J.E. Merit Constructors3/1/2000
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
This workers' compensation matter arises from an injury suffered by Zeno Hickman, hereinafter "Plaintiff," while working for his employer, J.E. Merit Constructors, Inc., hereinafter "Defendant." Plaintiff brought suit seeking penalties and attorney's fees for untimely reduction of temporary total disability (TTD) benefits to supplemental earnings benefits (SEB's) and for wrongful termination of the later. The hearing officer found the following: Plaintiff's benefits were properly calculated in light of information available; Plaintiff was a part-time employee; Plaintiff's average weekly wage was $541.40, with a TTD rate of $323.00, or the maximum at the time of his injury; in February 1997, Plaintiff's TTD rate was prematurely reduced to SEB's; Defendant owed Plaintiff SEB's when Plaintiff became employed as a security guard until October 8, 1997, when Defendant properly terminated all benefits to Plaintiff; Plaintiff is responsible for all fees associated with his hiring of another vocational rehabilitation counselor; Defendant was arbitrary and capricious in prematurely reducing Plaintiff's TTD benefits in February 1997 for which Defendant is sanctioned $2,000.00 in penalties and $3,000.00 for attorney's fees. We affirm in part and reverse in part.
FACTS
Plaintiff was injured on October 24, 1994, during his employment for Defendant at the Dow facility in Plaquemines, Louisiana. At that time, Plaintiff worked as a carpenter and hurt his back while bending over to lay down a wooden form made up of two by ten planks of wood. Plaintiff was unable to work as a result of his injury and received TTD benefits until February 27, 1997, in the amount of $304.80. When Plaintiff's TTD payments were ceased, they were substituted with SEB's which were paid thereafter until October 8, 1997. Plaintiff's SEB's were based on a wage estimation of $6.90 per hour. The $6.90 calculation was provided by the vocational rehabilitation counselor, Mr. Jeffery Carlisle, who was assigned to Plaintiff by Defendant.
At the time of Plaintiff's injury, he was making $13.75 an hour. He was never able to secure another position making similar wages. Plaintiff did independently procure employment as a security guard, but he did not gain any employment through the efforts of his vocational rehabilitation counselor.
LAW AND ANALYSIS
I. Standard of Review
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep't of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Freeman, 93-1530 at p. 5,630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, "if the [factfinder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7-8 (La. 7/1/97); 696 So.2d 551, 555.
II. Plaintiff's Assignment
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