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Lawrence v. United Parcel Service9/12/2003
imant's physicians had approved his return to work at the sedentary or medium duty level, that claimant had performed job duties at his wife's store and had failed to comply with rehabilitation efforts by declining to enroll in vocational school or to participate in physical therapy. The WCJ noted that the surveillance videos demonstrated claimant's ability to work and opined that the claimant's request for permanent total disability benefits, when considered with his activity shown in the video, was "tantamount to fraud." The WCJ rendered judgment denying claimant's request for permanent and total disability benefits. The claimant appeals the judgment.
DISCUSSION
In one assignment of error, the claimant contends the WCJ erred in finding that profits derived from his wife's store constituted earnings of the claimant and disqualified him from receiving permanent total disability (PTD) benefits. For the purposes of our discussion, we will assume that the claimant was not engaged in any employment or self-employment. The claimant also contends the WCJ erred in denying him PTD benefits.
A claimant is entitled to receive workers' compensation benefits for any injury which produces permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or similar occupation as that in which the worker was engaged when injured. LSA-R.S. 23:1221(2)(a). PTD benefits shall not be awarded if the claimant is engaged in any employment or self-employment. LSA-R.S. 23:1221(2)(b). When the employee is not engaged in any employment or self-employment, PTD compensation shall be awarded only if the employee proves by clear and convincing evidence that the employee is physically unable to engage in any employment or self-employment, including any and all odd-lot or sheltered employment or while working in pain. LSA-R.S. 23:1221(2)(c).
In the present case, the claimant testified that he continued to feel back pain at the time of trial and that he could not stand or sit for extended periods. Claimant stated that he occasionally helps at his wife's store by operating the cash register, stocking shelves, assisting customers and making store bank deposits. Claimant testified that he is physically able to perform these cashier duties for two or three days in a row, for up to eight hours per day, because he is able to sit or stand as needed.
The claimant acknowledged that he had engaged in the physical activities depicted in the surveillance videos, such as lifting and loading large display shelves onto a truck with another person, unloading plywood from a trailer and climbing a ladder to attach a tin roof to his fishing cabin. Claimant stated that he had been able to climb up into a fixed stand to hunt deer and had driven eight hours in a day during a trip to Colorado. Claimant explained that participating in such physical activity increased his back pain and required him to spend the next day or two lying down to rest and relieve the pain, preventing him from doing any other activities.
The July 1998 FCE results showed that claimant had completed the cardiovascular endurance test, but with a poor recovery, indicating that he was deconditioned. The claimant was able to do a 115 pound squat lift, a 53 pound dead back lift and frequent lifting of 31 pounds with adequate grip strength. Dr. Osborne wrote that claimant's endurance problems could be improved with a reconditioning program. Dr. Osborne opined that even with limited endurance, claimant would be able to perform sedentary or light duty work if restricted to a maximum lift of 50 pounds and frequent lifting of 25 pounds, with occasional bending, squatting and kne
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