The September 12, judgment was affirmed in all respects by this court in a previous appeal. See Id. The issue of Mr.
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Poole's benefits was revisited in when the defendants sought and were granted a motion for summary judgment. Poole after February 14, See La. The judgment expressly modified all previous judgments, including but not limited to the judgment. Poole continued to receive medical benefits and vocational rehabilitation services after the issuance of the February 27, judgment.
On June 2, , Mr. Poole initiated the disputed claim for compensation at issue in the instant appeal. At the close of Mr. Poole's case, counsel for the defendants presented an oral motion for involuntary dismissal pursuant to La. In granting the dismissal, the WCJ found merit in the defendants' assertion that Mr. Poole had failed to prove a change in his condition sufficient to change the category of benefits to which he was entitled, and failed to demonstrate by clear and convincing evidence that he was permanently and totally disabled. Poole], that is the category that he continues to be in.
Poole could perform. Further, the WCJ found that Mr.
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Poole had failed to make any effort to secure employment. Relevantly, the WCJ expressly found that Mr. A judgment was signed by the WCJ on April 29, , granting the motion for involuntary dismissal and dismissing the captioned matter with prejudice. The judgment provides, in pertinent part:. Poole now appeals the April 29, judgment. Poole filed the instant appeal asserting multiple assignments of error to the WCJ's judgment.
Generally, Mr. Poole challenges the scope of the judgment as overly broad, the WCJ's finding that Mr.
Poole was not credible, and WCJ's failure to find that Mr. Poole had proven a change in condition as well as entitlement to PTD benefits. Poole alternatively challenges the WCJ's failure to consider his entitlement to TTD benefits or further vocational rehabilitation. Poole also assigns error to the WJC's rulings regarding the admission of certain medical evidence at trial and his ability performing a video monitoring job. Upon the motion of any party in interest, on the ground of a change in conditions, the workers' compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
Within the scheme of the workers' compensation law, the concept of modification set forth in La. FARA, — La. In his first assignment of error, Mr. Poole asserts that the April 29, judgment is overly broad and goes beyond the single issue raised in his amended disputed claim for compensation regarding whether he was entitled to modify his award and receive PTD benefits.
In particular, Mr. As noted above, the revision of indemnity awards under the workers' compensation scheme is flexible and open to revision, and review of any award can be initiated by the filing of Form , as was done herein. See Gabriel v. Lafourche Parish Water Dist. Further, because medical benefits awards are separate from indemnity awards, there is nothing to prohibit a WCJ from hearing and ruling solely on the issue of indemnity benefits without affecting medical expense benefits.
See Roussell v. Tammany Parish School Bd. The scope of the proceeding herein was limited to the claims for change in condition and PTD eligibility asserted by Mr. Poole in his amended disputed claim for compensation as well as the parties' pre-trial statements. The judgment clearly provides that it is granting the motion for involuntary dismissal and dismissing the claim asserted with prejudice as required by La. We find no legal or factual merit in this assignment of error.
Whenever a claimant seeks to modify an earlier indemnity award, he must prove by a preponderance of the evidence that there had been a change in his condition. The factual finding of the WCJ as to whether the claimant has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong.
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Guy Hopkins Construction Co. Under La. The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence. Iberia Medical Center v. Ward, La. Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, La.
A finding of disability is a legal determination reached by the trier of fact based upon consideration of a totality of the evidence, both lay and medical testimony. See Batiste v. Tenet Healthcare Corp. Under the totality of the evidence other factors besides purely physical limitations should be considered in determining status as permanently and totally disabled.
Factors considered include whether the injured employee could reasonably be given training or education that would raise him to an employable status. See Comeaux v.
City of Crowley, La. Since a determination regarding disability is a question of fact, it cannot be reversed in the absence of manifest error. Batiste, 35 So. The manifest error test requires that a reviewing court determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State through Dept. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.
Rosell v. ESCO, So. Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Poole contends that he demonstrated a change in his condition since through medical evidence as well as his own testimony establishing an increase in physical limitations and pain. As to the denial of his claim for PTD benefits, Mr.
Poole argues the totality of the circumstances demonstrate that he is permanently and totally disabled. Essentially, Mr.
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According to Mr. Poole, his inability to be rehabilitated renders him permanently and totally disabled. Poole failed to prove a change in condition or in the WCJ's finding that Mr. Poole not did prove by clear and convincing evidence that he qualified for PTD benefits. The relevant medical evidence presented at trial provided an overview of Mr. Poole's condition at the time of the judgment as well as prior to the determination on appeal herein. The physicians who examined Mr. Pool prior to the September hearing, Dr.
George Jiha and Dr. Gray Barrow, both found him to be able to return to sedentary or light duty work. Further, Dr. Jiha found that Mr. Pool was at maximum medical improvement, stating he did not anticipate any worsening of Mr.
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Poole's condition. The medical records evidencing Mr. Poole's condition at the time of the hearing included a report by and the deposition of Dr. Neil Romero, an orthopedic surgeon selected by Mr. Poole, the IME report of Dr. John R. Poole's treating physician, Dr.
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Daniel Hodges. All three physicians reviewed and rendered an opinion on the results of a March MRI that revealed a 2 millimeter retrolisthesis of L3 and L4. The MRI was performed following subjective reports of increased pain by Mr.