NUMA C. HERO & SON, ET. AL.
No. WCA 15-305
Court of Appeals of Louisiana, Third Circuit
October 28, 2015
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 11-00062 SHARON MORROW, WORKERS' COMPENSATION JUDGE
Stephen W. Glusman, Glusman, Broyles & Glusman, A Limited Liability Company COUNSEL FOR APPELLEES: Numa C. Hero & Son and Louisiana Home Builders Association SIF
Michael B. Miller Attorney At Law COUNSEL FOR APPELLANT: Ronald Leleux
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and David Kent Savoie, Judges.
DAVID KENT SAVOIE JUDGE.
In this workers' compensation case, the employee has appealed a ruling modifying the status of his benefits from temporary total disability benefits (TTD) to supplemental earnings benefits (SEB). For the following reasons, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On August 16, 2005, Appellant Ronald Leleux was injured in the course and scope of his employment as a carpenter with Numa C. Hero & Son (Numa Hero) when he was trying to escape from wasps. From the medical records submitted at trial, it appears that he initially saw Dr. John Cobb, an orthopedic surgeon, and Dr. Don Marx, a chiropractor.
A consent judgment was entered on April 30, 2007, awarding Mr. Leleux TTD benefits at $438.00 per week, based upon an average weekly wage of $1, 376.00, as well as reasonable and necessary medical treatment and a stipulated amount of penalties, and attorney fees.
In February 2010, Dr. Cobb recommended lumbar surgery at L3-4 and L4-5, but Mr. Leleux declined, and, as of the date of trial, he had chosen not to undergo surgery. Dr. Cobb referred Mr. Leleux to Dr. Daniel Hodges for pain management. It appears that Mr. Leleux first saw Dr. Hodges on November 18, 2010, with complaints of back pain, right hip pain, and right leg pain, as well as complaints of depression, memory loss, and difficulty sleeping. An EMG on December 14, 2010, indicated low grade L5-S1 subacute radicular changes. Mr. Leleux saw Dr. Hodges approximately every three months, with the last record in evidence being January 7, 2014.
On October 24, 2012, Mr. Leleux underwent an evaluation by Dr. Douglas Bernard, who was Numa Hero's choice of physician. Dr. Bernard's report indicated that Mr. Leleux has very benign degenerative disk disease and that he would pass a pre-employment physical for unrestricted work activities.
The Workers' Compensation Judge (WCJ) appointed Dr. Christopher Belleau to conduct an Independent Medical Examination (IME). Dr. Belleau saw Mr. Leleux on August 7, 2013. Dr. Belleau recommended that Mr. Leleux undergo a Functional Capacity Examination (FCE). However, it appears that Mr. Leleux was unable to perform the FCE on two separate occasions due to uncontrolled high blood pressure, and therefore, the Office of Workers' Compensation asked Dr. Belleau to provide a report indicating his opinion of any specific work restrictions. Dr. Belleau testified in a deposition that Mr. Leleux had reached maximum medical improvement and that he was capable of sedentary work with some restrictions.
On April 10, 2014, Numa Hero filed a motion seeking the modification of the prior consent judgment to reclassify benefits from TTD to SEB. Numa Hero did not seek a reduction in the amount of benefits. A trial on the motion was held in May 2014. Mr. Leleux was the only witness called to testify. The parties also submitted the deposition of Dr. Belleau and the medical records and exhibits attached thereto, as well as the records of Dr. Bernard and Dr. Hodges.
Pursuant to a judgment dated November 3, 2014, the WCJ modified the classification of Mr. Leleux's benefits from TTD to SEB, calculated upon a zero earnings calculation.
Mr. Leleux appeals assigning the following four assignments of error: (1) The WCJ erred in allowing modification without the employer showing a change in conditions required by La.R.S. 23:1310.8(B); (2) The WCJ erred in allowing modification based on a finding that "Mr. Leleux's condition [had] plateaued and stabilized"; (3) The WCJ erred in finding Mr. Leleux's testimony unreliable; and (4) The WCJ erred in finding that the employer was entitled to modify benefits from TTD to SEB.
STANDARD OF REVIEW
Factual findings of the WCJ are subject to manifest error review. Buxton