Robert Carmouche v. Kraft Foods

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-401

ROBERT E. CARMOUCHE

VERSUS

KRAFT FOODS, INC.

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APPEAL FROM THE
OFFICE OF WORKER’S COMPENSATION, DISTRICT 4
NO. 08-21943
HONORABLE SHARON MORROW, JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, Marc T. Amy, J. David
Painter, and Shannon J. Gremillion, Judges.

Painter, J., dissents and assigns written reasons.

Saunders, J., dissents for reasons assigned by Judge Painter.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Kevin A. Marks
Jennifer L. Cooper
701 Poydras Street, Suite 4040
New Orleans, LA 70139
Counsel for Defendant/Appellant:
Kraft Foods, Inc.

Robert Morlas Schoenfeld
Stephen Michael Schoenfeld
Morlas Voorhies Schoenfeld
810 Union Street
New Orleans, LA 70112
Counsel for Plaintiff/Appellee:
Robert J. Carmouche

GREMILLION, Judge.

Defendant, Kraft Foods, Inc. (Kraft), appeals the judgment of the Worker’s

Compensation Judge (WCJ) finding that it was not entitled to change its choice of

vocational counselor. Kraft further appeals the judgment finding that Kraft was not

entitled to reduce the benefits of plaintiff, Robert E. Carmouche, because substantial

pain prevented him from working at the job Kraft’s vocational rehabilitation

counselor found for him. For the following reasons, we affirm in part and reverse in

part.

FACTS AND PROCEDURAL HISTORY

It is undisputed that Carmouche was injured while in the course and scope of

his employment as a truck driver for Kraft. Kraft sent Carmouche to Dr. John

Stafford who referred him to Dr. Thomas Bertuccini. Dr. Bertuccini performed a

laminectomy with decompression of the nerve root and excision of the L5-S1

intervertebral disc in June 2006. Carmouche was treated by Dr. Ted Gillespie, a pain

management specialist, from October 2006 through the end of 2008. Carmouche was

released to sedentary or light duty work in 2007.

Carmouche received vocational rehabilitation counseling from Jamie Primeaux,

a licenced vocational rehabilitation counselor and employee of Coventry Health Care.

In August 2007,Catalyst RTW located a job for Carmouche as a home-based

telephone solicitor for All Facilities, Inc., that was to have paid $9.00 per hour and

was a 40-hour-per-week position. Carmouche tried the job for three days, then quit.

His testimony was that given the pain, his medicated state, and the antagonism of the

targets of his phone calls, the job was too stressful. At that point, Kraft terminated

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vocational rehabilitation and reduced Carmouche’s benefits to Supplemental Earnings

Benefits (SEBs) of $271.72 per week.

In October 2008, Carmouche filed a disputed claim for compensation. He

continued treatment with Dr. Gillespie. At the end of 2008, Dr. Gillespie opined that

Carmouche would need scar injection four to six times a year for the duration of his

lifetime.

On May 1, 2009, a hearing was held on Kraft’s request for a second medical

opinion and its motion to compel vocational rehabilitation with a different counselor

than previously chosen. The WCJ denied both the request for a second medical

opinion and the motion to compel vocational rehabilitation. The WCJ further ordered

an independent medical examination with a physician named by the OWC.

In July 2009, Carmouche underwent the ordered independent medical

examination with Dr. Steve Rees. Dr. Rees opined that while Carmouche was at

maximum medical improvement physically, he was not at maximum improvement for

pain control. He also stated that further interventions would be required for

Carmouche to reach maximum medical improvement with regard to pain. He further

found that because Carmouche was depressed, any return to work needed to be in a

low-stress environment.

The matter was tried in October 2009. The WCJ found in favor of Carmouche

and ordered Kraft to pay full temporary total disability (TTD) benefits back to the

date of termination but refused to award penalties and attorney’s fees. Kraft appeals.

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ANALYSIS

Change of Vocational Rehabilitation Counselor

Kraft first asserts that the WCJ erred by finding that it could not change its

choice of vocational rehabilitation counselor. The court disallowed a change of

vocational rehabilitation counselor, explaining that:

And the reason for that is similar to the choice of physician statute. Just
as you [sic] no one likes doctor shopping, nobody likes rehab shopping.
And if you don’t like what the first rehab counselor says, you can’t just
change and go to somebody else. [sic] So it has been my practice to
require a showing of good cause before I will allow a change of
selection.

The WCJ found that the employer did not make a showing of good cause for

a change of vocational rehabilitation counselor and denied the motion.

The employment of the services of a vocational rehabilitation counselor, La.

R.S. 23:1226 (3)(a), provides that:

The employer shall be responsible for the selection of a licensed
professional vocational rehabilitation counselor to evaluate and assist
the employee in his job placement or vocational training. Should the
employer refuse to provide these services, or a dispute arises concerning
the work of the vocational counselor, the employee may file a claim with
the office to review the need for such services or the quality of services
being provided. The procedure for hearing such claims shall be
expedited as provided in R.S. 23:1124.

We find no statute or jurisprudence that supports the conclusion that the

employer may change its choice of a vocational rehabilitation counselor at will, and

Kraft cites none. The statute makes the employer responsible for the choice of “a

licensed profession vocational rehabilitation counselor.” (Emphasis added.) We find

that the WCJ’s interpretation of this statute is both reasonable and correct. In order

to change its choice of vocational rehabilitation counselor, the employer must show

good cause. Therefore, the judgment of the WCJ in this regard is affirmed.

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Benefits Due

The analysis of this issue is difficult because Carmouche argues that he is

entitled to TTD benefits based upon application of the substantial pain doctrine.

Kraft argues that Carmouche is not entitled to TTD benefits because he did not prove

application of the substantial pain doctrine by clear and convincing evidence, in that

he failed to present objective medical evidence. The WCJ awarded TTD benefits

based on Carmouche presenting clear and convincing evidence of his inability to

work based upon substantial pain.

The WCJ discussed the medical testimony with regard to Carmouche’s ability

to return to work, as follows (emphasis added):

However, in considering the testimony of Mr. Carmouche and the IME
report of Dr. Rees, Dr. Rees does state that Mr. Carmouche is capable
of returning to work from a physical standpoint. He does not make that
same assessment with respect to a pain standpoint. In Dr. Rees’s
opinion, Mr. Carmouche needs additional work before he has reached
maximum medical improvement from a pain standpoint. But, in
considering Dr. Rees’s report where he speaks to keeping Mr.
Carmouche in a stress-free environment or as stress free as possible and
combining that with Mr. Carmouche’s testimony of how he found the
job to be stressful, and at this point, I do want to comment.

Mr. Schoenfeld makes some mention of a stress-free job, and I
was going to say Mr. Schoenfeld, if you ever find one of those would
you please let me know about it. I think any job is stressful, work is
stressful even when you are doing something you love. I don’t think it
is possible to find a completely stress free environment.

However, because of the unfamiliar nature of the work, and I’m
sure even in his work with Kraft, Mr. Carmouche had to work with
difficult clients. But given that it was a totally unfamiliar employment
environment, considering the fact that he was in pain, I do make the
finding combined with the medical evidence and particularly the
comments of Dr. Rees, that he was in substantial pain which prevented
him from performing this job.

That provision does require a clear and convincing burden of
proof. I do find that the evidence is clear and convincing that Mr.
Carmouche was in too much pain to perform that job in a less stressful

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manner and in a fashion that would allow him to work a forty-hour-work
week regardless of the flexibility of the hours. [Emphasis ours].

All these arguments miss the mark. Louisiana Revised Statute

23:1221(3)(c)(ii) makes it clear that the substantial pain doctrine is limited to cases

involving an award of supplemental earnings benefits. An award of TTD benefits

can only be predicated upon a finding that the employee is physically unable to

perform any employment, including employment while working in any pain. La.R.S.

23:1221(1)(c). See Comeaux v. Sam Broussard Trucking, 94-1631 (La. App. 3 Cir.

5/31/95), 657 So.2d 449, reversed on other grounds, Smith v. Southern Holdings,

Inc., 02-1071 (La. 1/28/03), 839 So.2d 5. The substantial pain doctrine has no

application when considering an award of TTD benefits.

Every physician has maintained that Carmouche is physically able to return to

employment, including Dr. Rees. He is not entitled to TTD benefits. However,

Carmouche maintains that he is prevented from working because of pain. Dr. Rees

supports Carmouche in this contention.

No one maintains that Carmouche is entitled to anything less than SEBs.

Indeed, the parties stipulated that the only dispute before the WCJ was whether Kraft

was entitled to reduce Carmouche’s benefits to SEBs. However, Kraft’s argument

that Carmouche failed to carry his burden of proof implies that Carmouche is entitled

to no benefits whatsoever. Yet Kraft provoked the controversy not by terminating

Carmouche’s benefits, but by reducing them to SEBs. Carmouche sought and the

WCJ awarded TTD benefits on the basis of the substantial pain doctrine, which does

not apply when considering an award of TTD benefits.

An employee is entitled to SEBs when he is unable to earn 90 percent or more

of his wages at the time of injury. La.R.S. 23:1221(3)(a). SEBs entitle the employee

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to 66 2/3 percent of the difference between his average monthly wages at the time of

injury and his average monthly wages earned or capable of being earned. Id. There

was no dispute at trial that Carmouche’s average weekly wage before the accident

was $767.58. To calculate his average monthly wage, we multiply his wage by 52,

then divide by twelve. That results in an average monthly wage of $3,326.18 pre-

accident. Carmouche would have earned $360.00 weekly while working for All

Facilities. That results in an average monthly wage of $1,560.00. The difference

between his pre-accident average monthly wage and his average monthly wage with

All Facilities is $1,766.18. Sixty-six and two-thirds of that equals $1,177.44 per

month.

“Payments of compensation . . . shall be paid as near as may be possible, at the

same time and place as wages were payable to the employee before the accident.”

La.R.S. 23:1201(A). Despite the fact that SEBs are calculated by determining the

employee’s average monthly wages, if an employee is paid weekly, his SEBs are to

be paid weekly. In Payne v. Country Pride Foods, Ltd., 525 So.2d 106 (La.App. 3

Cir. 1988), we affirmed the appellant’s calculation of weekly SEBs based upon

reversing the formula applied in determining his average monthly wages. To

calculate the weekly rate of SEBs under the Payne formula, one would then multiply

$1,177.44 (66 2/3 of the difference between his pre-accident wages and the pay he

would have received from All Facilities) by twelve, yielding yearly benefits of

$14,129.28, then divide by 52 weeks, for a weekly benefit of $271.72. Carmouche

is thus entitled to $271.72 per week in SEBs.

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CONCLUSION

For these reasons, the judgment of the WCJ is affirmed on the issue of a second

vocational rehabilitation counselor, but reversed on the issue of Carmouche’s

entitlement to TTD benefits. It is ordered that defendant/appellant, Kraft Foods, Inc.,

pay supplemental benefits in the amount of $271.72 per week to plaintiff/appellee,

Robert Carmouche. Costs of this appeal are assessed to the plaintiff/appellee, Robert

Carmouche.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-401

ROBERT E. CARMOUCHE
VERSUS
KRAFT FOODS, INC.

PAINTER, J., dissenting.

The sole issue on which I disagree with the majority is with regard to the

calculation of SEB.

After reviewing the record, it appears that the WCJ correctly summarized the

medical evidence. Accordingly, I agree with the WCJ that Carmouche proved that

he could not do the job found for him due to substantial pain.

While pain may prevent a claimant from maintaining any gainful employment

and thus entitle him or her to temporary total disability benefits, neither the medical

evidence nor Carmouche’s testimony established that Carmouche is unable to do any

work. A claimant seeking TTD must not only establish a work related disability, but

also establish by clear and convincing evidence, unaided by any presumption of

disability that he is physically unable to engage in any employment. La. R.S.

23:1221(1)(c). Therefore, I agree with the majority that the WCJ erred in finding that

Carmouche is entitled to TTD and that Kraft was entitled to change its payment to the

payment of supplemental earnings benefits under La.R.S. 23:1221(3). However, the

evidence of record is insufficient to establish that Kraft’s SEB payments were made

in the correct amount. The burden was on Kraft to establish Carmouche’s earning

capacity, by proving by a preponderance of the evidence, that he was physically able

to perform a certain job, and that the job was offered to the employee in his or the

employer’s community or reasonable geographic region. Connor v. Family Dollar

Store, 09-1537 (La.App. 1 Cir. 3/26/10), 36 So.3d 339.

The only job found for Carmouche was one which he showed that he could not

perform due to pain and anxiety. Carmouche worked for fourteen or fifteen years as

a mechanic and at least 10 years as a truck driver, never dealing with antagonistic

people or complaints on the phone. The stress level of a job for which he had no

background was too great. The evidence supports the conclusion that pain and

medication aggravated his stress to the point that he was physically incapable of

doing the job.

Where the majority has missed the mark is in its failure to understand that

Carmouche is not physically capable of doing the job found for him because of the

combined pain, medication, and stress. Therefore, Kraft failed to prove Carmouche’s

earning capacity by a preponderance of the evidence because they did not find him

a job that he was physically able to do.

Accordingly, the SEB paid to Carmouche was incorrect in amount, and based

on the record before this court, SEB should be calculated on a zero earned wages until

Kraft can find an appropriate job for Carmouche.

As a result, I respectfully dissent from the majority herein.