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Tynes v. Gaylord Container Corp.2/14/2003
es had removed himself from the work force and was no longer entitled to benefits pursuant to La. R.S. 23:1221(3)(d)(iii). This action by Gaylord prompted the instant suit. Mr. Tynes' claim for compensation proceeded to healing on October 10, 2001, at which time the workers' compensation judge heard testimony from Mr. Tynes, allowed the introduction of various documents into evidence, including the deposition and office notes from Dr. Gosey, and took the matter under advisement.
After hearing from Mr. Tynes at trial and considering the evidence in the record, the workers' compensation judge rendered judgment on November 19, 2001, awarding Mr. Tynes TTDs from November 7, 1998, the date of the accident, through July 10, 2001, and SEBs from July 11, 2001, forward, not to exceed 520 weeks. Moreover, the judge concluded that Gaylord was arbitrary in its conversion of Mr. Tynes' benefits from TTDs to SEBs and set a hearing to determine the amount of attorney fees and penalties to be assessed for such action. Following a hearing on December 12, 2001, the workers' compensation judge rendered a judgment on December 26, 2001, in favor of Mr. Tynes, awarding $3,200.00 in attorney fees and $2,000.00 in penalties. It is from these judgments that Gaylord has appealed, assigning the following specifications of error:
I. The trial court committed legal error by shifting the burden of proof to the employer to prove the availability of a job within the employee's physical restrictions where the employee's treating physician indicates that the employee is physically capable of engaging in gainful employment, the employee has taken absolutely no steps to locate any form of employment and has voluntarily withdrawn himself from the labor market, resulting in his failure to satisfy his initial burden of proof.
II. The trial court committed legal and manifest error in holding that the proper date to convert the appellee's benefits from TTD to SEB was the date of his treating physician's deposition where no evidence was presented that a change in his condition occurred on that date, and the physician clearly testified. that the appellee was capable of engaging in employment with restrictions for a 40 hour week and these restrictions were the same throughout the entire course of treatment.
III. The trial court committed manifest and legal error in awarding penalties and attorney's fees for improper conversion of Temporary Total Disability Benefits to Supplemental Earnings Benefits where the medical evidence of the employee's treating physician clearly indicates that he was always capable of engaging in gainful employment.
STANDARD OF REVIEW
Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the workers' compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though 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. 1989). Thus,
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