Essential Elements to Prove Wage Earning Capacity at Trial

In the recent 4th Circuit case of Prevost v. City of New Orleans Fire Department, No. 2024-CA-0115, 10/04/2024, the appellate court affirmed the ruling in favor of a firefighter finding that the employer failed to meet its burden of proving that the alternative jobs located by the vocational counselor were available at the time claimant was notified of the jobs.

At trial the claimant testified that the vocational counselor provided him with 3 sedentary job leads that were approved by his doctor.? He applied for all 3 positions, but did not get the job.?

96-2840, pp. 10-11 (La. 7/1/97), 696 So.2d 551, 557. NOFD argued that it had met these minimum requirements by offering the three potential jobs as presented to and approved by Dr. Waring and by pointing to the testimony elicited from Mr. Prevost at the OWC hearing.

However, employer presented no evidence that the job leads submitted to claimant were open and available at the time claimant was notified.? The fact that these employers accepted claimant’s application is not proof that the job position was still open.? Since the burden of proving this remained with employer, and no evidence on this issue was presented at trial, the court found that employer did not meet its burden of proving wage earning capacity.? The judgment awarding past due compensation at the full rate, along with penalties and attorney fees, was affirmed on appeal.