STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 04-1407
JASON HALKER
VERSUS
AMERICAN SHEET METAL
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 01-04520 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and James T. Genovese, Judges.
AFFIRMED.
H. Douglas Hunter Guglielmo, Lopez, et al. P. O. Drawer 1329 Opelousas, LA 70571-1329 (337) 948-8201 Counsel for Defendant/Appellant: American Sheet Metal Marcus Miller Zimmerman Attorney at Law 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 Counsel for Plaintiff/Appellee: Jason Halker SAUNDERS, J.
American Sheet Metal appeals the Workers’ Compensation judge’s decision
that defendants violated La.R.S. 23:1201(G). As a result of the violation and in
accordance with the statute, the judge imposed penalties and attorney fees. We affirm
that decision and grant the appellee an additional $1,500.00 in attorney fees for work
done on this appeal.
FACTS
On January 22, 2003, the Office of Workers’ Compensation judge determined
that LUBA (American Sheet Metal’s compensation self-insurer’s fund) was
responsible for medical and indemnity benefits owed to Jason Halker, the appellee.
LUBA appealed the decision to the Louisiana Third Circuit Court of Appeal and on
December 10, 2003, the Third Circuit upheld the Workers’ Compensation judge’s
decision. On January 30, 2004, LUBA tendered a check for $16,488.24 to appellee.
The appellee requested a breakdown of that amount and it was received on February
12, 2004. The breakdown provided $13,747.57 for indemnity, and $2,740.67 for
interest on the indemnity amount. On March 16, 2004, appellant tendered a check for
$1,446.10 for out of pocket medical expenses incurred by Jason Halker. On April 27,
2004, appellee sent a letter to appellant concerning the remaining outstanding
balance, and the final indemnity amount, $2,538.42, was paid on May 17, 2004.
Also, on May 17, 2004, appellant paid the remaining $621.92 for medical expenses
which brought the medical total to $2,068.02. As of May 17, 2004, all outstanding
amounts were paid in full.
On March 8, 2004, appellee filed a Rule to Show Cause why Jason Halker
should not be granted enforcement of the December 10, 2003 judgment. Appellee also requested penalties and attorney fees pursuant to La.R.S. 23:1201(G). On May
24, 2004, the Office of Workers’ Compensation heard the appellee’s argument that
the appellant had not timely complied with the Third Circuit’s judgment. The
Workers’ Compensation judge determined that the appellant paid the indemnity
untimely and in violation of La.R.S. 23:1201(G). The Workers’ Compensation judge
awarded appellee $3,000.00 in penalties and $3,000.00 in attorney fees. Appellant
filed a suspensive appeal on July 6, 2004.
ASSIGNMENT OF ERRORS
1. Appellant contends that the Workers’ Compensation judge committed manifest error in awarding Jason Halker penalties and attorney fees regarding the payment of disability benefits pursuant to a judgment.
2. Appellee contends that he is entitled to an increase in the award of attorney fees for work done on this appeal.
LAW & ANALYSIS
Findings of the trial court are reviewable on appeal, and the appellate standard
of review has been clearly established. A trial judge’s findings of fact will not be
disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,
through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’
or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be
disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111
(La.1990). “If the trial court or jury’s findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even though convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Id. at 1112.
2 ASSIGNMENT OF ERROR NUMBER ONE
Appellant argues that the Workers’ Compensation judge erred by imposing
penalties and attorney fees pursuant to La.R.S. 23:1201(G). Appellee argues that the
imposition of penalties and attorney fees was proper as the defendant violated the
statute.
Louisiana Revised Statutes 23:1201(G) provides the proper sanctions when an
employer fails to timely pay a judgment and states that:
G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.
On December 10, 2003, the Third Circuit upheld the Workers’ Compensation
judge’s ruling in favor of Jason Halker. From that date, thirty days are provided for
a party to file for supervisory writs with the Louisiana Supreme Court. La.Code
Civ.P. art. 2166. From December 10, 2003, the parties had thirty days to file for writs
which expired on January 10, 2004. Upon conclusion of this time period, La.R.S.
23:1201(G) provides thirty days for payment of the judgment, and also provides
penalties and attorney fees for failure to pay timely. Therefore, appellant had until
February 10, 2004 to pay the judgment.
On January 30, 2004, appellant paid some of the indemnity that was owed.
Upon receipt of the payment, appellee requested a list of what that payment
3 specifically encompassed and it was provided on February 12, 2004. On April 27,
2004, appellee sent a letter requesting the remaining indemnity benefits that were not
yet paid. The final amount was not received until May 17, 2004.
Appellant proposes several arguments against imposing penalties and attorney
fees. First, appellant argues that the principle of equitable estoppel should apply.
“Equitable estoppel arises when one by his actions, or by his silence when he ought
to speak, induces another to believe certain facts and the other relies on these facts
to his prejudice.” LeDoux v. Old Republic Life Insurance Co., 233 So.2d 731, 735
(La.App. 3rd Cir.), writ denied, 236 So.2d 501 (La.1970). Appellant argues that
partial payment was rendered timely on January 30, 2004, and that appellee’s silence
prevented the complete and timely performance. Appellant contends that appellee
should have notified the appellant prior to the expiration of the time period that the
judgment was not paid in full. Therefore, appellant suggests that appellee’s silence
should result in him being estopped from receiving penalties and attorney fees.
Appellant’s equitable estoppel argument has no merit in this situation as he can
not force the claimant to bear the burden of his error. The judgment provided the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 04-1407
JASON HALKER
VERSUS
AMERICAN SHEET METAL
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 01-04520 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and James T. Genovese, Judges.
AFFIRMED.
H. Douglas Hunter Guglielmo, Lopez, et al. P. O. Drawer 1329 Opelousas, LA 70571-1329 (337) 948-8201 Counsel for Defendant/Appellant: American Sheet Metal Marcus Miller Zimmerman Attorney at Law 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 Counsel for Plaintiff/Appellee: Jason Halker SAUNDERS, J.
American Sheet Metal appeals the Workers’ Compensation judge’s decision
that defendants violated La.R.S. 23:1201(G). As a result of the violation and in
accordance with the statute, the judge imposed penalties and attorney fees. We affirm
that decision and grant the appellee an additional $1,500.00 in attorney fees for work
done on this appeal.
FACTS
On January 22, 2003, the Office of Workers’ Compensation judge determined
that LUBA (American Sheet Metal’s compensation self-insurer’s fund) was
responsible for medical and indemnity benefits owed to Jason Halker, the appellee.
LUBA appealed the decision to the Louisiana Third Circuit Court of Appeal and on
December 10, 2003, the Third Circuit upheld the Workers’ Compensation judge’s
decision. On January 30, 2004, LUBA tendered a check for $16,488.24 to appellee.
The appellee requested a breakdown of that amount and it was received on February
12, 2004. The breakdown provided $13,747.57 for indemnity, and $2,740.67 for
interest on the indemnity amount. On March 16, 2004, appellant tendered a check for
$1,446.10 for out of pocket medical expenses incurred by Jason Halker. On April 27,
2004, appellee sent a letter to appellant concerning the remaining outstanding
balance, and the final indemnity amount, $2,538.42, was paid on May 17, 2004.
Also, on May 17, 2004, appellant paid the remaining $621.92 for medical expenses
which brought the medical total to $2,068.02. As of May 17, 2004, all outstanding
amounts were paid in full.
On March 8, 2004, appellee filed a Rule to Show Cause why Jason Halker
should not be granted enforcement of the December 10, 2003 judgment. Appellee also requested penalties and attorney fees pursuant to La.R.S. 23:1201(G). On May
24, 2004, the Office of Workers’ Compensation heard the appellee’s argument that
the appellant had not timely complied with the Third Circuit’s judgment. The
Workers’ Compensation judge determined that the appellant paid the indemnity
untimely and in violation of La.R.S. 23:1201(G). The Workers’ Compensation judge
awarded appellee $3,000.00 in penalties and $3,000.00 in attorney fees. Appellant
filed a suspensive appeal on July 6, 2004.
ASSIGNMENT OF ERRORS
1. Appellant contends that the Workers’ Compensation judge committed manifest error in awarding Jason Halker penalties and attorney fees regarding the payment of disability benefits pursuant to a judgment.
2. Appellee contends that he is entitled to an increase in the award of attorney fees for work done on this appeal.
LAW & ANALYSIS
Findings of the trial court are reviewable on appeal, and the appellate standard
of review has been clearly established. A trial judge’s findings of fact will not be
disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,
through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’
or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be
disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111
(La.1990). “If the trial court or jury’s findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even though convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Id. at 1112.
2 ASSIGNMENT OF ERROR NUMBER ONE
Appellant argues that the Workers’ Compensation judge erred by imposing
penalties and attorney fees pursuant to La.R.S. 23:1201(G). Appellee argues that the
imposition of penalties and attorney fees was proper as the defendant violated the
statute.
Louisiana Revised Statutes 23:1201(G) provides the proper sanctions when an
employer fails to timely pay a judgment and states that:
G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.
On December 10, 2003, the Third Circuit upheld the Workers’ Compensation
judge’s ruling in favor of Jason Halker. From that date, thirty days are provided for
a party to file for supervisory writs with the Louisiana Supreme Court. La.Code
Civ.P. art. 2166. From December 10, 2003, the parties had thirty days to file for writs
which expired on January 10, 2004. Upon conclusion of this time period, La.R.S.
23:1201(G) provides thirty days for payment of the judgment, and also provides
penalties and attorney fees for failure to pay timely. Therefore, appellant had until
February 10, 2004 to pay the judgment.
On January 30, 2004, appellant paid some of the indemnity that was owed.
Upon receipt of the payment, appellee requested a list of what that payment
3 specifically encompassed and it was provided on February 12, 2004. On April 27,
2004, appellee sent a letter requesting the remaining indemnity benefits that were not
yet paid. The final amount was not received until May 17, 2004.
Appellant proposes several arguments against imposing penalties and attorney
fees. First, appellant argues that the principle of equitable estoppel should apply.
“Equitable estoppel arises when one by his actions, or by his silence when he ought
to speak, induces another to believe certain facts and the other relies on these facts
to his prejudice.” LeDoux v. Old Republic Life Insurance Co., 233 So.2d 731, 735
(La.App. 3rd Cir.), writ denied, 236 So.2d 501 (La.1970). Appellant argues that
partial payment was rendered timely on January 30, 2004, and that appellee’s silence
prevented the complete and timely performance. Appellant contends that appellee
should have notified the appellant prior to the expiration of the time period that the
judgment was not paid in full. Therefore, appellant suggests that appellee’s silence
should result in him being estopped from receiving penalties and attorney fees.
Appellant’s equitable estoppel argument has no merit in this situation as he can
not force the claimant to bear the burden of his error. The judgment provided the
information necessary for the appellant to determine the proper amount owed, and it
is not the appellee’s job to ensure that the appellant complies with the judgment or
even that he complies timely. Appellant cannot now excuse his behavior by blaming
the appellee who is merely following the provisions of the statute.
Next, appellant argues that appellee acted in bad faith by not notifying
appellant sooner that the judgment was not paid in full. Thus, appellee’s bad faith
contributed to the late payment and that bad faith should prohibit the appellee from
4 receiving penalties and attorney fees. Louisiana Civil Code Article 2003 entitled
“Obligee in bad faith” provides:
An obligee may not recover damages when his own bad faith has caused the obligor’s failure to perform or when, at the time of the contract, he has concealed from the obligor facts that he knew or should have known would cause a failure.
If the obligee’s negligence contributes to the obligor’s failure to perform, the damages are reduced in proportion to that negligence.
This argument, however, disregards the relevant time period at issue here. Appellee
did not receive payment until January 30, 2004, the breakdown until February 12,
2004 and still required time to review the information with the client. At the time the
breakdown was received on February 12, 2004, appellant had already exceeded the
time allowed by the statute. Thus, appellant’s bad faith argument has no merit.
Third, appellant argues that a mathematical error should not subject him to the
imposition of penalties and attorney fees. He contends that the Louisiana Supreme
Court’s purpose of imposing penalties and attorney fees is not supported by punishing
an employer for a mere math miscalculation.
Awards of penalties and attorney’s fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.
Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99) 737 So.2d 41, 46. (Citations
omitted.) Although “penal statutes are to be strictly construed,” “[t]he WCJ has great
discretion in awarding or denying penalties and attorney fees. The WCJ’s decision
concerning whether or not to assess statutory penalties and attorney fees will not be
disturbed absent an abuse of discretion.” Player v. Int’l Paper Co., 39,254, p.5
5 (La.App. 2 Cir. 1/28/05), ____ So.2d _____; 2005 WL 180456 (Citations omitted.)
Upon a thorough analysis, we have not discovered any abuse of discretion.
In addition, the appellant cites several cases for the proposition that
mathematical errors should not result in penalties and attorney fees. However, those
errors were partly based on the claimants who provided incorrect, incomplete or
untimely information.
Appellee suggests that the mathematical error is a result of appellant’s
carelessness and that courts have imposed penalties for careless mistakes. In Davis
v. City of New Orleans, 97-1626 (La.App. 4 Cir. 1/28/98), 706 So.2d 669, the
employer refused to pay and the claimant filed suit to enforce the judgment. Under
La.R.S. 23:1201(G), the court looked to see if the absence of payment by the
employer was a result of conditions over which it had no control. The employer
argued that failure to pay the medical bill was a mere oversight. The court stated,
“[t]he nonpayment was strictly a matter over which the City had control. It simply
failed to discharge the responsibility imposed upon it by the judgment.” Id. at 671.
In Soileau v. R&H Refractory Services, Inc., 01-0355 (La.App. 3 Cir. 10/3/01), 796
So.2d 903, writ denied, 01-2954 (La. 1/25/02) 807 So.2d 841, the employer did not
timely pay the first installment of indemnity benefits but, upon realization of this fact,
the employer immediately sent the payment. The court stated, “it is . . . clear that
R&H failed to make the payment as a result of its own carelessness.” Id. at 906.
Thus, the court imposed penalties.
In the present case, the judgment provided all the necessary information for the
appellant to determine the correct amounts owed. Therefore, based on an analysis of
6 the facts and the jurisprudence, we believe that penalties and attorney fees are indeed
warranted in this situation as the payment was completely under the appellant’s
control.
ASSIGNMENT OF ERROR NUMBER TWO
Appellee requests additional attorney fees for the work incurred on this appeal.
According to Colonial Nursing Home v. Bradford, 02-588, p. 12 (La.App. 3 Cir.
12/30/02), 834 So.2d 1262, 1272, writ denied, 03-0364 (La. 4/21/03) 841 So.2d 802,
the court stated, “[a]n award for attorney fees for work done on appeal is warranted
when the appeal has necessitated additional work on the attorney’s part.” As this
appeal required additional work, we therefore find that attorney fees are appropriate,
and grant the appellee an additional $1,500.00.
CONCLUSION
We affirm the Workers Compensation judge’s decision to impose penalties and
attorney fees pursuant to La.R.S. 23:1201(G). In addition, we grant the appellee
$1500.00 in attorney fees for work performed on this appeal. Appellant is
responsible for the costs of this appeal.