We granted plaintiff's application in this workers' compensation case to determine whether a back injury which occurred during the course and scope of employment renders the relator totally and permanently disabled. The trial court found her not totally and permanently disabled and instead awarded her one hundred weeks of benefits under La.R.S. 23:1221(4)(p) (usefulness of a physical function permanently impaired).
The facts of the injury and the subsequent medical diagnosis and treatment are set forth in the Court of Appeal opinion at 416 So.2d 1312-13:
From the Court of Appeal's affirmance of the trial court's award of benefits under La.R.S. 23:1221(4)(p) and denial of penalties and attorney's fees, relator seeks review by this Court on both issues: (1) whether Ms. Culp is totally and permanently disabled under Louisiana's odd lot jurisprudence; and (2) whether penalties and attorney's fees are owed for an arbitrary and capricious withholding of benefits by the defendant.
Clearly under our recent jurisprudence, odd lot status may be afforded injured workers who subsequently perform the duties of their job only in substantial pain.
Most recently, this Court stated in Lattin v. HICA Corporation, 395 So.2d 690 at 693 (La.1981):
These cases underscore the fact that in compensation situations where pain is the linchpin to make out a prima facie case for a worker's classification in the odd lot category, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe. In Wilson, the plaintiff was unable thereafter without qualification to perform any task that involved bending, stooping or lifting. She was unable to do anything but the lightest of chores around the house, was even unable to push a grocery cart and perform the simplest of physical tasks without incurring substantial pain. 393 So.2d 1251, 1253. A pain clinic evaluation recommended that she be admitted to the pain unit program in order to obtain pain coping skills. Supra at 1253. In Lattin, a maintenance worker who had sustained a severe foot injury requiring surgery and resulting in a disability of twenty to thirty percent thereafter was inactive and constantly complained about the pain and throbbing in his foot. Objective medical findings supported his claim of pain and a pain specialist diagnosed Lattin as having a mild to moderate reflex dystrophy complicated by rather severe anxiety. 395 So.2d at 694. See also, Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980).
Once a prima facie case has been made out for classifying the worker in the odd lot category, then the employer must show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee's residence. Lattin, supra.
In this case, both lower courts inferentially addressed both questions: the merit of Ms. Culp's odd lot classification and the actual availability of work. Upon our review of the record, we find that Ms. Culp did not make out a prima facie case for classification as an odd lot worker. We therefore pretermit the discussion of the actual availability of work and whether work available to her in Jena, Louisiana would be sufficient to disqualify her for total and permanent disability benefits after her voluntary move to Beaumont, Texas.
The trial judge in his written reasons for awarding benefits for loss of physical function rather than for total disability focused on the degree of residual limitation and the ability of Ms. Culp to work at her former job as plant nurse at the Belden plant in Jena. In pertinent part, he stated:
Upon review of the medical and lay evidence, the appellate court found no clear error in the finding of fact by the trial court that Ms. Culp was not disabled from returning to employment in the practical nursing profession.
We have here then a case in which both lower courts have found that the plaintiff at the time of trial was not required to work in substantial pain nor at a substantial disadvantage in the labor market because of her residual limitations.
On appellate review, the trial court's factual findings concerning work-related disability should be given great weight and should not be disturbed where the evidence before the trier of fact supports a reasonable factual basis for the trial court's findings, unless clearly wrong. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979).
We find no error in the factual conclusions of both lower courts that claimant's residual pain did not appreciably limit the type of work available to her and that it did not greatly diminish her ability to compete in the labor market.
Ms. Culp's several doctors were of the opinion that she should hereafter avoid excessive lifting, bending, or stooping. When urged to define those terms, Dr. Lowery said that she should avoid lifting more than twenty pounds. Dr. Ware placed the figure at fifty pounds. When Dr. Starr, her treating physician in Beaumont, had to place a percentage figure on her disability for insurance
Of the degree of Ms. Culp's disability at the time of trial, Dr. Starr stated that while he did not recommend nursing positions which would involve excessive lifting or straining, she was not precluded from working at other nursing tasks. Dr. Raso, whom Ms. Culp consulted for a second opinion when Dr. Starr stated surgery was not recommended, was of the opinion that Ms. Culp could do any of the duties of a licensed practical nurse other than those involving heavy lifting (twenty to thirty pounds) or persistent bending. Dr. Ware, the last physician to examine Ms. Culp testified that Ms. Culp experienced some minimal residual discomfort with exercise: "[S]he no longer had any kind of constant back pain, but that she had intermittent, mild backache."
Her residual limitations then are that she cannot do tasks involving persistent bending, stooping, squatting, climbing, or lifting excessive weights. According to trial testimony she cannot, for instance, hoe a garden, operate a tiller, mow the yard nor pick strawberries. These tasks, however, are not analogous to those of the licensed practical nursing profession. Testimony at trial revealed that the activities of a licensed practical nurse are not significantly different from the ordinary activities of every day life. Lay witnesses attested to the fact that the plaintiff does her own grocery shopping; washes, folds and puts away her and her family's clothing; can sit in a chair to watch television; and has taken a long car trip comfortably with periodic rest stops. We find that the lower courts were not clearly wrong in their factual determination that Ms. Culp was not called upon to work in substantial pain.
We likewise find that Ms. Culp's residual limitations do not appreciably limit the type of work available to her nor do they greatly diminish her ability to compete in the labor market.
In addition to her professional practical nursing skills, Ms. Culp is able to type, file, do other clerical work and administer hearing tests as a certified audiometric technician. She can perform those clerical, supervisory and diagnostic duties associated with occupational, school, or medical office nursing. Additionally, Ms. Culp has worked as a private duty nurse in Beaumont, Texas. There was expert testimony at trial that those duties were not significantly more strenuous than those of a plant nurse, which job all experts agreed she was physically able to perform at time of trial.
Given all of the foregoing, we find that Ms. Culp has not established a prima facie case for classification as an odd lot worker. There was no evidence that she was working in substantial pain or that she was likely to have to work in substantial pain upon return to work as a licensed practical nurse. Therefore she was not placed at a substantial disadvantage in the competitive labor market.
Finally on the matter of penalties and attorney's fees, we affirm the appellate court's finding no error in the denial of such fees by the district court. The record reflects that the defendant was not arbitrary and capricious in discontinuing payments temporarily when Ms. Culp returned to work in Beaumont and there was a legitimate and substantial question over whether benefits were still due and if so, how much. The defendant made a good faith and expeditious effort to resolve the difference, resulting in restoration of benefits without undue delay. Additionally, the record does not reflect grounds for our overturning the lower courts' finding that Belden was not arbitrary and capricious in not reimbursing Ms. Culp for various small travel expenses.
For the foregoing reasons, we affirm the judgment of the Court of Appeal.
DIXON, C.J., concurs in the result.
DENNIS, J., dissents and assigns reasons.
WATSON, J., dissents with reasons.
WATSON, Justice, dissenting.
The majority errs in concluding that Ms. Culp's inability to do heavy lifting, prolonged sitting or persistent bending do not partially disable her from performing the duties of a licensed practical nurse. Licensed practical nursing requires stooping, bending, and lifting: turning patients; positioning them in bed; assisting them in and out of bed, and to and from wheel chairs.
Dr. C.W. Lowrey, the orthopaedic surgeon who treated Betha Lou Culp after her accident, testified that she had a lumbosacral strain with resulting low back pain, right sciatic notch tenderness, nerve root irritation and limited back motion. During the course of his treatment, commencing on June 27, 1978, she had persistent symptoms. Betha Culp attempted to continue her work at Belden and last worked there on September 19, 1978, but could not perform her duties. When Dr. Lowrey advised that she consider part-time work, it is uncontradicted that Belden Corporation refused to make this available.
On January 26, 1979, Betha Culp moved to Beaumont, Texas, with her husband, after it had already been determined that she was unable to resume her former duties at Belden. It is significant that there was no plant nurse at Belden before she was hired, and no plant nurse has been hired to take her place.
According to Ms. Culp, she was forced by economic considerations to work a few days as a private duty nurse in Beaumont, Texas, but was unable to continue because of her back problem. She could not turn the patients, pull them up in bed, stoop over to bathe them and help them in and out of bed. Although she had previously worked for St. Elizabeth's Hospital in Beaumont, her application for employment there was rejected because of her bad back.
Dr. Harry Starr, a neurosurgeon in Beaumont, Texas, commenced treating Betha Culp in February of 1979. At that time she had stiffness and arthritic changes in her lower back. In April of 1979, Betha Culp had a flare-up of her back problem and was hospitalized by Dr. Starr. A myelogram showed that Betha Culp's discs or the ligaments over the discs have a tendency to bulge slightly and she has an imperfect "bad back" which became disabling after her accident. Dr. Starr decided that conservative treatment rather than surgery was indicated. Dr. Starr has continued to see Ms. Culp periodically and said that Betha Culp has a definite permanent partial disability. Although she is not totally disabled from working as a licensed practical nurse, Dr. Starr pointed out that employers refuse to hire people with back trouble. The evidence is that the only work available to Betha Culp is private duty nursing and Dr. Starr specifically stated: "I do not recommend that she do bedside nursing where she has to do excessive lifting or straining, now or ever. That would be fool hardy." (Depo., p. 47)
The majority errs in finding that Ms. Culp's disability does not limit the type of work available to her nor diminish her capability to compete in the labor market. The position of plant nurse is one for which she is under qualified. Hospitals and similar institutions will not hire her because of her bad back and the patient care required in most private duty nursing is beyond her capabilities. Thus, she is at a substantial disadvantage in the labor market and there is no evidence that employment is available to her as a licensed practical nurse.
Because of her permanent partial disability, benefits should have been awarded under Section (3) of LSA-R.S. 23:1221 rather than the lesser benefits for impairment of a physical function which were awarded under Section (4)(p). Jacks v. Banister Pipelines America, 418 So.2d 524 (La., 1982).
I respectfully dissent.
DENNIS, Justice, dissenting.
I respectfully dissent for the reasons stated by Justice Watson in his dissenting opinion.
The evidence establishes that Ms. Culp was physically able to resume the responsibilities of the job of plant nurse, since they did not involve excessive bending, stooping, or lifting. These were "the same duties in which she was customarily engaged when injured [and] duties of the same or similar character for which she was fitted by education, training or experience." Plaintiffs to whom benefits for permanent and partial disability have been awarded under La.R.S. 23:1221(3) have not been found physically able to resume their former jobs. See, Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982) [Martin's former job involved the lifting and carrying of heavy loads which task he was no longer able to perform]; Stracener v. U.S.F. & G. Co., 410 So.2d 1220 (La.1982) [the loss of half of his thumb prevented the plaintiff boilermaker from performing the duties in which he was engaged when injured as well as those for which he was fitted by education, training, and experience]; Allor v. Belden, 393 So.2d 1233 (La.1981) [Allor could not return to his former job as a wire drawer which involved lifting heavy spools of wire]; Simpson v. S.S. Kresge Company, 389 So.2d 65 (La.1980) [plaintiff could not return as sales supervisor of domestic hardware department because the job required frequent bending, stooping and lifting].