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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #015 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 17th day of March, 2009, are as follows:

BY KNOLL, J.:

2008-C -0399

ARTHUR SNOWTON v. SEWERAGE AND WATER BOARD Calogero, C.J. retired, recused. Chief Justice Calogero recused himself after oral argument, and he has not participated in the deliberation of this case. For the foregoing reasons, we find the court of appeal did not err in refusing to refer this matter to a five-judge panel for reargument and affirm the judgment of the court of appeal reversing the judgment of the OWC. Case remanded to the OWC in keeping with the Court of Appeal opinion. AFFIRMED and REMANDED. JOHNSON, J., dissents and assigns reasons.

03/17/09

SUPREME COURT OF LOUISIANA NO. 08-C-399 ARTHUR SNOWTON VERSUS SEWERAGE AND WATER BOARD ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, OFFICE OF WORKERS' COMPENSATION DISTRICT 08

KNOLL, Justice* We granted writs in this Workers' Compensation case primarily to address whether it is procedurally necessary to have reargument before a five-judge panel in the Court of Appeal for a reversal of an Office of Workers' Compensation ("OWC") judgment. Plaintiff, Arthur Snowton, filed a disputed claim for compensation with the OWC against his employer, the Sewerage and Water Board of New Orleans ("SWB"). The OWC hearing officer rendered judgment in plaintiff's favor. The court of appeal reversed in a 2-1 decision and subsequently denied rehearing, implicitly denying plaintiff's request to refer this matter to a five-judge panel for consideration. For the following reasons, we find the court of appeal did not err in

Calogero, C. J., retired, recused. Chief Justice Calogero recused himself after oral argument, and he has not participated in the deliberation of this case.

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its refusal to refer this matter to a five-judge panel for reargument and affirm the judgment of the Court of Appeal reversing the judgment of the OWC. FACTS AND PROCEDURAL HISTORY On August 15, 2000, plaintiff, a laborer with the SWB, sustained injury to his back while attempting to lift a manhole cover in the course and scope of his employment. Plaintiff was diagnosed with a L4-L5 disc herniation with

radiculopathy for which he subsequently underwent a lumbar laminectomy in October 2000. After the accident, the SWB began paying plaintiff temporary total disability ("TTD") benefits, which benefits were discontinued in November 2003 after the SWB identified other available employment for plaintiff1 and began paying supplemental earning benefits ("SEB"). Plaintiff, thereafter, filed a disputed claim for

compensation with the OWC, asserting the SWB miscalculated his TTD benefits. As a result, plaintiff also sought penalties and attorney's fees. The SWB filed an answer and reconventional demand, asserting that plaintiff was not entitled to SEB because he was able to earn 90 percent of his pre-accident wage. Consequently, the SWB sought a return of the SEB it had paid to plaintiff. This matter proceeded to a hearing before an OWC hearing officer. The parties stipulated that plaintiff had suffered a work-related injury, but disputed his claim for

The SWB identified several jobs, including equipment operator, office assistant, parking control officer, groundskeeper with the SWB, a grounds maintenance worker, counter helper at a Tshirt shop, a lube technician at a car wash, and a badge checker with a security company. 2

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continued benefits after reaching maximum medical improvement. The disputed issues specifically involved whether plaintiff was capable of working, under what restrictions, and whether such a job was available. At the conclusion of the hearing, the OWC hearing officer rendered judgment in favor of plaintiff finding (1) that plaintiff was entitled to reimbursement for TTD benefits after the SWB miscalculated his pre-injury wages and to the presumption of a forty-hour work week; (2) that plaintiff was entitled to an award of penalties and attorney's fees, based on the SWB's miscalculation; and (3) that plaintiff was entitled to SEB at a zero earnings rate with no credit to his employer for unearned wages, because the employer failed to identify available employment suitable to plaintiff's physical and cognitive limitations. The SWB appealed, and the Court of Appeal, Fourth Circuit reversed in a 2-1 decision. Snowton v. Sewerage and Water Board, 07-0677 (La. App. 4 Cir. 12/5/07), 972 So.2d 417. The appellate court majority found that the hearing officer erred (1) in concluding plaintiff was entitled to SEB after he reached maximum medical improvement as the record supported the conclusion that plaintiff was capable of working in at least two positions offered to him and each job would have paid him more than 90 percent of his pre-accident wage; (2) in applying the forty-hour work week presumption as the SWB presented sufficient evidence to rebut the presumption; and (3) in awarding penalties and attorney's fees in light of its finding that plaintiff was not entitled to SEB. Therefore, the court of appeal reversed the

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judgment of the OWC and remanded this matter for recalculation of benefits and credits. Plaintiff then requested rehearing and consideration by a five-judge panel of the court of appeal. While the appellate court did not specifically act on the motion for consideration, it denied rehearing. Plaintiff applied for writs to this Court, which we granted primarily to address the procedural issue of whether the court of appeal erred in not referring this matter to a five-judge panel in accordance with the provisions of La. Const. art. V,

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