Backest v. Service Tool Co.

687 So. 2d 620, 1997 La. App. LEXIS 76, 1997 WL 20894
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1997
DocketNo. 29,130-CA
StatusPublished

This text of 687 So. 2d 620 (Backest v. Service Tool Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Backest v. Service Tool Co., 687 So. 2d 620, 1997 La. App. LEXIS 76, 1997 WL 20894 (La. Ct. App. 1997).

Opinion

IxPEATROSS, Judge.

In this worker’s compensation action, Service Tool Co., Inc. and Louisiana Workers’ Compensation Corporation appeal from a partial summary judgment in which the Office of Workers’ Compensation Hearing Officer found claimant Gary Backest entitled to supplemental earning benefits for 15 months. We amend to reflect a corrected stipulation by the parties and affirm as amended.

FACTS

Gary Backest is employed as a tool salesman for Service Tool Company, Inc. (“Service.”) On June 26,1993, he injured his back [621]*621while lifting samples out of the trunk of his car. Backest has not missed any time from work, but he has suffered a loss in production. His loss in production is attributed to his inability to carry as many sample tools and to drive as long between stops as he could before the accident. Backest is a commission-only salesman, therefore, this loss of production has resulted in a reduction in wages.

Backest filed a claim for supplemental earnings benefits (“SEB”). Louisiana Workers’ Compensation Corporation (“LWCC”), the worker’s compensation carrier for Service, began paying SEB. LWCC calculated the post-injury wages using a formula which differs from the formula used to calculate the pre-injury wages. Backest filed a motion for a partial summary judgment asking the Office of Workers’ Compensation Administration to rule that, as a matter of law, when post-injury wages consist entirely of commissions, they should be calculated by the formula prescribed by statute to be used in calculating pre-injury wages. The Hearing Officer agreed and rendered a partial summary judgment to that effect on April 4, 1996 1

^Finding no manifest error in the Worker’s Compensation Hearing Officer’s ruling, we amend and affirm as amended.

DISCUSSION

Appellants, Service and LWCC, argue that the hearing officer erred in the calculation of post-injury earnings in determining Back-est’s entitlement to SEB. They make the following assignments of error: (1) the hearing officer’s finding that the law was silent on the subject of the determination of post-injury wages; (2) the hearing officer’s ruling on Backest’s entitlement to SEB based upon equity; (3) the hearing officer’s failure to follow the rules of statutory interpretation as outlined in the Louisiana Civil Code; and (4) the hearing officer’s determination that Backest was entitled to SEB for 15 months.

An employee is entitled to the recovery of SEB if, as a result of work-related disability, he is unable to earn at least 90% of his pre-injury wage. The determination of the amount of SEB payments due an injured worker is governed by LSA-R.S. 23:1221(3)(a) and (b), which read, in pertinent part, as follows:

(a) For injury resulting in the employee’s inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter .... Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10).
(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain, (emphasis added)

|aThe above-quoted statute refers to R.S. 23:1021(10) for the definition of the average weekly wage. Since Backest is a salesman paid only on commission, subsection LSA-R.S. 23:1021(10)(d) is applicable to Backest and reads, in pertinent part, as follows:

(10) ‘Wages” means average weekly wage at the time of the accident.

The average weekly wage shall be determined as follows:

(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings [622]*622from, the employer for the twenty-six week period, immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four, .... (emphasis added)

As LSA-R.S.23:1221(3)(a) states, to determine entitlement to SEB, a comparison is to be made of the “the average monthly wages at time of injury” and the “average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter.” The statute further indicates that “average monthly wages” shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10). In calculating SEB in most instances, the comparison is not problematic, because actual pre-injury wages can be compared to actual post-injury wages. In cases such as this one, however, which require the calculation of SEB for a worker paid by commission, difficulties arise because, while the above-mentioned statute provides a definition of “average monthly wages” for pre-injury earnings, no definition of post-injury “average monthly wages” is provided for workers in that category.

Appellants argue that the law is not silent on the subject of post-injury earnings, but that in the determination of entitlement to SEB the legislative intent was that the actual gross post-injury earnings of the claimant be compared to ninety percent of the statutorily-defined pre-injury “average monthly wage” of the claimant. They argue that while the language “average monthly wages at the time Uof the injury” is statutorily defined in LSA-R.S.23:1021(10), the language “average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter” was purposely given no definition by the legislature. Appellants further argue that the effect of the method adopted by the Hearing Officer, to calculate post-injury earnings in the same manner as pre-injury earnings, is to reduce Backest’s monthly income below the amount he actually earned, contrary to the only reasonable interpretation of LSA-R.S. 23:1221(3)(b).

Baekest counters that the amount determined to be the pre-injury “average weekly wage , as defined by statute, is significantly lower than his actual gross pre-injury earnings. He argues, therefore, that to compare the pre-injury “average weekly wage” as defined by statute to the actual gross earnings post-injury is to compare “apples to oranges.” Such a comparison, Baekest urges, is contrary to well settled principles of worker’s compensation law, which require the laws to be liberally construed in favor of the injured employee. He contends that the law is silent on the subject of the calculation of post-injury wages and that the hearing officer’s approach was a fair and reasonable interpretation of the law. He further argues that LSA-R.S. 23:1221(3)(b), when read in pari materia with the rest of the Act, is meant to defeat abuse in a situation in which an injured worker is actually being paid more than he is capable of earning and does not reflect a legislative intent to have actual post-injury wages used in the calculation of SEB.

It is well established that the workers’ compensation act is remedial in nature. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993).

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645 So. 2d 260 (Louisiana Court of Appeal, 1994)
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Pinkins v. Cardinal Wholesale Supply, Inc.
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Bluebook (online)
687 So. 2d 620, 1997 La. App. LEXIS 76, 1997 WL 20894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/backest-v-service-tool-co-lactapp-1997.