In this workers' compensation case, the administrative hearing officer, after finding that plaintiff's carpal tunnel syndrome and resulting partial disability was caused by an on-the-job accident and that plaintiff was unable to earn wages equal to her pre-accident wages, rendered judgment ordering that plaintiff be paid temporary total disability benefits in the amount of $138.61 per week until such time as the defendant had provided a minimum of 26 weeks of meaningful rehabilitation, that defendant pay to plaintiff 55 weeks of past due total temporary disability in the amount of $7,623.55 from September 11, 1990 through the date of the hearing officer's order, September 27, 1991, that the defendant pay interest on all past due amounts together with penalties of 12% thereon, and that defendants pay attorney's fees in the amount of $5,000. Both the plaintiff and the defendant appealed the hearing officer's judgment. A five-judge panel of the court of appeal, with one judge dissenting, affirmed the judgment in part, reversed in part, and remanded. Freeman v. Poulan/Weed Eater, 618 So.2d 618 (La.App. 2d Cir.1993). The court of appeal affirmed, only to the extent of holding that plaintiff's injury and resulting partial disability was caused by her employment. The court of appeal otherwise reversed, setting aside the award of past due compensation benefits, the order to provide rehabilitation and to pay temporary total disability benefits during the period of rehabilitation, and the award of penalties and attorney's fees. The court of appeal remanded for recalculation of the amount of the weekly benefits paid to the plaintiff.
Plaintiff applied for writs in this court, seeking reinstatement of the hearing officer's judgment, an increase in attorney's fees, and further recalculation of the amount of weekly benefits due. Writs were granted, 625 So.2d 155 (La.1993), primarily to consider plaintiff's argument that the court of appeal failed to apply the proper clearly wrong/manifest error standard of appellate review with the court of appeal, instead, basing its reversal on a reevaluation of the evidence particularly as it related to plaintiff's ability at the time of trial to earn wages equal to or 90% of her pre-injury wages, a factual determination that controls whether plaintiff is entitled to rehabilitation services or, alternatively, supplemental earning benefits. For reasons expressed in this opinion, we reverse the judgment of the court of appeal in part, amend and reinstate in part the judgment of the hearing officer, and remand for entry of judgment and reconsideration of the amount of the weekly benefits.
The basic facts are accurately set forth in the court of appeal's thorough opinion as follows:
The court of appeal affirmed in part, reversed in part and remanded the matter to the hearing officer. The court affirmed the hearing officer's determination that plaintiff's carpal tunnel syndrome was a result of her employment with Poulan/Weed Eater. However, the court reversed the hearing officer's judgment awarding benefits, rehabilitation and penalties and attorney's fees. The court concluded that since plaintiff was qualified for the positions located for her by Crawford and Company, but failed to apply for them, she had failed to prove that she was unable to earn 90% of her pre-injury wages so as to entitle her to supplemental earnings benefits. The court of appeal set aside the hearing officer's award of 55 weeks of past-due temporary total disability benefits. The court then confronted the plaintiff's entitlement to rehabilitation. For the same reasons set out for plaintiff's failure to prove her inability to earn 90% of her wages, the court found that plaintiff had also failed to prove that she could not earn wages equal to her pre-injury wages and, as a result, was not entitled to rehabilitation benefits under LSA-R.S. 23:1226. The court reversed the hearing officer's award that plaintiff be paid temporary total disability benefits until a minimum of 26 weeks of meaningful rehabilitation be provided. The court concluded that it was not arbitrary and capricious for the employer to rely on Dr. Mead's opinion that plaintiff could perform the jobs located by the rehabilitation counselors in terminating benefits and reversed the hearing officer's award of penalties and attorney's fees. Finally, the case was remanded for the hearing officer to determine whether the benefits paid to plaintiff were properly calculated.
The dissenting judge opined that the hearing officer was not manifestly erroneous in concluding that plaintiff lacked qualifications for the manager trainee jobs that were located by the rehabilitation counselors, and would have affirmed the judgment of the hearing officer.
We note at the outset that the employer contended before the hearing officer and the court of appeal, and now contends in this court, that plaintiff's carpal tunnel syndrome was not caused by her employment activities. Both the hearing officer and the court of appeal rejected defendant's contentions in this regard. After review, we agree with the findings of the hearing officer and the court of appeal, for the reasons expressed in the court of appeal opinion, and affirm this finding without further discussion.
We further note that we agree with the court of appeal's conclusion that the case should be remanded for further consideration of the amount of weekly compensation benefits due, for the reasons expressed by the court of appeal. We therefore affirm this part of the court of appeal's judgment without further discussion.
The primary issues we consider are, first, whether the hearing officer was manifestly erroneous or clearly wrong in finding that the evidence did not establish that plaintiff was able to earn wages equal to her preinjury wages, and, then, if the hearing officer's determination in this regard was not clearly wrong, what the appropriate award of worker's compensation benefits is under the facts and circumstances of this case.
In a workers' compensation case, as in other cases, the appellate court's review is governed by the manifest error or clearly wrong standard. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). A court of appeal may not set aside a trial court's or a jury's finding of fact in absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State Through DOTD, 617 So.2d 880, 882 (La.1993). The appellate
The plaintiff's accident and resulting injury occurred in 1988 and plaintiff's entitlement to worker's compensation benefits is governed by the law in effect at that time. In regard to entitlement to rehabilitation services, the principal thrust of plaintiff's contentions before this court, LSA-R.S. 23:1226
As noted by the court of appeal, the initial inquiry is whether a claimant is entitled to rehabilitation services. Works v. Trinity Universal Insurance Company, 501 So.2d 1045 (La.App. 2d Cir.1987), writ denied 503 So.2d 480 (La.1987). As LSA-R.S. 23:1266(A) provides, an employee is entitled to rehabilitation upon his or her suffering a compensable injury that "precludes the employee from earning wages equal to wages earned prior to the injury." Plaintiff bears the burden of proving such an inability to earn pre-injury wages by a preponderance of the evidence. If plaintiff carries her burden,
Under LSA-R.S. 23:1221(3)
Unlike the rehabilitation provisions of the 1989 amendment to LSA-R.S. 23:1226 which focuses on job placement, the rehabilitation
The rehabilitation program undertaken by the employer was never completed because plaintiff never interviewed for the listed positions. Just whose fault this was is problematical. By the time the list was presented to plaintiff, many months had passed since the rehabilitation firm was hired by the employer, and she was enrolled in a business management college curriculum with tuition paid by the state rehabilitation office, consistent with the rehabilitation counselor's first recommendation. Plaintiff testified that after the list was given to her she was told to wait until after Dr. Mead's exam to make any contacts, and that she was never advised of the results of Dr. Mead's exam. There was only one subsequent contact, by telephone, between the rehabilitation counselor and plaintiff. Plaintiff testified the counselor called and advised that compensation was being terminated because she had made no contacts with the potential employers. The counselor testified that plaintiff said that she was in school and had an ill daughter and did not have the time to make the contacts. The counselor then advised plaintiff that compensation benefits were being terminated, sent a letter to that effect a couple of days later, and then closed her file.
The finding by the hearing officer that the evidence failed to establish the existence of jobs available to plaintiff, based on her education and experience, in which she could earn wages equal to her pre-accident wages is not clearly wrong. It follows that plaintiff was entitled to meaningful rehabilitation as found by the hearing officer. It also follows that the mere furnishing of a list of possible manager trainee jobs does not constitute a program of meaningful rehabilitation, training and education, at least as envisioned by the former statute.
For these same reasons, we conclude that the evidence does not establish that plaintiff was able to earn 90% of her pre-injury wages. As a result of this inability, she is alternatively entitled to supplemental earnings benefits. The evidence does show several jobs which plaintiff could have clearly held paying in the range of $4.00 per hour. Thus, supplemental earnings benefits should be calculated on the difference between plaintiff's pre-injury wage of $5.50 per hour and her earning capacity of $4.00 per hour.
However, we question the judgment of the hearing officer ordering retraining of the plaintiff and payment of temporary total disability benefits until defendant has provided a minimum of 26 weeks of meaningful rehabilitation. It is clear that by the time of trial, plaintiff was committed to pursuit of a college education in which she was maintaining excellent grades. Any on-the-job training or vocational education proposed by the employer at this time would not likely be acceptable to plaintiff and would probably be counter productive to her rehabilitation and reentry into the work force. However, the fact that plaintiff, several months after the rehabilitation firm had been hired but before any rehabilitation program acceptable to the employer had been proposed, proceeded on her own in a program of meaningful rehabilitation should not entirely relieve the employer of its rehabilitation obligation under the statute. Under the unique facts of this case, considering plaintiff's pursuit of a college education through the state vocational program
Accordingly, in order to accommodate the requirements of the statute with the facts of this case, we will amend the judgment of the hearing officer to provide that defendant pay to plaintiff temporary total disability benefits for a period of 52 weeks beginning with the enrollment of plaintiff in college in June 1990, together with any reasonably necessary expenses, such as books and supplies, incurred by plaintiff in connection with her college course during said 52 week period.
Since the employer paid supplemental earnings benefits in an amount equal to temporary total disability benefits through September, 1990, it should be given a credit for the amounts paid from June through September of that year against this obligation. Also, since the obligation to pay temporary total disability benefits during 52 weeks of rehabilitation to June of 1991 will fulfill defendant's obligation for temporary total disability benefits and overlaps with the hearing officer's award of 55 weeks of such benefits from September 11, 1990 to the date of the hearing officer's judgment in September 1991, that award is deleted. Since it was not established at trial that plaintiff was able to earn 90% of her pre-accident wages, she is entitled to supplemental earnings benefits beginning in June, 1991, taking into consideration an established earning capacity of $4.00 per hour.
Because of the abrupt termination of worker's compensation benefits and rehabilitation efforts by defendant, we do not disturb the hearing officer's award of penalties and attorney's fees. Plaintiff is, however, awarded $2,500 additional attorney's fees for services rendered in connection with the appeal and writ application.
For the reasons assigned, the judgment of the court of appeal is reversed in part and the judgment of the hearing officer is reinstated in part and amended. This case is remanded to the worker's compensation hearing officer for entry of judgment in accordance with this opinion and for reconsideration of the amount of weekly benefits awarded. All costs are assessed to the defendant.