Maurice Villar VS Industrial Metal Recyclers and The Gray Insurance Company

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STATE JF LOUISIANA COURT OF APPEAL FTRST CIRCUIT N0 2012 CA 0319 MAURICE VILLAR VERSUS INDUSTRIAL METAL RECYCLERS AND THE GRAY INSURANCE COMPANY Judgment rendered November 2 2012 On Appeal from the OfFice of Workers Compensation Administration District 5 Louisiana Docket No 10 09966 Honorable Pamela A Moses Judge Presiding Laramore MICHELLE SORRELLS ATTORNEY FOR BATON ROUGE LA APPELLEE PLAINTIFF MAURICE VILLAR HEIDEL A SCHNEIDER ATTORNEYS FOR CHARLES J APPELLANTS DEFENDANTS DUHE JR BATON ROUGE LA INDUSTRIAL METAL RECYCLERS AND THE GRAY INSURANCE COMPANY BEFORE KUHN PETTIGREW AND McDONALD 7 c e cr E C PETTIGREW J In this workers compensation dispute Industrial Metal Recyclers Inc Industrial and its insurer The Gray Insurance Company Gray appeal a judgment of the Office of Workers Compensation OWC in favor of claimant Maurice Villar For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On July 18 2000 Mr Villar was injured in the course and scope of his employment as a pipe fitter with Industrial when a large steel beam fell on him crushing his left leg against a concrete column and resulting in the partial amputation of his left leg Mr Villar was 61 years old when the accident occurred He has not worked since his accident Subsequent to the incident temporary total disability benefits were initiated According to the record Gray hired a vocational rehabilitation counselor in 2000 to meet with Mr Villar and evaluate his work to return options Mr Villar treating s physician Dr Lawrence J Messina set restrictions on Mr Villar such that he could only perform sedentary part work In February 2002 Mr Villar indemnity benefits were time s converted to supplemental earning benefits in the amount of 384 per week which he 00 was paid every two weeks until July 2010 After his benefits were terminated Mr Villar filed a disputed claim for compensation alleging that he was entitled to permanent total disability benefits and that his benefits were arbitrarily and capriciously terminated Prior to trial Mr Villar was reevaluated by a vocational counselor who reported that Mr Villar was completely unemployable due to his amputated leg his advanced age of 71 his inability to perform prior occupations the lack of transferable skills and the physician sedentary assigned time part work restriction The matter proceeded to trial on October 3 2011 at which time the parties stipulated to the date of the accident July 18 2000 the fact that Mr s Villar left leg was partially amputated as a result of the accident that his average weekly wage was 576 with an indemnity rate of 384 and that Mr Villar received 00 00 temporary total disability benefits and supplemental earning benefits until July 18 2010 The narrow issues presented to the OWC were whether Mr Villar was permanently and 2 totally disabled as a result of the uly 18 2000 accident and if so whether Industrial s termination of his benefits was arbitrary and capricious such that penalties and attorney fees are warranted After listening to the testimony of the witnesses at trial and reviewing the applicable law and documentary evidence in the record the OWC hearing officer rendered judgment from the bench in fauor of Mr Villar and against Industrial and Gray The hearing officer found that Mr Villar was permanently and totally disabled and that Mr Villar met his burden of proving that he was entitled to permanent and total disability unemployable benefits The hearing officer also concluded that Industrial arbitrarily and capriciously terminated investigation The hearing officer further found that Mr Villar was Mr Villar benefits without s to determine if he was permanently and having done any kind of totally disabled and awarded 00 000 15 in attorney fees and costs A judgment in accordance with these findings was signed by the OWC hearing officer on October 31 2011 as follows 1 The OWC hearing officer finds that the claimant is permanently totally disabled under La R 23 from July 19 2010 to date S 1221 c 2 2 The OWC hearing officer finds that there is no reasonable probability that with appropriate training or education Mr Villar may be rehabilitated to the e that he can achieve suitable gainful ent employment and it is therefore not in the best interest of the claimant to undertake such training or education 3 The OWC hearing officer finds that the defendants were arbitrary and capricious in the termination of indemnity benefits after 520 weeks without properly investigating Mr Viliar disability status as of the time of s the termination 4 The OWC hearing ofFicer awards 15 in attorney fees for 00 000 the arbitrary and capricious termination of Mr Villar indemnity benefits s 5 Judicial interest is awarded from the date each installment became due payable from July 19 2010 to date at the interest rate in effect at the time the 1008 was filed which was 3 75 6 Interest is due on the attorney fee at the rate of 3 from the 75 date of the award 7 The OWC hearing officer awards Thomas Mungall an expert witness fee in the amount of 135 for his trial testimony 00 8 All costs of the proceeding in the amount of 1 are the 36 490 responsibility of the defendant This appeal by Industrial and Gray followed 3 I After considering the October 3 2011 judgment and examining the record this 1 court issued an interim order on September 27 2012 fnding that although the OWC hearing officer had determined that Mr Villar was permanently and totally disabled and had met his burden of proving he was entitied to benefits the judgment failed to include an award of said benefits Thus we remanded the case to the OWC for the limited purpose of having the hearing officer sign an amended judgment that was final and appealable See Johnson v Mount Pilgrim Baptist Church 2005 0337 pp 2 La App 1 Cir 3 934 So 66 67 Carter v Williamson Eye 3 06 24 2d Center 2001 p 3 App 1 Cir 11 837 So 43 44 2016 La 02 27 2d On October 5 2012 the OWC hearing officer signed an amended judgment which for the most part tracked the language of the original judgment with the exception of the issues that this court had instructed the OWC to correct The new language in the October 5 2012 judgment is as follows 1 The OWC hearing officer finds that the claimant is permanently totally disabled under La R 23 from July 19 2010 to date at S 1221 c 2 the rate of 384 a week 00 2 The OWC hearing officer finds that the claimant is entitled to 00 192 24 in past due indemnity benefit totaling benefits owed from s July 19 2010 until October 3 2011 and continuing thereafter at the rate of 384 a week 00 The remainder of the original October 31 2011 judgment was unchanged ISSUES FOR REVIEW On appeal Industrial and Gray assign the fo specifications of error lowing 1 The OWC hearing officer manifestly erred in finding that the claimant is permanently and totally disabled 2 The OWC hearing officer erred in concluding that there was no reasonable probability that with appropriate training or education that claimant may be rehabilitated 3 The OWC hearing officer manifestly erred in finding that defendants arbitrarily and capriciousiy terminated benefits on July 19 2010 DISABILITY STATUS Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact Allman v 4 Washington Parish Police Jury 2004 p 3 App 1 Cir 3 907 0600 La 05 24 2d So 86 88 Factual findings in a workers compensation case are subject to the manifest error wrong standard of review McCray v Delta Industries Inc clearly 1694 2000 p 4 App 1 Cir 9 804 So 265 Z69 La O1 28 2d In applying the manifest error wrong standard khe appellate court must determine not whether clearly the trier of fact was right or wrong but whether the fact finder conclusion was a s reasonable one Banks v Industrial Roofing Sheet Metal Works Inc 2840 96 p 7 7 696 So 551 556 Thus if the fact finder findings La 1 97 2d s are reasonable in light of the record reviewed in its entirety the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Sistler v Liberty Mut Ins Co 558 So 2d 1106 1112 La 1990 Consequently when there are two permissible views of the evidence the fact finder choice between them cannot be manifestly erroneous s Bolton v B E K Const 2001 p 7 App 1 Cir 6 822 So 29 0486 L a 02 21 2d 35 The finding of disabili tywithin the framework of the workers compensation law is a legal rather than a purely medicaf determination Therefore the question of disability must be determined by reference to the totality of the evidence including both lay and medical testimony Ultimately the questian of disability is a question of fact which cannot be reversed in the absence of manifest error Severio v J Merit E Constructors Inc 2002 p La App 1 Cir 2 845 So 465 469 0359 7 03 14 2d As set forth in La R 23 when an empioyee is not engaged in any S 1221 c 2 employment or self compensation for permanent total disability shall be empioyment awarded only if the employee proves by clear and convincing evidence unaided by any presumption of disability that the employee is physically unable to engage in any employment or employment self Moreover before a claimant is found to be permanently and totally disabled it shall be determined whether there is reasonable probability that with appropriate training or education the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful empioyment 5 and whether it is in the best interest of such individual to undertake such training or education La R 23 Severio 2002 at 10 845 So at 471 S 1226 D 0359 2d After hearing from the witnesses and considering the documentary evidence in the record the OWC hearing ofFCer made the following findings concerning Mr Villar s disability status The first disabled Villar is question is whether Mr Villar is permanently and totally I am of the opinion that under La R 23 Mr S 1221 c 2 permanently and totally disabled standard for that is that when an at this point in time The employee is not engaged in employment compensation for permanently and total disability shall be awarded only if the employee proves by clear and convincing evidence unaided by any presumption of disability that the employee is physically unable to engage in any employment or self employment Now there is a caveat to that found in La R 23 the S 1226 rehab statute La R 23 You liave to get through that rehab S 1226 D statute before you get to permanent and total And in D we have Before a claimant is found to be permanently and totally disabled it shall be determined whether there is a reasonable probability that with appropriate training or education the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such an individual to undertake such training or education That is the crux of the matter First I will start by sayfng that I found Mr Villar very credible he s a very personable upfront gentleman I found his testimony completely credible throughout there was absolutely no dispersions cast upon his credibility in any way I think he is sincere in that he would like to work and at a point in time not too long after he lost his leg he was seeking to try to find some kind of part employment but in his own words there time seemed to be road blocks at every turn His biggest problem is not the leg as much as it is the age at which he lost the leg and iYs not the loss of the leg alone but the age at which he lost the leg Losing his leg at age 61 is pretty devastating to his employability Although he has a high school education which is the entry ievei for most positions at 72 or 71 the age that he was when his benefits were terminated I am clearly convinced that no employer would hire him at age 72 with an amputated leg and provide him with sedentary duty on a part basis that could time present him with enough money to be su gainfully employed stably The definition is found in Title 40 of the Administrative Code for Suitable Employment Employment that is reasonably attainable and which offers an opportunity to restore the individual as soon as practical and neariy as possible to his average earning at the time of his injury There is no way that like short of a job like ours mine and the attorneys here or a professional job that Mr Villar could earn 576 00 a week on a part basis at a sedentary job time So I find that the claimant has met his burden of proving clearly and convincingly that he entitled to permanent and total disability s benefits 6 Dr Messina set the restrictions sedentary dury part only and time with that restriction and his age and his high school education the fact that all of the jobs he had before were in the manual labor heavy manual labor type situation there were some skills there And I agree with Ms Seylar there are some transferable skilis but she failed to show me any job as of the time that they terminated benefits that he could have done Now if they out there the defendant failed to show me that they are re When Ms Seylar did her vocational rehabilitation it was ten years ago At that time there were some jobs that he possibly could have done and if they had really pushed him in that direction ten years ago perhaps we wouldn be here now t I think that the vocational rehabilitation ball was dropped ten years ago He showed some interest in the computer training he showed some interest in small engine training and I think that if she Ms Seylar had kept in touch with him and if the employer had pushed him to look for those jobs had provided him with names and places of jobs go find these jobs provided him with 1020 forms fill these out every month you re expected to find jobs and actually followed up did he apply Everybody knows the step change that we go through now ball with vocational rehabilitation under the supplemental earnings benefits category and that is okay employee can return to his old job his t employer does not want to create a job for him he got severe s limitations let find jobs for him give him the jobs but you got to give s ve him the places where the jobs are too And there was absolutely no evidence and she couldn remember I feit so sorry for Ms Seylar t because she lost part of her file but it was her testirnony she couldn t remember whether she gave him the actual places for the jobs but they did have discussion about the types of jobs and Mr Villar to his credit iYs been ten years he didn have any documentation he had ever gotten t from her he didn tremember talking abouk general categories of jobs And he went out and looked he actually talked to the employer he went and talked to some smail shop owners there in his area he looked into the possibility of employment but Ms Seylar never presented him with jobs and then pushed him in that way and by that I mean look if he t doesn go out and apply for these jobs then go ahead and reduce benefits based upon the lowest paying jo6 that you got and force the ve issue I mean s that what thaYs the way it should work And then the claimant would have to come and show me that he did try to seek these jobs and we all know how that goes but none of this occurred They talked about jobs talked about doing something and then let it go And now ten years later we cannot use that ten year old the ten year old ability as being actual jobs today or even last year when benefits were terminated The best thing I would have suggested os that before benefits were running out say in 2010 2009 get back on the labor market survey and see what you can do provide him with some openings to see what could have been done and go forward with it from that side Under Mr Mungall assessment and I have to say I heartily agree s the fact that he can work an eight hour day he 72 years old now with a t s 7 high school education puts him at a severe detriment in this job market with college students coming out and having trouble finding jobs He would be competing for these cashier and security guard jobs that he might physically be able to do and be in his educational category with high school kids and college kids rig now who are having trouble finding a t job And as much as we like to believe that he not going to be s discriminated against because of his disabiliry or discriminated against because of his age I just don see them hiring him over someone t younger who can take that ob So I am of the opinion that he is unemployable due to his age the fact that he only has a high school education he has no skills clerical type skilis and he lost his leg and he is limited to part employment s time Following an extensive review of the record and exhibits in this matter we are i unable to say that the OWC hearing officer erred in determining that based on Mr s Villar physical restrictions the failed attempt at vocational rehabilitation his limited education and lack of transferable skills he is permanently and totally disabled and entitled to benefits The hearing officer made specific findings that Mr Villar was a credible witness and that he was unemployable The OWC hearing officer judgment s concerning the finding of permanent and total disability and the award of benefits for same is reasonable and supported by the record AWARD OF ATTORNEY FEES The OWC hearing officer found that Industrial and Gray were arbitrary and capricious in terminating Mr Villar benefits and awarded him 15 in attorney s 00 000 fees noting as follows I also find that in light of the fact that when benefits were terminated and SEB benefits had run out the insurer terminated benefits without having done any kind of investigation to determine if he was permanently and totally disabled You cannot just rely on the fact that Dr Messina says he can return to work on a part basis The question can stop there Yes that time t means that physically there something out there that he could probably s do you have to find it and you have to find an employer who willing to s hire him or that there are jobs out there that he could do that he could become gainfuliy employed for You can just terminate benefits because t s he in the SEB category as far as the doctor is concerned because it is not just a medical question it is a legal question the category of benefits And once you run out of supplemental earning benefits the logical thing to do would have been to look at it for permanent and total disabiliry Especially once the 1008 was filed updated information should have been acquired immediately to see if he should have been declared permanent and total And I think had Ms Seylar started looking again she would 8 have found that she had trouble finding if she actually talked to employers finding someone who would have employed him So I find that they did arbitrarily and capriciously terminate benefits There is no penalty for that there is just an attorney fee s option I award 15 in attorney Eees and costs 00 000 s The OWC hearing officer determination of whether an employer or insurer s should be cast with attorney fees and penaities in a workers compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review Frith v Riverwood Inc 2004 p 12 La 1 892 So 7 15 1086 05 19 2d Statutes providing for penalties and attorney fees are penal in nature and must be strictly construed Life Flight of New Orleans v Homrighausen 2005 p 9 2538 La App 12 952 So 45 52 writ denied 2007 La 5 956 So 06 28 2d 0558 07 4 2d 615 Based on our review of the record herein we cannot say the OWC hearing officer was clearly wrong in finding that Industrial and Gray were arbitrary and capricious in terminating Mr Villar benefits s Accordingly we affirm the award of 15 in 00 000 attorney fees to Mr Villar DECREE For the above and foregoing reasons we afFirm the OWC hearing officer s judgment in all respects and assess all costs associated with this appeal against appellants Industrial Metal Recyclers I and The Gray Insurance Company c AFFIRMED Pursuant to La R Z3 S 1201 Ipenalties are recoverable for khe arbitrery and capricious discontinuance of benefits as follows I Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter when such discontinuance is found to be arbitrary capricious or without probable cause shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims Although we note legal error in the OWC hearing officer failure to address the penalty portion of La R s S 1201 23 for the arbitrary and capricious termination of Mr Villar benefits this issue is not before the court s on appeal as Mr Villar did not appeal or answer the appeal See La Code Civ P art 2133 Augustus v St Mary Parish School Bd 95 p 16 La App 1 Cir 6676 So 1144 1156 2498 96 28 2d 9

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