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Brister v. Sears Authorized Retail Dealer12/8/1999
o do even a sedentary job. If you specifically tailor one to his situation, you may be able to get something done. But I think in that situation . . . it would be in his home where he had unlimited control of his activities. And how productive that would be, I think it would be extremely difficult to say.
Paperwise, you could just say, "Yes, we've accomplished this, he might be able to do that." Reality? I doubt it.
In addition to his complaints of numbness and weakness in his hands and legs, Brister also asserted that he is unable to sit for more than thirty minutes at a time before having to stand up, move around, or lie down. Dr. Steiner agreed that Brister's condition required that he lie down or get off of his feet for some period of time and that therefore even sitting with sedentary work would not be wise for him to try. The doctor testified: "It's known that sitting is probably not the best position for people with a ruptured disk in the lumbar spine. . . . t creates more pressure on the disk space sitting than standing or walking or lying down." Brister also testified that he takes medication to help him sleep at night and that he does not get any rest unless he takes medication. According to Brister, he spends most of the day in a recliner or lying down and takes a nap at least once a day. Dr. Steiner also indicated that Brister's sleeping patterns would tend to cause him problems functioning at a sedentary level.
Disability can be proven by both medical and lay testimony, and the trier of fact must weigh all of the evidence in order to determine if the employee has met his burden of proof. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277 (La.1993). This factual determination should not be overturned absent manifest error. Id. The defendants suggest that the manifest error rule does not apply in this case because the workers' compensation judge confused the determination of disability status with the proper rate of supplemental earnings benefits based on wage earning capacity. As such, the defendants suggest that a de novo review is required.
Specifically, the defendants contend that the workers' compensation judge emphasized the fact that vocational rehabilitation had just begun and that no job had been identified when the conversion of benefits occurred. While the workers' compensation judge did make comments to that effect, she did so in the context of the defendants' culpability for converting the temporary total disability benefits to supplemental earnings benefits for the purposes of justifying the award of penalties and attorney fees. Basically, the workers' compensation judge's point was that the defendants did not have sufficient information to convert the benefits, citing the insufficient vocational rehabilitation as a reason for her finding of prematurity. A reading of the reasons for judgment reveals that the judge did in fact apply the correct test for determining the extent of Brister's disability, having noted that "Doctor Steiner feels that the Plaintiff is unable to work at this time." Thus, we do not find that a de novo review is required, and we find no manifest error in the workers' compensation judge's finding that Brister is physically unable to engage in any employment for purposes of temporary total disability status.
Concerning the duration of disability benefits, La.R.S. 23:1221(1)(d) provided at the time of the injury :
(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee's physical condition h
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