Appellate Court Holds that Employer Had Not Proffered Excluded Testimony as Required by Louisiana Law and Affirms Judgment in Favor of Injured Employee

In an appeal before the Louisiana Fifth Circuit, the court reviewed an award of supplemental earnings benefits in favor of an injured employee. The court analyzed evidentiary rules and specifically whether the Office of Workers’ Compensation had properly excluded a vocational rehabilitation expert from testifying as an expert and refused to admit her report into evidence.


Dawn McMillion worked as a registered nurse for East Jefferson General Hospital, and she injured her elbow against a doorframe while exiting a hospital medication room.  She reported the accident to the hospital that day, and less than one month later, she began receiving temporary total disability payments.

Supplemental Earnings Benefits

Eventually, Ms. McMillion filed a Disputed Claim for Compensation against the Hospital, on the ground that they wrongfully terminated her supplemental earnings benefits under the presumption that they had offered her meaningful vocational rehabilitation.

At the trial, Ms. McMillion’s attorney made a Motion to Strike Evidence and Witnesses, seeking to exclude Ms. Rhodes’ testimony and any documentation related to Ms. McMillion’s company.

The Office of Workers’ Compensation (OWC) rendered its judgment and held that Ms. McMillion met her burden of showing she was unable to earn 90% or more of her average pre-injury wages.  The OWC had actually determined that the Hospital showed jobs existed within Ms. McMillion’s physical capabilities and geographical region, but the Hospital failed to show the amount of wages Ms. McMillion could earn at any of the jobs, or that a particular job was available when Ms. McMillion received notification.

Since the Hospital had not met their evidentiary burden, the OWC awarded Ms. McMillion supplemental earnings benefits for 26 weeks at $605 per week.  The Hospital appealed, alleging that the court erred in excluding Ms. Rhodes’ expert testimony and vocational rehabilitation reports at trial.

Appellate Court Reviews Records

First, the appellate court reviewed the record, noting that the Hospital had not attempted to proffer the excluded expert testimony or documentation provided by Ms. Rhodes.  The appellate court stated that on review of evidence deemed inadmissible by the trial court, the rule is that the party contending that the evidence was improperly excluded must make a proffer. If they do not, they cannot contend that the exclusion was erroneous.  Here, the appellate court stated that neither Ms. Rhodes’ expert testimony nor her vocational rehabilitation reports were proffered by the Hospital at the trial. The appellate court therefore could not ascertain which evidence the Hospital intended to introduce to the OWC through expert testimony.

The appellate court stated they could not determine if the evidence that had been excluded would have met the Hospital’s burden of showing the amount of wages Ms .Million could have been expected to earn, or that a position was available for a job at the time Ms. McMillion received notification from Ms. Rhodes.  The Hospital had not proffered either Ms. Rhodes’ expert testimony or the vocational rehabilitation reports, so the appellate court stated they could not address the merits of their assignment of error on appeal.

The court affirmed the OWC’s judgment in favor of Dawn McMillion and against the Hospital.

At Lavis Law, individuals injured in the course and scope of their employment can gain a better understanding of their rights under Louisiana workers’ compensation law.  We help injured workers and their families pursue compensation for work-related injuries. Contact our office for a free consultation at 866-855-9151.

More Blog Posts:

Louisiana Appellate Court Affirms Judgment in Favor of Employee Who Inadvertently or Inconsequentially Misrepresented Previous Back and Neck Issues, Louisiana Insurance & Injury Lawyer Blog

Louisiana Appellate Court Affirms Finding that Injured Airplane Mechanic Offered Credible Testimony of His Work-Related Accident and Suffered Compensable Injury, Louisiana Insurance & Injury Lawyer Blog

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