Appealed from the Office of Workers' Compensation,
District 1-E Parish of Ouachita, Louisiana Trial Court No.
1606248 Brenza Irving Jones Workers' Compensation Judge
HUDSON, POTTS & BERNSTEIN, L.L.C. By: Brian P. Bowes
Johnny R. Huckabay, II Counsel for Appellant.
OFFICES OF STREET & STREET By: C. Daniel Street Counsel
COX, STEPHENS, and MCCALLUM, JJ.
appeal arises out of the Office of Workers' Compensation,
District 1-East, Ouachita Parish, Louisiana. Richard McDonald
("Mr. McDonald") was injured while working for the
City of Bastrop ("City"). The matter went to trial
on the sole issue of whether Mr. McDonald had retired from
the workforce. The Office of Workers' Compensation (OWC)
court found Mr. McDonald had not retired. The City now
appeals. For the reasons outlined below, the OWC court's
judgment is affirmed.
McDonald was employed by the City as a fire captain. Mr.
McDonald was injured in an accident on April 21, 2013, at a
house fire in Bastrop, Louisiana. He stated he was pulling a
fire hose over his shoulder and the hose got caught up and
jerked his shoulder, injuring his neck and shoulder. Mr.
McDonald stated that after the accident, he reported his
injury, sought medical treatment, and was referred to Dr.
Carlton Greer, a neurosurgeon in Monroe, Louisiana. Dr.
Greer's treatment included neck surgery.
Mr. McDonald was released back to work, he was restricted to
lifting no more than 50 pounds, which was later reduced to 25
pounds. Mr. McDonald began receiving workers'
compensation benefits in September of 2013. On September 26,
2016, Mr. McDonald filled out a disputed claim for
compensation, Form 1008, against the City. He stated on his
1008 Form that his supplemental earnings benefits
("SEBs") were wrongfully discontinued based on a
false claim of retirement/voluntary withdrawal from the
September 7, 2017, the matter went to trial in OWC court. Mr.
McDonald testified that he was told by the fire chief that
there was no work for him to do within his restrictions and
that retirement was his only option. Mr. McDonald had enough
time with the City to retire, but planned to fully
participate in the DROP program. He participated in DROP for
about two months before retiring.
Bond assisted Mr. McDonald in finding another job. Mr.
McDonald applied to work at the Fire Marshal's office, a
dispatcher position for a trucking company, and a few other
employment listings Ms. Bond provided to him. He stated he
did not apply to the jobs at fast food restaurants. Mr.
McDonald was not hired by any of these employers. Mr.
McDonald stated that based on these employment applications,
his SEBs were reduced to an earning capacity of $10.20 per
hour, which was about a 50 percent reduction. He received his
reduced SEBs from January 6, 2016, until September 2016. Mr.
McDonald received a letter stating he was no longer eligible
for his SEBs because of retirement/voluntary withdrawal from
the work force.
McDonald testified that before his injury, he did not plan to
retire immediately, but to participate in DROP. He said he
would have liked to continue to work and intended to keep
working somewhere. He said his retirement was due to the
surgery and lifting limitations. Mr. McDonald stated that he
did not contact Ms. Bond for more employment opportunities
and has not applied to other jobs. Mr. McDonald testified
that he still has severe neck pain, headaches, pain in his
shoulders, numbness, problems sleeping, and trouble driving,
especially looking behind himself. Mr. McDonald still deer
hunts, sometimes two or three times a week. He is also still
able to fish and launch his own boat.
McDonald said that Dr. Greer retired and he began seeing Dr.
Cain. Dr. Cain told Mr. McDonald that he had degenerative
disk disease in his neck and it will only get worse as he
gets older. Dr. Cain also told him that he needed to
"learn to live with it."
Hildebrand, an adjuster with Risk Management, Inc., testified
that Mr. McDonald received temporary, total disability
benefits from May 21, 2013, to August 16, 2015, ...