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Cannedy v. Yarborough6/27/2003
In this workers' compensation case, Judy Cannedy appeals the Office of Workers' Compensation's (OWC) judgment in favor of Rulon Yarborough. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Judy Cannedy worked as a receptionist for Rulon Yarborough, a State Farm agent, for approximately nine years. On March 1, 1999, while working for Mr. Yarborough, Ms. Cannedy suffered an on-the-job injury when she fell from her chair. Ms. Cannedy received compensation from March 1, 1999, until February 28, 2000. However, benefits were terminated when Ms. Cannedy's treating physicians released her to return to her previous employment or other light duty/sedentary work. Thereafter, while stepping out into her yard in May of 2000, Ms. Cannedy fell, injuring her left ankle. Ms. Cannedy sought payment of medical expenses related to the ankle injury from the workers' compensation insurer, but the treatment was denied as unrelated to the prior on-the-job injury.
On September 7, 2000, Ms. Cannedy filed a disputed claim form with the OWC, seeking supplemental earnings benefits (SEB), payment of medical benefits in relation to the ankle injury, and attorney's fees. A trial was held on October 29, 2001. In a judgment signed on November 14, 2001, the workers' compensation judge found that Ms. Cannedy failed to prove that she was disabled after February 28, 2000, and denied her claim for indemnity benefits after that date. Additionally, the workers' compensation judge found that Ms. Cannedy failed to prove that the ankle injury was related to the March 1, 1999 accident, and denied her claim for medical benefits for the ankle injury. Finally, the judge denied Ms. Cannedy's claim for attorney's fees.
ASSIGNMENTS OF ERROR
Ms. Cannedy now appeals from this judgment and asserts the following assignments of error:
1. The workers' compensation judge erred in finding the claimant was not entitled to SEB.
2. The workers' compensation judge erred in allowing the video tape made by the private investigator into evidence.
3. The workers' compensation judge erred in ruling that the ankle injury was not related to the on-the-job injury.
4. The workers' compensation judge erred in ruling that Ms. Cannedy's attorney was not entitled to attorney's fees.
5. The workers' compensation judge erred in ruling that each party should bear its own costs.
DISCUSSION
Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average pre-injury wage. Initially, the claimant bears the burden on proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Seal v. Gaylord Container Corporation, 97-0688, pp. 7-8 (La. 12/02/97), 704 So. 2d 1161, 1166. In determining whether the claimant has established a prima facie case, the trial court may and should take into account all those factors that might bear on an employee's ability to earn a wage. Daigle v. Sherwin-Williams Company, 545 So. 2d 1005, 1007 (La. 1989). However, a claimant is not entitled to SEB when her inability to earn wages equal to ninety percent of her pre-injury wages is due to circumstances other than her work related injury. Smith v. J.E Merit Constructors, Inc. 01-2824, p. 6 (La. App. 1st Cir. 11/08/02), 835 So. 2d 749, 754.
Whether a claimant's injury prevents her from obtaining employment earning ninety percent of her pre-injury wages is a question of fact. Thus, the appell
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