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Appealed from the Office of Workers' Compensation, District 1-East, Parish of Ouachita, Louisiana. Trial Court No. 11-06653. Honorable Brenza Irving Jones, Workers' Compensation Judge.
LAW OFFICES OF STREET & STREET, C. Daniel Street, Counsel for Appellant.
HUDSON, POTTS & BERNSTEIN, LLP, Johnny R. Huckabay II, Counsel for Appellee.
Before CARAWAY, MOORE and GARRETT, JJ.
[49,534 La.App. 2 Cir. 1]
In this workers' compensation case, the claimant, Steven Harris, appeals from a judgment denying his claims for underpayment of benefits and for permanent total disability (" PTD" ) benefits, as well as penalties and attorney fees. We affirm.
In 1991, the claimant began working as a fireman for the City of Bastrop (" the City" ). He injured his left knee at work in 1992 or 1993, but returned to his job following several surgeries. On June 1, 2001, he injured his right knee while removing a smouldering mattress from a house after a fire. From June 1, 2001 to June 1, 2002, the claimant received the statutory sick leave benefits for firemen for 52 weeks. At the conclusion of this period, the City began paying him temporary total disability (" TTD" ) benefits of $359 per week pursuant to La. R.S. 23:1221(1).
In August 2002, the claimant's TTD benefits were converted to supplemental earning benefits (" SEBs" ). The claimant began receiving SEBs of $691.83 per month after his vocational rehabilitation counselor identified two jobs for him, which were approved by his orthopedic surgeon, Dr. William Bundrick. Both jobs were in the Monroe area. An accounting clerk position for the Holiday Inn Holidome involved semiskilled work and paid $16,000 to $17,000; the employer provided the training. The vocational rehabilitation counselor used $8.59 as the hourly rate for this job. The other job was a customer service representative position for Regional Medical Rental, which paid $6.25 to $6.50 per hour. [49,534 La.App. 2 Cir. 2] It was also semi-skilled, sedentary work; however, it was unclear whether the employer would provide the training. The evidence at trial, which occurred more than 11 years after the conversion of the TTD benefits to SEBs, indicated that the SEBs were determined by using an average of the hourly rates for the customer service job ($6.37) in conjunction with the rate for the Holidome job in order to determine an average of $7.48 per hour.
The claimant received SEBs for the statutory maximum of 520 weeks provided in La. R.S. 23:1221(3)(d). The record does not indicate that the claimant ever complained about the amount of the SEBs until they were about to expire. At the conclusion of this time period, he filed a disputed claim form with the Office of Workers' Compensation seeking PTD benefits under La. R.S. 23:1221(2). In the claim filed on September 8, 2011, he also alleged that the City had underpaid him by giving him $691.83 per month, instead of $393.67 per week or $1,705.90 per month.
In its answer, the City admitted that the claimant was an employee who injured his right knee while in its employ. However, it denied that the claimant sustained a disabling injury as a result of the June 2001 incident. It alleged that the claimant had multiple other disabling conditions unrelated
to the incident and his employment with the City. In the alternative, the City asserted several rights, including the right to seek credits or offsets against compensation benefits should the claimant return to work and the right to reduce benefits pursuant to La. R.S. 23:1206 and 23:1225.
[49,534 La.App. 2 Cir. 3] In November 2012, the City filed a reconventional demand in which it alleged that the SEBs were overpaid for four months and requested reimbursement in the amount of $2,767.32.
In January 2013, the City filed an amended and supplemental reconventional demand in which it alleged that the claimant had engaged in fraudulent requests for mileage reimbursement to receive medical treatment when (1) he had already been compensated, and (2) he had not even received medical treatment.
Trial was originally scheduled for October 11, 2012. However, the day before trial, the claimant went to see his pain management doctor, Dr. John Ledbetter. The claimant stated that he had a hearing the next day and wanted a letter stating that he could not work in any capacity. After reviewing a prior functional capacity evaluation (" FCE" ), Dr. Ledbetter said he would not change his recommendation without a new FCE. Trial was delayed, and a new FCE was done in January 2013. However, the FCE apparently did not test for sedentary work. Additionally, in one copy of the report it was stated that the claimant " would be unable to perform the demanding activities of a fireman," while another copy stated he " would be unable to return to gainful employment." Given the discrepancy in the report results, the failure of the FCE to test for sedentary work, and the fact that the claimant's orthopedist, Dr. Bundrick, ...