JORDAN v. CITY OF NEW ORLEANS (2026)

Appellant, the City of New Orleans (the “City”), appeals the lower court's June 26, 2023 judgment. For the foregoing reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Appellee, Glenn Jordan (“Mr. Jordan”), worked as a firefighter for the City for thirty-three years. On March 31, 2018, Mr. Jordan injured his back while responding to an emergency call and helping a crashed-motorist out of a ditch. He could no longer work as a firefighter as a result of the injury. Between April 13, 2018 to January 18, 2022, the City paid Total Temporary Disability benefits (“TTD”) at a rate of $639.70 per week to Mr. Jordan while he received treatment for his injury. In a letter dated August 31, 2020, Dr. Patrick Waring (“Dr. Waring”)—Mr. Jordan's pain management doctor—determined that Mr. Jordan's condition had reached Maximum Medical Improvement (“MMI”).

Beginning on December 28, 2020, the City began providing vocational rehabilitation counseling to Mr. Jordan so that he could return to some form of employment. Karen Reinhardt (“Ms. Reinhardt”) was assigned to be his counselor.¹ Throughout the course of her work, Ms. Reinhardt identified six potential jobs for Mr. Jordan, four of which were conditionally approved by Dr. Waring. After sending the jobs to Mr. Jordan's attorney, Ms. Reinhardt closed the case a year later on December 28, 2021.

On January 18, 2022, the City converted Mr. Jordan's TTD benefits to Supplemental Earnings Benefits (“SEB”). Additionally, the City reduced the amount of SEB Mr. Jordan received based on his earning capacity from the jobs identified by Ms. Reinhardt. Mr. Jordan disagreed with the reduction of his benefits, and, on January 31, 2022, he filed a Disputed Claim for Compensation with the Office of Worker's Compensation (“OWC”). The case proceeded to a one-day trial on September 15, 2022, after which the OWC took the matter under advisement. On June 26, 2023, the OWC issued its judgment finding in favor of Mr. Jordan and ordering penalties and attorney's fees against the City.² This appeal followed.

ASSIGNMENTS OF ERROR

The City raises multiple assignments of error, which can be summarized as follows:

1. The OWC erred in finding that the City improperly converted Mr. Jordan's benefits from TTD to SEB;

2. The OWC erred in finding that the City improperly reduced Mr. Jordan's SEB and finding that he was entitled to have full SEB instituted retroactively; and

3. The OWC erred in awarding penalties and attorney's fees to Mr. Jordan based on the City's handling of his claim.

STANDARD OF REVIEW

The appellate court reviews the findings of the OWC under the manifest error standard. Matthews v. Big Easy Janitorial, L.L.C., 2022-0164, p. 5 (La. App. 4 Cir. 8/10/22), 346 So. 3d 325, 330 (citing Dean v. Southmark Constr., 2003-1051, p. 7 (La. 7/6/04), 879 So. 2d 112, 117). That is, the appellate court evaluates whether a reasonable, factual basis exists in the record to support the OWC's ruling. See id. at p. 5, 346 So. 3d at 331. If two reasonable but conflicting views of the evidence exist, then the factfinder's decision is not clearly wrong, and the judgment stands. See Stobart v. State through Dep't of Transp. and Dev., 617 So. 2d 880, 883 (La. 1993) (citation omitted).

DISCUSSION

Assignment of Error No. 1: Whether the OWC erred in finding that the City improperly converted Mr. Jordan's benefits from TTD to SEB

The City first argues that the OWC erred in finding that the City improperly converted Mr. Jordan's benefits from TTD to SEB.

TTD benefits shall be paid for any injury that temporarily prevents an employee from engaging in an occupation for wages. La. R.S. 23:1221(1)(a); see also, Harris v. Rumold, 518 So. 2d 9, 12-13 (La. App. 4th Cir. 1987) (citation omitted) (“A claimant is entitled to an award for [TTD] if he establishes that he is unable to pursue either the same occupation or another gainful occupation at the time of trial, though it appears he will be able to return to some type of work in the foreseeable future.”). In order to receive TTD benefits, the injured employee must prove through clear and convincing evidence “that he is physically unable to engage in any employment ․” Moya v. Lucas, 2020-329, p. 5 (La. App. 5 Cir. 3/24/21), 316 So. 3d 572, 577 (citations omitted). TTD benefits “shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of [the] disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required.” La. R.S. 23:1221(1)(d). In reviewing whether an employer properly converted TTD benefits to SEB, the pertinent inquiry for the court is whether the employee's physical condition improved to the point a reliable assessment of his disability could be made and whether his condition still required continued, regular treatment. Shubert v. City of New Orleans, 2024-0686, p. 13 (La. App. 4 Cir. 3/28/25), 414 So. 3d 891, 901 (Lobrano, J., concurring). When a claimant reaches maximum medical improvement and is released to return to work, albeit with restrictions, he is no longer owed TTD benefits. Dillard's, Inc. v. Nichols, 2014-740, p. 14 (La. App. 5 Cir. 5/28/15), 171 So. 3d 307, 315 (citing Mason v. Auto Convoy, 27,444 (La. App. 2 Cir. 11/01/95), 662 So. 2d 843, 847). A claimant cannot receive both TTD benefits and SEB. Once a claimant has reached MMI and is able to return to work, even if in pain, he is no longer eligible for TTD benefits and is instead relegated to SEB. E.g. Mouton v. Walgreen Co., 2017-1025, p. 5 (La. App. 3 Cir. 5/2/18), 246 So. 3d 590, 594, writ denied 2018-1147 (La. 10/15/18), 253 So. 3d 1297 (citation omitted).

The OWC's June 26, 2023 judgment in this case provides, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED and DECREED that defendant[ ], the City of New Orleans, improperly changed claimant, Glenn Jordan's benefits from [TTD benefits] to [SEB].

IT IS FURTHERED ORDERED, ADJUDGED and DECREED that the defendant[ ], the City of New Orleans, improperly reduced the [SEB] on January 18, 2022 of claimant, Glenn Jordan.

By consent judgment dated July 25, 2023, the following decretal language was added to the OWC's earlier judgment:

IT IS ORDERED, ADJUDGED [and] DECREED that there be judgment herein in favor of Glenn Jordan and against The City of New Orleans awarding [SEB] from January 18[,] 2022[,] at zero earning capacity in the amount of $639.70 per week, with credit for all compensation paid from that date.

As seen from the two judgments, despite finding that the City improperly converted Mr. Jordan's TTD benefits to SEB, the OWC did not award Mr. Jordan TTD benefits, only SEB. On appeal, Mr. Jordan argues that this is not an appealable issue because the judgment ultimately did not award TTD benefits. He also directs our attention to Shubert, wherein the OWC similarly found that the City improperly converted a claimant's TTD benefits but failed to award TTD benefits in its judgment. 2024-0686, p. 8, 414 So. 3d at 897-98. In Shubert, the Fourth Circuit noted that the OWC's ruling did not have any substantial effect on the outcome of the case. Id. at p. 8, 414 So. 3d at 898. We find the same to be the case here. As the OWC's judgment fails to award TTD benefits, this assignment of error is moot.

Assignment of Error No. 2: Whether the OWC erred in finding that the City improperly reduced Mr. Jordan's SEB and finding that he was entitled to have full SEB instituted retroactively

We next turn to the City's argument that the OWC erred in finding it improperly reduced Mr. Jordan's SEB.

“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. Indus. Roofing & Sheet Metal Works, Inc., 1996-2840, p. 8 (La. 7/1/97), 696 So. 2d 551, 556 (citation omitted). An employee is entitled to SEB if a work-related injury prevents him from earning at least ninety percent of his pre-injury wages. Shubert, 2024-0686, p. 9, 414 So. 3d at 898 (citation omitted); see also, La. R.S. 23:1221(3)(a)(i). A claimant eligible for SEB will be paid at a rate “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 ․” La. R.S. 23:1221(3)(a)(i)(emphasis added).

An employer seeking to reduce a claimant's SEB must show that the claimant is earning less than he is able to earn. Fortune v. Charbonnet-Labat Funeral Home, 1995-1954, p. 5 (La. App. 4 Cir. 3/14/96), 671 So. 2d 988, 992 (citation omitted). To do this, the employer bears the burden of showing that the claimant is physically capable of performing a particular job and that the particular job had been offered to him and was available. Id. at p. 6, 671 So. 2d at 992; see also La. R.S. 23:1221(3)(c)(i). Generally, the employer can meet this burden by showing available jobs within the employee's capacity that are realistically obtainable by the employee. Id. (citations omitted). While actual job placement is not required, the employer must prove the job was available by showing the following:

(1) [T]he existence of a suitable job within [the] claimant's physical capabilities and within [the] claimant's or the employer's community or reasonable geographic region;

(2) [T]he amount of wages that an employee with [the] claimant's experience and training can be expected to earn in that job; and

(3) [A]n actual position available for that particular job at the time that the claimant received notification of the job's existence.

Prevost v. City of New Orleans Fire Dep't., 2024-0115, pp. 6-7 (La. App. 4 Cir. 10/4/24), 400 So. 3d 1171, 1176 (quoting Banks, 1996-2840, pp. 10-11, 696 So. 2d at 557).

At trial, Mr. Jordan testified that he applied for the positions sent to him by his vocational rehabilitation counselor, but he never heard back from any of the jobs. Nevertheless, the City argues that actual job placement was not required for it to reduce Mr. Jordan's SEB. While true, the City still had the burden of showing that a job within Mr. Jordan's capabilities was available at the time it reduced his SEB. See Prevost, 2024-0115, p. 6, 400 So. 3d at 1176

The City introduced the testimony and records of Ms. Reinhardt to support its position. The majority of Ms. Reinhardt's reports use boilerplate language to describe her job search efforts and coordination with Dr. Waring and Mr. Jordan's counsel.³ Throughout the course of her work, she found a total of six jobs, all of which she sent to Dr. Waring for approval.⁴ Ms. Reinhardt and the City could not produce the letters she allegedly sent to Dr. Waring and Mr. Jordan's counsel that coincided with her reports.

Though Ms. Reinhardt started sending jobs to Dr. Waring as early as April 22, 2021, Dr. Waring did not approve any jobs until September 29, 2021. While Dr. Waring had checked a box indicating his approval for four of the six jobs, he wrote a note on each: “[E]mployer must allow job modifications if necessary and part time status if needed.” Despite admitting that she did not understand what modifications Dr. Waring wanted, Ms. Reinhardt testified that she never met with Dr. Waring to get clarification.

Although Dr. Waring conditionally approved four of the jobs on September 29, 2021, Ms. Reinhardt notated in her October 26, 2021 report that she still had not received any approved jobs from Dr. Waring and that she had contacted Dr. Waring to determine the status of those job approvals. The report does not contain what information she received from Dr. Waring's office. Additionally, Ms. Reinhardt did not inform Mr. Jordan's counsel of Dr. Waring's approval until November 5, 2021, over a month after the jobs were approved. At trial, Ms. Reinhardt testified she could not account for the delay; yet, she asserted that the four jobs were still available when she sent them to Mr. Jordan's counsel. However, when she was questioned regarding the specifics of who she talked with to confirm the availability of those jobs, Ms. Reinhardt admitted that she does not keep detailed notes and that such details would not be documented in her reports.

Taking the above into account, we do not find that the OWC manifestly erred in ruling the City failed to meet its burden in proving it rightfully reduced Mr. Jordan's SEB. The record is filled with inconsistencies and gaps regarding the work performed by the vocational rehabilitation counselor. Ms. Reinhardt could not produce corresponding documents to support her reports. She admitted that she did not follow-up with Dr. Waring regarding what modifications would be needed for the jobs he approved, nor did she follow-up with these jobs to see if they would allow modifications, thus raising a question as to whether these jobs were truly within Mr. Jordan's capabilities. While Ms. Reinhardt insisted that the job positions sent to Mr. Jordan's counsel in November 2021 were still available at that time, the record is void of such evidence outside of her blanket assertions. After hearing her testimony and reviewing her records, the OWC determined that Ms. Reinhardt did not prove the job positions were available when Mr. Jordan applied for them. Based on all of the above, we do not find that the OWC erred in ruling the City wrongly reduced Mr. Jordan's SEB and ordering full SEB retroactive to January 18, 2022.

Assignment of Error No. 3: Whether the OWC erred in awarding penalties and attorney's fees to Mr. Jordan based on the City's handling of his claim

The City lastly appeals the OWC's award of penalties against it. As the OWC's decision to impose penalties involves a factual finding, we review the matter under the manifest-error standard.

Louisiana Revised Statutes 23:1201(I) provides that an employer who arbitrarily, capriciously, or without probable cause discontinues the payment of a claim shall be subject to a penalty and reasonable attorney's fees. An employer acts arbitrarily, capriciously, or without probable cause when it fails to present a valid reason or evidence for the discontinuation. See Shubert, 2024-0686, p. 12, 414 So. 3d at 900 (quoting Lentz v. City of New Orleans, 2022-0500, pp. 9-10 (La. App. 4 Cir. 12/15/22), 353 So. 3d 1060, 1067).

Both parties introduced the deposition of Ryan Fey, the supervising claims adjuster who made the decision to reduce Mr. Jordan's SEB. When questioned about his reason for reducing Mr. Jordan's SEB, Mr. Fey explained that he reduced the benefits based on the approved positions found by Ms. Reinhardt. However, when he was questioned further regarding what other information he had, such as whether Ms. Reinhardt had followed up about the modifications or if the jobs were still available, he could not provide any further information and referred to Ms. Reinhardt. As we affirmed the finding that Ms. Reinhardt's testimony and records failed to establish there were available jobs within Mr. Jordan's capabilities, the City did not have a valid basis for reducing Mr. Jordan's SEB. Therefore, we cannot say the OWC manifestly erred in awarding penalties and attorney's fees against the City.

Mr. Jordan's Answer to Appeal

Finally, Mr. Jordan has filed an answer to this appeal requesting this Court award an additional $2,500.00 in attorney's fees for defending this appeal. “It is well-established that a worker's compensation claimant who timely answers the appeal is entitled to increased attorney[’s] fees and penalties to reflect additional time incurred in defending against [an] employer/insurer's unsuccessful appeal, especially where the claimant makes a clear showing of the employer's arbitrary and capricious refusal to pay the claim.” Lentz, 2022-0500, p. 10, 353 So.3d at 1067 (quoting Hucke v. New Orleans Glass, 2003-1709, p. 6-7 (La. App. 4 Cir. 2/11/04), 868 So. 2d 166, 170-71) (internal quotations omitted). As we deny the City relief and affirm the determination that it arbitrarily and capriciously reduced Mr. Jordan's SEB, we grant Mr. Jordan's request and grant him an additional $2,500.00 in attorney's fees for defending this appeal.

DECREE

For the foregoing reasons, we affirm the OWC's judgment and award Mr. Jordan an additional $2,500.00 in attorney's fees.

AFFIRMED

FOOTNOTES

1.   The parties stipulated that Ms. Reinhardt is an expert in the field of vocational rehabilitation. Although Ms. Reinhardt was assigned as Mr. Jordan's counselor, she did not have direct contact with Mr. Jordan and forwarded all information to his attorney throughout the case.

2.   The parties entered into a consent judgment on July 25, 2023, which added decretal language to the original judgment and reinstituted full SEB compensation retroactive to January 18, 2022.

3.   Ms. Reinhardt testified during the trial that she does not keep any personal notes on her cases because she is required to summarize her work in her reports.

4.   The reports also noted she would simultaneously send the jobs to Mr. Jordan's counsel and encourage him to have Mr. Jordan apply for the positions even though Dr. Waring had not yet approved the positions.

Judge Nakisha Ervin-Knott