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
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
Jessie M. LeBlanc, Judge Pro Tempore.
E. JOHNSON JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
of Indemnity Benefits
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.
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.
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.
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
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,
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.
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
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.
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.
Status and Job Suitability
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
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. 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.
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.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
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
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." 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,
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. 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
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.
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 ...