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Cannedy v. Yarborough6/27/2003
ate court may not set aside the workers' compensation judge's findings in this regard absent a finding of manifest error or unless the findings are clearly wrong. Smith, 01-2824 at 6, 835 So. 2d at 754. If the workers' compensation judge's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given great deference by the appellate court. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1990).
After a thorough review of the record, we find no manifest error in the workers' compensation judge's determination that Ms. Cannedy was not entitled to SEB because she failed to prove that she was disabled after February 28, 2000. Both Dr. Bryan Griffith and Dr. Sandra Weitz, who treated Ms. Cannedy following her on-the-job injury , stated that Ms. Cannedy had reached maximum medical improvement as of February 2000, and that she had been released to her previous job or other sedentary/light duty clerical/receptionist work. Despite this medical evidence, Ms. Cannedy maintains that she cannot work, no matter what restrictions are in place, due to her pain, and therefore she has not attempted to seek employment, other than at her previous job, which was no longer available. However, these subjective complaints have no objective basis in the medical findings presented at trial. A claimant's testimony that she is no longer able to return to her pre-injury employment, without more, is insufficient to prove entitlement to SEB. Rapp v. City of New Orleans, 98-1714-1730, p. 19 (La. App. 4th Cir. 12/29/99), 750 So. 2d 1131, 1143, writ denied, 00-0353 (La. 4/7/00), 759 So. 2d 761.
In reaching its determination as to Ms. Cannedy's entitlement to benefits, the workers' compensation judge also questioned Ms. Cannedy's credibility, based on her testimony and videotaped surveillance that was admitted into evidence at trial. Ms. Cannedy contends on appeal that the videotape should not have been admitted into evidence because it was not impeachment evidence. However, we find this argument to be without merit. On cross-examination, the attorney for Rulon Yarborough specifically asked Ms. Cannedy: "Have you ever changed the way you physically walk when you attend a physician's appointment in order to convince them that you are more injured than you are." In response to this question, Ms. Cannedy stated: "No sir. I walk bad all the time." When asked to clarify how she walks, Ms. Cannedy stated that she walks "slow." The videotape, taken a day prior to and the day of a doctor's appointment, showed Ms. Cannedy while walking at several locations, and depicted an altered pattern in her appearance and walk when attending her doctor's appointment. Therefore, we find that the workers' compensation judge did not abuse its discretion in allowing the videotape to be presented at trial as impeachment evidence.
However, even without the videotape, we find that the testimony of Dr. Weitz called into question Ms. Cannedy's credibility. In her deposition, Dr. Weitz expressed concern over Ms. Cannedy's exaggeration of her symptoms. In particular, Dr. Weitz stated that during an office visit, Ms. Cannedy appeared physically run down and described her pain as constant shooting pain. However, Dr. Weitz made a note that she thought this was interesting given that she had seen Ms. Cannedy walking out of a clinic the week previously, where Ms. Cannedy was dressed up and chatting lively on the phone while exiting the building.
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