Mallet v. La. Nursing Homes, Inc.

459 So. 2d 178
CourtLouisiana Court of Appeal
DecidedNovember 7, 1984
Docket83-953
StatusPublished
Cited by25 cases

This text of 459 So. 2d 178 (Mallet v. La. Nursing Homes, 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
Mallet v. La. Nursing Homes, Inc., 459 So. 2d 178 (La. Ct. App. 1984).

Opinion

459 So.2d 178 (1984)

Noemie MALLET, Plaintiff-Appellee,
v.
LOUISIANA NURSING HOMES, INC., et al., Defendants-Appellants.

No. 83-953.

Court of Appeal of Louisiana, Third Circuit.

November 7, 1984.
Rehearing Denied December 13, 1984.
Writs Denied February 8, 1985.

*179 J. Louis Gibbens of Gibbens & Blackwell and Dennis R. Stevens, New Iberia, for defendants-appellants.

Michael L. Schilling, Jr., Abbeville, for plaintiff-appellee.

Before DOMENGEAUX, CUTRER and LABORDE, JJ.

LABORDE, Judge.

This is an appeal from a workers' compensation case. Plaintiff employee and defendants employer and insurer each contend that the trial court erred. We find no error. We affirm.

On May 10, 1976, plaintiff Noemie Mallet injured her back in the course and scope of her employment with defendant Louisiana Nursing Homes, Inc. Plaintiff slipped while she was cleaning the shower area of one of Louisiana Nursing Home's health care facilities for the aged. The primary injury apparently occurred as a result of the impact of plaintiff's lower back on ceramic tile covered structures. Defendant employer and its compensation underwriter, defendant Zurich Insurance Company, did not contest the coverage of plaintiff's injury under the Workers' Compensation Act. Defendants have provided plaintiff with compensation payments and medical benefits since the date of injury. Plaintiff filed the suit from which this appeal is taken because defendants refused to pay certain medical and incidental expenses and because of an error in the calculation of compensation benefits that resulted in a substantial underpayment of compensation to plaintiff between May of 1976 and May of 1983.

The trial judge found that compensation benefits had been miscalculated. He adjudged defendant insurer liable for past underpayments, awarding plaintiff the lump sum of the difference between the amount of compensation benefits actually paid between May of 1976 and May of 1983 *180 and the amount that should have been paid. Defendant sought to offset this award or receive a credit for future payments because of the receipt by plaintiff of certain Social Security disability benefits during the same time period. The trial judge did not allow this offset or credit. Plaintiff claimed that defendant insurer had acted arbitrarily, capriciously, or without probable cause in underpaying plaintiff's compensation benefits and, therefore, defendant should pay attorney fees and penalties for the undercompensation. The trial judge found that defendant had not acted arbitrarily, capriciously, or without probable cause.

The trial judge found that medical bills for two periods of hospitalization in Abbeville which were not contested by defendants and were paid by the insurer were nevertheless paid untimely. The trial judge awarded plaintiff statutory penalties and attorney fees for these late payments.

Defendant insurer had refused to pay for two periods of hospitalization of plaintiff, including surgery, at Tulane Medical Center. The trial judge found that defendant insurer was obligated to pay the medical bills and expenses for the two periods of hospitalization at Tulane Medical Center, and he ordered defendant to pay plaintiff for these bills and expenses. The trial judge found that defendant insurer had not acted arbitrarily, capriciously, or without probable cause in refusing to pay these bills and expenses. He based this finding on conflicting medical reports and testimony as to the necessity and wisdom of the treatments at Tulane. Defendants requested that they be allowed to make payment for these bills directly to the health care providers, rather than to plaintiff. The trial judge denied this request.

The trial judge also considered plaintiff's claim for certain incidental prescription drug expenses and travel expenses. He adjudged defendant insurer liable for these expenses.

The trial judge found that defendant insurer was not liable for medical and incidental expenses incurred by plaintiff as a result of plaintiff's attempted suicide in 1981.

In this appeal, plaintiff and defendants contend that the trial judge committed several errors. Plaintiff contends:

(1) The trial judge erred by not finding that defendants acted arbitrarily, capriciously, or without probable cause in underpaying plaintiff's compensation benefits.
(2) The trial judge erred by not finding that defendants acted arbitrarily, capriciously, or without probable cause in refusing to pay for the two hospitalizations of plaintiff at Tulane Medical Center.
(3) The trial judge erred by finding that expenses incurred by plaintiff in connection with her attempted suicide were not covered under the Workers' Compensation Act.

Defendants contend:

(1) The trial judge erred by rejecting defendants' request to pay directly to health care providers the amounts that defendant insurer was adjudged to owe as medical benefits.
(2) The trial judge erred by not allowing defendants to offset the amount awarded to plaintiff for past undercompensation with the amount of federal disability benefits that plaintiff had received during the same time period; or, in the alternative, to receive credit for the amount of federal disability benefits that plaintiff had received.

We will separately consider the contentions of plaintiff and defendants.

UNDERPAYMENT OF COMPENSATION BENEFITS

As noted previously, defendants have never contested the coverage of plaintiff's initial injury under the Workers' Compensation Act. Defendants have paid most medical costs claimed by plaintiff, and have provided her with compensation benefits since the date of the injury (May 10, 1976).

*181 However, in the suit from which this appeal is taken, plaintiff correctly claimed that the amount of defendant insurer's payment of compensation benefits has been lower than that which it is statutorily required to pay. The cause of this underpayment can be traced to the employer's first report of injury, which is a standard form used by insurers to calculate compensation benefits. Plaintiff completed this report for her employer on June 2, 1976. Plaintiff stated that her hourly wage at the time of the accident was $2.20 per hour, that she worked seven and one-half hours per day for a daily wage of $16.50, and that she worked five days per week.[1] Plaintiff, however, incorrectly stated that her average weekly wage was $50.00.

The insurer calculated compensation payments from the $50.00 amount provided by plaintiff. Thus, plaintiff received $33.33, or two-thirds of $50.00, per week as compensation. See LSA-R.S. 23:1221(1) & (2)(a).

Under the law then in force, plaintiff's weekly compensation should have been calculated from the figure derived by multiplying her hourly wage by forty hours work per week. See LSA-R.S. 23:1021(7)(a) (West 1964) repealed by La. Acts 1983, 1st Ex.Sess., No. 1, sec. 1. Thus, plaintiffs' weekly compensation benefits should have been two-thirds of $88.00, or $58.66 per week. This error was brought to the attention of the trial judge, and he adjudged defendant liable for the past underpayment resulting from the error. However, the trial judge refused to hold defendant insurer liable for statutory penalties and attorney fees on the basis of the miscalculation; he found that defendants did not arbitrarily, capriciously, or without probable cause miscalculate and underpay compensation benefits. We agree.

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Bluebook (online)
459 So. 2d 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallet-v-la-nursing-homes-inc-lactapp-1984.