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Tynes v. Gaylord Container Corp.2/14/2003
s. Discounting the argument that Allen's early retirement from the city meant he had "retired" under La. R.S. 23:1221(3)(d)(iii), the court noted as follows:
The Social Security Act makes it clear that early retirement and retirement are two different things. Allen could not return to his former job with the City of Shreveport and therefore elected to take early retirement benefits due him at age 55 because of 20 years service. If Allen had accepted retirement benefits in lieu of returning to his former job, he would be retired and not entitled to SEBs. However, he accepted early retirement benefits only because his former job was not available to him. Allen, 93-2928 at 6, 637 So.2d at 126.
Similarly, in the instant case, Mr. Tynes was unable to return to his previous job due to the work-related injury he sustained. Based on his 32 years of employment with Gaylord, Mr. Tynes would have been eligible for early retirement on September 29, 1999, when he turned 55 years old. Because of his injury, Mr. Tynes took disability retirement in June 1999. This does not, however, equate to retirement as is required by La. R.S. 23:1221(3)(d)(iii). There is no evidence that Mr. Tynes is receiving or entitled to receive old age social security benefits. Moreover, although Gaylord offered no vocational rehabilitation services to Mr. Tynes, he decided, on his own, to raise cattle. This attempt at self-employment was sufficient to rebut any argument that Mr. Tynes had removed himself from the work force.
Mr. Tynes earned the benefits due him under the Gaylord retirement plan by his continuous employment with Gaylord over a period in excess of 30 years. His election to take benefits to which he is entitled under Gaylord's retirement plan should not deprive him of any other benefits that his employer is obligated to provide under workers' compensation law unless it is established that he has actually retired, i.e., withdrawn from the work force with no intention of returning. Mr. Tynes' receipt of social security disability benefits and his acceptance of benefits under the Gaylord disability retirement plan does not give rise to a conclusive presumption that he is "retired" within the meaning of La. R.S. 23:1221(3)(d)(iii). Therefore, as there is no evidence of Mr. Tynes' intention to permanently withdraw from the work force, we conclude that the provisions of La. R.S. 23:1221(3)(d)(iii) are inapplicable.
AWARD OF TTDs AND CONVERSION TO SEBs
In assignment of error number two, Gaylord contends that the workers' compensation judge's award of TTDs from the date of the accident to the date of Dr. Gosey's deposition constitutes clear error and must be reversed. Gaylord maintains that there is no medical evidence in the record to show that Mr. Tynes' medical condition changed on that date. This argument is without merit.
The payment of total disability benefits, either permanent or temporary, is authorized by La. R.S. 23:1221 only where an employee is disabled to the extent that he cannot "engage in any selfemployment or occupation for wages, 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 injury was particularly fitted by reason of education, training, or experience." La. R.S. 23:1221(1)(a) and (2)(a). Both La. R.S. 23:1221(1)(c) and 23:1221(2)(c), governing temporary total disability and permanent total disability, respectively, state that "whenever the employee is not engaged in any employment ... total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disabili
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