Daigle v. Sherwin-Williams Co.

545 So. 2d 1005, 1989 WL 66382
Supreme Court of Louisiana·Decided September 11, 1989·No. 89-C-0251·Published·Cited by 236 cases

Opinion

545 So.2d 1005 (1989)

Michael T. DAIGLE
v.
SHERWIN-WILLIAMS COMPANY.

No. 89-C-0251.

Supreme Court of Louisiana.

June 19, 1989.
Rehearing Granted September 11, 1989.

Edmond Harris, Heisler & Wysocki, New Orleans, for applicant.

Temple Stephens, New Orleans, for respondent.

*1006 MARCUS, Justice.[*]

Michael T. Daigle was injured on May 12, 1984 while working in his capacity as store manager for Sherwin-Williams Company at the St. Charles Avenue store in New Orleans. The injury occurred when he was lifting a case of paint and turned to look at someone who had called to him. As a result of the injury, plaintiff suffered a slipped disc and subsequently underwent surgery for an anterior cervical fusion. The treating physician felt that Daigle had incurred a permanent ten to fifteen percent anatomical disability due to the injury and surgery. Daigle was instructed by the doctor not to lift, push, or pull anything weighing more than fifty pounds and not to engage in any activity that involved repeated hypertension of the neck.

Plaintiff was initially hired by Sherwin-Williams in January of 1983 as manager of the Hammond store. He remained in that position until January of 1984 when he was promoted to the position of manager of the St. Charles Avenue store in New Orleans. The manager's duties included carrying paint to customers' cars and unloading shipments of paint and supplies to the warehouse adjoining the store. Various cases of paint and containers of sheetrock "mud" weighed in excess of sixty pounds. At the time of the injury, Daigle was earning $836 every two weeks.[1] In addition to his salary, as manager he was entitled to a two-part incentive bonus plan. The first part was based on sales volume of the store and paid on a semi-annual basis. The second part of the incentive plan was a profit incentive based on a profit goal that was set for the particular store and was also paid on a semi-annual basis. Daigle was paid $3,675 on December 31, 1983 and $7,432 on March 10, 1984 as part of the incentive plan.

Sherwin-Williams, in accordance with the recommendation of the director of the office of worker's compensation administration, paid Daigle $245 per week from May 13, 1984 through August 31, 1984 based on an average weekly wage of $418 or $836 every two weeks. This sum represented temporary total disability benefits. After the injury, Sherwin-Williams paid Daigle his regular pay ($836 biweekly) through September 8, 1984.[2] From October of 1984 to June of 1985, plaintiff owned and operated his own paint store in Hammond. He testified that his take-home pay amounted to barely $600 per month. That store closed due to a contract dispute with the franchisor. Plaintiff held no job from June until December of 1985. He then worked for two different carpet stores, earning $250 per week and $40 per week, respectively, until February of 1986 when he accepted a position with Canon Films as a scenic artist, which position he held at the time of trial. Daigle started with Canon earning about $300 per week, but had worked up to a salary of $800 per week by April of 1987. His job, however, was not steady but rather ran from picture to picture.

Michael Daigle brought this suit against Sherwin-Williams Company. He alleged in his petition that he was permanently and totally disabled; and in the alternative, that he was partially permanently disabled from performing his former employment. Defendant answered, generally denying the allegations of plaintiff's petition and asserting that he had been paid all benefits to which he was entitled pursuant to the Louisiana Worker's Compensation Statute. After trial, the judge denied plaintiff further benefits and dismissed his suit. The court of appeal affirmed, finding that the trial judge "properly found that plaintiff was not entitled to supplemental earnings benefits."[3] Plaintiff applied to this court for writs, asserting that the courts below erred in excluding bonuses received by him during the twenty-six (26) week period prior to the date of his accident pursuant to La.R.S. 23:1021(10)(d). We granted a writ of certiorari.[4]

It is well settled that the provisions of the worker's compensation law must be given a liberal interpretation. Lester v. Southern Casualty Insurance Company, 466 So.2d 25 (La.1985). The particular statute at issue in the instant case is La.R.S. 23:1221(3), the supplemental earnings benefits provision.[5] "The threshold prerequisite *1007 to the recovery of supplemental earnings benefits, as set forth in subparagraph (3)(a) is that the employee's injury result in his `inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury.'" Payne v. Country Pride Foods, Ltd., 525 So.2d 106, 109 (La.App. 3d Cir.1988). The injured employee thus bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount. The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage. "In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Gaspard v. St. Paul Fire & Marine Insurance Co., 483 So.2d 1037, 1039 (La.App. 3d Cir.1985). In order for the employee to meet this threshold burden of proof, it is necessary under the statute to establish his average monthly wages at the time of the injury (pre-injury wages). The statute further provides that these wages shall be computed as defined in La.R.S. 23:1021(10)[6] and then multiplying the resulting weekly wage figure by four and three-tenths.

In determining the amount of preinjury wages an employee earned, "[a]ny *1008 money paid the employee which can be regarded as remuneration or reward for his services should be included in fixing his compensation, irrespective of whether or not the payment was in the form of wages." Malone and Johnson, 14 Louisiana Civil Law Treatise, Workers' Compensation § 324 at 93 (1980). A problem nevertheless arises in trying to fit an employee such as Daigle into one of the narrowly drawn categories of La.R.S. 23:1021(10). The testimony at trial was unequivocal that Daigle was a salaried employee. He was paid a fixed amount on a biweekly basis. In addition he received certain bonuses. This situation is seemingly outside of the statutory categories. Malone and Johnson advocate using a combination of provisions when the wages do not fit neatly into one. Malone and Johnson, supra at 91. The statute contemplates reducing whatever wages were earned to a weekly basis. Thus, Daigle's biweekly salary can be easily divided by two to arrive at a weekly wage. His incentive bonuses, however, fit more easily under subsection (d), that is, "Other wages. If the employee is employed on a unit, piecework, commission, or other basis." These bonuses should be calculated according to that formula. Daigle received two incentive bonuses in the twenty-six week period immediately preceding his injury and both should be considered in computing his wages. The resulting figures from these two calculations should then be added together to obtain Daigle's true weekly wages.[7]

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Daigle v. Sherwin-Williams Co., 545 So. 2d 1005, 1989 WL 66382 (La. 1989).

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