CHARLES POOLE, JR.
GUY HOPKINS CONSTRUCTION CO. AND LUBA WORKERS' COMPENSATION
Appeal from the Office of Workers' Compensation, In and
for the Parish of East Baton Rouge District 05, No. 15-03789
The Honorable Pamela A. Moses-Laramore, Workers'
Compensation Judge Presiding
Michael B. Miller Crowley, Louisiana Attorney for
Plaintiff/Appellant Charles Poole, Jr.
J. Waltner Lafayette, Louisiana Attorney for
Defendants/Appellees Guy Hopkins Construction Co. and LUBA
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
workers' compensation matter, the plaintiff, Charles
Poole, Jr., appeals a judgment of the Office of Workers'
Compensation ("OWC"), which dismissed Mr.
Poole's claim for a modification of his indemnity
benefits against defendants, Guy Hopkins Construction Company
("Guy Hopkins") and LUBA Workers' Compensation
("LUBA") (collectively referred to as
"defendants"). For the reasons that follow, we
affirm the judgment.
AND PROCEDURAL HISTORY
instant appeal arises out of an on-going workers'
compensation matter related to an injury sustained by Mr.
Poole in April of 2003, while in the course and scope of his
employment as a laborer with Guy Hopkins. See
Guy Hopkins Construction Co. v. Poole, 2013-2072
(La.App. 1st Cir. 6/6/14), 148 So.3d 14, 16,
writ denied, 2014-1371 (La. 10/3/14), 149 So.3d 798.
In 2003, Mr. Poole filed an initial disputed claim for
compensation, and in 2006 he was awarded temporary total
disability ("TTD") benefits, reasonable and
necessary medical treatment, penalties, and attorney fees.
Id. Mr. Poole underwent two surgeries in connection
with the 2003 injury, including a spinal fusion in 2009.
2006 judgment was eventually modified by a September 12, 2013
judgment wherein the workers' compensation judge
("WCJ") granted Guy Hopkins and LUBA's motion
to modify Mr. Poole's benefits from TTD to supplemental
earnings benefits ("SEBs"). The September 12, 2013
judgment terminated Mr. Poole's TTD benefits and awarded
SEB benefits at the TTD rate of $1, 802.66 per month on the
basis of a change in circumstances. In particular, the WCJ
found that "a change had occurred in that two
physicians, including the Court's IME, found that Mr.
Poole was able to return to work. Mr. and Mrs. Poole's
testimony that [Mr. Poole] was actually worse was not
supported by the evidence." The WCJ found no evidence
that Mr. Poole had received medical care from his treating
physician since October 4, 2012. The WCJ also ordered
vocational rehabilitation services to begin immediately for
Mr. Poole. The September 12, 2013 judgment was affirmed in
all respects by this court in a previous appeal. See
Id. 148 So.2d at 18-19.
issue of Mr. Poole's benefits was revisited in 2014 when
the defendants sought and were granted a motion for summary
judgment. In a judgment, signed on February 27, 2014, the WCJ
recognized that the SEB cap was exhausted and that no further
SEBs were owed to Mr. Poole after February 14, 2014.
See La. R.S. 23:1221(3)(d). The 2014 judgment
expressly modified all previous judgments, including but not
limited to the 2013 judgment. Mr. Poole continued to receive
medical benefits and vocational rehabilitation services after
the issuance of the February 27, 2014 judgment.
2, 2015, Mr. Poole initiated the disputed claim for
compensation at issue in the instant appeal. Mr. Poole
asserted that his condition had worsened and that he was
entitled to receive permanent total disability
("PTD") benefits. The matter was heard by the WCJ
over the course of two days - March 28, 2016 and April 20,
2016. At the close of Mr. Poole's case, counsel for the
defendants presented an oral motion for involuntary dismissal
pursuant to La. C.C.P. art. 1672(B), which was granted by the
granting the dismissal, the WCJ found merit in the
defendants' assertion that Mr. Poole had failed to prove
a change in his condition sufficient to change the category
of benefits to which he was entitled, and failed to
demonstrate by clear and convincing evidence that he was
permanently and totally disabled. Instead, the WCJ observed
that "[w]ere supplemental earnings benefits still
available to [Mr. Poole], that is the category that he
continues to be in." In oral reasons for judgment the
WCJ concluded that despite problems with the jobs suggested
by the vocational rehabilitation counselor and Mr.
Poole's on-going use of narcotic painkillers there were
"jobs out there" that Mr. Poole could perform.
Further, the WCJ found that Mr. Poole had failed to make any
effort to secure employment. Relevantly, the WCJ expressly
found that Mr. Poole was not "credible, " and
explained that Mr. Poole's recent physical complaints
were "almost identical" to those he asserted
previously in his testimony at the 2013 trial.
judgment was signed by the WCJ on April 29, 2016, granting
the motion for involuntary dismissal and dismissing the
captioned matter with prejudice. The judgment provides, in
IT IS ORDERED, ADJUDGED AND DECREED THAT the Motion for
Involuntary Dismissal be and is hereby granted and that the
claimant failed to establish a change in his condition
sufficient to warrant by clear and convincing evidence that
he is entitled to an award of permanent total disability
IT IS ORDERED, ADJUDGED AND DECREED THAT the above-captioned
matter be and is hereby dismissed with full prejudice.
Poole now appeals the April ...