Lummus v. Shoney's

738 So. 2d 117, 99 La.App. 5 Cir. 90, 1999 La. App. LEXIS 1737, 1999 WL 346239
CourtLouisiana Court of Appeal
DecidedJune 1, 1999
DocketNo. 99-CA-90
StatusPublished
Cited by2 cases

This text of 738 So. 2d 117 (Lummus v. Shoney's) 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
Lummus v. Shoney's, 738 So. 2d 117, 99 La.App. 5 Cir. 90, 1999 La. App. LEXIS 1737, 1999 WL 346239 (La. Ct. App. 1999).

Opinion

J^DUFRESNE, Judge.

This is an appeal by Shoney’s of La-Place, defendant-appellant, from a judgment imposing penalties and attorney fees for its failure to promptly pay interest, court costs, a hospital bill, and certain travel expenses incurred by Linda Lum-[119]*119mus, a workers’ compensation claimant. For the following reasons we set aside that portion of the judgment ordering re-caleu-lation of interest, but otherwise affirm the remainder of the judgment.

The underlying facts are relatively straightforward. Claimant slipped in a puddle of water while on her job with Shoney’s and sought compensation for the resulting injuries to her neck and shoulder. She further alleged that a carpal tunnel syndrome in her right wrist was also caused by the fall. This latter allegation was disputed by the employer and after a hearing before a workers’ compensation judge a judgment issued holding that the wrist problem was indeed related to the accident. Shoney’s was ordered to pay for the carpal tunnel syndrome surgery and all related medical expenses, costs of the proceedings, penalties and | ¡..attorney fees, and interest on these amounts. On devol-utive appeal to this court the only pertinent change made in the judgment was that the award of penalties and attorney fees was set aside

Claimant sought payment pursuant to the judgment, and eventually brought a rule against the employer alleging that after repeated demands it had still failed to pay 1) the correct amount of interest on the judgment, 2) a hospital bill, 3) travel expenses for medical treatment, and 4) certain costs associated with the original trial. At the hearing on claimant’s rule, it was agreed that the hospital bill had by then been paid, and that the travel expenses would be taken care of as well. After that hearing of June 8, 1998, the judge entered a judgment ordering recalculation of the interest owed and payment of $900.32 in additional costs for the first proceeding. She further found the employer arbitrary and capricious in failing to pay timely these amounts, as well as the travel and hospital bills, and imposed a penalty of “24% of all bills which remained unpaid 30 days after demand for payment, or $3,000.00, whichever is the greater, and attorney’s fees in the amount of $5,000.00.”

Shoney’s now appeals this judgment and urges three assignments of error. First, it contends that its method of calculating interest on the previous judgment was correct, except for a small mathematical error of less than one percent. Second, it asserts that the judge erred in assessing costs for the previous hearing because certain of these had either already been paid for or were not introduced at trial by claimant, and moreover she failed to present any evidence to establish the amounts due for any of the items claimed. Third, it argues that it was not arbitrary and capricious in failing to pay the above amounts, but even if, arguendo, it had so acted, | athere is no statutory provision authorizing an award of penalties and attorney fees for failure to timely pay a judgment.

As to how interest is to be calculated, claimant now agrees that defendant used the correct method. We thus set aside that portion of the judgment ordering a re-calculation of interest as moot. However, defendant admits to a mathematical discrepancy in what it paid and what it owes, and as per the judgment this difference is to be paid. We further rule that because the employer’s position as to the calculation of interest was substantially correct, it should not. be required to pay penalties on the small mathematical discrepancy.

The second issue concerns costs of the prior proceeding. At the hearing claimant’s counsel represented orally to the judge that the following items had not been paid:

1. Claimant’s copy of deposition of Dr. George $71.85
2. Deposition of Dr. Zeringue $278.47
3. Deposition fee of Dr. Zeringue $400.00
4. Medical report of Dr. Zeringue $150.00
Total $900.32

At the hearing the employer did not contest the amounts of these items, nor did it suggest that these expenses were not incurred by claimant. Rather, it argued that it had paid the court reporter’s fee for the deposition of Dr. George, its own expert, and that the medical report of Dr. [120]*120Zeringue had been attached to his deposition and therefore should not be taxed as an independent item. It made no argument as to why Dr. Zeringue’s deposition and deposition fee should not be taxed as costs, and the record is clear that this document had been introduced at the original trial in lieu of | ¿that doctor’s live testimony.

The employer further argues here that claimant failed to present evidence of these costs at the hearing and therefore failed to show that these expenses had been incurred for the prior hearing. We reject this assertion. In workers’ compensation matters, the technical rules of evidence are relaxed, but findings must nonetheless be based on “competent evidence,” La. R.S. 23:1317. In Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, the court held that “competent evidence” is such evidence as “has some degree of reliability and trustworthiness and is of the type that reasonable persons would rely upon.” (At 382).

Here, claimant’s counsel represented to the judge that the above expenses had been incurred. The employer well knew that all of the above items had been used in the first hearing and it admits here that the only two items to which it had any opposition were the deposition of Dr. George and the medical report of Dr. Ze-ringue. It presented no argument at the hearing or before this court as to why Dr. Zeringue’s deposition costs and deposition fee were not owing. Neither has it raised any issue concerning the accuracy of the figures given by claimant’s counsel. In this court’s opinion, the representations made by claimant’s counsel as to the costs of the various items was competent evidence to establish those costs, particularly in the absence of any evidence or even an assertion by the employer that the figures were incorrect. Considering the above circumstances, it is clear that claimant presented “competent evidence” to establish the amounts of these various items and further that they were properly assessed by the judge as costs in the prior proceeding.

| KThese same circumstances also demonstrate that there were sufficient facts before the judge for her to find that the employer was arbitrary and capricious in failing to pay these costs upon request by claimant. The employer asserts that because it disputed some of the costs, it was entitled to a hearing to resolve these matters, and it thus can not be found to have acted arbitrarily in asserting this right. This argument fails for two reasons. First, as shown above, it did not contest that the deposition cost and fee for Dr. Zeringue were incurred and it knew that this document had been used in the first hearing. Second, it did not seek a hearing to resolve the alleged dispute as to the remaining two items, but rather refused to pay any of the four items, thus compelling claimant to bring a rule on this entire issue.

The final assignment concerns whether the employer acted arbitrarily and capriciously in not paying various items, and if so what sanctions are authorized by statute.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
738 So. 2d 117, 99 La.App. 5 Cir. 90, 1999 La. App. LEXIS 1737, 1999 WL 346239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lummus-v-shoneys-lactapp-1999.