The Louisiana Fifth Circuit Court of Appeal recently rendered a decision reviewing standards of proof on total disability and supplemental earnings benefits. In Tassin v. Touro Infirmary, claimant, a registered nurse, was injured while moving an operating room table at work. At the time of her work injury, she was under active medical treatment related to prior automobile accidents and was treating with several physicians, and her post-accident treatment continued with these physicians, as well as orthopedists, pain management doctors, a neurologist, two psychologists, and a psychiatrist. Although initially placed on light duty at work, she eventually received a “no-work” restriction and began receiving weekly indemnity benefits, medical treatment, and prescription medicine coverage.

Although her treating physician had not released her for work, claimant underwent a functional capacity evaluation that found her capable of light to light-medium duty work with certain restrictions, and claimant’s benefits were reduced. Claimant then filed a disputed claim for compensation. The workers’ compensation judge found that claimant was not entitled to total disability or supplemental earnings benefits because she had not borne her burden of proof. Claimant appealed.

On appeal, the court noted several inconsistencies between claimant’s allegations and the evidence in the record. Although claimant’s treating physician claimed claimant could not sit still for more than 30 minutes, the physician also acknowledged that this information came from claimant, and claimant in fact sat through the physician’s hour and a half deposition with no reported discomfort and little visible posture changes. Additionally, the court noted that claimant drove 35 minutes to the office of an independent medical examiner with no reported issues and sat and stood comfortably for periods exceeding 30 minutes. Accordingly, the appeals court found the trial court justified in finding the treating physician presumption rebutted by the IME physician and employer’s choice of doctor, both of whom had seen claimant only once.

As regards claimant’s supplemental earnings benefits, the appeals court again affirmed the trial court’s denial. The court found that claimant failed to show that she could not earn 90% or more of her pre-accident wage due to disability as is required for supplemental earnings benefits. Instead, the court observed that claimant allowed her nursing license to expire, which caused her to decline to apply for several nursing jobs that may have been appropriate, though claimant did renew her radiologic technician license. The court noted that the nursing license renewal required only a doctor’s letter and continuing education units, while the radiologic technician license would require her to retake board examinations had it lapsed. The court found that this discrepancy cast doubt on claimant’s assertions that she could not renew her nursing license.