EMILE POISSENOT v. ST BERNARD PARISH SHERIFF OFFICE (2011)

It is well settled that the provisions of the worker's compensation act must be given a liberal interpretation in favor of the claimant.  Daugherty v. Domino's Pizza, 95-1394, pp.   8-9 (La.5/21/96), 674 So.2d 947, 953;  Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1006 (La.1989).   The threshold prerequisite to the recovery of supplemental earnings benefits, as set forth in La.Rev.Stat. 23:1221(3)(a), is that the employee's injury result in his inability to earn wages equal to ninety percent or more of his average pre-injury wage.  Daigle, 545 So.2d at 1007.   The injured employee thus bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case.  Seal v. Gaylord Container Corp., 97-0688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166.   The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage.  Daigle, 545 So.2d 1007;  Seal, 704 So.2d 1166.   In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage.  Daigle, 545 So.2d 1007.

In reversing the lower courts' judgments, the majority errs by substituting its factual findings for those of the hearing officer.   Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of review.  Banks v. Indus.   Roofing & Sheet Metal Works, 96-2840 p. 7 (La.7/1/97), 696 So.2d 551, 556.   When determining whether a hearing officer's finding that a claimant has met his initial burden of proving entitlement to SEBs was manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the claimant's inability to earn 90% or more of his pre-injury wages.  Seal, 704 So.2d at1166.   A review of the record in its entirety demonstrates the hearing officer's finding that Mr. Poissenot met his initial burden was reasonable.

Dr. George diagnosed claimant with a permanent partial disability of 19% of the right hand and 17% of the right upper extremity.   Claimant is right hand dominant.   Claimant underwent three surgeries.   He testified that Dr. George gave him the option of a fourth surgery but Dr. George was not very optimistic.   Undisputed medical testimony indicates the claimant still has considerable stiffness and pain in his right hand.   Claimant testified that he is limited in writing and typing because of the pain.

After his injury, claimant returned to work with the St. Bernard Parish Sheriff's Office (SBPSO) with accommodations for his limitations.   Even with these accommodations, there was evidence before the workers' compensation judge (WCJ) that Mr. Poissenot was unable to subdue prisoners or provide backup to the deputies.   After he was furloughed from the SBPSO, he was unable to find work.   Even though he sought jobs in non-law enforcement capacities (a printing company and a tourist center), he was rejected because of his disability.   Nor could he return to his previous occupation of baking because of his disability.

The majority opinion attempts to avoid applying the manifest error standard of review by stating the wrong standard was applied in determining whether SEBs were due.   Specifically, the majority states:  “The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.”   Clearly, it is incorrect to interpret “wages” in a vacuum.   It must be read with the “inability” to earn wages equal to ninety percent.   The inability to earn the wages is a factual determination based upon the claimant's disability.   The attempt to distinguish between “the amount of wages” and the inability to earn the amount of wages, as though they are different concepts, is erroneous and ignores the underlying principles of the Workers' Compensation Act, which is based upon the disability of the claimant.

The majority avers the WCJ mischaracterized the law as entitling a claimant to SEBs where he cannot return to his past job and there is no other proof of employability.   However, a review of the WCJ's written reasons for judgment clearly demonstrates the WCJ knew the employee's burden of proof in seeking SEBs and that the claimant had to prove inability to earn ninety percent of his pre-injury wages whether or not in the same or similar occupation.   The WCJ found Mr. Poissenot alleged “he has been unable to obtain any work at which he would earn at least ninety percent of his pre-injury wage [and][d]efendant offered no evidence to dispute or refute this fact.”  (Emphasis supplied).   A review of the written reasons and judgment in its entirety does not support the majority's determination that the WCJ used the wrong standard in its decision.   Therefore, the proper standard of review is a manifest error one and not de novo.

I am not persuaded by the majority's attempt to distinguish this case from Allen v. City of Shreveport, supra, at p. 9. The majority finds Allen distinguishable because there, the claimant was released to sedentary work with light restrictions whereas Mr. Poissenot was cleared to return to medium duty work with no specific physical restrictions.   The majority then states “common sense tells us that there are plenty of jobs an otherwise healthy man with his depth of experience and training would be able to perform.”   This is not appropriate in a manifest error standard of review and cannot even be classified as weighing the evidence or inferring facts, as it is a statement not even based upon evidence or testimony from the trial.   I find the rationale from Allen equally applicable here:

Plaintiff's medical and lay evidence established that his earning ability continued to be impaired, even though his doctor released him for ․ employment with certain restrictions that would not prevent his performing the duties of his former position.   Plaintiff undoubtedly was partially disabled, and his entitlement to supplemental earnings benefits was dependent upon his proof that the disability resulted in an inability to earn wages equal to at least ninety percent of his pre-injury wages.   Plaintiff met this burden of proof by evidence, accepted by the trier of fact, that his medical restriction prevented him from working at available jobs․

Allen, 618 So.2d at 389.

Contrary to the majority, I find the record before the WCJ demonstrated by a preponderance of the evidence that claimant was unable to earn wages equal to ninety percent or more of wages he was earning at the time of the injury.   A reviewing court may not reverse the lower court's findings even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.   Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.   Because there is reasonable support in the evidence and testimony before the WCJ to support his finding the work-related injury resulted in claimant's inability to earn ninety percent of the wages he was earning at the time of the accident, I respectfully dissent.