93 So. 3d 536
La.2012Background
- Clay sustained a June 28, 2005 work injury and underwent back surgery in 2007.
- Treating physician released her for light duty; Lourdes paid weekly benefits and medical benefits.
- A hearing officer found she could earn 90% or more of her pre-injury wage, terminating SEBs as of August 25, 2008.
- Court of Appeal reversed, finding identified jobs were outside Clay’s experience and training and not available.
- This Court granted a writ to review 90%-earning-capability issue and Banks-based job-availability standard.
- Record shows vocational counselor identified several light-duty, clerical jobs, with some approvals by Dr. Jindia and availability at the time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Clay could earn 90% of pre-injury wage. | Clay argues she cannot meet 90% given restrictions and lack of suitable work. | Lourdes contends jobs within capabilities were reasonably available in region. | Yes; Lourdes carried burden to prove availability and Clay was able to earn 90%. |
| Whether the identified jobs were available to Clay in her region. | Clay applied for all identified jobs; none were actually offered to her. | Availability can be proven without actual job offers if fit and reasonably available. | Yes; the jobs were suitable, within capabilities, and reasonably available in the geographic region. |
| Proper interpretation of La. R.S. 23:1221(3) regarding prove-offered vs. proven-available jobs. | Banks requires actual offers to prove availability. | Banks allows proving availability without direct offers; availability can be shown by suitable, open jobs. | Court adopts Banks approach; second prong not nullified by absence of offers. |
Key Cases Cited
- Banks v. Industrial Roofing & Sheet Metal Works, Inc., 696 So.2d 551 (La. 1997) (defines 'job availability' elements and burden shifting)
- Poissenot v. St. Bernard Parish Sheriff’s Office, 56 So.3d 170 (La. 2011) (liberal construction of SEBs and burden framework)
- Seal v. Gaylord Container Corp., 704 So.2d 1161 (La. 1997) (no need for actual placement for proving availability)
- Stobart v. State, 617 So.2d 880 (La.1993) (manifest error standard guidance for appellate review)
- Smith v. Louisiana Dep’t of Corrections, 633 So.2d 129 (La.1994) (underlying standard for reviews in WC cases)