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Taylor v. Wal-Mart Stores9/21/2005
ty benefits must prove by clear and convincing evidence that she is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Lewis v. Chateau D'Arbonne Nurse Care Center, 38,394 (La. App. 2d Cir. 4/7/04), 870 So. 2d 515. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Id. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met her burden of proving temporary total disability. Id.
Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. McGuyer v. Fidelity & Cas. Co. of N.Y., 39,450 (La. App. 2d Cir. 3/2/05), 895 So. 2d 701. A workers' compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Lewis v. Chateau D'Arbonne Nurse Care Center, supra. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. McGuyer v. Fidelity and Casualty Co. of N. Y., supra.
Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Lewis v. Chateau D'Arbonne Nurse Care Center, supra. Factual finding in workers' compensation cases are subject to the manifest error rule. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Id. An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Id. The trial court is in a superior position to the appellate court to evaluate the credibility of witnesses. Where two permissible views of the evidence exist, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.
On appeal, Taylor urges various assignments of error in support of her claim that the WCJ's ruling should be overturned. Three of her concerns involve whether the WCJ erred in finding that Taylor had not proven her entitlement to temporary total benefits or additional medical expenses and whether the offered alternative job fell within Taylor's job restrictions.
At trial, Taylor presented the testimony of five witnesses regarding Taylor's fall and work habits. Taylor also testified. She provided no testimony from either Dr. Ballis or a medical doctor. Although she claimed that she was unable to work in January of 2003, Taylor admitted that Dr. Ballis released her to light duty work and never classified her as totally disabled. Taylor stated that she only worked for one hour on October 14, 2002, and she had to go home because it was too painful. Taylor admitted that she sought medical attention in 1991 and 1997 for low back, neck and shoulder pain and muscle spasms in her upper back. X-rays from 1991 revealed a narrowing of a cervical disc and fibromyositis of the cervical spine. Taylor acknowledged that she had also fallen at Wal-Mart in 2000.
Laura Garner, trainer coordinator for Wal-Mart, testified that Wal-Mart considered the job of cake decorator with the aid of a stool to be a light duty position which met Taylor's restrictions. Garner did not think any of the cakes weighed more than twenty pounds, although they could weigh more than five pounds. Garner testified that if a cake weighed more than ten pounds, Wal-Mart would have arranged
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