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Perdomo v. RKC, LLC

Court of Appeals of Louisiana, Fifth Circuit

November 29, 2017

CANDIDO PERDOMO
v.
RKC, LLC AND LWCC

         ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 STATE OF LOUISIANA NO. 15-6083 HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CANDIDO PERDOMO D. Steven Wanko, Jr. Chase T. Villeret Graham Brian.

          COUNSEL FOR DEFENDANT/APPELLEE, RKC, LLC AND LWCC M. Jeremy Berthon.

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore.

          MARC E. JOHNSON JUDGE.

         Plaintiff/Appellant, Candido Perdomo, appeals the reduction of his workers' compensation indemnity benefits as motioned by Defendants/Appellees, RKC, L.L.C. (hereinafter referred to as "RKC") and Louisiana Workers' Compensation Corporation (hereinafter referred to as "LWCC"), in the Office of Workers' Compensation (hereinafter referred to as "OWC"), District "7". For the following reasons, we reverse in part.

         FACTS AND PROCEDURAL HISTORY

         On September 25, 2015, Mr. Perdomo filed a Disputed Claim for Compensation against RKC and its insurer, LWCC, disputing the reduction of his benefits by Defendants on September 1, 2015. In his claim, Mr. Perdomo alleged he sustained multiple crushing injuries when he was pinned under a garbage truck on May 11, 2010 after the collapse of a road. He claimed he was entitled to retroactive payments of indemnity benefits, and penalties, costs and interests for the arbitrary and capricious reduction and untimely payments of his benefits.

         In an Answer filed on November 9, 2015, Defendants admitted Mr. Perdomo was performing services arising out of and in the course and scope of his employment at the time of the accident, and they paid him medical and indemnity benefits. Defendants contended that Mr. Perdomo's average weekly wage at the time of the accident was $630, and his compensation rate was $420; however, they asserted that his post-accident weekly wage earning capacity of $145 had been established, and his compensation rate was $323.33. Defendants asserted all rights to reduce Mr. Perdomo's benefits as provided for in La. R.S. 23:1206 and 1225.

         The trial on the merits for Mr. Perdomo's disputed claim was held on July 20, 2016. The OWC judge took the matter under advisement and allowed post-trial memoranda. In a judgment rendered on October 4, 2016, the OWC found that Mr. Perdomo's benefits were properly reduced on September 1, 2015 from $420 to $323.33. The OWC also found that Defendants did not act arbitrarily and capriciously and did not subject them to penalties, attorney's fees, interests and costs. In its written reasons for judgment, although it acknowledged that Mr. Perdomo could not secure employment at any of the recommended jobs, the OWC found that Defendants' burden was to show that Mr. Perdomo was physically able to perform a certain job, and that the job was offered to him or that the job was available to him in his community or geographic location. Despite Mr. Perdomo's inability to secure employment, the OWC further found that "allowing otherwise would require an employer to pay indemnity benefits indefinitely due to a Claimant's undocumented status." The OWC also reasoned that Mr. Perdomo failed to meet his burden of proving that his injury resulted in his inability to earn wages, and that he could not rely on his undocumented status as a reason for not obtaining employment. Mr. Perdomo's appeal of that judgment followed.

         ASSIGNMENTS OF ERROR

         On appeal, Mr. Perdomo alleges the OWC was legally and manifestly erroneous in determining Defendants' reduction of his indemnity benefits was proper, and the OWC was manifestly erroneous in determining the he was not entitled to costs, interests, penalties, and attorney's fees for Defendants' arbitrary and capricious reduction of and failure to timely pay his compensation.

         LAW AND ANALYSIS

         Reduction of Indemnity Benefits

         Mr. Perdomo alleges the OWC erred in finding that his workers' compensation benefits were properly reduced by Defendants from $420 to $323.33 on September 1, 2015. Mr. Perdomo argues that Defendants failed to properly prove his earning capacity under the standard set forth in Banks v. Indus. Roofing & Sheet Metal Works, 96-2840 (La. 7/1/97); 696 So.2d 551. He contends that none of the jobs identified for him by Defendants through their vocational rehabilitation counselor, Allan Crane, were suitable for him because of his undocumented status, and that his particular situation does not apply to the "one-size-fits-all" check list used by the OWC. Mr. Perdomo further argues the OWC erroneously deemed the reduction of his benefits as proper because it conflicted with the noted recognition by the court that he could not secure any employment at any of the recommended jobs. He maintains that RKC benefitted from his labor while turning a blind eye towards his undocumented status for four years.

         Notwithstanding his undocumented status, Mr. Perdomo also argues that the jobs presented by the vocational counselor were not suitable because his physician, Dr. William Knight, opined that he could not work at all and did not approve of any of the jobs. Additionally, he maintains that the description of the Taco Bell job, in particular, was not suitable for him because it involved duties contrary to his medical restrictions, e.g., sweeping, and was not clarified with Dr. Karen Ortenberg, Mr. Perdomo's physician of choice, prior to her approval of the job.

         Conversely, Defendants aver that the evidence presented to the OWC demonstrated their compliance with the standards set forth in Banks. They assert that Mr. Crane's testimony verified that he took the proper steps to confirm a suitable job for Mr. Perdomo. They argue that Mr. Perdomo never attempted to apply for the Taco Bell food service worker position that indicated only rare-to-occasional bending or stooping and failed to present anything other than self-serving testimony suggesting that his pain precluded him from working at any of the sedentary jobs identified on his behalf. In addition to Mr. Crane's testimony, Defendants assert that the testimony of Ravena Budwine, LWCC's Senior Claims Adjuster, showed that they properly reduced Mr. Perdomo's benefits based upon the lowest paying physician-approved job, the Taco Bell position.

         "The purpose of the Workers' Compensation Act is to set up a court-administered system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of workmen." Rhodes v. Lewis, 01-1989 (La. 5/14/02); 817 So.2d 64, 69. One of the primary purposes of the Workers' Compensation Act is to provide protection to workers; and a policy behind the Act is to keep the injured employee and his or her family from destitution. Breaux v. Hoffpauir, 95-2933 (La. 5/21/96); 674 So.2d 234, 237. Undocumented workers/illegal aliens are not excluded from securing worker's compensation benefits, when justified, under the Louisiana Workers' Compensation Act. Artiga v. M.A. Patout & Son, 95-1412 (La.App. 3 Cir. 4/3/96); 671 So.2d 1138, 1139.

         Entitlement to supplemental earning benefits is governed by La. R.S. 23:1221(3) and is awarded for a maximum of 520 weeks. In order to recover, the employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent (90%) or more of the wages he earned before the accident. Tuckerson v. Holiday Ret. Corp., 04-957 (La.App. 5 Cir. 12/28/04); 892 So.2d 626, 631-32. "Initially, the injured employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn that amount under the facts and circumstances of the individual case." Id. at 632, citing Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94); 630 So.2d 733, 739.

         Once the employee's burden is met, the burden of proof then shifts to the employer, who, if he wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce supplemental earnings benefits, bears the burden of proving 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 a job was available to the employee in his or the employer's community or reasonable geographic region. Id. at 633, citing Seal v. Gaylord Container Corp. 97-688 (La. 12/2/97); 704 So.2d 1161, 1166. An employer may discharge its burden of proving job availability by establishing, at a minimum, the following by competent evidence: 1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region; 2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and 3) an actual position available for that particular job at the time that the claimant received notification of the job's existence. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La. 7/1/97); 696 So.2d 551, 557. "Suitable job" means a job that the claimant is not only physically capable of performing, but one that also falls within the limits of claimant's age, experience, and education, unless of course, the employer or potential employer is willing to provide any additional necessary training or education. Id. As part of the determination of whether an employer has carried its burden under La. R.S. 23:1221(3)(c)(i) of proving work is available to the claimant, courts must consider all factors that affect the claimant's ability to engage in the offered or available employment. Daugherty v. Domino's Pizza, 95-1394 (La. 5/21/96); 674 So.2d 947, 953.

         The appellate court's review of the worker's compensation judge's findings of fact is governed by the manifest error or clearly wrong standard. Tuckerson, 892 So.2d at 631. A court of appeal may not overturn a judgment of the worker's compensation judge absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Id.

         Here, the OWC found in its judgment that Mr. Perdomo suffered an injury as a result of the accident, and his average weekly wage at the time of the accident was $630. The OWC also found that Mr. Perdomo's benefits were properly reduced from $420 to $323.33, and that Defendants did not act arbitrarily and capriciously in their reduction of the benefits. In its "Written Reasons for Judgment, " the OWC acknowledged Mr. Perdomo's undocumented status and the fact that he could not secure employment at any of the recommended jobs because of his status. The court then focused on the evidence presented by Defendants to prove their entitlement for a reduction of Mr. Perdomo's benefits. The OWC found that Mr. Perdomo could not rely upon his undocumented status as the reason he cannot obtain employment, he was not entitled to TTD benefits, and his benefits were properly reduced.

         Because there was an assertion that there were jobs available for Mr. Perdomo in his community or reasonable geographic region that were suitable under his circumstances, we will consider whether Defendants presented any suitable jobs for Mr. Perdomo.

         Undocumented Status and Job Suitability

         In addressing Mr. Perdomo's undocumented status, Defendants assert that Mr. Perdomo's position amounts to arguing his own turpitude in order to obtain a greater compensation benefit than that to which a lawful citizen is entitled. Contrary to Mr. Perdomo's argument, Defendants contend that the OWC's decision actually treats him, an undocumented worker, as any other employee by holding him to the same vocational rehabilitation process and job search analysis.

         At trial, Allen Crane, the licensed vocational rehabilitation counselor assigned to Mr. Perdomo, was accepted as an expert in the field of vocational rehabilitation. Mr. Crane testified that three labor market surveys were conducted, and he offered Mr. Perdomo assistance with applying for the approved job from the first survey; however, he did not meet with Mr. Perdomo to discuss the jobs approved by Mr. Perdomo's choice of physician, Dr. Karen Ortenberg, from the second labor market survey.[1] Mr. Crane stated he assessed the continued availability of the jobs and sent Mr. Perdomo's attorney correspondence advising him of the jobs that were approved and additional job assistance. A third labor market survey was performed for Mr. Perdomo, but Mr. Crane neither received any medical approvals for that survey nor met with Mr. Perdomo to discuss the jobs.

         Mr. Crane testified that he gathered from Dr. Ortenberg's notes in the January 27, 2015 functional capacities evaluation ("FCE") that Mr. Perdomo's capabilities/physical demand was sedentary, and he completely deferred to Dr. Ortenberg's opinion regarding Mr. Perdomo's physical abilities and restrictions.[2]In his opinion, Mr. Crane thought that "sedentary" was somewhat unclear in terms of Mr. Perdomo's functional capabilities because Mr. Perdomo may have had a greater physical ability due to his submaximal efforts.

         When questioned about Mr. Perdomo's undocumented status, Mr. Crane verified that Mr. Perdomo informed him that he did not have a green card and was not eligible to work in the United States; however, he attested Mr. Perdomo's attorney indicated Mr. Perdomo had a tax identification card and advised Mr. Perdomo was legally able to work in the United States.

         Defendants introduced labor market surveys, one of which was completed by Mr. Crane and dated September 1, 2015. The survey listed five descriptions of job openings identified on the behalf of Mr. Perdomo and noted that "Mr. Perdomo's employability in these positions is contingent upon his ability to legally work in the United States."[3] The survey was sent to Dr. Karen Ortenberg, Ravena Budwine, and Mr. Perdomo's attorney. One of the positions identified was a Food Service Worker at Taco Bell. The position was described as having a sedentary- light physical demand level requiring lifting up to ten pounds, frequent standing/short distance walking, rare to occasional bending and stooping, and cleaning of the kitchen area. The position also considered Spanish as a first language candidates. The survey stated that the Food Service Worker position was approved by Dr. Ortenberg on June 24, 2015.[4]

         Ravena Budwine, a Senior Claims Adjuster for LWCC, testified that Mr. Perdomo's indemnity benefits had been reduced from $420 to $323.33 based upon a calculation that used the lowest paying job on the list approved by Dr. Ortenberg, which was the Taco Bell position.[5] Although the job description listed that a rare occasion of bending or stooping was required, Ms. Budwine did not clarify with Mr. Crane whether the job complied with Dr. Ortenberg's physical restrictions for Mr. Perdomo. She stated that she did not personally ensure the job was available prior to reducing Mr. Perdomo's benefits but relied upon Mr. Crane's report of available jobs.

         Mr. Perdomo testified he did not have a social security card or green card, and he had not applied for U.S. citizenship. He also testified that he had been employed with RKC for four years and suffered a broken pelvis as a result of the accident on May 11, 2010. Although Dr. Ortenberg gave the opinion that he did not need further therapy, Mr. Perdomo attested that he needed additional therapy to help him walk. He stated that he still used the assistance of a wheelchair and crutches to move around daily. Mr. Perdomo testified that he attempted to find work but was unsuccessful. When asked about the Taco Bell position, Mr. Perdomo did not recall being told about the position and stated he had not gone to Taco Bell to inquire about applying for work.

         In reviewing the laws applicable to these facts, we have found that Louisiana courts have yet to address the issue before us. However, we have found similar ...


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