Numa C. Hero & Son v. Louisiana Home Builders Ronald Leleux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 15-305

NUMA C. HERO & SON, ET. AL.

VERSUS

RONALD LELEUX

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 11-00062
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and David Kent Savoie,
Judges.

AFFIRMED.

Stephen W. Glusman
Glusman, Broyles & Glusman
A Limited Liability Company
P. O. Box 2711
Baton Rouge, LA 70821
(225) 387-5551
COUNSEL FOR APPELLEES:
Numa C. Hero & Son and
Louisiana Home Builders Association SIF

Michael B. Miller
Attorney At Law
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR APPELLANT:
Ronald Leleux

SAVOIE, Judge.

In this workers’ compensation case, the employee has appealed a ruling

modifying the status of his benefits from temporary total disability benefits (TTD)

to supplemental earnings benefits (SEB). For the following reasons, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On August 16, 2005, Appellant Ronald Leleux was injured in the course and

scope of his employment as a carpenter with Numa C. Hero & Son (Numa Hero)

when he was trying to escape from wasps. From the medical records submitted at

trial, it appears that he initially saw Dr. John Cobb, an orthopedic surgeon, and Dr.

Don Marx, a chiropractor.

A consent judgment was entered on April 30, 2007, awarding Mr. Leleux

TTD benefits at $438.00 per week, based upon an average weekly wage of

$1,376.00, as well as reasonable and necessary medical treatment and a stipulated

amount of penalties, and attorney fees.

In February 2010, Dr. Cobb recommended lumbar surgery at L3-4 and L4-5,

but Mr. Leleux declined, and, as of the date of trial, he had chosen not to undergo

surgery. Dr. Cobb referred Mr. Leleux to Dr. Daniel Hodges for pain management.

It appears that Mr. Leleux first saw Dr. Hodges on November 18, 2010, with

complaints of back pain, right hip pain, and right leg pain, as well as complaints of

depression, memory loss, and difficulty sleeping. An EMG on December 14, 2010,

indicated low grade L5-S1 subacute radicular changes. Mr. Leleux saw Dr. Hodges

approximately every three months, with the last record in evidence being January 7,

2014.

On October 24, 2012, Mr. Leleux underwent an evaluation by Dr. Douglas

Bernard, who was Numa Hero’s choice of physician. Dr. Bernard’s report

indicated that Mr. Leleux has very benign degenerative disk disease and that he

would pass a pre-employment physical for unrestricted work activities.

The Workers’ Compensation Judge (WCJ) appointed Dr. Christopher

Belleau to conduct an Independent Medical Examination (IME). Dr. Belleau saw

Mr. Leleux on August 7, 2013. Dr. Belleau recommended that Mr. Leleux undergo

a Functional Capacity Examination (FCE). However, it appears that Mr. Leleux

was unable to perform the FCE on two separate occasions due to uncontrolled high

blood pressure, and therefore, the Office of Workers’ Compensation asked Dr.

Belleau to provide a report indicating his opinion of any specific work restrictions.

Dr. Belleau testified in a deposition that Mr. Leleux had reached maximum

medical improvement and that he was capable of sedentary work with some

restrictions.

On April 10, 2014, Numa Hero filed a motion seeking the modification of

the prior consent judgment to reclassify benefits from TTD to SEB. Numa Hero

did not seek a reduction in the amount of benefits. A trial on the motion was held

in May 2014. Mr. Leleux was the only witness called to testify. The parties also

submitted the deposition of Dr. Belleau and the medical records and exhibits

attached thereto, as well as the records of Dr. Bernard and Dr. Hodges.

Pursuant to a judgment dated November 3, 2014, the WCJ modified the

classification of Mr. Leleux’s benefits from TTD to SEB, calculated upon a zero

earnings calculation.

Mr. Leleux appeals assigning the following four assignments of error: (1)

The WCJ erred in allowing modification without the employer showing a change

in conditions required by La.R.S. 23:1310.8(B); (2) The WCJ erred in allowing

modification based on a finding that “Mr. Leleux’s condition [had] plateaued and

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stabilized”; (3) The WCJ erred in finding Mr. Leleux’s testimony unreliable; and

(4) The WCJ erred in finding that the employer was entitled to modify benefits

from TTD to SEB.

STANDARD OF REVIEW

Factual findings of the WCJ are subject to manifest error review. Buxton v.

Iowa Police Dep’t, 09-520 (La. 10/20/09), 23 So.3d 275. Whether the burden of

proof has been satisfied and whether testimony is credible are questions of fact to

be determined by the WCJ. Id. Under the manifest error rule, the reviewing court

does not decide whether the factfinder was right or wrong, but only whether its

findings are reasonable. Id.

DISCUSSION

Applicable Burden of Proof:

Primarily at issue in this appeal is the applicable burden of proof required for

modification of TTD benefits to SEB benefits. In his first and fourth assignments

of error, Appellant Mr. Leleux argues that La.R.S. 23:1310.8(B) required Numa

Hero to prove a change in his physical condition from the time of the original

consent judgment and that the WCJ erred by not considering this requirement.

Appellee Numa Hero argues that La.R.S. 23:1310.8(A) sets forth the applicable

burden of proof, and therefore it was not required to prove a change in the

employee’s physical condition. Alternatively, Appellee argues that the WCJ did

find a change in condition sufficient to support modification to SEB.

Louisiana Revised Statutes 23:1310.8 is a jurisdictional statute and sets forth

the burden of proof required to establish the WCJ’s jurisdiction over the claims

asserted. In Rivers v. Bo Ezernack Hauling Contractor, LLC, 09-1495 (La.App. 3

Cir. 5/5/10), 37 So.3d 1088, we noted that the finality of workers’ compensation

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cases is treated differently than ordinary judgments and that La.R.S. 23:1310.8

addresses the difference. Louisiana Revised Statutes 23:1310.8 provides in

pertinent part as follows:

A. (1) The power and jurisdiction of the workers’ compensation judge
over each case shall be continuing and he may, upon application by a
party and after a contradictory hearing, make such modifications or
changes with respect to former findings or orders relating thereto if, in
his opinion, it may be justified, including the right to require physical
examinations as provided for in R.S. 23:1123 . . . .

....

B. Upon the motion of any party in interest, on the ground of a change
in conditions, the workers’ compensation judge may, after a
contradictory hearing, review any award, and, on such review, may
make an award ending, diminishing, or increasing the compensation
previously awarded, subject to the maximum or minimum provided in
the Workers’ Compensation Act, and shall state his conclusions of
fact and rulings of law, and the director shall immediately send to the
parties a copy of the award.

In Brown v. Rouse Co., 97-1243, p. 5 (La.App. 4 Cir. 1/14/98), 706 So.2d

547, 550, writ denied, 98-419 (La. 5/1/98), 805 So.2d 191, the court discussed the

difference between the jurisdiction contemplated by La.R.S. 23:1310.8(A) and (B)

as follows (emphasis in original omitted):

[Louisiana Revised Statues 23:1310.8(B)] deals exclusively with
changes in the amount of benefits. [Louisiana Revised Statutes
23:1310.8(B)] only authorizes the hearing officer in reviewing an
award to “make an award ending, diminishing, or increasing the
compensation awarded.” On the other hand, . . . the continuing
jurisdiction described in [La.R.S. 23:1310.8(A)(1)] refers to the power
of the hearing officer to alter the nature of benefits awarded, e.g.,
changes from temporary total disability to supplemental earnings
benefits.

While the Brown court indicated that jurisdiction pursuant to La.R.S

23:1310.8(A)(1) and (B) are somewhat different, the Brown court made clear that:

Neither [La.R.S. 23:1310.8 A(1)] nor [La.R.S. 23:1310.8 B] is
intended to allow the parties to relitigate what has already been
litigated under the guise of continuing jurisdiction or the power of

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modification. . . . Claimant must either advance an issue in an open
case that has not previously been litigated, or show a change in
condition or a change of circumstances before [he] can even
approach the threshold of continuing jurisdiction or the power of
modification.

Brown, 706 So.2d at 551 (emphasis added).

In her written reasons for ruling, the WCJ noted that La.R.S. 23:1310.8(A)(1)

would apply for a reclassification of benefits and that La.R.S. 23:1310.8(B) would

apply to a change in the amount of compensation or a request to end the payment

of benefits, but that regardless of which provision applied, Numa Hero established

its burden of proof. The WCJ concluded that Mr. Leleux’s condition was no longer

temporary as it had stabilized into a “chronic pain situation” and that Mr. Leleux

was now capable of sedentary employment. Therefore, we disagree with Mr.

Leleux’s position that the WCJ did not require, or that it failed to find, a change in

condition or circumstances.

In addition, Mr. Leleux suggests that Numa Hero was required to show a

change in Mr. Leleux’s physical condition from the time of the original consent

judgment. We disagree. The requirement that a party seeking jurisdiction under

La.R.S. 23:1310.8 must advance a new issue or show a change in condition or

circumstances, “is broad and does not limit the requisite change in conditions to a

physical change in the claimant’s condition.” K-Mart Corp. v. Malbrough, 04-2609,

pp. 8-9 (La.App. 1 Cir. 12/22/05), 928 So.2d 133, 138.

While the parties in this matter focus on the burden of proof applicable to

establish the WCJ’s jurisdiction under La.R.S. 23:1310.8, we note that Numa

Hero’s burden to modify Mr. Leleux’s benefits from TTD to SEB is actually two-

fold: (1) It must prove by a preponderance of the evidence that there was a change

in Mr. Leleux’s condition or circumstances in order to establish the WCJ’s

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jurisdiction; and (2) It must also prove by a preponderance of the evidence that,

because of Mr. Leleux’s change in condition or circumstances, his entitlement to

TTD under La.R.S. 23:1221(1)(d) has ceased. See Lormand v. Rossclaire Constr.,

01-1515 (La.App. 3 Cir. 12/12/01), 801 So.2d 675; Alexander v. Roy O. Martin

Lumber Co., 00-1344 (La.App. 3 Cir. 5/9/01), 784 So.2d 872, writ denied, 01-1684

(La. 9/21/01), 797 So.2d 676.

Even though Numa Hero sought to modify TTD benefits to SEB and did not

seek to terminate benefits altogether, TTD benefits would nevertheless cease.

Therefore, La.R.S. 23:1221(1)(d) is applicable to the analysis. At the time of Mr.

Leleux’s injury, La.R.S. 23:1221(1) provided:

(d) An award of benefits based on temporary total disability shall
cease when the physical condition of the employee has resolved itself
to the point that a reasonably reliable determination of the extent of
disability of the employee may be made and the employee’s physical
condition has improved to the point that continued, regular treatment
by a physician is not required.

“In other words, when the claimant no longer requires treatment and his

physical condition has stabilized, an award for TTD benefits is no longer

appropriate and a determination regarding the extent of the Claimant’s disability

must be made.” Navarre v. K-Mart, 01-753, p. 6 (La.App. 5 Cir. 11/27/01), 803

So.2d 206, 209.

Upon reaching maximum medical improvement, an injured worker who is

able to return to work, even in pain, is no longer eligible for TTD benefits, but

instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident

wages. Navarre, 803 So.2d 206; Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir.

12/11/96), 690 So.2d 792; Battle v. Pilgrim’s Pride Corp., 41,056 (La.App. 2 Cir.

6/28/06), 935 So.2d 336, writ denied, 06-1904 (La. 10/27/06), 939 So.2d 1288.

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While the WCJ did not specifically mention La.R.S. 23:1221(1)(d) in her

written reasons for ruling, she fully considered the facts necessary to terminate

TTD under La.R.S. 23:1221(1)(d). Therefore, we will review the WCJ’s ruling

pursuant to a manifest error standard of review.

Review of the WCJ’s Factual Findings:

Mr. Leleux’s second and third assignments of error focus on the factual

findings of the WCJ, so we will discuss them together.

In granting Numa Hero’s motion, the WCJ found that “Mr. Leleux’s

condition is no longer ‘temporary’ but has plateaued into a chronic pain situation

with some radiculopathy and numbness which is treated with regular 3 month

visits to Dr. Hodges for examination and medication.” The WCJ also gave

significant weight to Dr. Belleau’s opinion that Mr. Leleux had reached maximum

medical improvement and was capable of sedentary employment. The WCJ further

found that:

The weight of the evidence establishes that Mr. Leleux
continues to have pain and continues to receive maintenance visits and
medication to alleviate his pain, but otherwise his condition has
stabilized. His condition is no longer temporary. Both Dr. Belleau
and Dr. Bernard, the Employer’s choice of physician, believe that Mr.
Leleux is capable of employment. Dr. Bernard is of the opinion that
Mr. Leleux’s MRI studies show degenerative disc disease but
otherwise [he] would pass for unrestricted work activities if seen for a
pre-employment physical. . . . On one point the court absolutely
agrees with Dr. Bernard, that being that Mr. Leleux is a “very fit
looking individual.” The court would additionally describe his
demeanor as almost peppy. While the court has no reason to
disbelieve that Mr. Leleux experiences pain, his movements,
appearance, and demeanor, at least on the day of the hearing, did not
appear to be that of [a] person with totally disabling pain.

In addition, the WCJ found that Dr. Hodges’s records did not fully support

Mr. Leleux’s testimony that his problems were worse or that his pain was more

intense and frequent. Instead, the WCJ found that Dr. Hodges’s reports showed

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that Mr. Leleux’s chronic pain complaints are fairly consistent, that Mr. Leleux has

significantly progressed from a psychological standpoint, and that he is well

adjusted emotionally and physically without clear signs of anxiety or depression.

On appeal, Mr. Leleux argues that the WCJ erred in finding that his

condition had plateaued and stabilized to the point that a reasonable determination

of the extent of his disability could be made. In support of his argument, Mr.

Leleux points out that Dr. Belleau had recommended an FCE and that Dr. Hodges

had referred Mr. Leleux back to Dr. Cobb to pursue a surgical option. Mr. Leleux

then sets forth a list of his medications as of January 4, 2014. He also argues that

his anxiety and depression have not improved, but that he is just coping with it

better.

We fail to see how Mr. Leleux’s continued pain management treatment with

Dr. Hodges, his refusal to undergo surgery, his inability to undergo an FCE, his

ability to cope with depression and anxiety, and the fact that he takes medication

renders the WCJ’s finding manifestly erroneous. The WCJ’s finding is reasonably

supported by the evidence, including Dr. Belleau’s and Dr. Hodges’s records.

Mr. Leleux also takes issue with the WCJ’s observations that, on the day of

the trial, Mr. Leleux appeared fit-looking, had a peppy demeanor, and did not

appear to be in totally disabling pain. He suggests that these observations were

inappropriate because they cannot be properly reviewed on appeal and that we

should therefore disregard the WCJ’s observations in our review. Mr. Leleux also

submits that the WCJ’s observations are inconsistent with Dr. Hodges’s records

and his own testimony that his pain was worse than it was at the time of the

original judgment.

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We first note that Mr. Leleux’s argument that the WCJ’s observations

should be disregarded because they are not adequately reviewable is contrary to

Louisiana law. In Virgil v. American Guarantee & Liability Insurance Co., 507

So.2d 825, 826 (La.1987) (quoting Canter v. Koehring Co., 283 So.2d 716, 724

(La.1973)), the Louisiana Supreme Court stated (emphasis added in bold):

“When there is evidence before the trier of fact which,
upon its reasonable evaluation of credibility, furnishes a
reasonable factual basis for the trial court’s finding, on
review the appellate court should not disturb this factual
finding in the absence of manifest error. Stated another
way, the reviewing court must give great weight to
factual conclusions of the trier of fact; where there is
conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not
be disturbed upon review, even though the appellate
court may feel that its own evaluations and inferences are
as reasonable. The reason for this well-settled principle
of review is based not only upon the trial court’s better
capacity to evaluate live witnesses (as compared with
the appellate court’s access only to a cold record), but
also upon the proper allocation of trial and appellate
functions between the respective courts.”

Louisiana’s three-tiered court system allocates the fact finding
function to the trial courts. Because of that allocation of function (as
well as the trial court’s normal procedure of evaluating live
witnesses), great deference is accorded to the trial court’s factual
findings, both express and implicit, and reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed
on appellate review of the trial court’s judgment.

Similarly, in Rosell v. ESCO, 549 So.2d 840, 840 (La.1989), the Louisiana

Supreme Court stated (emphasis added):

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding and
belief in what is said.

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Therefore, it was wholly appropriate for the WCJ, as the factfinder, to make

observations of Mr. Leleux’s appearance and demeanor during trial and consider

those observations in weighing the evidence.

In the instant case, the material facts at issue are whether Mr. Leleux’s

condition or circumstances had changed, whether he had reached maximum

medical improvement, and whether he was able to return to work regardless of

pain. Mr. Leleux testified that his pain was more intense and more frequent than it

was at the time of the original judgment. Dr. Hodges’s reports reflect chronic pain

as well as Mr. Leleux’s subjective pain ratings. On the other hand, the WCJ

observed that Mr. Leleux did not appear to be in totally disabling pain, despite his

subjective complaints. Additionally, Dr. Belleau’s report indicated Mr. Leleux had

reached maximum medical improvement and was capable of sedentary work, and

Dr. Bernard’s report indicated that Mr. Leleux could have returned to unrestricted

work.

We cannot say that the WCJ was manifestly erroneous in giving more

weight to Dr. Belleau’s opinion that Mr. Leleux had reached maximum medical

improvement and was able to return to sedentary work, than to Mr. Leleux’s

testimony that he was experiencing more intense and more frequent pain, or to the

subjective pain ratings he provided to Dr. Hodges.

An IME’s medical conclusions are given significant weight because the IME

is an objective party; however, the WCJ should evaluate all of the evidence

presented in making a decision as to a claimant’s medical condition. Richardson v.

Lil’ River Harvesting, 09-1090 (La.App. 3 Cir. 3/10/10), 33 So.3d 418. While the

testimony of a treating physician should be accorded greater weight than that of a

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physician who only saw a claimant once or twice, Id., we conclude that Dr.

Hodges’s records are not inconsistent with Dr. Belleau’s opinion.

Dr. Hodges’s records show that Mr. Leleux sees him for pain management

and medication every three months and that Mr. Leleux has continuously declined

surgery. However, Dr. Hodges’s records contain no opinion concerning whether or

not Mr. Leleux has reached maximum medical improvement. In addition, as noted

by the WCJ, while Dr. Hodges’s record dated September 30, 2013, shows a “no

work” status “pending diagnostic testing,” “the court has no real further

information about the testing referred to or the testing results.” Therefore, the

WCJ’s factual findings were reasonable in light of the evidence presented, and we

will not disturb them on appeal.

CONCLUSION

For the foregoing reasons, we affirm the workers’ compensation judge’s

ruling granting Numa Hero’s motion and modifying the nature of Mr. Leleux’s

benefits from temporary total disability benefits to supplemental earnings benefits,

based on a zero earnings calculation. Costs of this appeal are assessed to Appellant

Ronald Leleux.

AFFIRMED.

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