Opinion
No. 98 CA 1129.
May 14, 1999. Amending decision on Limited Grant of Rehearing June 29, 1999. Writs Denied September 17, 1999.
Leonard Cardenas, III, Baton Rouge, for Plaintiff-Appellee, Donald J. Oubre.
Kirk L. Landry, Baton Rouge, for Defendant-Appellant, Jacobs Engineering Group, Inc.
Donald J. Oubre (plaintiff) filed a claim for workers' compensation benefits against his employer, Jacobs Engineering Group, Inc. (defendant), alleging he was injured on July 28, 1994, when he was exposed to chemicals. The parties stipulated that plaintiff was employed by defendant on July 28, 1994, earning an average weekly wage of $623.87; that his temporary-total-disability (TTD) rate for workers' compensation purposes was $319.00; that defendant paid TTD benefits until October 2, 1995; and that defendant paid some medical benefits.
Plaintiff named CIGNA as defendant's workers' compensation carrier. CIGNA never appeared in the suit.
After a trial on many issues, the workers' compensation judge (WCJ), inter alia, rendered judgment in plaintiff's favor and ordered defendant to pay supplemental earnings benefits (SEB) to plaintiff at his TTD rate from October 2, 1995. Defendant appeals.
The judgment also ordered payment of certain medical expenses and mileage. Defendant did not appeal those portions of the judgment, and they are now final.
ESIS, Inc., defendant's third-party administrator, answered the suit even though it was not named as a defendant. Although it joined in the motion and order of appeal, it is not properly before us, as it was not cast in judgment.
Defendant contends the WCJ applied the wrong legal standard in awarding SEB's. The WCJ found plaintiff's "only disability is that he cannot work in . . . a chemical plant." She stated plaintiff "could work in any Baton Rouge office area or Gonzales office type situation. . . . [P]hysically, there [are] no restrictions on him. It's strictly environment." She concluded, "That does entitle him to SEB at the TTD rate until [defendant] either offers him a job in a different environment, or finds him a job in a different environment."
We agree with defendant the trial court applied an incorrect legal standard. An employee is entitled to receive SEB's if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. The employee 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. Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEB's or establish the employee's earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his community or reasonable geographic location. Because the WCJ used an incorrect legal standard, we must review the record and determine de novo whether plaintiff is entitled to SEB's.
Banks v. Industrial Roofing Sheet Metal Works, 96-2840, pp. 8-9 (La. 7/1/97), 696 So.2d 551, 556.
Our initial inquiry is whether plaintiff presented a prima facie case that he is unable to earn 90% or more of his pre-injury wage. Plaintiff was forty-eight years old on the day of trial. He testified he graduated from high school, attended Louisiana State University, and then earned a certificate in drafting from the Baton Rouge Vocational-Technical Institute. He had worked for various construction companies and engineering firms and had attended numerous seminars and training programs offered by his employers. At the time of the accident, he was working as a computer-assisted-drafting (CAD) designer. His only attempt at seeking employment after the accident was to speak to one of defendant's employees about getting his job back, even though he did not feel he was medically able to work at his old job. He stated defendant declined to rehire him for medical reasons.
The WCJ found that plaintiff "sincerely believes that all of his problems are due to this exposure," but that this was "unsubstantiated fear." She found that while he "still has some pain, . . . that is treatable now." The WCJ found only three physical conditions were related to the chemical exposure — sinus problems, reactive airways, and headaches. She stated he should not work where he would be exposed to irritating smells, but noted "there are lots of environments that he can work in."
Thus, according to the WCJ's findings, plaintiff is capable of returning to his occupation of CAD designer. Plaintiff made no attempt to show that a CAD designer with twenty-five or more years experience could not earn at least 90% of his pre-injury wages working in an office rather than in a chemical plant. He thus failed to present the prima facie case necessary to show entitlement to SEB's.
For the foregoing reasons, the portion of the judgment of the Office of Workers' Compensation Administration awarding supplemental earnings benefits to plaintiff is reversed. Judgment is rendered in favor of defendant, Jacobs Engineering Group, Inc., dismissing plaintiff's claim for workers' compensation indemnity benefits. Plaintiff is cast for all costs of this appeal.
Because of our ruling on the issue of SEB's, we need not address defendant's other assignments of error.
AFFIRMED IN PART, REVERSED IN PART; AND RENDERED.