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Tynes v. Gaylord Container Corp.2/14/2003
ty, that the employee is physically unable to engage in any employment."
As previously indicated, throughout his treatment of Mr. Tynes, Dr. Gosey continually referred to him as "NOT FIT FOR DUTY." In January 1999, Dr. Gosey noted that Mr. Tynes was indefinitely disabled from his job . In April 2001, Dr. Gosey again indicated that Mr. Tynes was "NOT FIT FOR DUTY" and found that Mr. Tynes was "unable to do any type of work." Dr. Gosey's opinion on this issue did not waver until his deposition was taken in July 2001, at which time he speculated that given a job within Mr. Tynes' physical restrictions, he would release Mr. Tynes to return to work. Based on our review of Dr. Gosey's testimony and office notes, it is clear that following the accident on November 2, 1998, Mr. Tynes was temporarily totally disabled and, thus, unable to engage in any employment. Accordingly, we conclude, as did the workers' compensation judge, that Mr. Tynes has satisfied his burden of proving by clear and convincing evidence that he was disabled and entitled to receive TTDs from November 7, 1998, until July 10, 2001, at which time the benefits were properly converted to SEBs based on Dr. Gosey's testimony that Mr. Tynes might be able to return to work if there were a job available that fit within the very tight physical restrictions that he had placed on Mr. Tynes.
ATTORNEY FEES AND PENALTIES
In its final assignment of error, Gaylord contends that the workers' compensation judge erred in awarding Mr. Tynes attorney fees and penalties for the conversion of TTDs to SEBs. Gaylord alleges that it was "legally and manifestly erroneous to determine that acted arbitrarily in any conversions of [Mr. Tynes'] benefits from TTD to SEB when own orthopaedic specialist has testified that [Mr. Tynes] was capable of engaging in gainful employment during the entire course of his treatment, thus showing there never was any entitlement to TTD benefits."
It is well established in Louisiana jurisprudence that an employer can change temporary total disability benefits to supplemental earnings benefits only when the employee has been released back to work by his treating physician. Clark v. State, Department of Corrections, 94-0168, p. 3 (La. App. 3 Cir. 10/5/94), 643 So.2d 467, 469. Whether the refusal to pay compensation benefits or the discontinuation of those benefits warrants the imposition of penalties and attorney fees is a factual question that will not be disturbed upon review in the absence of manifest error. Whiddon v. Livingston Parish Council, 2000-1349, p. 7 (La. App. 1 Cir. 9/28/01), 809 So.2d 421, 427, writ denied, 2001-2893 (La. 1/25/02), 807 So.2d 837.
In the instant case, Gaylord began paying TTDs immediately after the November 2, 1998 accident. However, the TTDs were later converted to SEBs and then ultimately terminated on November 11, 2000. The workers' compensation judge found that this conversion from TTDs to SEBs was baseless, arbitrary, and unsupported by the record and ultimately awarded attorney fees in the amount of $3,200.00 and penalties in the amount of $2,000.00. The workers' compensation judge noted as follows: "The record is void of any medical evidence to suggest Tynes had reached MMI [maximum medical improvement] at the time his benefits were converted to supplemental earnings benefits, not from Tynes' treating physician or a physician of the Defendant's choosing." Based on our review of the record, we agree.
Dr. Gosey's notes are clear that following the November 2, 1998 accident, Mr. Tynes was "NOT FIT FOR DUTY" as a mechanic and that this disability was indefinite. Dr. Gosey never released Mr. Tynes to return to work as a mechanic. Moreover, Dr.
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