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Brister v. Sears Authorized Retail Dealer12/8/1999
e point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required." Additionally, the claimant in Ross was approved for work activities.
The workers' compensation judge found that Brister was not entitled to permanent total disability benefits because there were "many if's" throughout Dr. Steiner's deposition, because Brister's depression affected his ability to perhaps put forth maximal effort in the FCE, and because of Brister's decision not to have surgery at this time. Such a determination does not necessarily require that Brister be defaulted to supplemental earnings benefits on the basis that he has reached maximum medical improvement, especially in light of the finding that Brister cannot work.
While Dr. Steiner stated that Brister had reached maximum medical improvement in October of 1997, he was still of the opinion that Brister would need periodic orthopedic evaluations and possibly medication and therapy throughout the years. In fact, he was of the opinion that Brister's situation would not change unless he had additional surgery. Thus, Brister's physical condition has not improved to the point that "continued, regular treatment by a physician is not required." In light of the foregoing, we find no manifest error in the workers' compensation judge's determination that Brister's disability is temporary and total.
The defendants also contend that the workers' compensation judge erred in awarding penalties and attorney fees, asserting that there is no statutory authority for such an award for reclassifying benefits from temporary total disability benefits to supplemental earnings benefits, especially in the absence of financial prejudice to the claimant. They further assert that the actions of the claims adjuster were not arbitrary, capricious, or without probable cause.
In 1 H. Alston Johnson, III, Workers' Compensation Law and Practice ยง 276, in 13 Louisiana Civil Law Treatise (3d ed. 1994-Pocket part 1998), the author states:
Somehow the idea took hold that an employer could simply "shift" a worker from TTD to SEB to start the 520-week clock running on SEB, regardless of whether there was medical opinion indicating TTD was at an end or whether there was job information indicating that there was employment that the worker could perform. Eager to begin to reduce the 520-week potential period for SEB, some employers simply "shifted" a worker from TTD to SEB, particularly in those instances where the amount of the check did not change. In some cases, there was not even a notification to the employee that this had occurred.
The author on numerous occasions had indicated that this practice was without legislative foundation, and that employers and carriers were taking a chance in doing so. If nothing else, it might eventually be held that all of these SEB payments after a shift without justification continued to be TTD payments, and thus no part of the 520-week obligation had been discharged. Now there is support in the cases for the proposition that this "shift" cannot occur without justification, and for the warning that the "shift" might simply be ignored by the courts to the peril of the employer. (Footnote omitted.)
The author cites several cases in support, including Rao v. R & W Equipment Co., 94-1477 (La.App. 3 Cir. 7/12/95); 661 So.2d 1003 (holding that there was no manifest error in the award of penalties and attorney fees where temporary total disability benefits were reduced to supplemental earnings benefits based on a job offered to the
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