Kelley v. Jack Jackson Const. Co.

748 So. 2d 1270, 1999 WL 1267776
CourtLouisiana Court of Appeal
DecidedDecember 30, 1999
Docket32,663-WCA
StatusPublished
Cited by10 cases

This text of 748 So. 2d 1270 (Kelley v. Jack Jackson Const. Co.) 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
Kelley v. Jack Jackson Const. Co., 748 So. 2d 1270, 1999 WL 1267776 (La. Ct. App. 1999).

Opinion

748 So.2d 1270 (1999)

Steve KELLEY, Plaintiff-Appellee,
v.
JACK JACKSON CONSTRUCTION COMPANY and Louisiana Workers' Compensation Corporation, Defendants-Appellants.

No. 32,663-WCA.

Court of Appeal of Louisiana, Second Circuit.

December 30, 1999.

*1272 Egan, Johnson & Stiltner by Thomas D. Travis, Baton Rouge, Counsel for Appellants.

Street & Street by D. Randolph Street, Monroe, Counsel for Appellee.

Before CARAWAY, PEATROSS & DREW, JJ.

PEATROSS, J.

This appeal arises from the judgment of the Workers' Compensation Judge ("WCJ") awarding increased supplemental earnings benefits ("SEBs"), penalties and attorney fees to Claimant/Appellee, Steve Kelley ("Claimant"). Jack Jackson Construction and the Louisiana Workers' Compensation Corporation ("LWCC" or collectively referred to herein as "Appellants") appeal asserting only one assignment of error, that the WCJ was clearly wrong in finding that Appellants were unreasonable in controverting Claimant's demand and thereby awarding penalties and attorney fees to Claimant. Appellants did not raise on appeal Claimant's entitlement to the increased SEBs. Claimant answered the appeal requesting additional attorney fees associated with the appeal. For the reasons stated herein, we affirm and award Claimant additional attorney fees in the amount of $1,500 for work associated with the appeal.

FACTS

On March 9, 1994, while working for Jack Jackson Construction as a carpentry apprentice in Monroe, Claimant inadvertently shot himself in the knee with a nail gun.[1] Claimant's knee was severely injured and he underwent two surgeries to repair the damage. As a result of the injury, Claimant suffered a

20 percent permanent impairment of his lower extremities and could not return to work as a carpentry apprentice. In late September 1994, Claimant was released to work with restrictions in lifting, climbing, squatting, bending, walking and standing.

After being released, Claimant was assigned, by the LWCC, the services of a vocational counselor, Jeannie Freeman. Ms. Freeman assisted Claimant for approximately three months from October 1994 through February 1995. At the time she rendered services to Claimant, Ms. Freeman was not a licensed vocational counselor, but was working under the supervision of a licensed vocational counselor. She did not become licensed until July 1995.[2]

Ms. Freeman's initial contact with Claimant was on October 21, 1994, when she and Claimant met at a McDonald's restaurant in Monroe. This was the only face-to-face contact between the two. Ms. Freeman testified that she found Claimant to be very motivated and eager to re-enter the workforce. Following this meeting, *1273 Ms. Freeman notified Claimant by mail of several potential jobs. The record indicates that Ms. Freeman, on behalf of the insurer, identified the following potential jobs for Claimant:

1. Sales job at Campo Electronics: Claimant was notified on December 6, 1994. Claimant applied, but was not hired due to lack of sales experience. Ms. Freeman testified that she did not know such experience was required. Notice to Claimant stated "sales experience helpful." The WCJ found this job "unsuitable" due to sales experience requirement.
2. Coca-Cola job: Claimant applied, but was not hired due to lack of sales experience. The WCJ found this job to be "unavailable" due to sales experience requirement.
3. Ryan Chevrolet service underwriter job: Claimant applied, but was not hired due to lack of required experience.
4. Agnew Sign job: Claimant applied, but was not hired due to lack of experience with sheet metal.
5. Riverside Kawasaki sales job: Claimant applied, but was not hired due to lack of computer experience.
6. Airborne Express parcel delivery job: Claimant did not apply because the notice did not indicate that the job was in Monroe, but led him to believe that it was in Shreveport.
7. Fiber Products assembly line job: Available through Manpower services; Claimant made application directly with employer, but was not hired.
8. Fast-Way Rent to Own rental contract writing, customer service oriented job: Claimant applied, but was not hired due to lack of experience.

As stated above, Claimant's attempts to procure employment with the suggested employers were unproductive. Ms. Freeman testified that she attempted, unsuccessfully, to contact Claimant by telephone to follow-up with him on February 27, 1995, and again on February 28, 1995. Shortly thereafter, Ms. Freeman had a telephone conversation with Gale Clausen of the LWCC, wherein she informed Ms. Clausen that she had identified several jobs for Claimant; but, to her knowledge, he was not yet employed. Based on that information, on March 9, 1995, the LWCC reduced Claimant's SEBs from $213.33 per week to $93.33 per week.[3] At the time of the reduction, as Ms. Freeman suspected, Claimant was still searching for employment. Ms. Freeman did testify that she followed-up with several of the identified employers; however, such follow-ups were not until 1998, after the filing of the present claim.[4]

By his own efforts, Claimant obtained employment at the Dollar General Store in January 1996 and also did some remodeling work on the side. By the time of trial, Claimant had, again by his own efforts, obtained employment as an apartment maintenance person earning $10 per hour, a higher wage than he had been earning at the time of his injury.

In June 1998, Claimant filed this action seeking back due SEBs based on zero earnings from the date of the reduction of his benefits in March 1995 until his employment with Dollar General began, and thereafter in accordance with his earnings, along with penalties and attorney fees. In January 1999, after a bench trial, the WCJ awarded Claimant back due SEBs from *1274 the date of the initial reduction, March 9, 1995, less any payments made in accordance with Claimant's actual earnings. Additionally, finding that the reduction of benefits was arbitrary and capricious conduct on the part of the LWCC, the WCJ awarded Claimant attorney fees in the amount of $5,000 and penalties in the amount of $2,000.

DISCUSSION

Standard of Review

As previously stated, the sole issue before this court is whether penalties and attorney fees should have been awarded. We review the WCJ's award of attorney fees and penalties under the manifest error standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Oliveaux v. Riverside Nursing Home, 29,419 (La. App.2d Cir.4/2/97), 691 So.2d 340. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Banks, supra; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Factual findings are not manifestly erroneous or clearly wrong when the record contains a reasonable factual basis for those findings. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993).

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Bluebook (online)
748 So. 2d 1270, 1999 WL 1267776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-jack-jackson-const-co-lactapp-1999.