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Tynes v. Gaylord Container Corp.2/14/2003
when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.
SUPPLEMENTAL EARNINGS BENEFITS
In assignment of error number one, Gaylord contends that the workers' compensation judge improperly and prematurely shifted the burden of proof in awarding SEBs to Mr. Tynes. Citing La. R.S. 23:1221(3)(a) and Seal v. Gaylord Container Corporation, 97-0668 (La. 12/2/97), 704 So.2d 1161, Gaylord asserts that under the clear wording of the statute and the unambiguous interpretation by the Louisiana Supreme Court, it did not have the obligation to engage in any vocational rehabilitation or related activities until Mr. Tynes met his initial burden of proving that he was unable to earn 90 percent or more of his pre-injury wage. Gaylord alleges that by not undertaking even the most basic of job searches to locate other employment, Mr. Tynes has failed to satisfy his initial burden of proof, and thus, the burden never shifted to Gaylord to perform a vocational evaluation, rehabilitation, or a functional capacity evaluation. Alternatively, Gaylord asserts that even if this court finds that Mr. Tynes has satisfied his initial burden of proving his entitlement to SEBs, any right to these benefits was properly terminated pursuant to La. R.S. 23:1221(3)(d)(iii) because Mr. Tynes chose to voluntarily remove himself from the work force. We find no merit to any of these arguments.
The purpose of supplemental earnings benefits is to compensate an injured employee for the wage-earning capacity lost as a result of a work-related accident. Crochet v. Ronald Adams Contractor, Inc., 2001-1015, p. 3 (La. App. 1 Cir. 5/10/02), 818 So.2d 994, 996, writ denied, 2002-1611 (La. 9/30/02), 825 So.2d 1197. Entitlement to SEBs is governed by La. R.S. 23:1221(3), which provides, in pertinent part, as follows:
(3) Supplemental earnings benefits.
(a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve.
Thus, in order to recover SEBs, a employee must first prove, by a preponderance of the evidence, that a work-related injury has resulted in his inability to earn 90 percent or more of his average pre-injury wage. Seal, 97-0688 at 8, 704 So.2d at 1166. 'The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La. 1989).
Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs or establish the claimant's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that
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