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Mitchell v. Winnfield Holding Corp.12/17/2003
g Nook for which he received another $600.00 a month. If his job at the Nurturing Nook was considered light duty work, and was available to Mr. Mitchell, LWCC could have placed evidence of this fact in the record. It did not. In fact, no witness representing Winnfield Funeral Home or the Nurturing Nook testified at trial. While the medical evidence does support a finding Mr. Mitchell was capable of light duty work, we must determine whether LWCC met its burden of proving light duty job availability to justify a reduction in benefits to Mr. Mitchell.
Vocational Rehabilitation
In order for an employer to satisfy its burden of proving job availability the Louisiana Supreme Court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, stated:
n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job ; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job's existence.
By "suitable job ," we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant's age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.
Id. at 557.
In June 2001, LWCC hired Jeff Darby, a vocational rehabilitation consultant, to perform a job search. Mr. Darby met with Mr. Mitchell three times during the summer and also met with Dr. Sandifer to discuss Mr. Mitchell's work ability. Mr. Darby testified he located a cleanup person position at $6.00 per hour through Job Service and two porter positions. These jobs were available on October 3, 2001. Mr. Darby received approval of these jobs from Dr. Sandifer. He sent a certified letter dated October 3, 2001 to Mr. Mitchell notifying him of these jobs. He also spoke to Mr. Mitchell by telephone on October 11, 2001. Mr. Darby also located a van driver job. Mr. Mitchell did indicate he would apply for the van driver job and admitted to knowing the owner of the company.
Mr. Darby did a second labor market survey by contacting an assistant in the Natchitoches area to identify job leads. On October 10, 2001 he sent a second letter by certified mail to Mr. Mitchell. The letter indicated available jobs with Red River Janitors and Aramark, a food service contractor. Both jobs were on the Northwestern College campus. Mr. Darby received prior approval from Dr. Sandifer for these jobs as well. Mr. Darby received a response from James Jefferson at Red River Janitors who indicated Mr. Mitchell did not want an interview. At trial, Mr. Darby was questioned as to whether these jobs were simply job leads or job openings.
Mr. Darby testified there were job openings:
Judge, it was my impression that they had job openings. And what I put in my letter to Mr. Mitchell is to apply for the jobs that are available. So I called it a job lead, because even if he applies - if he doesn't apply timely then he would not even be considered for the job. So my - my emphasis is on the - the injured worker applying for this job, because on the date that I spoke with the employer then would accept his application.
Mr. Darby testified the clean-up person
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