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Payne v. Lawn Lourd Lawn Service12/5/2001
This is an appeal from a judgment by the Workers' Compensation Judge ("WCJ") which found that Defendants, Lawn Lourd Lawn Services ("Lawn Lourd") and the Louisiana Workers' Compensation Corporation ("LWCC"), failed to provide adequate vocational rehabilitation to Plaintiff, Gregory Payne, following an injury he sustained during the course and scope of his employment with Lawn Lourd. Specifically, the WCJ found that four potential jobs identified by the vocational rehabilitation counselor for Mr. Payne required activities that were outside of the physical restrictions imposed on him by his treating physician. In addition, the WCJ found that the jobs were not "available" to Mr. Payne because the jobs had not first been submitted to his treating physician for approval prior to being mailed to him. Mr. Payne's supplemental earnings benefits ("SEBs") were reinstated by the WCJ and Defendants were ordered to provide further vocational rehabilitation services to him. Mr. Payne was ordered to obtain his GED and driver's license and to cooperate with the vocational rehabilitation worker. Defendants suspensively appeal. For the reasons stated herein, we reverse the judgment of the WCJ.
FACTS
Mr. Payne was injured in an automobile accident during the course and scope of his employment with Lawn Lourd. As a result of the accident, Mr. Payne sustained a major hip injury and a less severe back injury (protruding vertebrae). His treating physician was Dr. Douglas Liles.
Mr. Payne required hip replacement surgery and Dr. Liles imposed general activity and employment restrictions commensurate with his condition. Defendants provided Mr. Payne vocational rehabilitation services. Helen Carroll was the vocational counselor initially assigned to Mr. Payne and who conducted the initial assessment/interview with him. The hip surgery, however, interrupted the vocational counseling and Ms. Carroll closed the file. When the file was re-opened following the surgery, Charles Smith, who was working for Ms. Carroll as an apprentice at the time, was assigned to Mr. Payne's case. In August 1998, Mr. Smith contacted Mr. Payne and Dr. Liles to schedule a rehabilitation conference, after which it was determined that Mr. Payne had reached maximum medical improvement and could return to work in the medium category. Mr. Smith then conducted a labor market survey on January 10, 2000, and identified four jobs at the following businesses which he believed to fit the physical restrictions placed on Mr. Payne by Dr. Liles: (1) Lube Plus; (2) Snappy Lube; (3) West Monroe Golf Cart Sales; and (4) Johnny's Pizza No. 1. Mr. Smith mailed the job availability studies to Mr. Payne and to Dr. Liles for approval that same day. Mr. Payne testified at trial that he received the availability studies the following day, January 11, 2000.
On receipt of the availability studies, Mr. Payne took them to Dr. Liles for his approval rather than applying for the jobs. Dr. Liles gave his verbal approval of the jobs to Mr. Payne; however, Mr. Payne still did not apply for any of them. LWCC received the job availability studies bearing Dr. Liles' signature of approval on each of the four studies on January 26, 2000. On March 31, 2000, Mr. Paynes' SEBs ($105.09 per week) were terminated due to his failure to contact any of the potential employers identified for him.
At trial, Mr. Payne contended that the job descriptions contained in the four job availability studies were beyond the restrictions placed on his activity by Dr. Liles. Mr. Payne and his mother both testified, each describing Mr. Payne's limitations and the continued pain he was experiencing even with normal activity. Mr. Payne also testified that his failure
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