Broussard v. Lafayette Parish School Bd.

939 So. 2d 662, 6 La.App. 3 Cir. 268, 2006 La. App. LEXIS 2184, 2006 WL 2773821
Louisiana Court of Appeal·Decided September 27, 2006·No. 2006-268·Published·Cited by 7 cases

Opinion

939 So.2d 662 (2006)

Dianna BROUSSARD
v.
LAFAYETTE PARISH SCHOOL BOARD.

No. 2006-268.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

*665 Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellee—Dianna Broussard.

Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellant— Lafayette Parish School Board.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.

THIBODEAUX, Chief Judge.

Defendant, Lafayette Parish School Board (LPSB), appeals the judgment of the Office of Workers' Compensation (OWC) which assessed penalties and attorney fees against LPSB for violating the OWC judgment which both increased the weekly compensation benefits owed to plaintiff, Dianna Broussard (Ms. Broussard), and made those increased payments "payable until further order of this court." Ms. Broussard, in answering the appeal, asks for judicial interest on the penalties and attorney fees and for additional attorney fees for defending this appeal. For the following reasons, the judgment of the OWC is affirmed, and judicial interest and additional attorney fees of $3,000.00 are awarded to Ms. Broussard.

I.

ISSUE

LPSB implores us to consider whether:

1. the OWC committed manifest error when it assessed $3,000.00 in penalties, $2,500.00 in attorney fees, and court costs against LPSB for unilaterally terminating Ms. Broussard's weekly compensation benefits without first seeking an order of the OWC?;
2. the OWC committed manifest error by assessing $5,040.00[1] in penalties against LPSB for paying a previous judgment untimely?; and,
3. subsection La.R.S. 23:1201(F) of the Louisiana Workers' Compensation Act limits all penalties awarded in this case to a total of $8,000.00?

In her answer to this appeal, Ms. Broussard seeks interest on the awards of penalties and attorney fees and desires additional attorney fees for work done at the appellate level.

II.

FACTS

Ms. Broussard was a full-time employee of LPSB in December of 1998. She worked as a food service technician at Carencro Middle School. She injured her back in a work-related accident and has not worked since April 8, 1999.

Ms. Broussard filed a disputed claim for compensation benefits on March 9, 2000. Ms. Broussard sought an increase in her weekly compensation benefits retroactive *666 to the date she was first eligible to receive those benefits and penalties and attorney fees against LPSB. On June 11, 2003, the OWC rendered judgment and ordered LPSB to increase Ms. Broussard's weekly compensation benefits retroactive to the initial period of disability. The OWC also ordered LPSB to continue paying those temporary total disability (TTD) benefits "until further order of this court, together with interest as provided by law and all costs of this suit."

LPSB never increased Ms. Broussard's weekly compensation benefits in compliance with the June 11, 2003 judgment, nor did it pay the retroactive amount owed to her based on the newly calculated weekly compensation benefit determined by the OWC in the June 11, 2003 judgment until December 14, 2004.

On May 14, 2004, LPSB terminated Ms. Broussard's weekly compensation benefits without first filing a motion to do so with the OWC. LPSB reasoned that it was authorized to unilaterally terminate Ms. Broussard's TTD benefits by the language of La.R.S. 23:1221(1)(d), which states that TTD benefits shall cease when the employee's condition has resolved itself such that regular treatment by a physician is no longer required.

On September 14, 2004, Ms. Broussard filed a motion for penalties and attorney fees against LPSB for nonpayment of the June 11, 2003 OWC final judgment, and for unilaterally terminating Ms. Broussard's TTD benefits without first obtaining an order of the OWC allowing it to do so. The OWC ordered LPSB to pay $5,040.00 in penalties for failing to pay the June 11, 2003 judgment timely and $3,000.00 in penalties for terminating Ms. Broussard's TTD benefits. LPSB was also ordered to pay $2,500.00 in attorney fees to Ms. Broussard and to pay all court costs.

III.

LAW AND DISCUSSION

Standard of Review

It is well established that the factual findings in a workers' compensation proceeding are subject to the manifest error/clearly wrong standard of review: "`[t]he determination of whether an employer should be cast with penalties and attorney fees is a question of fact which should not be reversed absent manifest error.' Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, 196, writ denied, 05-278 (La.4/1/05), 897 So.2d 611 (citing Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144)." Romero v. Garan's, Inc., 05-1297, pp. 3-4 (La.App. 3 Cir. 4/19/06), 929 So.2d 258, 261.

Terminating TTD Benefits

Ms. Broussard's weekly benefits were unilaterally terminated by LPSB without first seeking a modification of the extant June 11, 2003 OWC order mandating the payment of weekly TTD benefits. LPSB argues that it was acting under the authority of a specific section of the Louisiana Workers' Compensation Act which allows for the cessation of benefits when the claimant is proven to be no longer disabled and therefore able to return to some form of employment. LPSB specifically cites La.R.S. 23:1221(1)(d). That statute reads:

(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the *667 point that continued, regular treatment by a physician is not required.

LPSB ignores the fact that a previous order of the OWC was still in effect at the time of its unilateral termination of Ms. Broussard's TTD benefits. Regardless of LPSB's interpretation of this subsection of the statute, Louisiana courts have stated consistently that an employer may not unilaterally terminate benefits if those benefits were instituted by a previous order of the OWC. As an example, we have said, "[t]his court and our brethren of the Fourth Circuit have frowned upon an employer's unilateral termination of benefits despite a judgment of disability or an award of benefits by the Office of Worker's Compensation." Fusilier v. Liberty Rice Mill, Inc., 569 So.2d 1050, 1055 (La.App. 3 Cir. 11/7/90).

It is difficult to fathom an act more arbitrary than disregarding a court order. "A judgment must be given full effect whether it is the result of a judicial determination or the consent of the parties." Lewis v. Cornerstone Vill., Inc., 02-1162, p. 3 (La.App. 3 Cir. 5/21/03), 846 So.2d 970, 972, writ denied, 03-1790 (La.10/10/03), 855 So.2d 347.[2] A workers' compensation judge has continuing jurisdiction over a dispute and may modify previously-issued orders pursuant to La.R.S. 23:1310.8 which, in pertinent part, states:

§ 1310.8. Jurisdiction continuing; determining as to final settlement
A.

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Broussard v. Lafayette Parish School Bd., 939 So. 2d 662, 6 La.App. 3 Cir. 268, 2006 La. App. LEXIS 2184, 2006 WL 2773821 (La. Ct. App. 2006).

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