Poissenot v. St. Bernard Parish Sheriff's Office
56 So. 3d 170
La.2011Background
- Poissenot, a SBPSO deputy, injured September 18, 2004; underwent multiple hand surgeries; diagnosed with permanent partial disability (19% hand, 17% upper extremity).
- Post-injury, Poissenot returned to light/medium duty work; furloughed after Katrina in September 2005; filed a Disputed Claim in April 2006.
- WCJ awarded SEBs under La. R.S. 23:1221(3)(a), plus penalties and attorney fees, finding employer’s payment arbitrary and capricious.
- Court of Appeal affirmed; SBPSO filed writ; majority reversed and rendered for employer, holding Poissenot failed to prove inability to earn 90% of pre-injury wages.
- Majority held the initial burden is whether the employee is unable to earn 90% of pre-injury wages, not whether he can perform his former job or other specific work.
- Dissent would apply manifest error standard and view the record as supporting Poissenot’s entitlement to SEBs under the liberal interpretive mandate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for SEB entitlement | Poissenot met initial burden under 23:1221(3)(a). | Evidence shows he could earn 90% or more; burden never shifted. | Role of standard reversed; employer not entitled to SEB. |
| Prima facie proof of 90% wage loss | Evidence showed inability to earn 90% due to injury. | Post-injury work with accommodations and Katrina-related furlough undermined claim. | Poissenot failed to prove inability to earn 90% of wages; burden did not shift. |
| Effect of returning to past job | Inability to return to prior role with accommodations supports SEB. | Return to former job with accommodations does not automatically yield SEB; focus is wage loss. | Wage loss test controls; not automatically SEB despite accommodations. |
| Manifest error vs. de novo review | WCJ’s findings were supported by evidence; manifest error standard applies. | Record insufficient to prove SEB entitlement; correct burden not met. | If properly reviewed under manifest error, results support Poissenot’s lack of SEB entitlement. |
| Penalties and fees | Failure to pay SEBs supports penalties and fees. | No SEBs awarded, so penalties/fees not warranted. | Penalties/fees not awarded due to reversal on SEB entitlement. |
Key Cases Cited
- Banks v. Industrial Roofing & Sheet Metal Works, Inc., 696 So.2d 551 (La. 1997) (establishes employer’s burden to show available, suitable job and wages)
- Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La. 1989) (liberal construction and factors for prima facie SEB case)
- Seal v. Gaylord Container Corp., 704 So.2d 1161 (La. 1997) (standard for determining entitlement to SEBs; examine all evidence of inability to earn 90%)
- Allen v. City of Shreveport, 618 So.2d 386 (La. 1993) (relevance of earning capacity and availability of comparable work; not always require same job)
- Chaisson v. Cajun Bag and Supply Co., 708 So.2d 375 (La. 1998) (employer’s offer to a post-injury position can defeat SEB claim)
- Daugherty v. Domino’s Pizza, 674 So.2d 947 (La. 1996) (liberal interpretation of workers’ compensation act for claimant)