STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
03-1566
DANUTA LACAZE
VERSUS
ALLIANCE COMPRESSORS
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 2 PARISH OF RAPIDES, NOS. 01-03278 & 01-03279 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.
AFFIRMED AND RENDERED.
George Arthur Flournoy Flournoy, Doggett & Losavio P. O. Box 1270 Alexandria, LA 71309-1270 (318) 487-9858 Counsel for Plaintiff/Appellee: Danuta Lacaze
Mark Alan Watson Stafford, Stewart & Potter P. O. Box 1711 Alexandria, LA 71309 (318) 487-4910 Counsel for Defendant/Appellant: Alliance Compressors PICKETT, Judge.
FACTS
Danuta Lacaze was employed by Alliance Compressors, Inc. (Alliance) as a
machinist in Natchitoches, Louisiana. As a machinist, she was required to lift objects
weighing forty to sixty pounds. On November 11, 2000, she was involved in an on-
the-jobaccident which resulted in an injury to her right shoulder and right upper arm.
Alliance paid medical bills incurred by Ms. Lacaze as a result of this injury. The
treating physician placed her on light duty, and she returned to work at Alliance at a
light-duty position. On December 30, 2000, Lacaze was involved in another on-the-
job accident whereby she fractured her right elbow in a fall. She was initially treated
at the Natchitoches Parish Hospital Emergency Room. She was later treated by Dr.
Terry Texada, an orthopedist, at St. Frances Cabrini Hospital in Alexandria,
Louisiana. Dr. Texada did not release her to return to work. Lacaze received
indemnity benefits for the period beginning December 31, 2000, at the rate of $213.33
per month. She took up a part-time job house sitting for an elderly lady. On May 8,
2001, Dr. Texada released Lacaze to return to light-duty work with a restriction that
she not lift anything weighing more than five pounds with her right arm. In July,
2001, Dr. Texada approved a light-duty position with Alliance. On July 12, Alliance
contacted claimant’s counsel via letter, wherein it offered Lacaze a position that was
allegedly within the physical requirements mandated by Dr. Texada, as an Oldham
Coupling Operator. On July 13,Lacaze received a message on her answering machine
from her attorney that she was to return to work at Alliance the following morning.
On July 14, she reported to work at 6:00 a.m. but was called into a meeting. Present
at this meeting were Mike Penrod, supervisor; Rusty Boller; the health and safety
manager; Bobbie Nolley; Tricia Boller and Jeff Risinger, the human resource
manager. After the meeting, Risinger suspended her for two weeks . He also instructed the adjuster to terminate her benefits. Lacaze was absent the remainder of
the month of July, but returned to work at Alliance on August 3rd, 4th and 5th. She also
worked on August 10, 11, and 12. On August 17, 2001, Alliance terminated her
employment for violation of their attendance policy because she had to stop and pick
up medication on her way to work and was seven minutes late. Lacaze filed a
Disputed Claim for Compensation with the Office of Workers’ Compensation wherein
she alleged as follows:
1) The average weekly wage was improperly calculated due to the employer’s failure to include fringe benefits in its calculation;
2) The average weekly wage and, as a result, the temporary total disability benefits were incorrectly calculated;
3) The employer failed to produce medical records from the Natchitoches Parish Hospital timely;
4) Medical bills were not paid timely;
5) Claimant is entitled to weekly workers’ compensation indemnity benefits after her termination;
6) The employer paid claimant temporary total disability benefits late; and
7) Claimant is entitled to penalties and attorney fees.
The matter was heard on March 18, 2003, and the workers’ compensation judge
(WCJ) issued an oral ruling on June 30, 2003. The WCJ ruled that it had no records
to make a proper calculation of any fringe benefits from the 401K plan. The WCJ
found that at the time of her work injury on December 30, 2000, Lacaze’s average
weekly wage was $381.20 and that she was entitled to a compensation rate of $254.13
per week. The WCJ denied Lacaze’s claim for penalties and attorney fees pursuant
to La.R.S. 23:1125 for the employer’s alleged failure to provide her with medical
records and denied penalties and attorney fees for the employer’s alleged late payment
of medical bills. The WCJ ruled that Lacaze was entitled to supplemental earnings
2 benefits (SEBs) from the date of her termination and continuing subject to a credit for
wages that she earned in her various sitting jobs. The WCJ found that Alliance did
not make a good faith effort to assist Lacaze in returning to work and that its failure
to pay her any benefits was arbitrary and capricious after her discharge on August 17,
2001, but did not award a penalty. The WCJ found that Alliance paid temporary total
disability benefits late and awarded a $900.00 penalty and $2,500.00 for attorney fees.
The WCJ awarded $2,000.00 for penalties, and $4,000.00 in attorney fees for
Alliance’s failure to pay the correct compensation rate and failure to use the proper
four full weeks of earnings before December 30, 2000. The WCJ awarded $5,000.00
for attorney fees for the reinstatement of benefits and ruled that Lacaze had a zero
earning capacity. In accordance with this oral ruling, a judgment was rendered and
signed on July 10, 2003.
It is from this ruling and judgment that the employer appeals.
ASSIGNMENTS OF ERROR
The employer seeks review of four assignments of error:
1. The Workers’ Compensation Judge erred in finding the employee to be entitled to Supplemental Earnings Benefits;
2. The Workers’ Compensation Judge erred in finding the employee entitled to a wage earning capacity of zero ($0.00);
3. The Workers’ Compensation Judge erred in finding the employee entitled to Supplemental Earnings Benefits from July 15, 2001; and
4. The Workers’ Compensation Judge erred in awarding attorney fees relative to the discontinuance of indemnity benefits, and no attorney fees should be awarded for defending this appeal.
3 DISCUSSION
Standard of Review
An appellate court may not set aside the factual findings of a workers’
compensation judge in the absence of manifest error or unless it is clearly wrong.
Wackenhut Corr. Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96), 685 So.2d 661.
The issue to be resolved by the reviewing court is not whether the trier of fact was
right or wrong, but whether the fact finder’s conclusion was a reasonable one. “Even
though an appellate court may feel its own evaluations and inferences are more
reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review where conflict exists in the
testimony.” Stobart v. State through Dep’t of Transp. & Dev. , 617 So.2d 880, 882
(La.1993).
Supplemental Earnings Benefits
Assignment of Error Number 1:
In it’s first assignment of error, Alliance argues that the WCJ erred in finding
that the claimant was entitled to supplemental earnings benefits. Alliance contends
that the claimant failed to sustain her burden of proof that she was unable to earn
ninety percent of her pre-accident wages as required under La.R.S. 23:1221(3).
The purpose of SEBs is to compensate an injured employee for the
wage-earning capacity lost as a result of a work-related accident. City of Jennings v.
Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704 So.2d 264. Entitlement to SEBs is
governed by La.R.S. 23:1221(3), which provides, in pertinent part, as follows:
(3) Supplemental earnings benefits.
(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent 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
4 average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.
An employee is entitled to receive SEBs if he sustains a work-related injury that
results in his inability to earn ninety percent or more of his average pre-injury wage.
La.R.S. 23:1221(3)(a). “Initially, the injured employee bears the burden of proving,
by a preponderance of the evidence, that the injury resulted in his or her inability to
earn that amount under the facts and circumstances of the individual case.” Freeman
v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739.
Once the employee’s burden is met, the burden shifts to the employer. In order
to defeat the employee’s claim for SEBs or establish the employee’s earning capacity,
the employer must prove, by a preponderance of the evidence, that the employee is
physically able to perform a certain job. In addition, the employer must prove that the
job was offered to the employee or that the job was available to the employee in his
or the employer’s community or reasonable geographic region. La.R.S.
23:1221(3)(c)(i); Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Actual
job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008
(La.App. 3 Cir. 1992).
An employer may discharge its burden of proving job availability by
establishing: 1) the existence of a suitable job within claimant’s physical capabilities
and within claimant’s or the employer’s community or reasonable geographic region,
2) the amount of wages that an employee with claimant’s experience and training can
be expected to earn in that job, and 3) an actual position available for that particular
5 job at the time that the claimant received notification of the job’s existence. Banks v.
Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. A
“suitable job” is a job that the claimant is not only physically capable of performing,
but one that also falls within the limits of the claimant’s age, experience, and
education. Id.
Our first inquiry is whether the WCJ erred in finding that the claimant was
entitled to SEBs following the accident on December 30, 2000.
In the instant case, the claimant was a full-time employee earning $8.00 per
hour. The WCJ found that at the time of the accident in question, the claimant’s
average weekly wage was $381.20. Following the accident, Lacaze did not return to
work at Alliance, per her doctor’s instructions, but began house sitting for an elderly
lady. She worked two days a week from 9 a.m. to 4 p.m. Although her treating
physician released her to return to light-duty on May 8, 2001, the employer did not
provide a position that met the restrictions placed upon her until July 12, 2001.
We, therefore, find that the claimant meet her burden of proof that she sustained
a work-related injury that resulted in her inability to earn ninety percent or more of her
average pre-injury wage as provided for in La.R.S. 23:1221(3)(a). We also find that
the employer did not provide a suitable job that was within claimant’s physical
capabilities until July 12, 2001.
This assignment of error is without merit.
Assignment of Error Number 3:
In its third assignment of error, Alliance asserts that the WCJ erred in finding
that the employee was entitled to SEBs from July 15, 2001. Specifically, Alliance
asserts that the claimant failed to prove an entitlement to benefits because she was
discharged after returning to work for reasons wholly unrelated to her job-related
6 injury and/or workers’ compensation claim.
This assignment of error presents two issues: 1) whether the WCJ erred in
awarding SEBs starting on July 15, 2001, when the claimant had returned to her
employment earning wages at the same rate of her pre-injury wage but was
subsequently suspended and 2) whether the WCJ erred in finding that the claimant
was entitled to SEBs following her termination on August 17, 2001.
The case of Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir.
12/27/02), 834 So.2d 642, writ denied, 03-0367 (La. 4/21/03), 841 So.2d 802,
provides us guidance in the instant case. In Palmer, this court held that termination
does not destroy ones entitlement to SEBs. In that case, the claimant suffered an on-
the-job injury to his back. He remained with his employer in a light-duty position
until he was terminated allegedly for substandard job performance. We noted:
[I]t is a claimant’s refusal to accept employment that fits within his abilities and/or disabilities which is made available to him that precludes an award of SEBs. In other words, “[t]he SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and jobs are available.” Blanchard v. Federal Express Corp., 95-0349, p. 4 (La.App. 1 Cir. 11/9/95); 665 So.2d 11, 13.
Id. at 650.
We further noted that, “[t]o hold that an employee’s termination destroys an employee
injured on the job’s entitlement to SEB would provide incentive for employers to
allow injured employees to return to work and thereafter terminate them to avoid
paying SEB.” Id.
In the instant case, Lacaze returned to Alliance on July 14, 2001, and was
suspended for two weeks. Her benefits were also terminated on that date. After her
suspension, she returned to Alliance in August 2001, where she worked as an Oldham
Coupling Operator until her termination on August 17, 2001, for allegedly violating
the company’s attendance policy. After being discharged from Alliance, Lacaze
7 began working at the Arbor of Natchitoches in mid-August 2001. She was paid $5.25
per hour. She left that job in March 2002. From March, 2002 until January 2003,
LaCaze worked as a house sitter. At this position, she worked five days a week, ten
hours a day at a rate of $6.00 per hour. At the time of the hearing, she was house
sitting for Betty Lacaze, working five days a week, ten hours a day at a rate of $6.00
per hour.
We find that Lacaze did not refuse to accept employment but rather was not
permitted to work due to the suspension imposed upon her return to Alliance. Once
her suspension ended, she returned to Alliance and performed her duties until she was
terminated.
In accordance with the jurisprudence set forth in Palmer, we find that Lacaze
was entitled to SEBs from July 15, 2001, during her suspension, until she returned to
employment on August 3, 2001. We further find that Lacaze’s entitlement to SEBs
did not cease upon her termination. Lacaze was able to find employment as a house
sitter earning $300.00 per week, giving her an estimated annual income as a house
sitter of $15,600.00. Her estimated annual income at Alliance was $19,822.24, ninety
percent of which is $17,840.16. Therefore, the record supports the WCJ’s finding that
Lacaze was entitled to SEBs from July 15, 2001, subject to a credit for the days in
August that she worked at Alliance prior to her termination.
Assignment of Error Number 2:
Because we have decided that the claimant meet her burden of proof relative
to her entitlement to benefits following termination, we must determine whether the
WCJ erred in finding the employee entitled to a wage earning capacity of zero ($0.00).
The court’s actual ruling ordered the “reinstitution (sic) of her benefits with a
8 zero earning capacity until the time periods that Ms. Lacaze had returned to work in
her sitting jobs and SEB is to be computed upon those wages thereafter.”
When the employee cannot work or earns less than she is able to earn because
of a job-related disability, the employer must establish her earning capacity. Pinkins
v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993).
In the instant case, the claimant has established that she cannot earn wages
equal to ninety percent or more of the wages that she earned prior to the accident and,
as a result, is entitled to SEBs.
The record reflects that Alliance did not establish claimant’s earning capacity.
The claimant, however, testified that following her termination from Alliance she was
employed as a house sitter. In that position, the record clearly shows that she worked
five days a week, ten hours a day, at a rate of $6.00 per hour. That establishes a wage
earning capacity of $300.00 per week. The WCJ found that at the time of the accident
in question, the claimant’s average weekly wage was $381.20 and that she returned
to Alliance in July at that same weekly wage. We, therefore, find that the difference
between the claimant’s pre- and post-injury wages is $81.20, which entitles her to a
weekly benefit of $54.13.
The WCJ found the claimant’s earning capacity to be zero only until she
returned to her sitting jobs. Thereafter, it was to be calculated according to her wage.
We find no error in the court’s ruling on this issue.
Assignment of Error Number 4:
In its fourth assignment of error, Alliance asserts that the WCJ erred in
awarding attorney fees relative to the discontinuance of indemnity benefits and that
no attorney fees should be awarded for defending this appeal.
Penalties and attorney fees do not automatically result from an employer’s
9 erroneous failure to pay benefits. See Miles v. F.D. Shay Contractor, Inc., 626 So.2d
74 (La.App. 3 Cir. 1993). The statutes authorize such penalties and attorney fees only
where the employer is arbitrary and capricious in denying the claim. The provisions
are penal in nature and must be strictly construed so that employers are not penalized
for contesting a close factual question in a workers’ compensation proceeding and
relying on valid defenses. Id. The determination of whether an employee may be
awarded penalties and attorney fees is a question of fact which we will not disturb on
appeal absent a finding of manifest error. Lyons v. Bechtel Corp. , 00-0364 (La.App.
3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-0282 (La. 3/23/01), 787 So.2d 966.
We find no manifest error in the WCJ’s decision to award penalties and
attorney fees.
In her answer to the instant appeal, the claimant requests attorney fees for work
done on appeal. Alliance argues that no attorney fees should be awarded for
defending this appeal.
An award for attorney fees for work done on appeal is warranted when the
appeal has necessitated additional work on the attorney’s part. Hickman v. Allstate
Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133
(La. 6/23/95), 656 So.2d 1017; Aguillard v. Indus. Constr. Co., 542 So.2d 774
(La.App. 3 Cir. 1989).
We have reviewed claimant’s brief done in connection with this appeal, and we
award $3,000.00 in attorney fees.
CLAIMANT’S ASSIGNMENTS OF ERROR
The claimant answered the employer’s appeal asserting one assignment of error.
The claimant argues that fringe benefits must be taken into account when calculating
an employee’s average weekly wage and asks that the case be remanded to determine
10 the value of the employer’s contribution to the 401K plan.
In its oral ruling, the WCJ noted as follows:
The record was held open for the submission of the value of fringe benefits which the Court received on April 17 th of 2003. It stated that Ms. Lacaze was enrolled in a 401K plan from June the 1 st of 2000 to August the 17th of 2000 and that for every dollar she invested in the 401K plan she would have received a twenty-five percent match by Alliance. That Alliance had no information as to how much she had invested but when she was terminated she had only - was only invested by twenty percent and that the 401K had no value to her. I have no records to make a proper calculation as to what value fringe benefits would be associated with the 401K plan.
Pursuant to a subpoena duces tecum issued by claimant’s counsel, claimant
requested that Alliance produce as follows:
11) Any and all documentation pertaining to fringe benefits paid by you to or on behalf of claimant, to include, among all others, group insurance (medical, disability, life, etc.), vehicle, contributions to retirement/pension plan, travel/mileage reimbursement, any and all bonuses ever paid to plaintiff during the time of employment, etc., as well as documentation of the actual cost to you on a monthly basis for each such fringe benefit.
This court has noted on several occasions that fringe benefits generally should
be factored into an injured worker’s wages. See Batiste v. Capitol Home Health ,
96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395; Cook v. Dewey Rusk Flooring ,
93-1643 (La.App. 3 Cir. 8/10/94), 642 So.2d 234, writ denied, 94-2804 (La. 1/13/95),
648 So.2d 1343.
As stated by Daigle, 545 So.2d 1007-08 (La.1989):
In determining the amount of pre-injury wages an employee earned, “[a]ny 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).”
See also Hodges v. Sentry Ins. Co., 492 So.2d 193 (La.App. 3 Cir. 1986); Vaughan v.
Ins. Co. of N. Am., 482 So.2d 1014 (La.App. 3 Cir. 1986).
11 We note, however, that in Batiste, the court found that the claimant was entitled
to include fringe benefits in the calculation of her wages because she provided proof
to the court of the amount of fringe benefits that she earned. In the instant case, there
was no evidence before the court upon which it could rely to make that determination.
We, therefore, find no error in the court’s ruling on this issue.
DECREE
The judgment of the trial court is affirmed in all aspects. We award $3,000.00
in attorney fees for work done on appeal. The cost of this appeal is assessed to
Alliance Compressors.