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Tynes v. Gaylord Container Corp.2/14/2003
the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. Scott v. Lakeview Regional Medical Center, 2001-0538, p. 4 (La. App. 1 Cir. 3/28/02), 818 So.2d 217, 221, writ denied, 2002-1712 (La. 10/14/02), 826 So.2d 1127 (citing Banks, 96-2840 at 9, 696 So.2d at 556). Actual job placement is not required. Seal, 97-0688 at 8, 704 So.2d at 1166. However, pursuant to La. R.S. 23:1226, when an employee suffers a work-related injury that is covered by the Louisiana Workers' Compensation Act and said injury precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.
In determining whether a finding that an employee has met the initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee's inability to earn 90 percent or more of his pre-injury wages. Seal, 97-0688 at p. 8, 704 So.2d at 1166. Factors that have been considered in determining whether a claimant can earn 90 percent of his preinjury wage include the employee's age, education, job skills, and work history. See Seal, 97-0688 at 9-10, 704 So.2d at 1166-1167.
In the instant case, the evidence is such that Mr. Tynes' treating physician found him to be indefinitely disabled as a result of the November 2, 1997 accident. In fact, on April 13, 1999, Dr. Gosey noted that Mr. Tynes was "unable to return to [his job ] on a permanent basis." Dr. Gosey's findings with regard to Mr. Tynes' ability to work were consistent throughout his treatment of Mr. Tynes. Dr. Gosey continually noted that Mr. Tynes was "NOT FIT FOR DUTY" as a result of the work-related injury he sustained. At the time of trial, Dr. Gosey had last seen Mr. Tynes on April 18, 2001. His office note from that visit reveals, in pertinent part, as follows:
Follow-up on his BACK. He's pretty much the same . ... It's been going on for years . ... We'll continue him NOT FIT FOR DUTY. He is unable to do any type of work. He cannot work at a cash register. He cannot lift weights. He cannot do anything. He doesn't want any surgery at this time. He's getting by with a few medications and trying to deal with it over time. We'll see how he does.
It was not until his deposition was taken on July 10, 2001, that Dr. Gosey somewhat modified his opinion regarding Mr. Tynes' ability to work. Dr. Gosey maintained that the restrictions that he had placed on Mr. Tynes were "pretty tight restrictions" and had been the same throughout the course of his treatment of Mr. Tynes.
The following hypothetical questions were posed to Dr. Gosey concerning whether Mr. Tynes would be able to work if there was a job available that fit within his physical restrictions:
Q: And if in fact there were jobs or work that he could do within the restrictions that you have described, he in fact wouldn't be totally disabled or totally unable to engage in any of that employment?
A: That's correct. If you could find him a job within the physical restrictions then I would release him to do that job.
Q: ... rom a medical perspective from you as an orthopedic surgeon, would you think it would be beneficial for somebody in Mr. Tynes' circumstances to be engaged in employment or seeking employment; that sort of thing?
A: Well, in general, we want people to work if they can and we don't particularly like people sitting in the house doing nothing, but at his age with the type of job he had with workers' compensation figuring into the equation, it's pretty hard for me to sa
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