Louisiana’s Second Circuit Court of Appeal recently considered a workers’ compensation judge’s (WCJ) denial of worker’s claim for total permanent disability. In Smith v. Highlines Const. Co., Inc., an employee was injured while moving steel panels at work for Highlines. The employee felt immediate neck and left upper extremity pain. After 520 weeks of indemnity payments and medical benefits, a dispute arose as to how the claimant’s prescriptions were to be filled. The claimant filed a disputed claim for compensation against Highlines on July 15, 2013, and on September 5, 2013, the insurer gave notice of termination of benefits because of the 520 weeks of indemnity payments. The employee then amended his claim to argue that he was totally and permanently disabled. The WCJ rejected the permanent total disability (PTD) claim, and the matter was appealed.

The appellate court first noted that a claimant seeking PTD benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. The court also noted that, following the 1983 amendments to the workers’ compensation statute, evidence that an employee could not return to any gainful employment without suffering substantial pain was no longer sufficient to support an award of permanent total disability benefits. With these precepts in mind, the court began reviewing the record before it. The court shaped its opinion around treatment by a pain management specialist. Forebodingly, the court noted that, at his initial visit with the specialist 17 months post-accident, the employee reported that he had retired on workers’ compensation. Two years after this initial visit, the specialist noted that the employee could be released to sedentary work. Although a subsequent functional capacity examination (FCE) purported to find that the employee, in 2014, was not suitable to return to work, the specialist, at deposition, could not say, more probably than not, that the employee could not return to a sedentary type of job. He repeated this statement at a second deposition.

Based upon the pain management specialist’s opinion, the court found that the employee did not show by clear and convincing evidence that he was unable to engage in any type of employment.

Smith v. Highlines Const. Co., Inc.