LeBlanc v. Modern Flooring, Inc.

591 So. 2d 1240, 1991 La. App. LEXIS 3494, 1991 WL 272503
CourtLouisiana Court of Appeal
DecidedDecember 11, 1991
DocketNo. 91-CA-420
StatusPublished
Cited by3 cases

This text of 591 So. 2d 1240 (LeBlanc v. Modern Flooring, Inc.) 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
LeBlanc v. Modern Flooring, Inc., 591 So. 2d 1240, 1991 La. App. LEXIS 3494, 1991 WL 272503 (La. Ct. App. 1991).

Opinion

KLIEBERT, Chief Judge.

Plaintiff, Todd LeBlanc, suffered an on-the-job knee injury on December 21, 1988 and sued his statutory employer, Modern Flooring, Inc., and its insurer, the Louisiana Insurance Guaranty Association [1242]*1242(LIGA),1 defendants herein, for worker’s compensation benefits of 66%% of his weekly wage and, alternatively, for supplemental earnings benefits due to his decreased earnings capacity. Plaintiff also sought penalties and attorney’s fees from defendants alleging they were arbitrary and capricious in failing to pay his compensation benefits and medical expenses. From a judgment in favor of plaintiff awarding him past due supplemental earnings benefits of $2,781.71, finding his average monthly wage at the time of the accident was $1,105.44, and denying penalties and attorney’s fees, plaintiff appeals.

For the following reasons, we reverse in part, affirm in part and remand.

While installing carpet for Modern Flooring, Inc. on December 21, 1988, plaintiff LeBlanc twisted his left knee and suffered a posterior horn tear of the medial meniscus. Dr. Robert Mímeles, plaintiff’s treating orthopedic surgeon, surgically repaired the torn ligament and fully released plaintiff for return to work on April 3, 1989. The only restriction placed on plaintiff was that he not use a knee kicker.2 Dr. Mí-meles assigned a 13% permanent partial disability rating to plaintiff’s knee.

Based on Dr. Mímeles’ reports, LIGA terminated scheduled compensation benefits under LSA-R.S. 23:1221. Because of continued complaints of knee pain and swelling, however, LIGA continued to pay medical benefits for a number of medical examinations plaintiff obtained after April of 1989.

Shortly before trial plaintiff was evaluated by Dr. Rudolph Hamsa, an orthopedic surgeon, for continued knee problems in February 1990. An MRI was ordered which was essentially negative. Dr. Ham-sa felt plaintiff’s knee problem should fully resolve with therapy and, after therapy, his only restriction would be not to use a knee kicker. However, at the last examination, Dr. Hamsa also restricted plaintiff to no squatting, no use of the knee kicker, and to avoid physical stresses of the knee. Defendants have paid all medical bills related to Dr. Hamsa’s examinations.

On appeal, plaintiff argues the trial court erred in (1) calculating his pre-accident wage, (2) concluding he could earn more than minimum wage because there was no proof of any specific jobs available to him, and (3) dismissing his claim for penalties and attorney’s fees.

The trial court found plaintiff was entitled to Supplemental Earnings Benefits (SEB) because he was not able to earn wages equal to 90% or more of his wages at the time of injury and awarded him benefits of 66⅜% of the difference between the average monthly wage at the time of injury and the average monthly wage the employee was able to earn in any month thereafter. LSA-R.S. 23:1221(3)(a).3 However, the record is unclear as to how the trial court calculated plaintiff’s wages. It appears the trial court found plaintiff was employed on a “... unit, piecework, commission, or other basis ...” and utilized LSA-R.S. 23:1021(10)(d)4 in computing his [1243]*1243wages and determining plaintiff’s average monthly wage was $1,105.44. This figure was derived by using plaintiffs job tickets from July 1988 through December 1988 of $6,368.00. When plaintiff worked during this twenty-two week period, he averaged 4.5 days per week or 99 total days for an average monthly wage of $1,105.44. No deductions were made for expenses incurred by plaintiff.

Plaintiff would contract with Modern Flooring to install carpet purchased by a customer from Modern Flooring. He was paid by the job and would hire and pay his own helpers; he owned his two trucks; except on special jobs, all materials, except carpet, were purchased by plaintiff and he owned the tools needed to perform the work. Worker’s compensation insurance premiums for plaintiff and his helpers were deducted by Modern Flooring, Inc. from the contract job price. Modern Flooring, Inc. did not supervise plaintiff’s work. Thus, plaintiff is an independent contractor engaged in manual labor and under the provisions of LSA-R.S. 23:1021(6)5 is covered by the worker’s compensation act.

Where an injured party is an independent contractor engaged in manual labor of the same kind as that done by his employees, then his profits and overhead cannot be included as part of “wages” in calculating his weekly rate of compensation benefits. The proper method to determine the wages of an independent contractor is to determine the prevailing wage for work similar in character performed by a similarly experienced worker. Courts, should not use the job contract price or the wages of an independent contractor’s employees to determine the independent contractor’s average wage. Jim Walter Homes v. Lewis, 544 So.2d 485 (2nd Cir.1989). Because the record before us does not contain sufficient evidence to determine the proper wage rate of a carpet installer with similar experience as plaintiff, we remand the matter to the district court with instructions to determine plaintiff’s weekly wage rate in a manner consistent with this opinion.

Additionally, in determining the SEB benefits due plaintiff, we note plaintiff testified he had no steady employment at the time of trial and was able to work only at odd jobs. He inquired about employment in the carpet installation field but was not offered a job due to his knee injury. According to LSA-R.S. 23:1221(3)(c)(i), if the employee is not engaged in any employment or self-employment, the amount determined to be the wages the employee is able to earn in any month shall not be less than the sum he would have earned in any employment or self-employment which he was physically able to perform and which is proven available to the employee in the employee’s or the employer’s community or reasonable geographic region. An employer may meet this burden by proving that there are jobs available to the employee as contemplated by LSA-R.S. 23:1221(3)(c)(i)6 by showing [1244]*1244that jobs are generally available within the range of the employee’s capacity. Ambrose v. Fluor Constructors, Inc., 537 So.2d 1176 (4th Cir.1988); Batiste v. Hopeman Bros., Inc., 508 So.2d 922 (4th Cir.1987) writ denied 512 So.2d 1178 (La.1987).

Myrna B. Bacuetes and Susan E. Ells-worth, the vocational rehabilitation counselors admitted as experts in their field on behalf of defendants, did a labor market survey utilizing plaintiff’s education, experience and limitations as set forth by Doctors Mimeles and Hamsa. They found numerous jobs available to plaintiff and approved by Dr. Mímeles to be work plaintiff could perform, at a pay rate of at least minimum wage.

However, because we are unable to determine plaintiff’s average weekly wage we are unable to determine whether the plaintiff is entitled to SEB benefits. Thus, this question is also remanded to the trial court.

Plaintiff also requests penalties and attorney’s fees be assessed against defendants for terminating benefits and failure to pay medical expenses. Under 23:1201.2, where an employer is arbitrary and capricious in terminating compensation benefits, he is liable for all reasonable attorney’s fees for the prosecution of the claim.

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Related

Harmon v. Louisiana Insurance Guaranty Ass'n
654 So. 2d 815 (Louisiana Court of Appeal, 1995)
LeBlanc v. Modern Flooring, Inc.
603 So. 2d 764 (Louisiana Court of Appeal, 1992)
LeBlanc v. Modern Flooring, Inc.
596 So. 2d 543 (Supreme Court of Louisiana, 1992)

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Bluebook (online)
591 So. 2d 1240, 1991 La. App. LEXIS 3494, 1991 WL 272503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-v-modern-flooring-inc-lactapp-1991.