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McDonald v. City of Bastrop

Court of Appeals of Louisiana, Second Circuit

September 26, 2018

RICHARD MCDONALD Plaintiff-Appellee
v.
CITY OF BASTROP Defendant-Appellant

          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.

          LAW OFFICES OF STREET & STREET By: C. Daniel Street Counsel for Appellee.

          Before COX, STEPHENS, and MCCALLUM, JJ.

          COX, J.

         This 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.

         FACTS

         Mr. 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.

         When 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 workforce.

         On 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.

         Alice 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.

         Mr. 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.

         Mr. 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."

         Della Hildebrand, an adjuster with Risk Management, Inc., testified that Mr. McDonald received temporary, total disability benefits from May 21, 2013, to August 16, 2015, ...


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