Tina Palmer v. Alliance Compressors

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-478

TINA PALMER

VERSUS

ALLIANCE COMPRESSORS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, NO. 03-05871
HONORABLE JAMES L. BRADDOCK
WORKERS’ COMPENSATION JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Mark A. Watson
Post Office Box 1711
Alexandria, LA 71309
Counsel for Defendant-Appellee:
Alliance Compressors

Joe Payne Williams
Post Office Box 15
Natchitoches, LA 71458-0015
Counsel for Plaintiff-Appellant:
Tina Palmer

PAINTER, Judge.

In this workers’ compensation case, Plaintiff, Tina Palmer (“Palmer”), appeals

the judgment of the Workers’ Compensation Judge (“WCJ”) denying her claim for

supplemental earnings benefits (“SEB”), penalties, and attorney fees. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties stipulated that Palmer was injured1 on August 21, 2002, in the

course and scope of her employment with Alliance Compressors (“Alliance”) and that

she was treated by an orthopaedist, Dr. John P. Sandifer, and allowed to return to

work in a light duty position that same day. The parties further stipulated that Palmer

lost no time from work as a result of her injuries and that Alliance accommodated the

light duty restrictions. At the time of her accident, Palmer had an average weekly

wage of three hundred eighty-seven dollars and sixty cents ($387.60). On December

2, 2002, Palmer received a raise which made her average weekly wage four hundred

three dollars and twenty cents ($403.20).

Palmer continued to work for Alliance until she was terminated on December

11, 2002 for cause. The parties additionally stipulated that the termination was for

cause and completely unrelated to her job-related accident and/or injuries sustained

therein. The stipulation included an explanation that Palmer unsuccessfully

attempted to conceal a violation of the company’s attendance policy and knew that

the violation of the attendance policy alone could result in her termination. The

stipulation went on to include a statement that the parties knew of no reason why

Palmer could not still be employed by Alliance at a weekly wage equal to or higher

than her pre-accident average weekly wage but for the “for cause” termination.

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Palmer developed carpal tunnel syndrome in her left wrist.

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Reasoning that it would be totally contrary to the public purpose and policy of

the workers’ compensation law to allow an employee to violate company policies

after being provided with a job that accommodates the employee’s restriction and, in

effect, hold the employer hostage to pay benefits, the WCJ denied Palmer’s claims for

SEB, penalties, and attorney fees. For the reasons that follow, we affirm the decision

of the WCJ.

DISCUSSION

The sole issue before this court is whether or not Palmer was entitled to SEB

after December 11, 2002. Palmer contends that regardless of the reasons for her

firing, she is still restricted to light duty work and is entitled to SEB, with an earning

capacity of five dollars and fifteen cents ($5.15) per hour for forty hours of work per

week. Alliance, on the other hand, contends that as a result of Palmer’s “for cause”

termination, it is no longer responsible for any continuing indemnity benefits,

including but not limited to SEB, after December 11, 2002.

We first note that the determination of whether an employee is entitled to SEB

is necessarily a facts and circumstances inquiry in which courts must be mindful of

the jurisprudential tenet that workers’ compensation law is to be construed liberally

in favor of finding coverage. Manpower Temporary Services v. Lemoine, 99-636

(La.App. 3 Cir. 10/20/99), 747 So.2d 153, citing Daigle v. Sherwin-Williams Co., 545

So.2d 1005 (La.1989). Accordingly, we may not set aside the factual findings of the

WCJ in the absence of manifest error or unless it is clearly wrong. Lacaze v. Alliance

Compressors, 03-1566 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150.

“The purpose of SEBs is to compensate an injured employee for the wage-

earning capacity lost as a result of a work-related accident.” Lacaze, 870 So.2d at

1154, citing City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704

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So.2d 264, writ denied 98-0610 (La. 4/24/98), 717 So.2d 1174. An employee bears

the burden of proving, by a preponderance of the evidence, that the injury resulted in

his or her inability to earn ninety percent (90%) or more of the average pre-injury

wage under the facts and circumstances of the individual case. Lacaze, 870 So.2d at

1155, quoting Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d

733, 739; La.R.S. 23:1221(3)(a).

In this case, Palmer necessarily fails in meeting her burden of proof by virtue

of the stipulations that, at the time of her accident, she had an average weekly wage

of three hundred eighty-seven dollars and sixty cents ($387.60) and that, on

December 2, 2002, after her on-the-job injury, she received a raise which made her

average weekly wage four hundred and three dollars and twenty cents ($403.20), and

that the parties knew of no reason why Palmer could not still be employed by

Alliance at a weekly wage equal to or higher than her pre-accident average weekly

wage but for the “for cause” termination. In effect, Palmer stipulated that as of

December 2, 2002, she was earning more than one hundred percent (100%) of her

pre-accident wages and that the reason she was unable to earn ninety percent (90%)

or more of her average pre-injury wage after December 11, 2002 was because of her

own attempt to conceal her violation of Alliance’s attendance policy and not because

of her injury. Therefore, she failed to meet the applicable burden of proof and is not

entitled to SEB for that reason.

Palmer relies heavily on the cases of Palmer v. Schooner Petroleum Services,

02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367 (La. 4/21/03),

841 So.2d 802, and Lacaze, which coincidently involves the same employer, for the

proposition that the termination of employment does not destroy that employee’s

entitlement to SEB. In Palmer, this court recognized that termination in and of itself

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does not end entitlement to SEB. Palmer’s employer contended that the termination

was due to substandard job performance, but this court found that the WCJ’s factual

determination of poor work performance was manifestly erroneous and that the

claimant was, therefore, entitled to SEB despite his termination. In so finding, this

court stated: “The record simply does not reasonably substantiate a degree of poor

work performance that would be tantamount to Palmer’s refusal to work and a

concomitant loss of SEB.” Id. at 651.

In Lacaze, the employee returned to work after being injured on the job and

was immediately suspended for two weeks. Her benefits were also terminated on that

date. She returned to work after the suspension and was terminated several days later.

She did find work as a housesitter after her termination from Alliance. This court

found that Lacaze was entitled to SEB during her suspension and afterwards, subject

to a credit for the days that she did work for Alliance, and that her entitlement to SEB

did not cease upon her termination based upon the finding that Lacaze did not refuse

to accept employment, but rather was not permitted to work due the suspension and

termination imposed by Alliance.

We agree that an employer cannot create a job accommodating the restrictions

placed on the injured employee and then fire that employee, without cause, to avoid

paying benefits. On the other hand, we recognize that an injured employee cannot

refuse to accept the employment or blatantly violate company policy without the

possibility of recourse by the employer.

In Fusilier v. Slick Const. Co., 94-11, p.4 (La.App. 3 Cir. 6/1/94), 640 So.2d

788, 791,we held that “[w]here the claimant has been released to light duty work and

refuses his employer’s offer of light duty work at the same wage and hours, he is not

entitled to SEB.” The instant case can be decided on this rationale, which is

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consistent with our prior holdings in Palmer and Lacaze. The parties stipulated that

Alliance provided a job to Palmer after her injury that accommodated the restrictions

placed upon her and afforded her an even greater rate of pay after she received a raise

in that light duty position. The parties further stipulated that the light duty job would

still be available to her but for her termination for cause unrelated to the injury. The

fact that the job is no longer available to her solely due to her own actions is no

different from refusing to accept the job in the first place and, thus, terminates her

entitlement to SEB.

Having found that Palmer failed to meet her burden of proving entitlement to

SEB, we find that Alliance reasonably controverted Palmer’s claims and that its

actions were neither arbitrary nor capricious. Thus, the WCJ was correct in denying

Palmer’s claims for penalties and attorney fees.

DECREE

Based on the stipulations of the parties, particularly those that the termination

was for cause and completely unrelated to her job-related accident and/or the injuries

sustained therein, and that the parties knew of no reason why Palmer could not still

be employed by Alliance at a weekly wage equal to or higher than her pre-accident

average weekly wage but for the “for cause” termination, we cannot say that the WCJ

committed manifest error or was clearly wrong in finding that Palmer was not entitled

to SEB. We, therefore, affirm the WCJ’s denial of Palmer’s claims for SEB,

penalties, and attorney fees as well as the dismissal of her claims with prejudice. All

costs of this appeal of assessed to Plaintiff-Appellant, Tina Palmer.

AFFIRMED.

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