Edward SMITH v. LOUISIANA DEPARTMENT OF CORRECTIONS
No. 93-C-1305
Supreme Court of Louisiana
February 28, 1994
633 So.2d 129
HALL, Justice.
Robert J. Collins, Baton Rouge, for respondent.
HALL, Justice.*
In this worker‘s compensation case, the issue is whether plaintiff has proven that his disability prevents him from earning 90% of his pre-injury wages so as to entitle him to supplemental earnings benefits under
I.
Plaintiff was employed as a correctional officer for the Louisiana Department of Corrections at the Louisiana Training Institute (LTI). On January 11, 1988, while in the course and scope of his employment, plaintiff was struck by an inmate in the left eye. As a result of the blow, plaintiff lost 95% of his vision in that eye. The defendant paid compensation benefits for 95 weeks according to the schedule payments provided by
Plaintiff returned to work approximately three months after the accident, with his
Plaintiff collected unemployment benefits from the date of his termination until December, 1990. A rehabilitation officer with the Office of Risk Management, Jeanette Felps, worked with plaintiff in an attempt to find him employment. Plaintiff was given various job possibilities by the officer and plaintiff testified that “the ones that I thought I could most likely handle, I applied for them. But the ones that would cause a risk, I didn‘t apply for them....” Plaintiff inquired into these positions with no success. Bertha Held, the vocational rehabilitation expert that worked with the plaintiff, testified that concentration was placed on state employment as plaintiff was entitled to non-competitive reemployment rights. This meant that for five years after his terminatiоn he was given preferential treatment for state jobs and did not have to compete with other applicants if he met the qualifications. This also entitled him to begin employment at the salary he was making in his old job if the state agency agreed and that amount was not above the maximum pay for the new employment. Plaintiff claims that he never was informed of his non-competitive status. Ms. Held found two job opportunities with state agencies that were hiring. The first was a dormitory counselor assistant at the Louisiana School for the Deaf, which plaintiff did not inquire about, and the second was for an unarmed facilities and grounds guard at Southern University, which plaintiff was told by a university employee not to apply for because of his restriction.
Plaintiff also testified that during this time he called several grocery stores and retail establishments seeking employment, but none were hiring. He did not put in applications with any of these businesses. Howevеr, plaintiff did assist his wife in the operation of a business out of his home, including the task of driving her to pick up merchandise.
Doctor Breaud, plaintiff‘s treating physician, testified by deposition as to plaintiff‘s ability to work and specifically his ability to work as a guard. He stated:
Let me answer that this way, I don‘t know what a guard has to do, other than what you and I assume a guard has to do, but on the other hand, I have a lot of patients that I‘ve treated and followed and know of their uniocular status, and their occupations, and there is virtually no occupation—well, I wouldn‘t say none, but there are very few occupations that one cannot pursue with one eye, okay?
The doctor further testified that he told plaintiff not to get hit in the eye because, due to the weak tissue from the trauma, any further blow could cause complete blindness in the left eye.
Plaintiff filed suit seeking supplemental earnings benefits under
While we sympathize with the plaintiff‘s fears, we believe that Dr. Breaud‘s testimony clearly indicates that the degree of fear which the plaintiff was displaying was medically unfoundеd.
We granted plaintiff‘s writ application, 620 So.2d 855 (La.1993).
II.
In a worker‘s compensation case, as in other cases, the appellate court‘s review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530, p. 4, 630 So.2d 733 (La.1994); Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). Therefore, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder‘s, reasonable evаluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Freeman, supra; Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Stobart, supra.
Entitlement to supplemental earnings benefits is governed by
III.
It was stipulated by the parties that plaintiff‘s average monthly wage was $1334.723. Therefore, in order to be entitled to supplemental earnings benefits, plaintiff had to prove by a preponderance of the evidence that he was unable to earn $1,201.25 a month, 90% of his average monthly pre-injury wage.
Plaintiff contends that he is unable to earn 90% of his pre-injury wages because he is limited due to the risk that further trauma could leаd to complete blindness in his left eye. He argues that the jobs defendant found for him were unacceptable, as they were jobs that included risks of further blows to the eye. The state argues, and the hearing officer and the court of appeal found, that plaintiff‘s fears were unreasonable.
Doctor Breaud stated in his letter to defendant that “it would be dangerous for him [plaintiff] to have any blunt trauma to the eye at this point as his vision may be compromised further.” Whilе not in the form of a restriction per se, the doctor warned, “I have suggested that he avoid any physical confrontation that may involve trauma to his eye.” In his deposition testimony, Dr. Breaud noted that while plaintiff was legally blind, he had some useful vision. He can see motion out of the eye and has some peripheral vision, although all vision out of that eye is blurred. While the doctor did not forbid plaintiff from accepting employment where there was a risk of confrontation, we cannot fault plaintiff for refusing to do so. There is a substantial risk that any further trauma could cause permanent, total blindness in one eye. Plaintiff does not have to accept employment that involves an appreciable and significant risk to his well-being. The hearing officers and the courts should consider all factors that affect a plaintiff‘s ability to obtain employment when determining whether he is eligible for supplemental earnings benefits. Onе factor that must be considered in this case when determining whether plaintiff can earn 90% of his pre-injury wages is his inability to perform a job because there is an undue risk to plaintiff‘s health. As noted above, plaintiff is not required to accept a job that includes situations that have been restricted by his treating physician.
The hearing officer and the court of appeal found that plaintiff had not made out a prima facie case establishing his entitlement to supрlemental earnings benefits, as he had not shown by a preponderance of the evidence that he was unable to earn 90% of his pre-injury wages. However, plaintiff was removed from his position as a correctional officer because defendant could not guarantee against the risk of confrontation. Plaintiff was expected to perform all the duties of a correctional officer and that included confronting, controlling and apprehending prisoners. Additionally, plaintiff attempted to obtain employment as a welder, as he had six years of experience in that occupation. He testified that he applied at the Department of Transportation and they would not hire him because of the eye injury. He also spoke with Port Allen Marine about a welding job, but they likewise concluded that there was too much of a risk to offer him employment. Plaintiff likewise applied at seven state agencies that Felps had recommended to no avail4. He also, on his own, as a requirement
Bertha Held, the vocational expert, compiled a list of ten jobs that she believed plaintiff could perform. Out of these ten possibilities only two had definite openings. The two positions that were available, dormitory counselor assistant at the Louisiana School for the Deаf and a facilities and grounds guard at Southern University, we find, were not suitable for plaintiff given his restriction and experience.
Initially, we note it was not clearly established that the job at the Louisiana School for the Deaf would have paid plaintiff 90% of his pre-injury wages. Further, it was not established that plaintiff had the training and experience to handle the job. Held testified that the job mainly consisted of helping the children with their homework. The position required that plaintiff learn sign language, which the school would teach, and a high school diploma, which plaintiff had. However, the job was temporary until May, 1991, with only a possibility that it could become permanent. It was not shown that plaintiff was capable of learning sign language, particularly during the limited time period of availability of the job, or that his experience as a security guard and welder qualified him for the position. Thus, the suitability of this position was not proven. Plaintiff expressed concern about the risk of further injury from dealing with “rowdy” children. His concern in this regard may not have been justified but the requirement that he possess a skill that he did not have suggests that this position did not constitute available, suitable employment.
While the Southern University job could pay plaintiff 90% of his pre-injury wages if he was paid his prior salary, as the maximum salary for this position was $1227 a month, it without question involved a risk of confrontation. The vocational rehabilitation expert testified that the duties of the guard would include conducting traffic on campus, helping with crowds and patrolling the grounds. The position would also require plaintiff to confront any person that did not belong in one of the buildings or on campus. The job likewise included the responsibility of crowd control, where there is the attendant possibility of accidently sustaining a blow to the eye. Plaintiff testified he called inquiring about the job, but was told that there was a risk of confrontation and that he should not аpply if he could not do the “full job.” This testimony was uncontradicted. This position is also very similar to the job at LTI which he was found incapable of doing because of the risk of confrontation.
IV.
We hold that the plaintiff has proven his entitlement to supplemental earnings benefits as he has proven by a preponderance of the evidence that his disability prevents him from earning 90% of his pre-injury wages. Defendant has not shown that plaintiff is capable of perfоrming any specific job in the geographic location. However, it is apparent that plaintiff is capable of performing some gainful employment and has an earning capacity. Supplemental earnings benefits, according to
V.
The judgment of the hearing officer, as affirmed by the court of appeal, is reversed.
REVERSED AND REMANDED.
LEMMON, J., concurs and assigns reasons.
CALOGERO, C.J., dissents and assigns reasons.
Edward SMITH v. LOUISIANA DEPARTMENT OF CORRECTIONS
No. 93-C-1305
Supreme Court of Louisiana
February 28, 1994
CALOGERO, Chief Justice (dissenting).
In concluding that Edward Smith is entitled to supplemental earnings benefits beginning June 25, 1990, the majority focused on the plaintiff‘s inability to earn wages equal to ninety per cent or more of the wages he earned before the accident. However, they failed to consider whеther this inability was the result of the injury, the loss of vision, which Edward Smith sustained in the course of his employment.
This Court has held that the threshold prerequisite of the supplemental earnings benefits provision is that the employee‘s injury result in his inability to earn wages equal to ninety per cent or more of the wages he was earning at the time of the injury. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). Accordingly, the injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in an inability tо earn that amount.
In this case, Smith sustained a blow to his left eye which resulted in permanent damage. Although the treating physician testified in deposition that the employee retained some useful vision, including motion and peripheral vision, he fixed the percentage of useful vision at less than ten per cent.
As a result of the loss of vision, Smith received compensation for permanent partial disability, the so-called “schedule benefits,” for ninety-five weeks, which tоtalled approximately $19,000. This payment was in addition to compensation while out of work immediately following the injury and all medical expenses.
The majority stated that, at his discharge from treatment, the employee was not medically forbidden from accepting any employment, even employment which included the risk of confrontation. Quoting from the physician‘s deposition testimony, the majority opinion also acknowledged that “there are very few occupations that one cannot pursue with one eye.” As noted by the hearing officer, then, Smith‘s claimed disability now results not so much from the loss of vision as from the fear of further injury to his eyesight.
It is the uniform rule that when a claimant‘s disability is increased or prolonged after a physical accident or trauma by traumatic neurosis, conversion hysteria, or hysterical paralysis, full disability, including the effects of the neurosis, is compensable. In Westley v. Land & Offshore, 523 So.2d 812, 813 (La. 1988), this Court noted that, “in view of the nebulоus characteristics of mental conditions and the possibility of symptoms being easily feigned,” a claimed disability caused by any mental condition must be analyzed with the utmost caution.
To facilitate that analysis, the Louisiana Legislature enacted
This employee offered intо evidence no psychiatric opinion concerning his alleged disability. There was not even lay testimony by the claimant‘s family or friends concerning the effects of the alleged disability. Smith‘s own testimony falls far short of establishing a psychotic, emotional or neurotic illness, injury or condition. Since the employee did not demonstrate by clear and convincing evidence that he suffered a mental injury induced by physical trauma, an injury that resulted in his inability to earn at leаst ninety per cent of the wages he was earning at the time of the injury, he has not met the threshold prerequisite of the supplemental earnings benefits provision. The judgment of the court of appeal should be affirmed.
Notes
In all cases involving a permanent partial anatomical loss of use or amputation of the members mentioned hereinabove, compensation shall bear such proportion to the number of weeks provided for herein for thе total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.
The provision concerning an eye is LSA-R.S. 23:1221(4)(i) which states:
For the loss of an eye, sixty-six and two-thirds percent of wages during one hundred weeks.
(a) For injury resulting in the employee‘s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10).
* * * * * *
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) оf this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee‘s or employer‘s community or reasonable geographic region. (ii) For purposes of Subparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.
No compensation benefits shall be payable for temporary or permanent total disability or supplemental earnings benefits under this Chapter for any week in which the employee has received or is receiving unemployment compensation benefits