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 2004-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Dean v. Southmark Constr., 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117; Masinter v. Akal Sec., Inc., 2005-1236, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 201, 204. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder's conclusion was a reasonable one. Bell v. Mid City Printers, Inc., 2010-0818, p. 7 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1232 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556).
The claimant asserts that the WCJ erred in failing to find that MacPapers was arbitrary and capricious in terminating and not reinstating his TTD benefits.
La. R.S. 23:1221(1). Temporary total disability:
Hence, as set forth in the statute above, a claimant who seeks workers' compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment. "To prove a matter by `clear and convincing' evidence means to demonstrate that the existence of a disputed fact is much more probable than its nonexistence." Molinere v. Vinson Guard Service, Inc., 2005-0116, p. 5 (La.App. 4 Cir. 7/13/05), 914 So.2d 566, 571, citing Louisiana State Bar Ass'n v. Edwins, 329 So.2d 437 (La.1976). Under Louisiana law, "[T]he question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony." Hosli v. Rent-A-Center, Inc., 2006-1466, p. 8 (La.App. 4 Cir. 4/11/07), 957 So.2d 207, 212, citing Dugas v. Rosary House, 93-42 (La.App. 3 Cir. 4/6/94); 635 So.2d 570, 572. Furthermore, a claimant is entitled to temporary total disability (TTD) benefits if he proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Gasway v. Cellxion, 44,638, p. 9, (La.App. 2 Cir. 1/27/10), 31 So.3d 566, 573. A claimant who can perform light duty work is not entitled to TTD benefits. Id.
The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Read v. Pel-State Oil Company, 44,218, p. 3, (La.App. 2 Cir. 5/20/09), 13 So.3d 1191,
Pertinent to the issue of TTD benefits, the WCJ in her reasons for judgment noted the various stances of the claimant's treating physicians during the applicable time period. The WCJ reasons are noted here below.
Mr. Hall was initially treated at Concentra Medical Center on the date of the accident, August 19, 2009. On September 2, 2009, Dr. Kennedy opined that Mr. Hall should refrain from working for twelve (12) weeks. On November 18, 2009, Dr. Kennedy revaluated Mr. Hall and indicated that Mr. Hall was capable of sedentary work but that he had not reached maximum medical improvement ("MMI"). On October 19, 2009, Dr. Robert Steiner found that Mr. Hall could perform the sedentary job duties of a job that MacPapers had available for Mr. Hall. On December 2, 2009, Dr. Steiner felt that Mr. Hall could drive and perform light duty work while taking his prescribed medications, Lorcet 10mg and Darvocet N-100, depending on what the light duty job entailed. On December 7, 2010, Dr. Steiner approved an available job at MacPapers within Mr. Hall's sedentary restrictions. On December 11, 2009, Dr. Kennedy felt that Mr. Hall should not drive, use machinery nor do any activities that required alertness until he was sue that he could perform such activities safely while on medications.
On November 24, 2009, Mr. Hall's attorney demanded reinstatement of Mr. Hall's TTD benefits. However, as noted above, Dr. Steiner, MacPapers' IME, issued a second opinion that Mr. Hall was capable of working while taking his prescribed medications.
The trial court did not find that these medical opinions were discordant with each other. Clearly, the WCJ found them to be reasonable reliant determinants in her final decision.
In the instant matter, pertinent to the issue of credibility and objective observation, the claimant asserts that he was unable to work because of pain and the side effects of his prescribed medications. Claimant's subjective and self-reported impact of his medications is inextricably intertwined with the trial court's credibility findings. Contrary to the claimant's assertions, no doctor found that Mr. Hall's injuries or the impact of his medications prevented him from working or traveling from his domicile to work. Instead they found that he should not drive while he was experiencing side effects from his medications. Further, Drs. Billings, Katz, Steiner and Greenberg testified that had the claimant complained of any side effects from the prescribed medications they would have prescribed something non-narcotic so that Mr. Hall could drive to work.
Mr. Hall went on to testify that Dr. Billings tried injections, as an alternative to the medications, to relieve his pain and that he was still under treatment with Dr. Billings. On cross-examination, Mr. Ely, attorney for MacPapers, questioned Mr. Hall addressing the issue of the medication side effects.
This Court has held that, although it may consider a claimant's uncorroborated testimony of subjective pain concerning what his/her physical limitations might be as a result of that pain, the decision of the court should not be based on claimant's self-serving testimony on the ultimate issue of whether the claimant is able to work. Duhon v. Holi Temporary Services, Inc., 97-0604, pp. 6-7 (La.App. 4 Cir. 10/1/97), 700 So.2d 1152, 1155; see also Scott v. Lakeview Regional Medical Center, 2001-0538, pp. 5-6 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 221-222. As this Court stated in Duhon:
Duhon, 97-0604 at p. 7, 700 So.2d at 1155. See also, Bethley v. City of New Orleans, 2006-0921, p. 6, (La.App. 4 Cir. 10/18/06), 945 So.2d 738, 742.
After a review of the record and given the totality of the evidence, we find that the claimant has failed to prove by clear and convincing evidence that he was medically incapable of performing some type of work. Therefore, based upon applicable jurisprudence and pursuant to La. R.S. 23:1221(1), Mr. Hall was not entitled to receive TTD benefits after MacPapers discontinued his benefits.
Mr. Hall asserts that the WCJ erred in finding that he was not entitled to SEB benefits.
Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB benefits if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of the average pre-injury wage. Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 738.
Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. Banks v. Industrial Roofing and Sheet Metal Works, Inc. 96-2840, p. 9, (La.7/1/97), 696 So.2d 551, 556. Actual job placement is not required. Caparotti v. Shreveport Pirates Football Club, 33,570, p. 6, (La.App. 2 Cir. 8/23/00), 768 So.2d 186, 191.
The amount of an award of SEBs is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity. See La. R.S. 23:1221(3)(a).
To determine if a trial court's finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee's inability to earn ninety percent or more of the pre-injury wages. Seal v. Gaylord Container Corp., 97-0688, p. 8, (La.12/02/97), 704 So.2d 1161, 1166.
The WCJ reasoned that Mr. Hall had met with a vocational rehabilitation counselor who identified multiple suitable jobs that were within Mr. Hall's physical capabilities and were in the employer's community or within a reasonable geographic region. The jobs that the vocational rehabilitation counselor identified ranged in pay from $8.00 to $13.00 per hour. The WCJ also noted that on three occasions MacPapers offered Mr. Hall a modified job checking driver logs. This job was at or near the same location as his pre-accident job, at the same rate of pay and
As noted above, Mr. Hall claims that he cannot get to work nor perform the duties of a job mainly because of the side-effects of his medications. None of the doctors opined that he could or should drive while having side-effects from his prescribed medications. At trial, Mr. Hall admitted that he does not always experience side effects when he takes the narcotic medications. Further, his side effects range in severity. Dr. Steiner's expert medical opinion confirms that Mr. Hall would be able to work at the job MacPapers identified while taking narcotic medications. Mr. Hall failed to produce any evidence into the record that would contradict the expert medical opinions. Mr. Hall's argument that he would be unable to get to and from work if he were unable to drive is ludicrous. Driving is not one of the duties of his modified job nor is it the responsibility of an employer to provide transportation to its employees.
Mr. Hall failed to sustain his burden of proof that he was entitled to any SEB benefits. Mr. Hall was offered suitable jobs with MacPapers at his former pay but declined to accept the positions. Given the totality of the evidence, the WCJ reasoned, "Mr. Hall failed to carry his burden that he had a loss of any earning capacity as a result of his work-related injury after employer discontinued the benefits. Accordingly, Mr. Hall is not entitled to supplemental earnings benefits." We agree.
Mr. Hall asserts that the WCJ erred in failing to award penalties and attorney fees based on the arbitrary and capricious actions of MacPapers in discontinuing and his TTD benefits, and failing to timely pay his medical expenses.
Awards of penalties and attorneys' fees in workers' compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46. Although the Worker's Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id. "Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation." Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8-9 (La.12/1/98), 721 So.2d 885, 890.
The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the WCJ's findings shall not be disturbed absent manifest error. Authement v. Shappert Eng'g, 2002-1631, p. 12, (La.2/25/03), 840 So.2d 1181, 1188-89. In determining the factual issue of whether an employer's actions are arbitrary and capricious, the manifest error standard of review is applied, and the crucial inquiry is "whether the employer can articulate an objective reason for discontinuing benefits at the time it took the action." Frith v. Riverwood, 2004-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15. The Louisiana Supreme Court has also considered the circumstances under which an appellate court should reverse the decision of a workers' compensation judge denying penalties and attorneys' fees. In J.E. Merit Constructors, Inc. v. Hickman, 00-0943 (La.1/17/01), 776 So.2d 435, 438, the Supreme Court found that an employer's actions in terminating an employee's supplemental earnings benefits did not rise to the level of being arbitrary and capricious even if the actions were legally incorrect.
The WCJ was succinct in her reasons for judgment on this issue. MacPapers discontinued Mr. Hall's TTD benefits on November 19, 2009. They had sufficient reason to believe that Mr. Hall was capable of performing a sedentary duty job. He was in fact offered such a job within the restriction and for comparable pay. He declined the job offer despite medical testimony that he was medically capable of performing the duties of the modified position. Therefore, MacPapers' decision to discontinue Mr. Hall's TTD benefits was reasonable and not arbitrary and capricious.
The WCJ found that Mr. Hall's testimony lacked credibility. She noted that at his Functional Capacity Evaluation ("FCE"), Mr. Hall exhibited self-limiting behavior on 25% of the sixteen (16) tasks he was asked to perform. She also noted that she had the opportunity to observe his demeanor during the multiple days of trial and that he did not exhibit much distress.
Additionally, the WCJ found that Mr. Hall failed to introduce any evidence to demonstrate that he made written demand, which is required for any penalties to be awarded for failure to pay medical bills. These include the New Orleans East Rehab bill in the amount of $1,815.82 and the American Radiology Services bill in the amount of $106.00. The WCJ noted that MacPapers is obligated to pay these bills for necessary and related treatment pursuant to the Louisiana Workers' Compensation fee schedule.
The WCJ made a factual determination that MacPapers was not arbitrary and capricious in their actions toward Mr. Hall. We will not disturb its denial of penalties and attorney's fees on appeal.
We find on the record, taken as a whole, that sufficient credible medical evidence supports the conclusion that the WCJ's ruling was a reasonable one, and find no manifest error in the ruling. For the foregoing reasons in this opinion, we affirm the WCJ's decision.
