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Tynes v. Gaylord Container Corp.2/14/2003
y: You need to go find a job and get out of the house. Because the work he would be available for is pretty limited based on his physical restrictions, and I haven't told the man: Look, you need to go out and find a job. I'm not about to do that. If he wants to know what kind of work could he do or if they had a job description they wanted me to check off on, I would be more than happy to do that.
Q: Doctor, is it fair to say that to the extent that work is available within the physical restrictions that you've described, that Mr. Tynes is not unable to engage in gainful employment?
A: Correct. If you have a job that fell within the physical restrictions outlined here, then I would release him to go to that job. I would say he's capable of doing that job.
Dr. Gosey further testified that Gaylord had never provided him with any job descriptions to sign off on for Mr. Tynes.
Mr. Tynes testified that he never sought any other employment after his retirement from Gaylord in June 1999, because he was never released by Dr. Gosey to return to work. Mr. Tynes indicated that had Dr. Gosey told him that he could do a certain type of work within his restrictions, he would have returned to work. However, Mr. Tynes stated that neither Gaylord nor its insurer ever suggested to him that there were jobs available to him at Gaylord that would fit within his limitations. Moreover, Gaylord never offered him any kind of vocational rehabilitation or training as mandated by La. R.S. 23:1226.
Based on our review of the evidence in the record, we are satisfied that the workers' compensation judge was correct in concluding that Mr. Tynes carried his burden of proving his entitlement to SEBs. Not only was there an abundance of evidence to support a finding that Mr. Tynes was unable to earn 90 percent or more of his pre-injury income, but there was also evidence that Gaylord failed to fulfill the requirements of La. R.S. 23:1226 by not providing Mr. Tynes with prompt rehabilitation services.
Having determined that Mr. Tynes satisfied his initial burden of proof with regard to his entitlement to SEBs, we now address Gaylord's alternative argument that Mr. Tynes' benefits were properly terminated pursuant to La. R.S. 23:1221(3)(d)(iii). Noting that Mr. Tynes is currently receiving social security disability benefits in the amount of $1,448.00 per month and retirement disability benefits from Gaylord in the amount of $791.63 per month, Gaylord alleges that Mr. Tynes has not made any effort to locate employment within his medical restrictions because he can make more money "by sitting at home." Gaylord argues that because Mr. Tynes is receiving social security disability benefits and retirement disability benefits, he is "retired" within the meaning of La. R.S. 23:1221(3)(d)(iii). We disagree.
As set forth in La. R.S. 23:1221(3)(d), "The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate ... hen the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks." In Allen v. City of Shreveport, 93-2928, p. 7 (La. 5/23/94), 637 So.2d 123, 126-127, the Louisiana Supreme Court concluded that a worker retires under La. R.S. 23:1221(3)(d)(iii) when: (1) the worker withdraws from the work force; or (2) the worker draws old age social security benefits, whichever comes first. The court found that Allen, a 55-year-old city worker who suffered a hernia during his employment with defendant, was entitled to receive SEBs because he was unable to earn 90 percent or more of his pre-injury wage
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