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Central Lumber Co. v. Duhon11/12/2003
PUBLISHED
REVERSED.
Thibodeaux, J., concurs and assigns written reasons.
FACTS
William Duhon injured his shoulder in the course and scope of his employment with Central Lumber Company on September 13, 1999. Duhon is a carpenter with limited education. He was 64 years old at the time of the accident. He had worked for the Muller family, the owners of Central Lumber, for over 20 years. In 1997, he left full-time employment, but would work on a limited as-needed basis for either Central Lumber or a member of the Muller family.
Because of his injury, Duhon was unable to perform all of the duties he had previously fulfilled, primarily because he was limited in what he could lift with his right arm. In June 2001, Elier Diaz, a vocation rehabilitation consultant who was assigned to work with Duhon, met with Gail Adams, the owner of Central Lumber, and tried to devise a position that would be appropriate for Duhon. Duhon was offered the position of "Modified Utility Worker," which included certain physical restrictions. Duhon did not accept the position. Central Lumber responded by reducing the benefits they had been paying to supplemental earnings benefits (SEBs) based on a minimum wage earning capacity for 25 hours per week. Duhon subsequently filed this disputed claim for workers' compensation.
Following a two-day trial, the workers' compensation judge concluded that the job offered to Duhon was within his capabilities, and he was entitled only to SEBs. The amount of SEB's was calculated at 90% of his pre-injury earnings based on a forty-hour work week at $15.00 per hour, or $600, and an offset for potential earnings at minimum wage for twenty-five hours per week. The result was an award of $1,325.91 per month. Duhon appeals that judgment. Central Lumber has answered the appeal.
ASSIGNMENTS OF ERROR
The defendant-appellant, William Duhon, alleges four assignments of error:
1) The hearing officer erred in refusing to allow testimony concerning Mr. Diaz's bias and violations of Ethical Standards.
2) The hearing officer erred in finding that Mr. Elier Diaz was credible and sincere.
3) It was error for the hearing officer to find that Mr. Duhon was capable of returning to work at the modified utility worker job and reducing Mr. Duhon's weekly benefits.
4) The hearing officer erred in failing to award penalties and attorney fees.
The plaintiff-appellee, Central Lumber, answers the appeal, alleging that the calculation of SEBs should not have been based on a forty-hour work week.
DISCUSSION
The first assignment of error concerns the workers' compensation judge's refusal to allow evidence pertaining to the ethics of the vocational rehabilitation consultant, Elier Diaz. Duhon's attorney attempted to introduce correspondence between himself and Diaz, the "Counselor's Code of Ethics," and billing records that showed the extent of discussions between Diaz and the employer. He also wanted to ask questions of Diaz concerning these matters in order to show a bias against Duhon, which the workers' compensation judge disallowed. The evidence was proffered and is part of the record.
"The decision to admit evidence into the record rests within the sound discretion of the workers' compensation judge and will not be reversed in the absence of manifest error." Jones v. Trendsetter Prod. Co., Inc., 97-299, p. 11 (La. App. 3 Cir. 2/25/98), 708 So.2d 1341, 1346, writ denied, 98-793 (La. 5/15/98), 719 So.2d 643. After reviewing the record as a whole, we do not find any error on the part of the workers' compensation judge
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