Caparotti v. Shreveport Pirates Football Club

768 So. 2d 186, 2000 La. App. LEXIS 2068, 2000 WL 1192787
CourtLouisiana Court of Appeal
DecidedAugust 23, 2000
Docket33,570-WCA
StatusPublished
Cited by21 cases

This text of 768 So. 2d 186 (Caparotti v. Shreveport Pirates Football Club) 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
Caparotti v. Shreveport Pirates Football Club, 768 So. 2d 186, 2000 La. App. LEXIS 2068, 2000 WL 1192787 (La. Ct. App. 2000).

Opinion

768 So.2d 186 (2000)

Donald CAPAROTTI, Plaintiff-Appellant,
v.
SHREVEPORT PIRATES FOOTBALL CLUB, Defendant-Appellee.

No. 33,570-WCA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 2000.
Rehearing Denied September 21, 2000.

*188 Kevin L. Camel, Lake Charles, Counsel for Appellant.

Patricia L. Barfield, Baton Rouge, Counsel for Appellee.

Before WILLIAMS, GASKINS and CRIGLER (Pro Tempore), JJ.

WILLIAMS, Judge.

In this workers' compensation matter, the claimant, Donald Caparotti, appeals a judgment awarding him supplemental *189 earnings benefits (SEB) of $85.16 per week from August 1, 1997 through December 31, 1998, subject to a credit in favor of defendants for any previous payments. The workers' compensation judge (WCJ) found that the claimant's average weekly wage was $487.12, based on an annual salary of $25,330 with a current earning capacity of $18,687 per year. The defendants, Shreveport Pirates, Inc. and Louisiana Workers' Compensation Corporation (LWCC), answered the appeal alleging that the WCJ erred in overruling the exception of res judicata as to the average weekly wage and in awarding SEB. For the following reasons, we amend and affirm as amended.

FACTS

The claimant, Donald Caparotti, was employed as a professional football player for the 1994-95 season with the now defunct Shreveport Pirates of the Canadian Football League. The employment contract provided that the claimant would receive a base salary of $25,000 for the season. In September 1994, the claimant tore his right anterior cruciate ligament during a game. Claimant was treated by Dr. Goral. The parties agree that the claimant is unable to return to work as a professional football player.

Following the accident, the team's workers' compensation carrier, LWCC, began paying claimant weekly temporary total disability (TTD) benefits. While recovering from his injury, claimant moved back to his home in Maryland and decided to pursue a career as a personal physical fitness trainer. The claimant attended courses and obtained the required Maryland personal trainer license.

In July 1995, claimant began earning income as a personal fitness trainer. The LWCC claims representative, Annette Robinson, instructed claimant to report his earnings on LDOL Form 1020. The LWCC discontinued benefits from February 1996 to May 1996. Subsequently, the claimant filed his first disputed claim for benefits with the Office of Workers' Compensation. Prior to the hearing, the parties agreed that claimant was entitled to the maximum compensation rate of $323 per week. The LWCC agreed to pay the past due benefits with penalties and attorney fees. The claimant signed a "Receipt and Release" and the WCJ signed an order of dismissal, reserving the claimant's right to seek SEB and LWCC's right to seek a reduction in benefits.

LWCC hired Jamie Schenker, a vocational rehabilitation consultant from Maryland, to evaluate claimant's employment potential. Schenker met once with the claimant, who has a college degree in education and lives in Damascus, Maryland. Schenker performed a labor market survey to locate suitable jobs available to claimant and in September 1996 sent him notice of four positions, two of which were located in Washington, D.C. and two in Maryland. In June 1997, Schenker began sending additional job openings to the claimant for various positions, including fitness trainer, insurance claims representative and clerk at the National Archives. The claimant submitted applications for these positions but did not receive any job offers.

LWCC discontinued claimant's TTD benefits and began paying SEB based upon claimant's reported zero net monthly income on Form 1020. In August 1997, after receiving Schenker's labor market survey, LWCC reduced the SEB payments in reliance on information of a position at Geico Insurance Company located in Fredericksburg, VA, with an annual salary of approximately $16,900. During the period from August 1997 through December 1998, LWCC paid total benefits of $5,628 in several checks covering various periods of time.

The claimant filed a second disputed claim for compensation in November 1997, seeking a determination of his average weekly wage, an award of SEB based on the maximum weekly compensation rate of *190 $323, penalties and attorney fees. At the OWC hearing, LWCC raised an exception of res judicata concerning the calculation of the average weekly wage and the issue was deferred to the merits.

The WCJ overruled the exception, finding that the receipt and release applied only to the time period prior to its signing. The WCJ found that claimant's pre-injury annual salary was $25,330, resulting in an average weekly wage of $487.12. The WCJ determined that LWCC incorrectly relied on the salary of the Geico position to reduce benefits.

However, the WCJ found that a job at the National Archives was available to claimant when he was notified on July 8, 1997, and that he would have earned an annual salary of $18,687. The WCJ awarded SEB of $85.16 per week for the period of August 1, 1997 through December 31, 1998, and assessed a penalty of $2,000 and attorney fees of $5,000 for LWCC's failure to timely pay benefits.

The claimant appeals the WCJ's calculation of the average weekly wage and the finding that a job within the claimant's capabilities and reasonable geographic region was available. LWCC answered the appeal alleging that the WCJ erred in overruling the exception of res judicata and in awarding SEB.

DISCUSSION

Res Judicata

The LWCC contends the WCJ erred in overruling the exception of res judicata. LWCC argues that the claim regarding the calculation of claimant's average weekly wage was previously dismissed.

A valid and final judgment is conclusive between the same parties in any subsequent action with respect to any issue actually litigated. LSA-R.S. 13:4231. An order of dismissal with prejudice has the effect of a final judgment. LSA-C.C.P. art. 1673.

Here, the WCJ correctly noted that the prior order of dismissal had dismissed the claimant's average weekly wage claim specifically "for the period from the date of the accident through July 11, 1997." Thus, the dismissal and release only affected the claimant's average weekly wage claim with respect to the expressly stated time period. Consequently, we cannot say the WCJ erred in overruling the res judicata exception. The assignment of error lacks merit.

Average Weekly Wage

The claimant contends the WCJ erred in finding that his pre-injury annual salary was $25,330. Claimant argues that because the employer provided him with fringe benefits, his pre-injury wage was actually $28,243 annually.

The value of fringe benefits, if proven, will be included in the calculation of weekly wages for the purpose of determining the compensation rate if such benefits were fairly contemplated by the parties to the contract of employment. Transportation Ins. Co. v. Pool, 30,250-30,253 (La.App.2d Cir.5/13/98), 714 So.2d 153, writ denied, 98-1566, 98-1616 (La.9/25/98), 725 So.2d 486, 488. We recognize that LSA-R.S. 23:1021was amended by Acts 1999, No. 751 to add subparagraph 10(f), concerning the exclusion of nontaxable benefits from the determination of average weekly wages. However, since claimant was injured in 1994, this section is not applicable to the present case. See Moses v. Grambling State, 33,185 (La. App.2d Cir.5/15/00), 762 So.2d 191.

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768 So. 2d 186, 2000 La. App. LEXIS 2068, 2000 WL 1192787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caparotti-v-shreveport-pirates-football-club-lactapp-2000.