Angela Leonards v. Summit Claims

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-255

ANGELA LEONARDS

VERSUS

SUMMIT CLAIMS, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 07-05204
ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter and
Shannon J. Gremillion, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, concurs and assigns written reasons.

Michael B. Miller
Attorney at Law
P. O. Box 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Angela Leonards

Kristine D. Smiley
Matthew W. Tierney
Tierney and Smiley, LLC
3535 S. Sherwood Forest, Suite 233
Baton Rouge, LA 70816
(225) 298-0770
COUNSEL FOR DEFENDANTS/APPELLEES:
Carmichael’s Cashway Pharmacy, Inc.
Louisiana Retailers Mutual Insurance Co.

GREMILLION, Judge.

In this workers’ compensation dispute, Angela Leonards appeals the

judgment rendered in favor of Carmichael’s Cashway Pharmacy, her employer,

and Louisiana Retailers Mutual Insurance Company, its insurer (collectively

“Cashway”). The judgment modified her disability benefits from temporary total

disability (TTD) to supplemental earnings benefits (SEB) and awarded Cashway a

credit for other available employment at the rate of $7.50 per hour for forty hours

per week. For the reasons that follow, we affirm.

FACTS

The essential facts of the case are not disputed. Leonards was injured in

2006 in the course and scope of her employment with Cashway. She received

TTD benefits thereafter.

Dr. Steven Staires, a pain medicine specialist, was Leonards’ treating

physician. In April 2011, Dr. Staires was contacted by Burt Ashman, a vocational

rehabilitation counselor retained to provide services to Leonards. Ashman asked

Dr. Staires to review the descriptions of three jobs to determine whether they met

with Leonards’ capabilities. Dr. Ashman approved two jobs with ergonomic

modifications. The third, as customer service representative to Money Mart in

Lafayette, Louisiana, was approved by Dr. Staires without modification. This

position was considered full-time and paid $7.50 to $8.50 per hour, depending on

the applicant’s experience.

Leonards applied for employment with all three businesses but was hired by

none. Cashway filed a motion to modify Leonards’ benefits and to receive credit

against those benefits for the amount she would have earned at Money Mart. The

workers’ compensation judge (WCJ) granted Cashway’s motion and converted

Leonards’ benefits from TTD to SEB. Cashway received credit for pay Leonards

would have received had she been hired by Money Mart.

ANALYSIS

Leonards does not appeal the conversion of her benefits from TTD to SEB;

the sole issue here is whether the WCJ erred in giving Cashway credit for the

Money Mart job’s rate of pay.

Supplemental earning benefits are intended to compensate an employee for

the diminution of her earning capacity. Pinkins v. Cardinal Wholesale Supply Co.,

619 So.2d 52 (La.1993). The difference between an employee’s pre-accident

average monthly wages and her proven post-injury earning capacity determines the

amount of SEBs. La.R.S. 23:1221(3)(a). If an employee is not earning wages or

engaged in self-employment, or is under-employed,

the amount determined to be the wages the employee is able to earn in
any month shall in no case be less than the sum the employee would
have earned in any employment or self-employment, as described in
Subparagraph (b) of this Paragraph, which he was physically able to
perform, and (1) which he was offered or tendered by the employer or
any other employer, or (2) which is proven available to the employee
in the employee’s or employer’s community or reasonable geographic
region.

La.R.S. 23:1221(3)(c)(i). The question before the WCJ was whether the Money

Mart job was proven available.

This question is not new to the courts. The Louisiana Supreme Court

addressed the issue in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-

2480 (La. 7/1/97), 696 So.2d 551. Before Banks, the courts of appeal were divided

on the proof needed to establish an employee’s earning capacity. In an effort to

resolve the issue, the supreme court stated the following precepts:

1) Actual job placement is not required.

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2) The employer must prove the existence of a suitable job that meets
the employee’s physical capabilities and is within the employee’s
or employer’s community or reasonable geographic region.

3) A “suitable job” is a job that the employee is physically capable of
performing, and that also falls within the limits of her age,
experience, and education, unless the employer or potential
employer is willing to provide additional necessary training or
education.

4) The employer must prove the amount of wages the employee can
expect to earn in that job.

5) The employer must prove that at the time it notified the employee
of the position, an actual position was available.

Leonards attempts to distinguish Banks on the basis that the employee in that

case was furnished with a list of several jobs but applied for none of them. We

reject this distinction. If actual job placement is not an impediment to proving the

employee’s earning capacity, neither is proof that the employee actively pursued

the job.

Leonards also argues that the Money Mart job was not actually available

because she applied for the position and was not hired. The Louisiana Supreme

Court recently rejected that assertion in Clay v. Our Lady of Lourdes Regional

Medical Center, 11-1797 (La. 5/8/12), ___So.3d ___. In Clay, the employee was

notified by the vocational rehabilitation counselor of three positions that were

suitable under Banks. The employee applied for the jobs but was rejected. The

WCJ found that the employer was entitled to terminate her benefits. We reversed,

finding that the positions were not suitable, in part because she had applied for the

jobs and was rejected, and finding error in the WCJ’s calculation of her average

weekly wage. Clay v. Our Lady of Lourdes Reg. Med. Ctr., 09-1219 (La.App. 3

Cir. 6/2/10), 38 So.3d 1196. The supreme court remanded the case for

reconsideration of our ruling on the average weekly wage issue. Clay v. Our Lady

of Lourdes Reg. Med. Ctr., 10-1579 (La. 4/8/11), 62 So.3d 749. We reversed our
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previous finding on the calculation of the average weekly wage. Clay v. Our Lady

of Lourdes Reg. Med. Ctr., 09-1219 (La.App. 3 Cir. 7/13/11), 71 So.3d 539. The

employer then sought writs on the issue of the employee’s entitlement to SEBs.

The supreme court found that there was no manifest error in the WCJ’s finding that

there were available, suitable jobs.

Clay makes it clear that rejection of the employee’s application for an

available job presents no impediment to proving an employee’s earning capacity.

Accordingly, the judgment of the workers’ compensation judge awarding

supplemental earnings benefits to Angela Leonards subject to a credit for $7.50 per

hour for forty hours per week is affirmed. All costs of this appeal are taxed to

plaintiff/appellant, Angela Leonards.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-255

ANGELA LEONARDS

VERSUS

SUMMIT CLAIMS, ET AL.

THIBODEAUX, Chief Judge, concurring.

I agree but am bothered by the harsh result of this case and its

implications for Ms. Leonards and other similarly aggrieved claimants.

Louisiana’s mixed system of jurisprudence acknowledges the supremacy of

legislation over jurisprudence. Doerr v. Mobil Oil Corp., 00-947 (La. 12/19/00),

774 So.2d 119 (2000). Louisiana Revised Statutes 23:1221(3)(c)(i) specifically

references employment that “is proven available to the employee . . . .” If a job is

never offered to the employee after the employee has made a diligent effort and

has done all that is required, that job, in my view, is not available to that employee.

That interpretation comports with common sense and the practical realities of

today’s job market. The majority’s interpretation is consistent with Banks v.

Industrial Roofing and Sheet Metal Works, Inc., 96-2480 (La. 1/1/97), 696 So.2d

551 and Clay v. Our Lady of Lourdes Regional Medical Center, 11-1797 (La.

5/8/12), __ So.3d __. Banks and Clay are too restrictive in their interpretation of

“job availability.” This restrictive interpretation is inconsistent with the salutary

purposes underpinning our workers’ compensation laws which should be liberally

constructed. However, I am constrained to follow these cases until our Louisiana

Supreme Court decides otherwise.

I observe that two cases do not form “a series of adjudicated cases,”

see Doerr at 129, such that jurisprudence constante applies. Because Louisiana

does not have a “long line of cases following the same reasoning,” Id. at 128, our

supreme court should reexamine the issue of “job availability” using our system of

civilian methodology.

For the foregoing reasons, I concur.