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Lawrence v. United Parcel Service9/12/2003
eling. Dr. Osborne estimated that claimant could sit or stand for two hours before taking a break and could work a normal eight-hour day.
In 1997, Dr. Whitecloud recommended that claimant attend additional physical therapy and in February 1998, he prescribed work hardening to improve claimant's condition. However, claimant did not comply with either instruction. In February 1999, Dr. Whitecloud approved the jobs of auto salesman and retail store manager as within claimant's physical abilities. He also approved the job of transport driver if claimant was not required to drive continuously for over one hour.
Despite the evidence that he is capable of performing sedentary or light duty work with some restrictions, claimant argues that his physical limitations, combined with his psychological and emotional problems and his lack of education render him unemployable with poor prospects for rehabilitation.
LSA-R.S. 23:1226(D) provides that prior to the adjudication of an injured employee as permanently totally disabled, the WCJ shall determine whether there is a reasonable probability that with appropriate training or education, the employee may be rehabilitated to the extent that he can achieve suitable gainful employment and whether it is in the individual's best interest to undertake such training or education. The supreme court has stated that the requirement of R.S. 23:1226 must be construed in pari materia with R.S. 23:1221(2), which defines permanent total disability. Comeaux v. City of Crowley, 01-0032 (La. 7/3/01), 793 So.2d 1215.
In support of his contention that he is permanently disabled, claimant presented the deposition testimony of Dr. George Hearn, who testified that he conducted vocational evaluations of claimant in January 1994 and September 2001. Hearn administered vocational and psychological testing to evaluate claimant's intellectual capacity, academic ability and personality factors. Hearn stated that claimant demonstrated a limited education, with reading and math skills at the sixth grade level. Hearn opined that this limited education could make it more difficult for claimant to pursue many vocational training opportunities requiring a certain amount of reading. Hearn stated that the claimant's psychological tests indicated moderate depression, which if not treated, could impair his interaction with others and reduce his chance for rehabilitation. Given claimant's pain, academic level and psychological status, Dr. Hearn opined that claimant was not employable in any job on a consistent basis.
However, Hearn acknowledged that positive factors for claimant's rehabilitation were that he was relatively young at 49 years old and that he possessed the intelligence to improve his academic performance. Hearn stated that he would "strongly encourage" rehabilitation to enhance claimant's educational level through the GED program. Hearn agreed that enrolling in a vocational technical school would "definitely" help to broaden claimant's marketable job skills. He acknowledged that the claimant needed to put forth some effort himself along with the vocational assistance to return to the job market. Hearn also agreed that claimant ought to try physical therapy and work hardening to increase his endurance and improve his emotional state.
In his deposition, Dr. Ronald Mayeux testified that he first met with claimant in May 1996 and administered an occupational preference test. Mayeux recommended that claimant enroll in vocational technical school for retraining and contacted the Northeast Louisiana Vocational Technical College in Winnsboro, where claimant resided. Although Mayeux believed that vocational training was a more realistic option
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