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Poole v. Terrell Musgrove Siding & Gutter11/29/2005
Panel composed of Judges Edward A. Dufresne, Jr., James L. Cannella, and James C. Gulotta, Pro Tempore
AMENDED, AND AS AMENDED, AFFIRMED
This is a workers' compensation case arising out of an injury plaintiff sustained on June 9, 1997. In Poole v. Terrell Musgrove Siding and Gutter, 03-139 (La.App. 5 Cir. 6/19/03), 850 So.2d 824, earlier before this Court involving the same parties, we affirmed the trial judge's determinationthatplaintiff was injured while in the course and scope of his employment with Musgrove; that he was not totally and permanently disabled; that he was entitled to supplemental earnings benefits and medical expenses; that he could return to work in a sedentary capacity; and that Musgrove should assist him in retraining and identifying jobs that were suitable in accordance with his restrictions.
What precipitated the instant action was the reduction of plaintiff's supplemental earnings benefits, effective February 28, 2004, from $268.00 per week to $108.00 per week.
After a hearing on the merits, the trial judge found that defendant had discontinued and reduced plaintiff's supplemental earnings benefits without reasonably controverting his entitlement to benefits. The trial judge thenreinstated the supplemental earnings benefits at $268.00, retroactive to February 28, 2004. A $2,000.00 penalty and $5,000.00 in attorney fees were assessed.
In addition, the trial judge found that plaintiff is not totally and permanently disabled from all work activities; that he has a permanent and total disability to his foot and ankle; that vocational rehabilitation efforts have failed; that the jobs identified were not realistically obtainable by plaintiff because of his physical and educational impairments and lack of training; and that plaintiff has no wage earning capacity at this time based on his age, education, training, experience, and physical impairments. Both plaintiff and defendants appeal. Plaintiff also filed an answer to defendants' appeal requesting damages for a frivolous appeal and attorney fees.
Plaintiff's Appeal
For the purpose of continuity, we will consider plaintiff's appeal first. Plaintiff's sole assignment of error is that the trial judge erred in finding that he is not totally and permanently disabled from all work activities. Plaintiff asserts thatbecause of a totality of factors, specifically his injury, his lack of education, the failure of all rehabilitation efforts, his inability to be reeducated and retrained, his intellectual and educational deficiencies, his age, and the harsh realities of the workplace as it exists today, he is completely disabled.
At trial Kenneth Adatto, M.D., an expert in orthopedics and orthopedic surgery, testified that he has been treating plaintiff since August 20, 1998. Dr. Adatto testified that plaintiff broke his heel, had screws surgically inserted in his foot to stabilize the fracture, and subsequently developed post-traumatic arthritis in the foot, ankle, and heel area. He was of the opinion that plaintiff's foot has stabilized; additional surgery will probably not be necessary and is not recommended. According to Dr. Adatto, plaintiff's treatment has been a matter of pain management and observation for the last three or four years. Dr. Adatto further testified that plaintiff takes a low-dosage, relatively non-addictive pain medication, an anti-inflammatory medication for the arthritis, and sleep medication. This allows plaintiff to "function and do things normally if he wants to."
Further, Dr. Adatto testified that plaintiff is not permanently and totally disabled but rather has a permanent and total disability of the foot an
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