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Handy v. TEMBEC11/4/2005
BEFORE: WHIPPLE, McCLENDON, AND WELCH, JJ.
This workers' compensation action is before us on appeal from a judgment in favor of the claimant, Barbara Handy, and against her employer, TEMBEC. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On May 12, 2000, Ms. Handy was involved in a serious work-related accident, while in the course and scope of her employment as a stack helper with TEMBEC, a paper piant located in St. Francisville, Louisiana. At the time of the accident, Ms. Handy had been employed at TEMBEC, or its predecessors, for approximately twenty-one years. The May 12, 2000 injuries occurred when Ms. Handy was crushed between a buggy carrying a roll of paper and a roll of paper on the plant floor. Ms. Handy was transported to Our Lady of the Lake Hospital where she remained for five days. Ms. Handy's injuries included a right clavicle fracture, multiple rib fractures, and fractured pelvis.
Compensation benefits, including medical and indemnity benefits, were paid through July 1, 2001. Ms. Handy filed a disputed claim for compensation on May 15, 2002. Following a trial of the matter, the workers' compensation judge (WCJ) concluded that the modified job offered to Ms. Handy was not a legitimate job offer. While recognizing the efforts of TEMBEC in vocational rehabilitation efforts for Ms. Handy, the WCJ ultimately concluded that TEMBEC failed to satisfy its burden of proof. Accordingly, The WCJ concluded that Ms. Handy was entitled to supplemental earnings benefits (SEBs) at the temporary total disability rate, from July 1, 2001 and continuing until such time that vocational rehabilitation efforts return her to employment that would allow for a reduction. The WCJ additionally awarded Ms. Handy $7,000.00 in attorney's fees. Judgment was signed on October 2, 2003.
From this judgment, TEMBEC has taken a suspensive appeal, assigning the following as error:
1. The WCJ erred in finding that TEMBEC failed to meet its burden of proving available work within the restrictions of Ms. Handy's treating physician despite the fact that TEMBEC tendered a modified position to Ms. Handy approved by the treating physician;
2. The WCJ erred in making unreasonable inferences of fact, and substituting her own opinion in place of the treating physician, in finding that the modified job offer tendered to Ms. Handy and approved by her treating physician were outside the restrictions imposed by the treating physician;
3. The WCJ erred in finding that it was inappropriate for TEMBEC to tender a temporary two-week job assignment to Ms. Handy to perform while the permanent modifications required by the treating physician were to be installed at the plant; and
4. The WCJ erred in making an arbitrary and capricious finding on the part of TEMBEC and awarding attorney's fees in light of the fact that TEMBEC relied on the opinions of the treating physician, treating occupational therapist, occupational health care nurse and vocational rehabilitation counselor when offering modified employment to Ms. Handy and terminated benefits after Ms. Handy refused to attempt to work and resigned.
STANDARD OF REVIEW
Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the WCJ unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Dep't.
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