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Mitchell v. Winnfield Holding Corp.12/17/2003
x, the appellate court stated:
The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary for a finding of manifest error.
Id. at 676 (emphasis added).
In this case, the workers' compensation judge based his decision to terminate SEB almost entirely on his assessment of the credibility of Mr. Mitchell to the exclusion of the documented evidence, including medical evidence, found in the record. The workers' compensation judge excluded Mr. Mitchell's part-time employment in the computation of benefits, finding Mr. Mitchell was still working part-time. There is no evidence in the record to support this finding. Additionally, the workers' compensation judge concluded Mr. Mitchell is able to work at his former employment at Winnfield Funeral Home performing heavy manual labor, a conclusion which is contrary to the medical evidence. We find the decision of the workers' compensation judge terminating all SEB is unsupported by the record and, therefore, manifestly erroneous.
Calculation of Benefits
Mr. Mitchell earned $344.27 weekly from his full-time employment at Winnfield Funeral Home and $800.00 monthly from his part-time employment at the Nurturing Nook Childcare Center. Both companies were owned by the same individual, Ben Johnson. Benefits were paid to Mr. Mitchell using only the wage calculation from his full-time employment at Winnfield Funeral Home. Excluding the wages from his part-time employment was improper. Glynn v. City of New Orleans, 95-1353 (La.App. 4 Cir. 4/3/96), 672 So.2d 1112. In Glynn, the plaintiff was employed as a fire fighter for the City of New Orleans. In addition to his job with the City he worked for Delgado City College part-time and also received supplemental pay from the State of Louisiana. Mr. Glynn injured his back while working for the City of New Orleans. The court concluded: "Glynn's additional revenues from the employment other than the City and his state supplemental pay were properly included in his earnings to calculate his SEB. See Jones v. Orleans Parish School Board, 370 So.2d 677 (La.App. 4 Cir. 1979)." Id. at 1115.
The workers' compensation judge concluded Mr. Mitchell failed to prove he lost his job at the Nurturing Nook as a result of the accident. He based this finding on the deposition of Lance Crappell, CPA, and on the Vehicle Detailing and Maintenance Contract signed by Mr. Mitchell on May 29, 2000 with the Nurturing Nook. Neither of these documents supports the workers' compensation judge's conclusion.
The Vehicle Detailing and Maintenance contract indicates Mr. Mitchell was paid $200.00 a month to wash and "perform detailing and preventative maintenance on the two rental vans assigned to the Ben D. Johnson Nurturing Nook Child Care Center." The attachment to the contract reflects payment to Mr. Mitchell of $200.00 on November 30, 2000 for these responsibilities. In addition, Mr. Mitchell testified he cut the grass, mopped bathrooms and performed repair work on Nurturing Nook property. For these responsibilities the record reflects he received $600.00 on November 30, 2000. This document supports proof of employment at the Nurturing Nook and the amount of compensation but it does not support a finding that he continued to work after the accident which occurred on March 2, 2001.
The workers' compensation
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