Noveh v. Broadway, Inc.Noveh v. Broadway, Inc.
Cheryl NOVEH
v.
BROADWAY, INC. d/b/a K Bar B.
Court of Appeal of Louisiana, First Circuit.
*350 Charles M. Lanier, Jr., New Orleans, for Appellant, Broadway, Inc. d/b/a K Bar B.
William M. Magee, Covington, for Appellee, Cheryl Noveh.
Before LOTTINGER, C.J., and GONZALES and FITZSIMMONS, JJ.
GONZALES, Judge.
In this appeal, an employer challenges a judgment of the Office of Workers' Compensation, awarding the partial cost of a college education as rehabilitation services to the claimant, and assessing penalties and attorney fees against the employer. The claimant answers the appeal, contesting the dismissal of her claim for temporary total disability benefits during the period of her rehabilitation, *351 and seeking an additional award of attorney fees.
FACTS AND PROCEDURAL HISTORY
Cheryl Noveh, the claimant, was injured in the course and scope of her employment as a program director at K Bar B, a residential treatment facility for delinquent youths owned by Broadway, Inc. d/b/a K Bar B (Broadway). Noveh subsequently filed a claim for supplemental earnings benefits (SEBs), and on Dеcember 16, 1993, the hearing officer awarded SEBs to her in the amount of $153.33 per week from January 23, 1993 and continuing weekly. With the addition of legal interest on past due payments, the amount of SEBs was affirmed by this court, Noveh v. Broadway, Inc., 94-0925 (La. App. 1 Cir. 4/7/95),
Noveh resigned her position at K Bar B on January 13, 1993. She later obtained a part-time telemarketing job (20 hours/week) and enrolled to take classes at Southeastern Louisiana University. In August of 1993, Noveh quit the telemarketing job to pursue a full-time college education.
By letter dated September 13, 1994 to Broadway's workers' compensation insurer, Noveh's attorney requested reimbursement for the cost of Noveh's first full year of college, as rehabilitation services. Upon Broadway's or the insurer's refusal to pay, Noveh filed a second disputed claim for compensation, on October 31, 1994, seeking payment for rehabilitation services from Broadway.
Following a trial held on May 24, 1995, the hearing officer rendered judgment (1) against Noveh on her claim for temporary total disability benefits during the period of rehabilitation, and (2) in favor of Noveh on her claim for rehabilitation services, awarding her the cost of a 4-year college program, and 52 weeks of the cost, not to exceed $13,949.33, to be paid by Broadway. The hearing officer also found that Broadway acted arbitrarily, capriciously, and without probablе cause in failing to pay for Noveh's chosen long-term retraining, and assessed $2,000.00 in penalties and $3,000.00 attorney fees against Broadway.
Broadway appeals the hearing officer's judgment, asserting the following assignments of error:
1. The hearing officer erred in awarding rеtraining costs to the claimant.
2. In the alternative, the hearing officer erred in her calculation of the cost of the retraining program.
3. The hearing officer erred in awarding items not recoverable as retraining costs and items not supported by the evidence.
4. The hearing officer erred in finding Broadway arbitrary and capricious and awarding penalties and attorney fees.
In her answer to the appeal, Noveh claims the hearing officer was clearly wrong in dismissing her claim for temporary total disability benefits аnd seeks an additional award of attorney fees for time spent defending and prosecuting this appeal.
ENTITLEMENT TO TEMPORARY TOTAL DISABILITY BENEFITS DURING REHABILITATION PERIOD
In her reasons for judgment, the hearing officer found that "there was no evidence presented that claimant's disability had deteriorated rendering claimаnt temporarily and totally disabled whereas she cannot engage in any type employment." Based on this finding, the hearing officer rendered judgment, denying Noveh's claim for temporary total disability benefits.
A determination regarding a claimant's entitlement to workers' compensation benefits is a factual finding. Brooks v. Leggett & Platt, Inc.,
After a thorough review of the record, wе find no manifest error in the hearing officer's denial of Noveh's claim for temporary *352 total disability benefits. We agree that there is no evidence in the record to support such an award.
ENTITLEMENT TO REHABILITATION SERVICES UNDER LA.R.S. 23:1226
An employee is entitled to rehabilitation services when he has sufferеd an injury compensable under the Workers' Compensation Law which precludes him from earning wages equal to wages earned prior to his injury.
The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant's education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than [26] weeks).
(f) Long-term retraining program (more than [26] weeks but not more than [1] year).
(g) Self-employment.
It is undisputed that the nature of Noveh's injuries preclude her return to the same position or to a modified position at K Bar B. Thus, subparts (a) and (b) of Section 1226(B)(1) are inapplicable.
In its first assignment of error, Broadway argues that the hearing officer erred in finding that Noveh was entitled to rehabilitation services since the evidence at trial demonstrated that she was capable of earning wages equal to or in excess of 90% of her pre-injury wages. However, Subsection A of
Broadway next argues that the hearing officer erred in finding that Noveh was entitled to retraining because retraining was nоt the first available appropriate option under
Margo Hoffman, a vocational rehabilitation counselor retained by Broadway to assist Noveh, testified that she first offered her services to Noveh in September of 1993, and at that time, Noveh's attorney deсlined to allow her to meet with Noveh, because a trial date had been scheduled on Noveh's SEB claim, and the attorney did not want Noveh to meet with Hoffman prior to the trial. However, based on information she was given regarding Noveh's work history, medical history, and оther background information, Hoffman was able to determine that there were several vocational alternatives available to Noveh which suited her medical restrictions and her skills and abilities. These positions included a premium auditor, a nurse recruiter, а coordinator/staffer, a telemarketer, a mutual teller, an account analyst, a title abstractor, and a front desk clerk. Hoffman set forth these findings to Broadway in a vocational rehabilitation evaluation report dated September 14, 1993.
Hoffman rеpeated her labor market research in March of 1995 at the request of Broadway's attorney and determined that Noveh would qualify for several positions, including a dispatcher, a financial clerk, a front office assistant, a front desk clerk, a coordinator/staffer, and a teller. These findings were set forth in Hoffman's supplemental report to Broadway dated March 31, 1995.
In her reasons for judgment, the hearing officer found that Subsection (B)(1)(c) was inapplicable because none of the jobs identified *353 as suitable for Nоveh paid at least 90% of her pre-injury wages of $10.00/hour. The hearing officer stated:
Defendant, through Ms. Margo Hoffman, rehabilitation counselor, has identified jobs suitable to claimant's education and marketable skills. The latest job survey prepared by Ms. Hoffman, dated Mаrch 31, 1995, lists jobs claimant should be able to perform pursuant to sub-part (c) of R.S. 23:1226(B)(1). However, keeping in mind claimant is entitled to SEBs, none of those jobs, if performed by claimant, produces at least 90% of her per-injury [sic] wages. The highest paying job was that of a Financial Clеrk with a pay range of $7.67 to $9.38 per hour. Assuming claimant accepted this job, her average pay would be $8.32 per hour, less than 90% of the $10.00 per hour she was earning prior to her injury. Therefore, sub-part (c) is also inapplicable.
We find that the hearing officer misinterpreted Section 1226 by determining that the suitable employment available to a claimant under Subsection (B)(1)(c) must pay wages equal to the disabled worker's pre-injury wages in order to qualify as an appropriate rehabilitation service. According to
Where the trial court commits legal error by applying an incorrect legal standard, this court is required to determine the facts de novo from the entire record and render a decision on the merits. Gentile v. Baton Rouge General Medical Center,
Since its amendment in 1989, the goal of
The evidence establishes that Noveh was able to work, albeit with restrictions, following her injury, as is evidenced by her return to work at K Bar B until January of 1993, and by her working as a telemarketer until August of 1993, when she decided to return to school full-time without working. Noveh refused the vocational rehabilitation services of Ms. Hoffman multiple times, choosing instead to рursue a full-time college education. Although Noveh cannot be faulted for attempting to further her education, by the same token, Broadway cannot be penalized because Noveh made a personal choice to pursue education rather than a vocation.
In light of Section 1226's goal to achieve job placement for a disabled worker through rehabilitative services rather than to educate the worker for increased job marketability, we find that the hearing officer's judgment, awarding Noveh the cost of a 4-year college program, constitutes legal error which must be reversed. Concomitantly, we also find that (1) the hearing officer's assessment of penalties and attorney fees against Broadway must be reversed, and (2) Noveh's claim for additional attorney fees on appeal must be denied. Because we reverse the judgment based on Broadway's first assignment of error, we need not address the issues raised in the remaining assignments of error.
*354 DECREE
For the foregoing reasons, the judgment of the Office of Workers' Compensation is REVERSED. Costs of this appeal are assessed to Cheryl Noveh.
FITZSIMMONS, J., concurs and assigns reasons.
FITZSIMMONS, Judge, concurring.
I concur in the result. Plaintiff's counsel refused to let his client participate in the rehabilitation process, while asking, in essence, that his client be exempted from the requirement of choosing thе first appropriate option listed in
The hearing officer agreed to the interdiction of the process by approving Ms. Noveh's choice of a 4 or 5 year degree program as retraining, and awarding the maximum under the statute, the cost of 52 weeks of retraining. The hearing officer committed error by failing to recognize that the procedures mandated by
The goal of section 1226 is to return the worker to the productive workforce, as soon as possible, with "a minimum of retraining...."