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Poole v. Guy Hopkins Construction Co.

Court of Appeals of Louisiana, First Circuit

November 1, 2017

CHARLES POOLE, JR.
v.
GUY HOPKINS CONSTRUCTION CO. AND LUBA WORKERS' COMPENSATION

         On 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.

          Eric J. Waltner Lafayette, Louisiana Attorney for Defendants/Appellees Guy Hopkins Construction Co. and LUBA Workers' Compensation.

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          WELCH, J.

         In this 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.

         FACTUAL AND PROCEDURAL HISTORY

         The 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.

         The 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").[1] 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.

         The 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.

         On June 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 WCJ.[2]

         In 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.

         A 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 pertinent part:

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 benefits.
IT IS ORDERED, ADJUDGED AND DECREED THAT the above-captioned matter be and is hereby dismissed with full prejudice.

         Mr. Poole now appeals the April ...


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