Banks v. Industrial Roofing & Sheet Metal Works, Inc.

Citations: 682 So. 2d 844; 1996 La. App. LEXIS 2498Docket: No. 28731-CA

Court: Louisiana Court of Appeal; October 29, 1996; Louisiana; State Appellate Court

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Judge Hightower ruled in a worker's compensation case involving Aaron Banks, Jr., who sustained a thumb injury while working as a roofer's helper. The hearing officer initially awarded maximum supplemental earnings benefits and ordered vocational rehabilitation. The employer appealed, arguing that it had demonstrated the availability of jobs suitable for Banks that paid more than his pre-injury wage. The court found the employer had met its burden of proof, leading to a reversal of the benefits, which were terminated two weeks after the original cessation date.

Banks suffered a fractured thumb that led to permanent limitations, preventing him from returning to his job. Despite this, Dr. Marion E. Milstead, his treating physician, determined that Banks could work in light to medium duty jobs, assigning him a disability rating of 23% for his right arm. Following the injury, Industrial Roofing began paying temporary total disability benefits but later initiated vocational rehabilitation services when it became evident that Banks could not return to his former job. After identifying available jobs within the claimant's capabilities, benefits were terminated when Banks refused further rehabilitation services.

The hearing officer deemed the rehabilitation satisfactory but found the employer did not prove that the jobs were realistically available to Banks. As a result, the officer ordered the continuation of supplemental earnings benefits and rehabilitation services but denied Banks' claims for penalties and attorney's fees. The court reiterated that temporary total disability benefits cease once a claimant's condition allows for a reliable assessment of disability, and since Dr. Milstead released Banks for work, he was no longer eligible for those benefits. Supplemental earnings benefits are awarded if a claimant can show their injury prevents them from earning at least 90% of their pre-injury wages.

The award aims to compensate injured employees for lost wage-earning capacity due to an accident. Once the plaintiff establishes a prima facie case, the employer must demonstrate that suitable employment exists within the claimant’s physical capabilities and geographic area. Proving actual job placement or offers is not required. If the employer meets this burden, the employee must then provide clear and convincing evidence, without relying on any presumption of disability, that they cannot perform the available work due to substantial pain. 

Louisiana statute La.R.S. 23:1226 mandates prompt rehabilitative services while an employee is unable to earn their pre-injury wage, emphasizing job placement with minimal retraining. In this case, after the treating physician indicated that Banks could not return to his former job, vocational rehabilitation services were initiated. The assigned counselor, Janet Papworth, assessed Banks’s background and performed a transferable skills analysis. Following the physician's determination that Banks could return to work with restrictions, Papworth helped him develop job-seeking skills and identified five suitable job openings by late November 1994—three of which offered wages at or above 90% of his pre-injury earnings.

During a meeting on December 1 with the physician, Banks, and his wife, job duties for the identified positions were discussed, and the physician approved pursuing these jobs. The counselor provided a written list of available positions, although the plaintiff later claimed he did not receive this list until mid-January 1995, which was linked to the timeline of Papworth's report.

The claimant failed to promptly contact potential employers after a December meeting, waiting several weeks instead. Banks did not make recommended in-person contacts with these companies and relied on a passive approach, believing that employers would reach out to him. Despite testimony from Papworth that the security company consistently had job openings, Banks made only one phone call and did not submit a written application. The hearing officer noted that Banks's lack of effort contributed to his ongoing unemployment. The employer demonstrated the availability of jobs within Banks's medical limitations, which was not diminished by his delays or inadequate job search efforts. The conclusion of the hearing officer that Banks's claims were valid was found to be erroneous, leading to the determination that the defendant owed no further compensation benefits. However, Banks’s benefits were extended until February 9, 1995, the date he declined further vocational rehabilitation services. It was established that Banks could earn wages surpassing his pre-injury salary, and no further rehabilitation benefits were warranted. The defendant was not found to have acted arbitrarily or capriciously. The judgment of the hearing officer was reversed, and Banks was ordered to receive supplemental earnings benefits of $147.13 per week for the period between January 25 and February 9, 1995. Costs of the appeal were assigned two-thirds to the claimant and one-third to the defendant. Additionally, it was noted that one job opening located by Papworth required work in Winnfield, which was not suitable for Banks.