VICTORY, J.
In this workers' compensation case, the workers' compensation judge ("WCJ") awarded claimant supplemental earnings benefits ("SEBs"), penalties, and attorney fees, finding the employer's failure to pay benefits arbitrary and capricious. The court of appeal affirmed. We granted certiorari to determine whether the lower courts used the correct standard in determining the claimant was entitled to SEBs. For the reasons that follow, we reverse the judgment awarding claimant SEBs, penalties, and attorney fees, and render judgment in favor of the employer.
Emile Poissenot ("Poissenot") was an employee of the St. Bernard Parish Sheriff's
After his initial treatment, Poissenot continued treatment with Dr. Eric George, an orthopaedic surgeon specializing in surgery of the hand and upper extremities. Under Dr. George's care, he underwent two additional outpatient surgical procedures on the same finger. The first surgery, on October 8, 2004, was to remove the retained hardware from the initial surgery, and to insert a buttress plate on the bone of the little finger to properly realign it. On October 18, 2004, Dr. George removed the stitches, placed him in a cast for two weeks, and released him to light duty work. On December 1, 2004, Dr. George released Poissenot to return to full work. On December 31, 2004, Dr. George performed another surgery to remove the hardware to free the tendons for better movement. He was released from formal therapy on February 17, 2005. Poissenot was ultimately diagnosed as having a permanent partial disability of 19% of the right hand and 17% of the right upper extremity.
Poissenot returned to work after the accident with some accommodation as a deputy at the same juvenile facility.
After a trial on the merits, the WCJ awarded him SEBs under La. R.S.
"The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident." Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. "In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee's community or reasonable geographic location.
The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers' compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007. Further, factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). "In determining whether a [WCJ's] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee's inability to earn 90% or more of his pre-injury wages." Seal v.
We initially note that the court of appeal applied the incorrect standard in determining whether Mr. Poissenot met his initial burden of proof. In its opinion, the court of appeal held, "[t]he record before us does not indicate that Mr. Poissenot could perform the
As a deputy, Mr. Poissenot earned an average monthly wage of $1,694.50. To meet his burden, he would have to show by a preponderance of the evidence that he was unable to earn at least $1,525.05
SBPSO contends Poissenot did not met the initial burden set out in La. R.S. 23:1221(3) according to the objective evidence, and that therefore, the burden of proof never shifted to it to prove anything. SBPSO did not present any witnesses but entered into evidence a deposition given by Dr. George and the FCE. That evidence showed that Dr. George released Poissenot to return to full work on December 1, 2004. Further, the FCE confirmed Dr. George's findings that Poissenot could return to medium level work activity, specifically stating:
His employment before the injury was also classified as medium level work. Most significantly, SBPSO argues, Poissenot returned to work after his injury at the same salary and was able to work overtime. He continued to work there from October of 2004 to September 2005, when he was furloughed along with every other SBPSO employee because of Hurricane Katrina. Thus, SBPSO claims, the injury did not cause him to lose him job, Hurricane Katrina did.
Implicit in La. R.S. 23:1221(3)'s requirement that the employee show that a work-related injury resulted in his inability to earn 90% of his pre-injury wages is a showing that the injury, and not some other cause, resulted in his inability to retain his pre-injury job. Where the employee goes back to his pre-injury job and then is terminated for a reason beyond the employer's control and totally unrelated to the injury, this strongly suggests that his inability to earn 90% of his pre-injury wages was not the result of his injury and that the employee is in fact able to earn 90% of his pre-injury wages in some capacity. In Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.3/4/98), 708 So. 375, 384, this Court held that the employer's offer to place the employee "in a position that [she] could do [in spite of the injury] defeated the employee's claim for SEB." Further, the Court held that "[t]his conclusion is bolstered by the fact that [the employee] was able to perform, without difficulty, substantially similar work [for a different employer] for 9 months." Id. at 384.
We recognize jurisprudence from this Court that a claimant's ability to return to work for his former employer does not always foreclose entitlement to SEBs. In Allen v. City of Shreveport, 618 So.2d 386, 388, 389 (La.1993), where the employee was able to return to his pre-injury sedentary job but the position had been eliminated before he could return, the Court held that "[i]t is irrelevant whether the claimant is physically able to perform his former sedentary job that is no longer available" and that "[t]he relevant question is whether the claimant is partially disabled and whether he is able to earn 90% of the wages he was earning prior to the injury." However, unlike in Allen, where the doctor released the claimant to return to light duty in a sedentary job with specific
The trial court found Poissenot met his burden, even though he continued in his pre-injury employment, because the employer offered significant accommodations that no other sheriff's office would make. However, while no other sheriff's office may have been willing to hire him with his right hand limitations, this is too narrow an inquiry. As stated, the law does not require that a plaintiff be unable to engage in the same or similar employment as when he was injured to qualify for SEBs. The law requires the trial court take into account all those factors which might bear on an employee's ability to earn a wage in determining if an injured employee has made out a prima facie case of entitlement to SEBs. While Poissenot was turned down for employment after he was furloughed from SBPSO, two of the jobs he applied for were in law enforcement where the use of a gun would be necessary-and Poissenot knew he was no longer certified to use a gun. The other job, at a printing company, required heavy lifting, which is not a medium level job. Although he testified he "spoke to someone about helping out in the bakeries" in St. Tammany, and "spoke with family members who were working at a Walmart about a stock job," there was no evidence he actually applied for those jobs. Moreover, in this case, Poissenot's employment post-injury shows, at the very least, that he was able to answer phones, monitor cameras, sit for extended periods of time, and perform clerical work, and his prior work experience with over 20 years as an investigator with the NOPD and DA's office shows he is highly trained. Further, both the functional capacity exam voluntarily taken by Mr. Poissenot and his own doctor cleared him to return to medium level work, and his pre-accident job was also rated medium level work. The most significant negative factor in all of the medical evaluations
In this case, the majority of evidence and testimony presented focused on the fact that he could not do the
After review of the applicable law, we find the lower courts erred in finding Poissenot met his initial burden of proof because they focused on whether Poissenot could return to the same type of work he was performing before the accident, rather than on whether Poissenot could earn 90% of his pre-injury wages. A review of all the evidence that bears upon Poissenot's ability to earn 90% or more of his preinjury wages reflects Poissenot did not meet his initial burden; therefore, the burden never shifted to SBPSO and thus he is not entitled to SEBs. Further, because Poissenot is not entitled to SEBs, he is not entitled to attorney fees and penalties under La. R.S. 23:1201(I)
Under La. R.S. 23:1221(3)(a), a claimant is required to prove by a preponderance of the evidence that a work related injury resulted in his inability to earn wages equal to 90% or more at the time of the injury. Louisiana law does not require that a plaintiff be unable to engage in the same or similar occupation as when he was injured in order to qualify for SEBs. In this case, the medical evidence, as well as Poissenot's actual work history after the accident, demonstrate he was capable of earning 90% of his pre-injury wages, and he failed to produce sufficient evidence showing otherwise. Because he failed to bear his initial burden of proof, the burden never shifted to SBPSO to prove that jobs existed for Poissenot in his geographic area that would have paid him 90% of his
For the reasons stated herein, the judgment of the court of appeal granting Mr. Poissenot supplemental earnings benefits, penalties, and attorneys fees is reversed and judgment is rendered in favor of St. Bernard Parish Sheriff's Office.
KNOLL, J., dissents and assigns reasons.
KNOLL, J., dissenting.
It is well settled that the provisions of the worker's compensation act must be given a liberal interpretation in favor of the claimant. Daugherty v. Domino's Pizza, 95-1394, pp. 8-9 (La.5/21/96), 674 So.2d 947, 953; Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1006 (La.1989). The threshold prerequisite to the recovery of supplemental earnings benefits, as set forth in La.Rev.Stat. 23:1221(3)(a), is that the employee's injury result in his inability to earn wages equal to ninety percent or more of his average pre-injury wage. Daigle, 545 So.2d at 1007. The injured employee thus bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Seal v. Gaylord Container Corp., 97-0688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166. The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage. Daigle, 545 So.2d at 1007; Seal, 704 So.2d at 1166. In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage. Daigle, 545 So.2d at 1007.
In reversing the lower courts' judgments, the majority errs by substituting its factual findings for those of the hearing officer. Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, 96-2840 p. 7 (La.7/1/97), 696 So.2d 551, 556. When determining whether a hearing officer's finding that a claimant has met his initial burden of proving entitlement to SEBs was manifestly erroneous, a reviewing court must examine the record for
Dr. George diagnosed claimant with a permanent partial disability of 19% of the right hand and 17% of the right upper extremity. Claimant is right hand dominant. Claimant underwent three surgeries. He testified that Dr. George gave him the option of a fourth surgery but Dr. George was not very optimistic. Undisputed medical testimony indicates the claimant still has considerable stiffness and pain in his right hand. Claimant testified that he is limited in writing and typing because of the pain.
After his injury, claimant returned to work with the St. Bernard Parish Sheriff's Office (SBPSO) with accommodations for his limitations. Even with these accommodations, there was evidence before the workers' compensation judge (WCJ) that
The majority opinion attempts to avoid applying the manifest error standard of review by stating the wrong standard was applied in determining whether SEBs were due. Specifically, the majority states: "The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed." Clearly, it is incorrect to interpret "wages" in a vacuum. It must be read with the "inability" to earn wages equal to ninety percent. The inability to earn the wages is a factual determination based upon the claimant's disability. The attempt to distinguish between "the amount of wages" and the inability to earn the amount of wages, as though they are different concepts, is erroneous and ignores the underlying principles of the Workers' Compensation Act, which is based upon the disability of the claimant.
The majority avers the WCJ mischaracterized the law as entitling a claimant to SEBs where he cannot return to his past job and there is no other proof of employability. However, a review of the WCJ's written reasons for judgment clearly demonstrates the WCJ knew the employee's burden of proof in seeking SEBs and that the claimant had to prove inability to earn ninety percent of his pre-injury wages whether or not in the same or similar occupation. The WCJ found Mr. Poissenot alleged "he has been unable to obtain
I am not persuaded by the majority's attempt to distinguish this case from Allen v. City of Shreveport, supra, at p. 9. The majority finds Allen distinguishable because there, the claimant was released to sedentary work with light restrictions whereas Mr. Poissenot was cleared to return to medium duty work with no specific physical restrictions. The majority then states "common sense tells us that there are plenty of jobs an otherwise healthy man with his depth of experience and training would be able to perform." This is not appropriate in a manifest error standard of review and cannot even be classified as weighing the evidence or inferring facts, as it is a statement not even based upon evidence or testimony from the trial. I find the rationale from Allen equally applicable here:
Contrary to the majority, I find the record before the WCJ demonstrated by a preponderance of the evidence that claimant was unable to earn wages equal to ninety percent or more of wages he was earning at the time of the injury. A reviewing court may not reverse the lower court's findings even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Because there is reasonable support in the evidence and testimony before the WCJ to support his finding the work-related injury resulted in claimant's inability to earn ninety percent of the wages he was earning at the time of the accident, I respectfully dissent.
696 So.2d at 557.
