Robert Landry v. Lofton Security Service, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 20-193

ROBERT LANDRY

VERSUS

LOFTON SECURITY SERVICE, INC., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF ST. LANDRY, NO. 18-02744
ANTHONY PAUL PALERMO, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

REVERSED AND RENDERED.

Alex S. Lyons
400 Travis St., Ste. 1309
Shreveport, LA 71101
(318) 674-9711
COUNSEL FOR PLAINTIFF/APPELLANT:
Robert Landry

Eric J. Waltner
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1400
COUNSEL FOR DEFENDANTS/APPELLEES:
Zurich American Insurance Company
Lofton Security Services, Inc.

EZELL, Judge.

Robert Landry appeals a judgment from the Office of Workers’

Compensation denying his claim for supplemental earnings benefits (SEB) due to a

shoulder injury he received while working for Lofton Security Services, Inc. He

claims that he is not able to return to his previous position as an unarmed security

guard and there is no work available to him within his reasonable geographic

region. He also claims he is entitled to penalties and attorney fees for the arbitrary

and capricious termination of his benefits.

FACTS

Mr. Landry was employed as an unarmed security guard by Lofton. He was

working at Opelousas General Hospital South Campus when he was involved in an

altercation with a psychiatric patient on October 4, 2017. The patient was

threatening to kill hospital staff and another patient. Mr. Landry explained that the

patient came out of his room and aggressively approached the nurses’ station, so

Mr. Landry asked him to go back to his room. To accomplish this, Mr. Landry

stood in front of the patient and walked him back to his room. Mr. Landry then

called the police.

Mr. Landry then stood at the nurses’ station facing the patient’s room. The

patient then began making threats that he was going to get guns and rifles and kill

people at the hospital, starting with the person in the room next to his room. The

patient came out of his room and approached the room next door when Mr. Landry

stood in front of him and asked him to go back to his room. Mr. Landry then used

his body to make the patient go back to his room. The patient struggled with Mr.

Landry. Mr. Landry started pushing the patient back into his room using his body.

The next day Mr. Landry noticed pain in his left shoulder and arm, which he

reported to his supervisor and commanding officer. Mr. Landry was diagnosed

with a torn rotator cuff which eventually required surgery.

Mr. Landry filed a disputed claim for compensation on April 25, 2018,

against Lofton and its workers’ compensation insurer, Zurich American Insurance

Company. A trial was held on August 28, 2019. Judgment was rendered on

November 21, 2019, dismissing all of Mr. Landry’s claims for medical and

indemnity benefits. Mr. Landry then filed the present appeal.

SUPPLEMENTAL EARNINGS BENEFITS

Mr. Landry argues that the workers’ compensation judge (WCJ) erred in

failing to award him SEB based upon the disability caused by the rotator cuff

injury to his left shoulder.1 Mr. Landry claims that the evidence established he is

unable to return to his previous position as an unarmed security guard and that

there is no work available to him within his reasonable geographic region.

Prior to trial, the parties stipulated that Mr. Landry sustained an accident as

defined by the Louisiana Workers’ Compensation Act. The WCJ issued an oral

ruling on October 29, 2019, and ruled as follows regarding Mr. Henry’s shoulder

injury:

The Court also does not find evidence to prove that further
treatment was needed for the shoulder. The Court also notes that Mr.
Landry himself testified that he was currently not in any pain at the
time of the trial, and that if a job was offered to him, that he would
accept the job. The Court therefore finds the claimant is not disabled
because he cannot prove that he is unable to earn ninety percent of his
pre-injury wages. The Court therefore does not grant benefits to the
claimant.

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Mr. Landry also claimed that the incident caused a cervical injury and aggravated pre-
existing carpal tunnel syndrome in his left hand. He abandoned the cervical injury claim prior to
trial and is not contesting the WCJ’s denial of his claim based on carpal tunnel syndrome.

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The supreme court has explained the purpose and burden of proof regarding

supplemental earnings benefits.

The purpose of SEBs is to compensate the injured employee for
the wage earning capacity he has lost as a result of his accident.
Poissenot v. St. Bernard Parish Sheriff’s Office, 09–2793 (La.1/9/11),
56 So.3d 170, 174; Pinkins v. Cardinal Wholesale Supply, Inc., 619
So.2d 52, 55 (La.1993). [Louisiana Revised Statutes] 23:1221(3)(a)
provides that an employee is entitled to receive SEBs if he sustains a
work-related injury that results in his inability to earn 90% or more of
his average pre-injury wage. Initially, the employee bears the burden
of proving, by a preponderance of the evidence, that the injury
resulted in his inability to earn that amount under the facts and
circumstances of the individual case. Poissenot, 56 So.3d at 174;
Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96–2840
(La.7/1/97), 696 So.2d 551, 556. Once the employee’s burden is met,
the burden shifts to the employer who, in order to defeat the
employee’s claim for SEBs, must prove, by a preponderance of the
evidence, that the employee is physically able to perform a certain job
and that the job was offered to the employee or that the job was
available to the employee in his or the employer’s community or
reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Poissenot, 56
So.3d at 174; Banks, 696 So.2d at 551.

Clay v. Our Lady of Lourdes Reg. Med. Ctr., Inc., 11-1797, p. 4 (La. 5/8/12), 93

So.3d 536, 538-39.

The supreme court in Banks v. Industrial Roofing & Sheet Metal Works, Inc.,

96-2840, pp. 10-11 (La. 7/1/97), 696 So.2d 551, 557 (emphasis added), discussed

the meaning of “job availability”:

(1) the existence of a suitable job within claimant’s physical
capabilities and within claimant’s or the employer’s community
or reasonable geographic region;

(2) the amount of wages that an employee with claimant’s
experience and training can be expected to earn in that job; and

(3) an actual position available for that particular job at the time
that the claimant received notification of the job’s existence.

Dr. Barry Henry, an orthopedic surgeon, first saw Mr. Landry on November

1, 2017. He reviewed an MRI that Mr. Landry had undergone of his left shoulder

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after the accident which revealed a full-thickness supraspinatus tear with some AC

joint arthrosis. There was also a partial tearing of the subscapularis and a long

head biceps tear. Dr. Henry diagnosed him with a rotator cuff tear of the left

shoulder and possibly a long head of the biceps tendon tear.

Mr. Landry began receiving physical therapy for his left shoulder issues. Mr.

Landry’s pain continued to increase even after conservative treatment, so he had

surgery to repair the rotator cuff, in addition to repairs to the biceps tendon, on

January 18, 2018. By March 21, 2018, there was vast improvement in the shoulder.

As of April 27, 2018, his shoulder range of motion and strength had improved. Dr.

Henry discharged Mr. Landry to work that day concerning his shoulder issues but

restricted him to lifting no greater than twenty-five pounds and no overhead

reaching more than one hour. Dr. Henry noted, however, that he did not consider

releasing Mr. Landry back to work as a security guard because he may have to

respond to someone who is acting out and another physical altercation could

damage his left shoulder.

Dr. Thomas Butaud, an orthopedic surgeon, was asked to perform an

independent medical examination of Mr. Landry. He examined Mr. Landry on

December 17, 2018. Dr. Butaud agreed with Dr. Henry’s diagnosis of a rotator

cuff tear and biceps tendon tear. He testified that it would take about six months to

recover from surgery. Dr. Butaud stated that he had no problem with Mr. Landry

performing a job as a security officer who checked doors and things of that nature,

but believed that there was an increased risk of injury if he would get into another

altercation or have to take care of a combative patient. Dr. Butaud agreed the job

would be appropriate if Mr. Landry did not have to engage in fights or restrain

patients.

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Marcie Holmes, a vocational rehabilitation counselor with Coventry

Workers’ Compensation Services, was hired to provide vocational rehabilitation

services to Mr. Landry. She found Mr. Landry to be very cooperative. Mr. Landry

explained to Ms. Holmes that part of his job duties with Lofton required him to

transport patients around the hospital and that on occasion he may have to restrain

patients. Ms. Holmes met with Angelle Hollier, who was employed by Lofton,

about Mr. Landry’s job duties. She confirmed that Mr. Landry would have to

transport patients and that he might have to restrain patients if needed. She also

stated that the position requires lifting fifty pounds occasionally, constant walking,

standing, and occasional stair climbing.

Mr. Landry returned to work after the incident with a splint, and his

restrictions were accommodated. After surgery, Ms. Hollier confirmed that the

position would exceed the restrictions assigned by Dr. Henry, so Ms. Holmes ruled

out Mr. Landry returning to work for Lofton. Ms. Holmes did ask Ms. Hollier

about other positions available within Mr. Landry’s reasonable geographic region,

and Ms. Hollier said nothing was available. Ms. Holmes closed her file on Mr.

Landry because she was contacted by Lofton and informed that the independent

medical examination determined that Mr. Landry could return to work without

restrictions, so her services were no longer needed.

Carrie Sonnier, Mr. Landry’s direct supervisor, testified that an unarmed

security guard is instructed not put hands on people. But if the guard does decide

that force is necessary, he is to use the least amount of force necessary to gain

compliance.

Jaran Sonnier, a field supervisor with Lofton, also conducts training and

personally trained Mr. Landry. He testified that unarmed security guards are told

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that they are not supposed to restrain people. Use of force is a last resort and can

only be applied in the case of a felony or if a person’s life is in imminent danger.

The analysis we must undertake “is necessarily a facts and
circumstances one in which the court is mindful of the jurisprudential
tenet that workers’ compensation is to be liberally construed in favor
of coverage.” Poissenot, 56 So.3d at 174. We are also mindful that
factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of review. Id.; Banks, 696
So.2d at 556; Smith v. Louisiana Dep’t of Corrections, 93–1305
(La.2/28/94), 633 So.2d 129, 132. In applying the manifest error-
clearly wrong standard, the appellate court must determine not
whether the trier of fact was right or wrong, but whether the
factfinder’s conclusion was a reasonable one. Poissenot, 56 So.3d at
174; Banks, 696 So.2d at 556; Stobart v. State, 617 So.2d 880, 882
(La.1993). Where there are two permissible views of the evidence, a
factfinder’s choice between them can never be manifestly erroneous
or clearly wrong. Id. Thus, “if the [factfinder’s] findings are
reasonable in light of the record reviewed in its entirety, the court of
appeal may not reverse, even if convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.”
Banks, 696 So.2d at 556 (citing Sistler v. Liberty Mut. Ins. Co., 558
So.2d 1106, 1112 (La.1990)).

Clay, 91 So.3d at 543(alteration in original).

Affirming a WCJ’s finding, this court in Montgomery v. Lafayette Parish

School Board, 09-643, p. 7 (La.App. 3 Cir. 12/9/09), 31 So.3d 1071, 1075, writ

denied, 10-1069 (La. 9/3/10), 44 So.3d 686, agreed that a security guard position

was not “suitable” or “available” when there was the possibility of altercations that

could cause injury to the claimant.

In the present case, we find that the WCJ was manifestly wrong in his

decision that Mr. Landry failed to prove his inability to earn 90% or more of his

pre-injury wages. We agree with the WCJ that Mr. Landry is willing to return to

work for Lofton. But the WCJ failed to address whether the job available was

“suitable” for Mr. Lofton. While Mr. Landry is not supposed to engage in physical

altercations as an unarmed security guard, everyone who testified agreed that there

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is a possibility Mr. Landry may have to physically engage someone. As a matter

of fact, his present workers’ compensation claim is based on an injury from that

very type of situation. Both Dr. Henry and Dr. Butaud agreed that the job was not

“suitable” if Mr. Landry was faced with a situation where he would have to

physically engage someone. Furthermore, Ms. Hollier stated that the job would

require occasional lifting of fifty pounds, which is above the limitation of lifting no

more than thirty pounds placed on Mr. Landry by Dr. Henry. Ms. Hollier also told

Ms. Holmes that there were no other jobs at Lofton in Mr. Landry’s geographical

region. Furthermore, Ms. Holmes was not able to identify any jobs within Mr.

Landry’s restrictions and capabilities. Mr. Landry clearly established that he is

unable to earn 90% of his wages, and there is no evidence controverting it.

Therefore, we find that Mr. Landry is entitled to SEB from the date the

benefits were discontinued, May 16, 2019, at the rate of $240.69 per week, which

was the rate the parties stipulated he was previously receiving.

PENALTIES AND ATTORNEY FEES

Mr. Landry has also requested penalties and attorney fees arguing that the

termination of his benefits was arbitrary and capricious.

Pursuant to La.R.S. 23:1201(I), an employer who arbitrarily and capriciously

discontinues payment of benefits, without probable cause, is subject to a penalty

not to exceed $8,000 and reasonable attorney fees. Furthermore, attorney fees are

not subject to the limitation set forth in La.R.S. 23:1141.

Awards of penalties and attorneys’ fees in workers’ compensation
cases are essentially penal in nature, being imposed to discourage
indifference and undesirable conduct by employers and insurers.
Williams v. Rush Masonry, Inc., 1998–2271 (La.6/29/99), 737 So.2d
41, 46. Although the Worker’s Compensation Act is to be liberally
construed in regard to benefits, penal statutes are to be strictly
construed. Id. “Arbitrary and capricious behavior consists of willful

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and unreasoning action, without consideration and regard for facts and
circumstances presented, or of seemingly unfounded motivation.”
Brown v. Texas–LA Cartage, Inc., 1998–1063, p. 8–9 (La.12/1/98)
721 So.2d 885, 890

Iberia Med. Ctr. v. Ward, 09-2705, pp. 18-19 (La. 11/30/10), 53 So.3d 421, 433-34.

The Defendants discontinued benefits based on a hypothetical to Dr. Butaud

concerning his return to work as an unarmed security guard for Lofton. In the

hypothetical, Mr. Landry would never have to physically engage people and would

only have to lift a maximum of five pounds. Dr. Butaud agreed that this would be

an appropriate job. However, this job is not the job that was available. Based on

Ms. Hollier’s description of the job, Mr. Landry may have to restrain someone

even if he was not required to by Lofton and would have to lift fifty pounds on

occasion.

Discontinuance of benefits based on a hypothetical job description that was

not actually available was arbitrary and capricious. Therefore, we find a penalty in

the amount of $2,000 is appropriate. Considering the amount of work performed

in pursuing this case at the trial level and in successfully pursuing a claim on

appeal, we find an award of $10,000 for attorney fees is appropriate.

For the reasons stated in this opinion, we reverse the judgment of the Office

of Workers Compensation denying Robert Landry supplemental earnings benefits

and award him supplemental earnings benefits at the rate of $240.69 per week

from the date benefits were discontinued on May 16, 2019. We also award

penalties in the amount of $2,000 and attorney fees in the amount of $10,000. All

costs at the trial and appellate levels are assessed to Lofton Security Services, Inc.,

and Zurich American Insurance Company.

REVERSED AND RENDERED.

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