STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 11-748
BILLY CARRIER
VERSUS
CITY OF EUNICE
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 08-05423 SAM L. LOWERY, WORKERS COMPENSATION JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.
AFFIRMED AS AMENDED.
John Fayne Wilkes, III Borne & Wilkes, L.L.P. P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 COUNSEL FOR DEFENDANT-APPELLEE: City of Eunice
Michael Benny Miller Miller & Miller P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF-APPELLANT: Billy Carrier PICKETT, Judge.
The claimant-appellant, Billy Carrier, appeals the judgment of the workers’
compensation judge (WCJ), arguing that the judgment contains certain omissions and
that the award of attorney fees is abusively low. The employer, City of Eunice, has
answered the appeal, arguing that the claimant’s benefits should be changed from
temporary total disability benefits (TTDs) to supplemental earnings benefits (SEBs),
and that the attorney fees awarded are too high. The city also seeks damages for
frivolous appeal.
STATEMENT OF THE CASE
Carrier was injured while in the course and scope of his employment with the
City of Eunice on February 20, 2006. While the City of Eunice initially paid benefits,
several disputes arose beginning in 2008. These included the proper calculation of
benefits, the City of Eunice’s alleged failures to make certain payments or late
payments, whether Carrier was actually injured on the job, and Carrier’s cooperation
with the vocational rehabilitation specialist.
The parties negotiated agreements on most of these matters before trial,
including the fact that Carrier was in the course and scope of his employment when he
was injured. The City of Eunice acknowledged paying $8,000.00 in penalties before
trial. The issues presented for determination at the hearing on September 13, 2010,
were: (1) calculation of average weekly wage benefit; (2) attorney fees due to Carrier;
and (3) whether Carrier’s benefits should be converted from TTD benefits to SEBs.
The judgment in the case was delayed pending the supreme court’s opinion in
Hargrave v. State of Louisiana through the Department of Transportation and
Development, 10-1044 (La.1/19/11), 54 So.3d 1102. The WCJ issued a judgment on March 3, 2011, setting the average weekly wage, awarding $10,000.00 in attorney
fees, and ordering a face-to-face meeting between Carrier and a vocational
rehabilitation specialist. The WCJ found the issue of the conversion of benefits was
premature, pending the results of the rehab consultation.
Both parties appeal the judgment of the WCJ.
ASSIGNMENTS OF ERROR
Carrier asserts five assignments of error:
1. The workers’ compensation judge failed to include in the judgment that Mr. Billy Carrier was injured in the course and scope of his employment with the City of Eunice on February 20, 2006.
2. The workers’ compensation judge erred in failing to include in the judgment the $8,000.00 award for penalties, subject to a credit for the payment made by defendant of $8,000.00
3. The attorney fee awarded by the workers’ compensation judge was unreasonably low.
4. The workers’ compensation judge erred in not including legal interest on all amounts due in the judgment.
5. It was error for the workers’ compensation judge to fail to award expenses in the judgment.
Answering the appeal, the City of Eunice asserts (1) that the WCJ erred in
failing to convert Carrier’s benefits from TTD benefits to SEB benefits; (2) that the
attorney fees award was abusively high and that Carrier is not entitled to additional
attorney fees for work done on appeal; and (3) Carrier’s appeal is frivolous and the
city is entitled to an award of attorney fees defending the appeal.
DISCUSSION
Carrier’s first two assignments of error have no merit. Before trial, the parties
stipulated that Carrier was injured in the course and scope of his employment and that
the City of Eunice had paid an $8,000.00 penalty to Carrier. The WCJ was not asked
to decide these issues, so there was no reason for the judgment to include findings on
either of the issues.
2 Carrier and the City of Eunice both argue that the WCJ abused his discretion in
awarding attorney fees. The amount of attorney fees rests within the discretion of the
WCJ, as long as it is supported by the record, and will not be disturbed on appeal
absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.
11/28/00), 773 So.2d 694. Factors considered in setting the attorney fee award
include the skill and ability of the attorney, the amount of the claim, the amount
recovered, and the time devoted by the attorney to the case. Id.
The only evidence in the record to support the attorney fee award in this case is
an affidavit from Carrier’s attorney indicating he worked 137 hours at a rate of
$225.00 an hour. We find that the WCJ did not abuse his discretion by not awarding
the full amount requested in the affidavit, as it is reasonable to find that there was
work performed by Carrier’s attorney that was not related to the disputed issues set for
trial or for which penalties were paid by the City of Eunice. Carrier’s third
assignment of error and the City of Eunice’s second assignment of error lack merit.
Next, Carrier seeks $781.70 for expenses. Like attorney fees, these amounts
are reviewed by this court for abuse of discretion. We find no abuse of discretion in
the omission of these amounts.
Finally, Carrier seeks interest on the amounts awarded in the judgment.
Specifically, he seeks interest on the attorney fees award. Because Carrier sought
attorney fees in his initial demand, he is entitled to legal interest from the date of the
judgment. See Hargrave v. State, Dep’t of Trans. and Dev., 09-818 (La.App. 3 Cir.
4/7/10), 35 So.3d 437, affirmed, 10-1044 (La.1/19/11), 54 So.3d 1102. Therefore, we
will amend the judgment to award legal interest on the attorney fees award from the
date of the judgment.
In its first assignment of error, the City of Eunice argues the WCJ should have
converted Carrier’s TTD benefits to SEBs. The manifest error standard of appellate
review governs this issue. Smith v. La. Dep’t of Corrections, 93-1305 (La. 2/28/94),
3 633 So.2d 129. The WCJ found that it was premature to convert the benefits and as
part of his judgment ordered additional vocational rehabilitation in an effort to resolve
the issue of whether Carrier was capable of returning to work. It is clear from the
WCJ’s reasons for ruling that he found the rehabilitation services provided to Carrier
were insufficient:
There’s no way that a reasonable, fair-minded person can look at both the transcript and the chronology of events and not conclude, or at least strongly suspect, that this vocational rehabilitation was conducted solely, totally, and completely in support of the employer’s motives and benefit. The entire exercise was self-serving for the employer and utterly useless for the worker.
I find it disingenuous for the defendant to complain that Mr. Carrier has been less than cooperative and enthusiastic in response to his vocational rehabilitation program which in my most charitable and expansive moments I’d describe as formulaic and bureaucratic.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 11-748
BILLY CARRIER
VERSUS
CITY OF EUNICE
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 08-05423 SAM L. LOWERY, WORKERS COMPENSATION JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.
AFFIRMED AS AMENDED.
John Fayne Wilkes, III Borne & Wilkes, L.L.P. P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 COUNSEL FOR DEFENDANT-APPELLEE: City of Eunice
Michael Benny Miller Miller & Miller P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF-APPELLANT: Billy Carrier PICKETT, Judge.
The claimant-appellant, Billy Carrier, appeals the judgment of the workers’
compensation judge (WCJ), arguing that the judgment contains certain omissions and
that the award of attorney fees is abusively low. The employer, City of Eunice, has
answered the appeal, arguing that the claimant’s benefits should be changed from
temporary total disability benefits (TTDs) to supplemental earnings benefits (SEBs),
and that the attorney fees awarded are too high. The city also seeks damages for
frivolous appeal.
STATEMENT OF THE CASE
Carrier was injured while in the course and scope of his employment with the
City of Eunice on February 20, 2006. While the City of Eunice initially paid benefits,
several disputes arose beginning in 2008. These included the proper calculation of
benefits, the City of Eunice’s alleged failures to make certain payments or late
payments, whether Carrier was actually injured on the job, and Carrier’s cooperation
with the vocational rehabilitation specialist.
The parties negotiated agreements on most of these matters before trial,
including the fact that Carrier was in the course and scope of his employment when he
was injured. The City of Eunice acknowledged paying $8,000.00 in penalties before
trial. The issues presented for determination at the hearing on September 13, 2010,
were: (1) calculation of average weekly wage benefit; (2) attorney fees due to Carrier;
and (3) whether Carrier’s benefits should be converted from TTD benefits to SEBs.
The judgment in the case was delayed pending the supreme court’s opinion in
Hargrave v. State of Louisiana through the Department of Transportation and
Development, 10-1044 (La.1/19/11), 54 So.3d 1102. The WCJ issued a judgment on March 3, 2011, setting the average weekly wage, awarding $10,000.00 in attorney
fees, and ordering a face-to-face meeting between Carrier and a vocational
rehabilitation specialist. The WCJ found the issue of the conversion of benefits was
premature, pending the results of the rehab consultation.
Both parties appeal the judgment of the WCJ.
ASSIGNMENTS OF ERROR
Carrier asserts five assignments of error:
1. The workers’ compensation judge failed to include in the judgment that Mr. Billy Carrier was injured in the course and scope of his employment with the City of Eunice on February 20, 2006.
2. The workers’ compensation judge erred in failing to include in the judgment the $8,000.00 award for penalties, subject to a credit for the payment made by defendant of $8,000.00
3. The attorney fee awarded by the workers’ compensation judge was unreasonably low.
4. The workers’ compensation judge erred in not including legal interest on all amounts due in the judgment.
5. It was error for the workers’ compensation judge to fail to award expenses in the judgment.
Answering the appeal, the City of Eunice asserts (1) that the WCJ erred in
failing to convert Carrier’s benefits from TTD benefits to SEB benefits; (2) that the
attorney fees award was abusively high and that Carrier is not entitled to additional
attorney fees for work done on appeal; and (3) Carrier’s appeal is frivolous and the
city is entitled to an award of attorney fees defending the appeal.
DISCUSSION
Carrier’s first two assignments of error have no merit. Before trial, the parties
stipulated that Carrier was injured in the course and scope of his employment and that
the City of Eunice had paid an $8,000.00 penalty to Carrier. The WCJ was not asked
to decide these issues, so there was no reason for the judgment to include findings on
either of the issues.
2 Carrier and the City of Eunice both argue that the WCJ abused his discretion in
awarding attorney fees. The amount of attorney fees rests within the discretion of the
WCJ, as long as it is supported by the record, and will not be disturbed on appeal
absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.
11/28/00), 773 So.2d 694. Factors considered in setting the attorney fee award
include the skill and ability of the attorney, the amount of the claim, the amount
recovered, and the time devoted by the attorney to the case. Id.
The only evidence in the record to support the attorney fee award in this case is
an affidavit from Carrier’s attorney indicating he worked 137 hours at a rate of
$225.00 an hour. We find that the WCJ did not abuse his discretion by not awarding
the full amount requested in the affidavit, as it is reasonable to find that there was
work performed by Carrier’s attorney that was not related to the disputed issues set for
trial or for which penalties were paid by the City of Eunice. Carrier’s third
assignment of error and the City of Eunice’s second assignment of error lack merit.
Next, Carrier seeks $781.70 for expenses. Like attorney fees, these amounts
are reviewed by this court for abuse of discretion. We find no abuse of discretion in
the omission of these amounts.
Finally, Carrier seeks interest on the amounts awarded in the judgment.
Specifically, he seeks interest on the attorney fees award. Because Carrier sought
attorney fees in his initial demand, he is entitled to legal interest from the date of the
judgment. See Hargrave v. State, Dep’t of Trans. and Dev., 09-818 (La.App. 3 Cir.
4/7/10), 35 So.3d 437, affirmed, 10-1044 (La.1/19/11), 54 So.3d 1102. Therefore, we
will amend the judgment to award legal interest on the attorney fees award from the
date of the judgment.
In its first assignment of error, the City of Eunice argues the WCJ should have
converted Carrier’s TTD benefits to SEBs. The manifest error standard of appellate
review governs this issue. Smith v. La. Dep’t of Corrections, 93-1305 (La. 2/28/94),
3 633 So.2d 129. The WCJ found that it was premature to convert the benefits and as
part of his judgment ordered additional vocational rehabilitation in an effort to resolve
the issue of whether Carrier was capable of returning to work. It is clear from the
WCJ’s reasons for ruling that he found the rehabilitation services provided to Carrier
were insufficient:
There’s no way that a reasonable, fair-minded person can look at both the transcript and the chronology of events and not conclude, or at least strongly suspect, that this vocational rehabilitation was conducted solely, totally, and completely in support of the employer’s motives and benefit. The entire exercise was self-serving for the employer and utterly useless for the worker.
I find it disingenuous for the defendant to complain that Mr. Carrier has been less than cooperative and enthusiastic in response to his vocational rehabilitation program which in my most charitable and expansive moments I’d describe as formulaic and bureaucratic.
The WCJ found that the medical evidence did show that Carrier could possibly
engage in some employment. Thus, he ordered face-to-face meetings with a
vocational rehabilitation counselor to determine what type of work, if any, Carrier
could perform, taking into account not only his physical condition but also his skills
and mental abilities. We find no manifest error in the determination of the WCJ’s
order or in his decision to delay ruling on the issue of conversion to SEBs until after
proper vocational rehabilitation had been accomplished. This assignment of error
lacks merit.
In response to the City of Eunice’s request that we award damages for frivolous
appeal, we find that Carrier was successful, at least partially, in his appeal. Thus, we
find no merit in the argument that the appeal is frivolous.
Finally, Carrier seeks attorney fees for work done on appeal. Given that he was
partially successful in his appeal and that he successfully defended the answer to the
appeal, we award $2,000.00 for work done on appeal.
4 CONCLUSION
The judgment of the WCJ is amended to include an award of legal
interest on the attorney fees awarded to Carrier from the date of the judgment below.
In all other respects, the judgment of the WCJ is affirmed. We award additional
attorney fees to Carrier in the amount of $2,000.00. Costs of this appeal are assessed
to the City of Eunice in the amount of $2,373.18