STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1219
GLORIA CLAY
VERSUS
OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 06-03500 SHARON MORROW, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J. David Painter, Judges.
REVERSED AND RENDERED.
Philip E. Roberts Leake & Anderson, L.L.C. P. O. Drawer Z Lafayette, LA 70502 Telephone: (337) 233-7430 COUNSEL FOR: Defendant/Appellee - Our Lady of Lourdes Regional Medical Center, Inc.
Michael Benny Miller Miller & Miller P. O. Drawer 1630 Crowley, LA 70527-1630 Telephone: (337) 785-9500 COUNSEL FOR: Plaintiff/Appellant - Gloria Clay THIBODEAUX, Chief Judge.
The claimant/appellant, Gloria Clay, brought a workers’ compensation
claim against her employer, defendant/appellee, Our Lady of Lourdes Regional
Medical Center, Inc. (Lourdes), for injury to her back while lifting solution supplies.
A rehabilitation counselor provided information regarding potential employers.
When Ms. Clay applied for but did not obtain employment, the OWC terminated her
benefits after applying a credit in favor of Lourdes for the wages that Ms. Clay would
have earned had she been employed by a particular employer. Ms. Clay appeals the
termination of her benefits and the calculation of her average weekly wage (AWW)
after the inclusion of fringe benefits.
Where Ms. Clay attempted to obtain all positions suggested, we find that
employment was unavailable to Ms. Clay and that the OWC applied an overly
restrictive interpretation of the applicable law in terminating her benefits. We,
therefore, reverse the judgment terminating Ms. Clay’s benefits. We further find a
misapplication of the statutory and jurisprudential provisions for calculating a
claimant’s AWW and reverse the OWC judgment on that issue as well.
I.
ISSUES
We must decide:
(1) whether the OWC erred in terminating Ms. Clay’s workers’ compensation benefits; and,
(2) whether the OWC erred in calculating Ms. Clay’s average weekly wage and fringe benefits. II.
FACTS AND PROCEDURAL HISTORY
On June 28, 2005, Gloria Clay, who had been employed with Lourdes
for a total of twenty-two years, sustained a back injury while lifting and pulling heavy
solution bags from twenty carts. She began to have spasms in her upper back on the
first day, and by the end of the second day, June 29, the pain went down her back and
into her left leg. The injury caused Ms. Clay pressure in her back, a ten (10) on the
pain scale, with burning, pulling sensations in her left buttock worsened by sitting,
standing, and walking.
Ms. Clay was treated with medication, physical therapy, and a lumbar
epidural steroid injection. When this worsened her pain, she was referred to a
neurosurgeon, Dr. Bertuccini, who diagnosed symptomatic spinal stenosis at L4-5.
He opined that injury can cause this degenerative condition to become symptomatic
and recommended lumbar decompression surgery at the initial visit in December of
2005. Lourdes did not authorize payment for the prescriptions and surgery
recommended by Dr. Bertuccini until May of 2007.
Lourdes obtained an order compelling vocational rehabilitation in
February of 2008. A vocational rehabilitation counselor provided information
regarding jobs that were ostensibly available to Ms. Clay. She applied for all of the
jobs suggested, including those at a medical facility, but was unable to obtain
employment. Ms. Clay received at least two rejection letters based upon her
unmatched skills and qualifications. Lourdes did not offer Ms. Clay a position
similar to either of the hospital positions recommended by the vocational counselor.
The OWC found that a recommended job at Stuller Settings was
available to Ms. Clay in August of 2008, even though Ms. Clay had received a
2 rejection letter from Stuller. The OWC further found that actual job placement was
not a requirement for proof of availability of employment. Lourdes terminated Ms.
Clay’s benefits in December of 2008 pursuant to the OWC ruling at trial during that
same month.
The OWC issued a judgment finding that Ms. Clay was entitled to
weekly wage benefits of $252.03, based upon an AWW of $378.05, from December
28, 2005 through August 25, 2008, subject to a credit for wage benefits already paid.
The judgment awarded Ms. Clay $8,000.00 in penalties for four failures by Lourdes
to timely pay medical related benefits, as well as attorney fees in the amount of
$10,000.00.
Ms. Clay appealed the judgment on the issues of termination of benefits
and the calculations of average weekly wages and fringe benefits. Lourdes answered
the appeal and listed errors for review, but failed to file its brief. Issues not briefed
are deemed abandoned. See Uniform Rules—Courts of Appeal, Rule 2-12.4.
We find that the OWC applied an overly restrictive interpretation of
Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696
So.2d 551, resulting in a termination of benefits in this case. Therefore, we reverse
the OWC judgment on the issue of termination of benefits, reinstating Ms. Clay’s
benefits from the date of termination, August 25, 2008, forward. We further reverse
the OWC on its calculation of Ms. Clay’s AWW and fringe benefits due to incorrect
methodology and misinterpretation of the applicable law. We increase the award of
attorney fees by $5,000.00 for work done by Ms. Clay’s attorney on appeal.
3 III.
LAW AND DISCUSSION
Standard of Review
When an appellate court finds that a reversible error of law was made in
the lower court, it must conduct a de novo review of the entire record and render a
judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Termination of Benefits
Ms. Clay contends that the OWC erred in terminating her benefits. We
agree. The workers’ compensation judge stated at trial that the vocational
rehabilitation counselor, Ms. Montero, “attempted jobs that were suitable” and that
under Banks, 696 So.2d 551, actual “job placement is not required.” Counsel for Ms.
Clay argues that the positions were not suitable and that, since Ms. Clay applied for
all positions submitted and was turned down in every case, those jobs were not
available to her under La.R.S. 23:1221(3)(c)(i).
The record reveals that Ms. Clay was a fifty-six-year-old widow with
three grown daughters when she met with the vocational rehabilitation counselor for
the first time on March 31, 2008. She had graduated from high school in 1971 but
had had no additional schooling. Ms. Clay had worked for Lourdes as a supply,
purchasing, and distribution clerk from 1975 to 1986 and again from 1995 until the
time of her injury in June 2005. In the nine-year interim between her two periods of
employment with Lourdes, Ms. Clay had taken care of her grandmother. Her only
other employment was a two-month temporary position making pies for a bakery. At
Lourdes, she stocked shelves and pulled and delivered medical supplies, occasionally
entering patient charges onto a form in a computer. Ms. Clay did not own a computer
and denied computer literacy. Her rate of pay with Lourdes was $9.95 per hour.
4 Ms. Clay argues that she met her burden of proving that she could not
earn ninety percent (90%) of her pre-injury wages because she could no longer stock
medical supplies and because none of the clerical jobs submitted were available to her
wherein she had applied but was turned down for each one. She correctly argues that
under La.R.S. 23:1221(3)(c)(i), the burden then shifted to Lourdes to prove that the
jobs were available. More specifically, La.R.S. 23:1221(3)(c)(i) (emphasis added)
provides in pertinent part that supplemental earnings benefits shall be paid:
[I]f the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
Accordingly, as Ms. Clay argues, the clear language of the statute
requires that the jobs be “proven available to the employee.”
In Banks, upon which the OWC relied for the proposition that actual job
placement is not necessary, the primary issue was the employer’s proof of availability,
and the holding in that case squares off directly in favor of Ms. Clay, particularly in
view of the court’s explanation of suitability. In Banks, the Louisiana Supreme Court
reversed the Second Circuit Court of Appeal and reinstated the OWC’s finding that
the employer had failed to demonstrate that jobs were available to the claimant.
Banks had been a roofer’s helper when a bundle of shingles fell on his right hand,
dislocating and fracturing his right thumb, requiring an open reduction and internal
fixation, and a repair of ligament structures the day after the accident.
5 Similar to the facts in this case, the vocational rehabilitation counselor
in Banks completed an initial evaluation and performed a transferrable skills analysis.
Banks was a forty-four (44) year-old high school graduate who had been an orderly,
a cook, and a baker’s helper prior to his employment with Industrial Roofing as a
roofer’s helper. It was undisputed that Banks was partially disabled and unable to
return to his pre-injury employment as a roofer’s helper. Where Banks had proved
partial disability, the question before the court was whether the employer had carried
its burden of proving that there were jobs available to Banks within his physical
capabilities that would pay him ninety percent (90%) or more of his pre-injury wage.
In discussing job availability, the court resolved conflicts in the courts of appeal by
concluding that an employer could discharge its burden of proving job availability by
establishing, at a minimum:
(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 job at the time that the claimant received notification of the job’s existence.
Banks, 696 So.2d at 557 (emphasis added).
In Banks, the claimant’s post-injury limitations were no gripping or
pinching and no lifting over fifteen (15) pounds. The rehabilitation counselor
identified five jobs for Banks: (1) tractor-trailer driver; (2) unarmed security guard;
(3) pest control trainee; (4) cab driver; and, (5) dispatcher. The OWC in Banks
determined that the cab driver position was outside the limitations assigned to Banks
as it required him to lift fifty pounds. As to the remaining jobs, the OWC found that
6 there was insufficient evidence regarding each job’s qualifications and physical
requirements, wages, and actual openings on the date the jobs were made known to
Banks, to determine whether the jobs were within Banks’ capabilities. The Louisiana
Supreme Court upheld the judgment of the OWC.
In the present case, Dr. Bertuccini released Ms. Clay to light duty work
in October 2007, following her surgery five months earlier in May. He deferred to
her pain management physician, Dr. Jindia, for approval of jobs submitted by the
vocational rehabilitation counselor. Dr. Jindia was still treating Ms. Clay in August
of 2008, with medication and injections, for chronic low back and left leg pain,
weakness in the lower extremity, and post lumbar laminectomy pain syndrome with
left lumbar radiculitis. He opined that she could physically do clerical work as long
as she could alternate sitting, standing, and walking, with minimal lifting and bending
of her back.
The vocational counselor, Ms. Montero, reported that Ms. Clay’s
transferrable skills included “Writing – Communicating effectively with others in
writing as indicated by the needs of the audience,” though there was no evidence in
the record that Ms. Clay had, or used, writing skills in her employment. Another skill
assigned to Ms. Clay was “Reading comprehension – Understanding written
sentences and paragraphs in work related documents,” though there was no evidence
that Ms. Clay worked with correspondence in her employment. Ms. Montero further
reported that alternate job types for Ms. Clay included general office clerk, library
clerk, insurance claims clerk, and medical records clerk. Ms. Montero located mostly
clerical positions with duties outside of Ms. Clay’s experience and training. Ms.
Montero admitted at the hearing that Ms. Clay had applied for all of the positions
submitted.
7 Ms. Montero located four positions for Ms. Clay that were approved by
Dr. Jindia. These included two positions at Medical Center of Southwest Louisiana:
(1) Administrative Assistant - Human Resources Department (to assist department
with credentialing of medical personnel); and (2) Service Coordinator (to provide
clerical support for engineering programs, answer phone, and maintain files). Ms.
Clay applied for but was unable to obtain either of these positions. Two other
approved positions were (3) front desk receptionist with Norman Dykes, M.D. The
duties at Dr. Dykes’ office included maintaining an appointment book, and preparing
bills and insurance forms. Ms. Clay received a letter of rejection from Dr. Dykes’
office stating that they had “chosen to pursue other candidates whose skills,
background, and education more closely match our needs.” The fourth approved
position was a telephone consultant position with Stuller Settings, processing jewelry
merchandise orders by phone. It provided thirty to forty hours of work per week.
Ms. Clay applied for this position and was rejected by a letter stating that, “we have
identified a candidate who more closely matches our requirements.”
Therefore, in this case, we have the issue of suitability of the positions
suggested to Ms. Clay, who applied for all of them and was rejected. In fact, Ms.
Clay testified that she had applied for positions at Bait House, Holiday Inn South,
Maison de Lafayette, Bravo Physical Therapy, and she had applied twice at Stuller
Settings, eleven positions in all, and was turned down for each and every one.
Suitability is a function of availability. It appears in the first of the three
criteria set forth above by the Supreme Court in Banks. More specifically, after
stating the three minimum requirements for establishing availability, the first of
which is a suitable job within the claimant’s physical capabilities, the court
articulated as follows:
8 By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education. (FN3)
(FN3.) We are cognizant that LSA-RS 23:1221(3)(a) provides that an employee’s post-injury earning capacity is to be determined by what “the employee is able to earn 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 . . . .” Our consideration of an employee’s “age, experience, and education” is not to ensure that an employee is “particularly suited” for a given post-injury job, but, rather, to ensure that the employee is capable of performing the job. For example, suppose that an employee had been engaged in heavy manual labor prior to his injury, but is now limited to light duty labor as a result of a work-related injury. Suppose also that the employee is illiterate. Under these circumstances, the mere fact that the employee would be physically able to perform secretarial duties does not mean that that job would be suitable for that employee.
We interpret the above-quoted language in LSA-RS 23:1221(3)(a) to mean only that an employee cannot discount a job, for the purpose of calculating post-injury earning capacity, that falls within the limits of his physical capabilities, age, experience, and education simply because he is not “particularly suited” for the job. For example, suppose that the hypothetical employee had a college education. He could not protest the suitability of a job that required only a high school education by asserting that the proposed job was beneath his capabilities.
Banks, 696 So.2d at 557, n.3 560 (emphasis added).
9 In this case, Ms. Clay’s experience was essentially as a physical laborer
stocking and distributing supplies and equipment, with no office experience and
almost non-existent computer skills. Her only job experience outside Lourdes was
baking pies. Based upon the foregoing, we find that the positions submitted to and
applied for by Ms. Clay were not suitable for her and were, therefore, unavailable to
her under La.R.S. 23:1221 and under Banks.
Calculation of Actual Average Weekly Wage
It is undisputed that Ms. Clay was a forty-hour-per-week, full time,
hourly employee, paid bi-weekly, in twenty-six checks per year. Her pay rate with
Lourdes was $9.25 per hour. The OWC calculated Ms. Clay’s AWW at $378.05
based upon two check stubs indicating wages paid to her by Lourdes for the four
weeks preceding her injury on June 28, 2005. The gross earnings on the check stub
for the two-week period ending June 25, 2005, was $772.19, and the gross earnings
on the check stub for the two-week period ending June 11, 2005, was $740.00.
According to the OWC calculation, $772.19 plus $740.00 equals $1,512.19, which,
divided by two, results in an AWW of $378.05. The OWC declined to consider Ms.
Clay’s fringe benefits, or a bonus that she earned during the applicable period, in
calculating the AWW. While the OWC was correct in rejecting an AWW based upon
twenty six weeks of fringe benefits, as argued by counsel for Ms. Clay, the OWC’s
calculations and methodology are incorrect, as are those of counsel for Ms. Clay, who
arrived at an AWW of $430.49.
We find that Ms. Clay’s AWW was $416.71, which is the sum of her
actual or baseline wage of $370.00 ($9.25 x 40) plus averaged weekly fringe benefits
of $27.75 for paid time off (PTO) and $11.56 for extended illness time (EIT), plus a
bonus averaged at $7.40 per week. The method for calculating the actual wages of
10 $370.00 is located at La.R.S. 23:1021(12)(a)(i), while the formula for calculating the
bonus is located at subsection (12)(d), and the provision applicable to fringe benefits
is subsection (12)(f).
With regard to Ms. Clay’s baseline or actual wage of $370.00, La.R.S.
23:1021(12)(a)(i) provides as follows (emphasis added):
(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater. . . .
Accordingly, if a full-time, forty-hour employee actually works less than
forty hours per week in the four full weeks prior to her accident, she is entitled to the
“greater” presumption of forty hours per week. While it is true that Ms. Clay used
paid time off, or vacation time, during the four full weeks preceding the injury, such
that she did not actually work forty hours per week during that period, because she
is a full-time employee, she is entitled to the presumption of having worked forty
hours under La.R.S. 23:1021(12)(a)(i). Therefore, Ms. Clay’s AWW is $370.00
($9.25 x 40).1
1 We have considered the holdings in Doucet v. Crowley Manufacturing, 96-1638 (La.App. 3 Cir. 4/30/97), 693 So.2d 328, vacated on other grounds, 97-1438 (La. 9/19/97), 701 So.2d 143, and Transportation Insurance Co. v. Pool, 30,250 (La.App. 2 Cir. 5/13/98), 714 So.2d 153, writs denied, 98-1566, 98-1616 (La. 9/25/98), 725 So.2d 486, 488, where the courts did not use vacation weeks to calculate the AWW, using the logic that “four full weeks” meant four weeks with no absences. However, reaching back to capture non-vacation weeks is an unnecessary step where the employee is a forty-hour, full time employee who gets the presumption under 12(a)(i) of a forty-hour work week in calculating his or her AWW. Moreover, we believe that the term “four full weeks” means using a normal, full-week pay period, such as Monday through Friday, rather than starting the calculation, say, in mid-week on the day before the accident; and it does not mean that you have to use non-vacation weeks if the employee is a full time, forty-hour employee.
11 Fringe Benefits
With regard to the use of fringe benefits in calculating a claimant’s
AWW, we have held as follows:
[T]he inclusion of fringe benefits into the calculation of AWW is a very well and long established rule, dictated by an explicit mandate of La.R.S. 23:1021(12)(f) and decades of our jurisprudence. See e.g. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La. 1/30/04), 865 So.2d 79; Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395; Morgan v. Equitable Gen. Ins. Co., 383 So.2d 1067 (La.App. 3 Cir. 1980); Ardoin v. S. Farm Bureau Cas. Ins. Co., 134 So.2d 323 (La.App. 3 Cir. 1961); Richmond v. Weiss & Goldring, Inc., 124 So.2d 601 (La.App. 3 Cir. 1960).
Cotton v. First Fleet, 08-1363, p. 7 (La.App. 3 Cir. 4/1/09), 7 So.3d 155, 159, writ
denied, 09-978 (La. 6/19/09), 10 So.3d 741.
In fact, so settled is this area of the law that we have affirmed penalties
against an employer who deliberately chose to remain ignorant of the law with respect
to the valuation of fringe benefits in the calculation of an injured worker’s wage rate.
See Johnson v. Louisiana Container Co., 02-382 (La.App. 3 Cir. 10/2/02), 834 So.2d
1052, 1067, writ denied, 02-3099 (La. 5/9/03), 843 So.2d 394.
The Louisiana Supreme Court has stated:
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).
Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007-08 (La.1989).
In Sterling, 856 So.2d 125, we affirmed the OWC’s inclusion of fringe
benefits, ten days of vacation and five days of holiday pay, when calculating the
claimant’s AWW. We cited the essentially identical predecessor of La.R.S.
12 23:1021(12)(f), which was La.R.S. 23:1021(10)(f), effective on August 15, 1999, for
the proposition that fringe benefits are taxable and therefore includable in the AWW.
The current version, La.R.S. 23:1021(12)(f) provides as follows (emphasis added):
(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.
In Sterling, we stated that the issue regarding the inclusion of paid
holiday and vacation time was whether those forms of compensation were taxable or
not. We went on to hold that:
Any fringe benefit that an employer provides is taxable and must be included in the recipient’s pay unless that fringe benefit is specifically excluded by the law. EMPLOYER’S TAX GUIDE TO FRINGE BENEFITS PUB. 15-B (Dept. of the Treasury, Internal Rev. Serv., Jan. 2003).
Sterling, 856 So.2d at 130.
We then listed excluded fringe benefits such as meals, stock options,
group term life insurance, and other specifically excluded benefits. Since the fringe
benefits of vacation and holiday pay in Sterling were not excluded by law, they were
included in the AWW calculation. Likewise, in Burns v. St. Francis Cabrini
Hospital, 02-518 (La.App. 3 Cir. 10/30/02), 830 So.2d 572, we held that PTO, sick
leave, holiday pay, and vacation pay were rewards to hourly employees for services
13 to the hospital and were properly included in the calculation of the claimant’s AWW
pursuant to Daigle.
In G.N.B., Inc. v. Jones, 29,779 (La.App. 2 Cir. 8/20/97), 699 So.2d 466,
the baseline or actual AWW was increased by $35.67 for 160 hours of vacation pay
valued at $1,854.40 ($1,854.40 ÷ 52 = $35.67) and was increased by $21.40 for
ninety-six (96) hours of holiday pay valued at $1,112.64 ($1,112.64 ÷ 52 = $21.40).
Additionally, the weekly value of insurance and other benefits, $87.28, was added
to the weekly cash wage of $463.60 for a total AWW of $607.95.2
In Pool, 714 So.2d 153, an economics expert testified that the claimant’s
medical and retirement benefits, plus compensated time off, equaled $106.67 per
week. After adjusting the actual wage to $455.67, to include overtime as shown
above, the second circuit affirmed the OWC’s addition of $41.38 for medical
insurance, $18.60 for retirement benefit, and $46.69 for compensated time off, for a
total AWW of $562.34.
In Moses v. Grambling State University, 33,185 (La.App. 2 Cir.
5/15/00), 762 So.2d 191, writ denied, 00-1769 (La. 9/22/00), 768 So.2d 1285, the
court held that the claimant’s AWW of $352.08 should be increased by $44.76 for
weekly insurance benefits, $43.66 for weekly retirement benefits, and by $59.13, the
weekly value of fourteen hours of annual leave and fourteen hours of sick leave per
month, for a total AWW of $499.62.
In the present case, Monica Hornsby, employed by Lourdes for twenty-
six years, and responsible for timekeeping and payroll, testified that Ms. Clay, an
2 We note that in Jones and other cases involving injuries occurring before August 15, 1999, when subsection (f) was added to La.R.S. 23:1021(10), now appearing as 23:1021(12)(f), the courts included as fringe benefits the insurance premiums and retirement benefits that were paid by the employer. After the 1999 amendment adding subsection (f), only the employee’s portion of the insurance premium is includable in the AWW as a fringe benefit, because the non-wage or fringe benefit, to be includable, must be taxable to the employee. La.R.S. 23:1021(12)(f).
14 hourly employee, does not get credit for time earned if she is out sick or otherwise
absent. However, she earns six (6) hours of paid time off (PTO) on each of her
twenty-six pay-checks, that is six hours for every eighty (80) hours worked. Ms.
Hornsby also testified that each employee earns two and a half hours (2.5) of
extended illness time (EIT) per pay period. This is kept in a separate “bank” and is
tracked on the check stub as well.
Based upon the testimony of Ms. Hornsby, we find that Ms. Clay
received an average weekly fringe benefit of PTO in the amount of $27.75 (6 x 26 =
156 hrs/per/yr ÷ 52 wks = 3 hrs/per/wk x $9.25 = $27.75). We also find that Ms.
Clay received an average weekly fringe benefit of EIT in the amount of $11.56 (2.5
x 26 = 65 hrs/per/yr ÷ 52 wks = 1.25 hrs/per/wk x $9.25 = $11.56).
With regard to holiday pay under Sterling, Burns, and Jones, Kevin
Domingue, Lourdes’ director of human resources, testified that the employees receive
holiday pay, and if they work on a holiday, they earn holiday overtime at the rate of
one and one half times their regular hourly wage. In Ms. Clay’s case, that is $13.88
per hour ($9.25 x 1.5 = $13.88). The personnel manual proffered by Lourdes indicates
the provision of seven (7) paid holidays. However, if an employee is scheduled to be
off on a holiday, the time is charged from the employee’s PTO bank. Therefore, in
this instance, regular holiday pay is already accounted for in the PTO calculation
above. In the event that an employee is scheduled by Lourdes to work on a holiday,
that employee is paid an additional amount for holiday overtime. Overtime is used for
calculating the AWW, but only during the four full weeks preceding the injury.
Therefore, while Ms. Clay earned $333.24 in holiday overtime according to her year-
15 to-date information, she did not earn it during the applicable pay periods, and we will
not assign an additional amount for holiday pay in this case.3
In the present case, the OWC and Lourdes cited Ivory v. Southwest
Developmental Center, 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108, for the
proposition that fringe benefits are not added to the actual earnings. Ivory is
inapplicable. There, the employee was injured six months after being employed with
the defendant, and the panel found that there was no evidence of fringe benefits having
been received. Lourdes, with apparent approval of the OWC, interpreted this to mean
that a fringe benefit, such as PTO or holiday pay, must be “used” and “received” and
appear on the check stub for the four-week period prior to injury. This is not true. Ms.
Clay worked for Lourdes for a total of twenty-two years. Her vacation pay and other
fringe benefits would have an added value even if she had not used them in the weeks
prior to her injury.
Moreover, as shown above, weeks used for vacation in the four weeks
immediately preceding the injury are specifically not used in the calculation of the
AWW because they are not full weeks. Likewise, there has been a tendency to
misinterpret subsection (f) as requiring that a specific benefit must have been received
on a check and therefore “taxed” before being considered in a claimant’s AWW. We
disagree with this interpretation, as discussed below, because subsection (f) requires
benefits to be “taxable,” not “taxed.”
3 Ms. Clay apparently worked three holidays during the year as of the pay stub dated 6/03/05 ($333.24 ÷ $13.88/hr = 24 hrs = 3 days). However, as indicated, Ms. Clay’s holiday overtime pay would be calculated in the AWW as overtime if it had occurred during the applicable pay periods, not as a fringe benefit, because the basic holiday pay fringe benefit is characterized by Lourdes as part of the PTO benefit. It seems appropriate to here insert the observation from the above jurisprudence that fringe benefits are often averaged over a fifty-two week period and added to the actual or baseline AWW, which, including overtime, is calculated under La.R.S. 23:1021 and covers the four full weeks preceding the injury. Some parties arrive at inaccurate figures, and inaccurate reasoning, when they conclude that fringe benefits are “included” in the claimant’s AWW and then fail to add the non-wage benefit to the actual wage earned.
16 Ivory held that only paid leave used during the four weeks preceding the
accident was includable in calculating the AWW, that paid holidays were not
includable for an hourly employee, that benefits were only taxable when they were
used, and that fringe benefits were already included in the hourly rate. As indicated
in the above jurisprudence and reasoning, these holdings are not reconcilable with the
law on fringe benefits and are inapposite as precedent in calculating an hourly
employee’s total AWW.
In part, Ivory falls out of accord with established jurisprudence on holiday
pay and with La.R.S. 23:1021(12)(f), due to its reliance upon Anderson v. Eckerd
Corp., 04-1053 (La.App 1 Cir. 5/6/05), 915 So.2d 901, writ denied, 05-1520 (La.
1/9/06), 918 So.2d 1044, which declined to add amounts for paid holiday and vacation
benefits to a salaried employee’s AWW. Anderson is too brief to shed any light on
the subject, but it refers to the claimant’s salary and cites Moses, 762 So.2d 191,
which also addressed a salaried employee. The court in Moses, as indicated above,
increased the AWW for annual and sick leave and other benefits, but not for vacation
and holiday benefits.
In Burns, 830 So.2d at 575, we distinguished Moses as follows:
In Moses, the employee was paid an annual salary, not an hourly wage like Mr. Burns and the employee in G.N.B., Inc. In the memorandum to “All Employees” regarding “Paid Time Off” and “Extended Sick Leave,” Cabrini describes “Paid Leave” as "hours for use as time away from work for the purpose of vacation/holiday, personal business, family illness and/or short-term personal illness.” There is no indication that without this policy hourly employees, like Mr. Burns, would be paid for holidays, unless they worked those days. According to this policy, holiday pay is the same as vacation and sick leave: employees are rewarded with these benefits for their service to the hospital. Pursuant to Daigle, 545 So.2d 1005, Mr. Burns’ holiday pay was properly included in the AWW calculation.
17 Ivory’s reliance on Anderson, and therefore Moses, is therefore misplaced
where Ivory was also an hourly employee. Further, Ivory is self-conflicting because
it cites our decision in Sterling, which held that vacation and holiday pay are taxable
and includable in the AWW. According to Ivory, the claimant did not receive “any
fringe benefits which were specifically excluded from income taxation.” Ivory, 980
So.2d at 115. Ivory then fails to add them to the AWW calculation. Ivory then found
that the claimant’s sick leave, annual leave, and compensatory time were only taxable
when used, which is not what La.R.S. 23:1021(12)(f) provides.
Ms. Clay earned a bonus of $384.80, which covered a full year ending
with the pay period June 25, 2005, and which was reflected in a separate pay-check
dated July 1, 2005. Lourdes argued at trial that this bonus should not be considered
in calculating the AWW because it was not taxed to Ms. Clay until the check was cut
on July 1, 2005, which was after the injury on June 28, 2005. We disagree, as stated
above. The bonus was for the pay period ending June 25, just days before the injury.
Therefore, it was earned prior to the injury.
Mr. Domingue testified that Ms. Clay, along with thirty-three percent of
Lourdes’ employees, had been at the top of her pay scale and had gone without raises
for at least two years. Lourdes, therefore, paid those employees a bonus for the fiscal
year ending in June 2005. The bonus was for two percent (2%) of Ms. Clay’s annual
earnings ($9.25 x 2080 x .02 = $384.80). Accordingly, we find that Ms. Clay’s bonus
should be calculated as an element of her total AWW.
The Louisiana Supreme Court in Daigle, 545 So.2d 1005, held that two
incentive bonuses of the salaried employee would fit more neatly into the AWW if
calculated as “other wages” under La.R.S. 23:1021(10)(d). The current provision is
located at La.R.S. 23:1021(12)(d) and provides in pertinent part as follows:
18 (d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week[.]
If we calculate Ms. Clay’s bonus using subsection (d), we find that she
actually worked 114 days, an average of 4.4 days per week, in the twenty-six week
period preceding the injury. Using the above formula, we arrive at a weekly benefit
of $7.44 ($384.80 ÷ 2 = $192.40 ÷ 114 = $1.69 x 4.4 = $7.44).
However, the court in Daigle provided in a footnote that it did not use this
formula in its previous decision involving an hourly employee in Allen v. Belden
Corporation, 393 So.2d 1233 (La.1981).4 In Burns, involving an hourly employee,
we included in the AWW calculation a three percent lump sum bonus of $713.24.
There, we simply divided the bonus amount by fifty-two and arrived at a weekly bonus
benefit of $13.72. Accordingly, we will use the calculation method in Burns, which
in this case results in a weekly bonus benefit of $7.40 ($384.80 ÷ 52 = $7.40). This
brings Ms. Clay’s total AWW to $416.71.5
4 We are also aware that Daigle used a two-part incentive bonus paid to the claimant before his accident in May and indicated in a footnote that there was another incentive bonus paid in August, after the accident, for the first half of the year (presumably for January through June). This third bonus was not included in the calculation of AWW, not even on a prorated basis. Notwithstanding, we have included Ms. Clay’s bonus which was earned entirely by June 25, 2005 and paid to her only days after the injury on June 28, 2005, where Ms. Clay’s bonus was in lieu of an annual raise, while the Daigle bonuses were based upon sales volume and profit goals. 5 We note that two of Ms. Clay’s three check stubs in evidence show a deduction from her wages of $37.20 which is described simply as “ health.” We are assuming that this entry constitutes a health insurance premium deducted by the employer for Ms. Clay’s portion of a health insurance benefit. Even though this deduction is not shown on Ms. Clay’s check stub as a taxable amount, under La.R.S. 23:1021(12)(f), this appears to be a specifically includable benefit which would increase her AWW by another $18.60. However, there was no testimony, argument, or additional evidence regarding this premium that would allow us to include it in Ms. Clay’s AWW. Moreover, where the premium was not withheld from one of the three check stubs in evidence, with no explanation as to why, we will not include the premium in our calculation of AWW based upon insufficient information.
19 IV.
CONCLUSION
Based upon the foregoing, we reverse the OWC judgment terminating
Ms. Clay’s benefits where she was no longer physically able to stock medical supplies
and where the clerical and office positions submitted by the vocational rehabilitation
counselor, and applied for by Ms. Clay without avail, were unsuitable and unavailable
to her under La.R.S. 23:1221 and under Banks.
We further reverse the OWC’s calculation of Ms. Clay’s total AWW,
finding that her correct AWW is $416.71, which includes an actual wage of $370.00
plus a weekly PTO benefit of $27.75, a weekly EIT benefit of $11.56, and a weekly
bonus benefit of $7.40. We award an additional $5,000.00 in attorney fees for work
done by Ms. Clay’s attorney on appeal.