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Brister v. Sears Authorized Retail Dealer12/8/1999
f Brister's type of injury. Sometime in 1997, Brister sought treatment for his depression from Dr. Paul Matthews, a Lake Charles, Louisiana psychiatrist. Dr. Matthews prescribed medication to treat Brister's depression and was still treating Brister as of the time of trial.
According to Dr. Steiner, Brister reached maximum medical improvement in October of 1997. Thereafter, he ordered a functional capacity evaluation (FCE), which was conducted on February 10, 1998. The FCE results revealed that Brister's physical demand level was sedentary but that Brister was not capable of returning to work at even that level. However, the FCE results also suggested that Brister exhibited inappropriate responses in nine of twelve tests, "indicating a significant amount of inconsistent effort occurred." The report also stated that " n excessive amount of positive responses during the symptom magnification tests may indicate that unreliable data may have been produced during the maximal effort tests . . . ." Dr. Steiner considered the positive and negative findings of the FCE, the results of the various diagnostic tests performed on Brister, and the doctor's findings from the numerous physical examinations he performed on Brister and concluded that Brister could not function in even a sedentary capacity. The doctor did not feel Brister's situation would improve unless he consented to the lumbar surgery but did state that there was a "possibility" that at some time in the future Brister would be able to do some work with or without the surgery.
Brister testified at trial that his injuries still caused severe pain throughout his body. According to Brister, he still had severe neck pain, frequent numbness in his hands, lower back and arm pain, and numbness and pain in his legs. These various conditions prevented him from holding on to anything, caused his legs to give out, and required that he use a cane while walking.
Litigation in this case began when Brister filed a claim for mileage reimbursement for vocational rehabilitation consults which the defendants refused to pay despite demand for payment. His claim included a request for penalties and attorney fees. In July of 1998, while the mileage reimbursement claim was pending, the defendants converted Brister's temporary total disability benefits to supplemental earnings benefits. This conversion did not result in any decrease in weekly benefits to Brister because LWCC paid the supplemental earnings benefits at the same rate as the temporary total disability rate. Brister then filed an amended claim, asserting that he was permanently and totally disabled as a result of the accident and that the defendants acted arbitrarily and capriciously in changing the benefits from temporary total to supplemental earnings benefits.
After a hearing, the workers' compensation judge awarded Brister the requested mileage expenses but rejected Brister's demand that he be declared permanently and totally disabled. However, the workers' compensation judge did find that Brister "continue to be temporary totally disabled until further orders of this court." Finding that the defendants improperly converted Brister's benefits to supplemental earnings benefits, the workers' compensation judge awarded Brister penalties of $2,000.00 and attorney fees of $2,000.00. The defendants appeal only the finding of temporary total disability status and the award of penalties and attorney fees. Brister's answer to the appeal addresses the sufficiency of the trial attorney fee award and requests an attorney fee award for work performed on appeal.
OPINION
The defendants challenge the workers' compensation judge's findings concerning both the exte
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