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Brister v. Sears Authorized Retail Dealer12/8/1999
nt and duration of Brister's disability. They assert that Dr. Steiner testified that Brister could perform some type of work but for his lack of motivation and his degree of pain.
Concerning the extent of disability, La.R.S. 23:1221(1)(c) provides in part:
(c) . . . ompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
We note that Dr. Steiner did testify that he did not see Brister as being highly motivated, but the doctor was of the opinion that Brister had some significant orthopedic problems and that while his depression affected his ability to function, even without the psychological factors he would have a difficult time with any type of employment.
When questioned concerning whether Brister was capable of performing any type of work, even sedentary work, Dr. Steiner replied as follows:
Well, basically, in my innermost sanctum, I think almost anybody can do sedentary work. But his situation, I think he's not going to function. And he certainly -- if he can't lift something . . . up off the floor as light as 10 pounds, he's not going to function in the sedentary kind of capacity. If he had a sedentary job that didn't require anything at all, he would have a very difficult time spending eight hours a day either sitting or standing or moving about. He would probably not function in that capacity.
Dr. Steiner went on to further explain his opinion:
edentary activities, that's just basic life. He has to do sedentary things just to live, whether they hurt or don't hurt. And so basically, like I said, in my innermost sanctum, I think most anybody can do sedentary activities. But when you put someone in a workplace where they are required to do something, lose some of their control over their activities, then they -- that's another parameter of trying to do something for remuneration, even on a sedentary level. And I don't think he would function at that level even if he didn't have to lift 10 pounds.
I think he's got some additional problems besides his physical difficulties with his neck and back. I think he's got some serious psychological factors involved, and all these things modify that to some extent.
Could he sit for eight hours or stand for eight hours, or mix them up for eight hours, in a controlled situation to perform a laboring activity? I doubt he would be able to manage it.
. . . You would think telephone operator, well, that's a sedentary job , but . . . that would drive him up the wall. He would never make that. You know, even though he doesn't have to lift anything, he would never be able to tolerate that with his back situation. Because he can't stay in any one position for any significant length of time. And that superimposed upon his psychological status, he couldn't function.
. . . He does have some significant problems. But combined with his psychological status, I don't think he can manage to do many things for any length of time that you would be able to depend on in the work force.
. . . ou take his physical disabilities and limitations, with his depression, realizing he doesn't have a psychiatric problem per se, I don't think you're going to get him t
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