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Hubbard v. Lakeland Nursing Home1/31/2001
AFFIRMED.
This appeal is from a ruling of the Office of Workers' Compensation Administration awarding temporary total disability benefits to a nursing home employee for mental injury she suffered following an assault by a co-worker.
FACTS AND PROCEDURAL HISTORY
Ruby Nell Hubbard was a licensed practical nurse (LPN) for Lakeland Nursing Home Limited Partnership (the nursing home). On August 11, 1996, Ms. Hubbard was physically assaulted by Tanya Carpenter, a certified nursing assistant and co-worker. Ms. Hubbard sustained facial abrasions which required stitches, a broken nose, and broken eyeglasses. At the time of the incident, Ms. Hubbard was 67 years old.
The Nursing Home Association Self-Insurers Fund ( a self-insured fund) paid 104 weeks of supplemental earnings benefits and certain medical and related expenses. After 104 weeks had passed, the nursing home terminated the weekly compensation benefits pursuant to Louisiana Revised Statute Article 23:1221(3)(d)(iii) which provided that supplemental earnings benefits would terminate when the employee retired or began to receive old age insurance benefits under Title II of the Social Security Act. The article also stated that in such a situation supplemental earnings benefits would be limited to 104 weeks rather than 520 weeks. Ms. Hubbard started to receive social security benefits when she reached the age of 70. Ms. Hubbard's workers' compensation benefits were terminated August 10, 1998.
On August 19, 1998, she filed a form 1008, a disputed claim for compensation, with the Office of Workers' Compensation maintaining that her weekly benefits should not have been terminated. The case was tried May 3, 2000. On May 16, 2000, after the trial of the case, the Louisiana Supreme Court found Louisiana Revised Statute Article 23:1221(3)(d)(iii) unconstitutional. Pierce v. Lafourche Parish Council, 99-2854 (La. 5/16/00); 762 So.2d 608. The court found that the part of the statute "which terminates supplemental earnings benefits when the claimant receives social security old age benefits, results in disparate treatment of employees injured in the workplace who are 62 years of age or older from those under age 62." Id. at 612. Nonetheless, the nursing home did not reinstate Ms. Hubbard's benefits.
In the instant case, the trial court found that Ms. Hubbard had not proved that she was permanently and totally disabled, however, she had proved that she was temporarily totally disabled and entitled to benefits until she was capable of returning to work. It is from this ruling that the nursing home appeals.
OPINION
Ms. Hubbard claims that she is at least temporarily totally disabled and entitled to workers' compensation indemnity benefits until she is capable of returning to work. While the trial court found that based on the evidence she was not permanently and totally disabled, it did find that she was temporarily totally disabled and entitled to temporary total disability benefits until it is established that she can return to some type of work. The appellants argue that the trial judge committed legal error using the preponderance of the evidence standard in finding that Ms. Hubbard was temporarily and totally disabled. They also contend there is no clear and convincing evidence in the record that Ms. Hubbard is temporarily and totally disabled as a result of the mental injury.
Louisiana Revised Statute Article 23:1221(1)(a) and (c) (emphasis added) provide the following:
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupa
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