APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION. NO. 2013-05703, DISTRICT " EIGHT" . Honorable Robert Varnado, Workers' Compensation Judge.
C. Theodore Alpaugh, III, GUSTE BARNETT SCHLESINGER HENDERSON & ALPAUGH, L.L.P.., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Craig B. Mitchell, Michael S. Rodriguez, MITCHELL & ASSOCIATES, APLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Sandra Cabrina Jenkins).
[2014-0810 La.App. 4 Cir. 1]
SANDRA CABRINA JENKINS, JUSTICE.
Worker's Compensation claimant, Michael Carambat, filed suit against defendant, City of New Orleans Police Department, alleging claims for wrongful conversion and reduction of benefits.
Claimant appeals the trial court's judgment granting defendant's motion for summary judgment. For the reasons set forth below, the trial court's judgment is reversed and remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
On September 8, 2007, Michael Carambat was involved in an accident while in the course and scope of his employment as a police officer for the City of New Orleans Police Department (" NOPD" ). As a result of this accident, Mr. Carambat sustained injuries to his back, left foot, right knee, and right arm; Mr. Carambat had surgery on his left foot and also treated with an orthopedist, Dr. Timothy Devraj, for his other injuries. After Dr. Devraj's conservative treatment proved unsuccessful, Mr. Carambat saw Dr. Carl Lowder at the NOPD's recommendation that he see a neurosurgeon. Dr. Lowder conducted an MRI, prescribed medication, and recommended physical therapy and chiropractic treatment based on his evaluation of Mr. Carambat and Mr. Carambat's complaints. Mr. Carambat was eventually able to return to work, but intermittently received temporary total [2014-0810 La.App. 4 Cir. 2] disability (" TTD" ) benefits pursuant to La. R.S. 23:1121(B)(1). Mr. Carambat's injuries from the 2007 accident were aggravated by a second work accident in September 2010.
After the 2010 accident, Mr. Carambat had surgery on his right shoulder and continued under Dr. Lowder's care. Along with the treatment Dr. Lowder previously suggested, Dr. Lowder also prescribed Mr. Carambat a sleeping medication based on Mr. Carambat's complaints that he was having difficulty sleeping due to his constant pain and discomfort. After a routine office visit in August 2012, Dr. Lowder informed Mr. Carambat that because of his medical condition, he should not be working full duty as a police officer and should only be allowed to work desk duty indefinitely. Mr. Carambat was released from the NOPD shortly after Dr. Lowder's assertion, but he continued to receive TTD benefits.
After Mr. Carambat's release, the NOPD hired a vocational rehabilitation specialist, Heyward Johnson, in order to find jobs that fit Mr. Carambat's limitations. Based on the results of Mr. Carambat's assessment and labor market survey, Mr. Johnson found five potential positions for Mr. Carambat and three of them were approved by Dr. Lowder. Thereafter, Dr. Lowder issued a letter in February 2013 to expound on Mr. Carambat's sleep issues. Dr. Lowder's letter stated that he believed Mr. Carambat's chronic sleep deprivation was a result of a combination of the pain from his injuries and a side effect of the medications he takes for said pain. Dr. Lowder further opined that Mr. Carambat could work sedentary to light job duties, as long as the driving time and daily commute did not exceed 15 minutes and he could find an employer that could tolerate reduced [2014-0810 La.App. 4 Cir. 3] performance and frequent absences because of Mr. Carambat's persistent pain and sleep issues.
Thus, based on Mr. Carambat's vocational evaluation, the NOPD converted his TTD benefits to supplemental earnings benefits (" SEB" ), finding that Dr. Lowder's approval of the jobs indicated that Mr. Carambat possessed at least some earning potential. In addition to the conversion to SEBs, Mr. Carambat's benefits were reduced by the amount he ...