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Mitchell v. Winnfield Holding Corp.12/17/2003
PUBLISHED
REVERSED AND RENDERED.
STATEMENT OF THE CASE
This is a workers' compensation appeal. Plaintiff, Michael Mitchell, was employed by Winnfield Holding Corporation, a corporation owning several companies, including Winnfield Funeral Home and Nurturing Nook Childcare Center. Mr. Mitchell was employed full-time for Winnfield Funeral Home and part-time for the Nurturing Nook. His average weekly wage at the funeral home was $344.27 and his monthly wage at the Nurturing Nook was $800.00.
On March 2, 2001, while setting up for a burial in Cloutierville, he was pulling a 270 pound grave liner to the gravesite. The ground was muddy and he slipped, injuring his lower back. The incident was witnessed by his co-workers and reported to his supervisor. Mr. Mitchell was initially seen by Dr. Breazeale, a family physician in Natchitoches. He was later referred to Dr. John Sandifer, an orthopedist, who diagnosed a chronic lumbar strain with intermittent nerve root irritation. Dr. Sandifer treated Mr. Mitchell until August 7, 2002.
The Louisiana Workers' Compensation Corporation (LWCC) is the workers' compensation insurance carrier for Winnfield Holding Corporation. Workers' compensation benefits were initiated by LWCC based on Mr. Mitchell's full-time employment at Winnfield Funeral Home. His part-time employment at the Nurturing Nook Childcare Center was not considered in the computation of benefits. Mr. Mitchell was paid $10,744.21 in indemnity benefits, medical benefits totaling $5,511.21 and vocational rehabilitation benefits totaling $1,837.94.
In January 2002, LWCC reduced Mr. Mitchell's supplemental earnings benefits (SEB) based on a job search performed by Jeff Darby, a vocational rehabilitation consultant hired by LWCC. Mr. Mitchell continued to received SEB through the date of trial at the reduced rate. In February 2002, Mr. Mitchell filed a Disputed Claim for Compensation .
Trial on the merits was held on October 8, 2002. The workers' compensation judge denied Mr. Mitchell's claim for SEB, medical benefits and vocational rehabilitation and dismissed his claim. Mr. Mitchell filed this appeal presenting several issues for our review:
1. Whether the workers' compensation judge erred in not including Mr. Mitchell's part-time wages at the Nurturing Nook in the calculation for benefits.
2. Whether the workers' compensation judge erred in concluding the medical evidence indicated Mr. Mitchell was capable of working at his former employment at Winnfield Funeral Home.
3. Whether the workers' compensation judge erred in terminating all supplemental earnings, medical, and vocational rehabilitation benefits and in not imposing sanctions and attorney fees.
For the reasons assigned below, we reverse the decision of the workers' compensation judge and order a reinstatement of SEB using the correct calculation of benefits, which should include both part-time and full-time wages.
LAW AND DISCUSSION
In a workers' compensation case, appellate review of factual findings is governed by the manifest error standard. Godeaux v. Lewis Chapman Constr. Co., 02-0025 (La.App. 1 Cir. 12/31/02), 836 So.2d 670. The workers' compensation judge's finding with regard to the credibility of the plaintiff is considered a factual finding. Campbell v. Benson BMW/Isuzu/VW, INC., 98-861 (La.App. 5 Cir. 3/10/99), 735 So.2d 49. Thus, the findings of the worker's compensation judge with regard to the credibility of the plaintiff are given great weight and will be upheld on appeal if there is a factual basis in the record to support the decision. Godeaux , 836 So.2d 670. In Godeau
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