STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
06-779
NADINE LANTHIER
VERSUS
FAMILY DOLLAR STORE
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 2 PARISH OF RAPIDES, NO. 01-06757 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
Michael B. Miller Miller & Miller P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 Counsel for Plaintiff/Appellee: Nadine Lanthier Michael J. Tarleton Matthew J. Ungarino David I. Bordelon Ungarino & Eckert 3850 North Causeway Blvd. 1280 Lakeway Two Metairie, LA 70002 (504) 836-7531 Counsel for Defendant/Appellant: Family Dollar Store GREMILLION, Judge.
The defendant, Family Dollar Store, appeals the judgment of the
workers’ compensation judge reinstating the indemnity benefits of the plaintiff,
Nadine Lanthier, and casting it with penalties and attorney’s fees. For the following
reasons, we affirm as amended.
FACTS
This matter has previously been before us several different times. We
refer to our preceding opinions for the facts pertaining to Lanthier’s work-related
injury. Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/2/02), 827 So.2d
547, vacated, 02-2663 (La. 11/27/02), 836 So.2d 5, on remand, 02-429 (La.App. 3
Cir. 1/8/03), 848 So.2d 605; Lanthier v. Family Dollar Store, 01-437 (La.App. 3 Cir.
813 So.2d 1212, writ denied, 02-1253 (La. 8/30/02), 823 So.2d 951.
At the commencement of the current dispute, Lanthier was receiving
supplemental earnings benefits (SEBs) in the amount of $491.78 per month. On May
1, 2003, she filed an amended disputed claim for compensation based on an alleged
violation of La.R.S. 23:1208 by a Family Dollar employee. Fourteen days later,
Family Dollar filed a motion to compel Lanthier to participate in the vocational
rehabilitation efforts provided for her by Sharon Hebert, a vocational rehabilitation
counselor for Intracorp. Intracorp was hired by St. Paul Travelers Insurance
Company, Family Dollar’s workers’ compensation provider. Hebert had attempted
to meet with Lanthier on several occasions, but was prevented from doing so because
she did not agree to conditions set out by Lanthier’s attorney concerning the services
provided by her. Despite this failure, she identified several jobs within sedentary-
1 light duty restrictions identified by a functional capacity evaluation (FCE) and
approved by Dr. Nason. A list of these positions were sent to Lanthier’s attorney, on
April 4, 2003, and was approved by Dr. Nason on April 28, 2003.
Following a hearing on Family Dollar’s motion to compel, the workers’
compensation judge ordered Lanthier to meet with Hebert within thirty days of the
issuance of its order, July 16, 2003. The order further provided that Intracorp would
“conduct its vocational rehabilitation services and counseling pursuant to the
Louisiana Revised Statutes regarding same.” Three days later, Stephanie Nadler, St.
Paul Travelers’ claims adjuster, terminated Lanthier’s SEBs based on the labor
market survey performed by Hebert indicating the availability of jobs within the
sedentary/light duty range and based on Dr. Nason’s approval of the positions.
Lanthier amended her disputed claim to seek penalties and attorney’s
fees based on Family Dollar’s failure to authorize treatment, tests, and medication
recommended by Dr. Nason. During the trial on the merits, the workers’
compensation judge sustained Family Dollar’s motion for a directed verdict on the
issue of the alleged La.R.S. 23:1208 violation. At the conclusion, the matter was
taken under advisement. Thereafter, the workers’ compensation judge issued oral
reasons finding that Family Dollar arbitrarily and capriciously terminated Lanthier’s
SEBs and awarded her $6000 in penalties and $10,000 in attorney’s fees based on
Family Dollar’s failure to authorize the recommended treatment, tests, and
medication. This suspensive appeal by Family Dollar followed.
ISSUES
Family Dollar argues two errors were committed by the workers’
2 compensation judge in reaching his decision. It argues that it cannot be penalized for
Lanthier’s failure to cooperate with the vocational rehabilitation counselor and that
the workers’ compensation judge erred in finding that it acted arbitrarily and
capriciously in terminating her benefits. Lanthier answered the appeal seeking
penalties based on Family Dollar’s arbitrary and capricious termination of her SEBs
and its failure to provide her proper vocational rehabilitation. She further seeks
judicial interest on all amounts awarded to her and additional attorney’s fees for work
performed on appeal.
TERMINATION OF BENEFITS
We will address Family Dollar’s two assignments of error together as
they address the same issue: its termination of Lanthier’s SEBs.
In Chelette v. Riverwood International USA, Inc., 02-1347, pp. 4-5
(La.App. 3 Cir. 4/30/03), 843 So.2d 1245, 1249, rev’d in part on other grounds, 03-
1483 (La. 10/17/03), 858 So.2d 412, we stated:
Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551; La.R.S. 23:1221(3)(a).
Once the claimant has met this initial burden of proving entitlement to SEB, the burden of proof shifts to the employer if it wishes to prove the employee is earning less than he or she is able to earn. The employer bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in the employee’s or the employer’s community or reasonable geographic region. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).
3 In Banks, 696 So.2d at 557, the Louisiana Supreme Court concluded that “an employer may discharge its burden of proving job availability by establishing, at a minimum, [three criteria] by competent evidence.” The employer must show:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
Id.
Later, in 1999, this court decided East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99); 746 So.2d 715, which co-exists with Banks and clarifies the Banks criteria. In East-Garrett, we stated:
We find that it is implicit in the holding of Banks that the employer must establish that the jobs are still in existence when it is determined that they are within the employee’s capabilities. Otherwise, the employee may be put in a position of having to apply for jobs that she might not be capable of performing, essentially a vain and useless act.
Id. at 721.
Louisiana Revised Statute 23:1226(E) provides the only recourse
available to an employer when an employee refuses to accept rehabilitation.
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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
06-779
NADINE LANTHIER
VERSUS
FAMILY DOLLAR STORE
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 2 PARISH OF RAPIDES, NO. 01-06757 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
Michael B. Miller Miller & Miller P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 Counsel for Plaintiff/Appellee: Nadine Lanthier Michael J. Tarleton Matthew J. Ungarino David I. Bordelon Ungarino & Eckert 3850 North Causeway Blvd. 1280 Lakeway Two Metairie, LA 70002 (504) 836-7531 Counsel for Defendant/Appellant: Family Dollar Store GREMILLION, Judge.
The defendant, Family Dollar Store, appeals the judgment of the
workers’ compensation judge reinstating the indemnity benefits of the plaintiff,
Nadine Lanthier, and casting it with penalties and attorney’s fees. For the following
reasons, we affirm as amended.
FACTS
This matter has previously been before us several different times. We
refer to our preceding opinions for the facts pertaining to Lanthier’s work-related
injury. Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/2/02), 827 So.2d
547, vacated, 02-2663 (La. 11/27/02), 836 So.2d 5, on remand, 02-429 (La.App. 3
Cir. 1/8/03), 848 So.2d 605; Lanthier v. Family Dollar Store, 01-437 (La.App. 3 Cir.
813 So.2d 1212, writ denied, 02-1253 (La. 8/30/02), 823 So.2d 951.
At the commencement of the current dispute, Lanthier was receiving
supplemental earnings benefits (SEBs) in the amount of $491.78 per month. On May
1, 2003, she filed an amended disputed claim for compensation based on an alleged
violation of La.R.S. 23:1208 by a Family Dollar employee. Fourteen days later,
Family Dollar filed a motion to compel Lanthier to participate in the vocational
rehabilitation efforts provided for her by Sharon Hebert, a vocational rehabilitation
counselor for Intracorp. Intracorp was hired by St. Paul Travelers Insurance
Company, Family Dollar’s workers’ compensation provider. Hebert had attempted
to meet with Lanthier on several occasions, but was prevented from doing so because
she did not agree to conditions set out by Lanthier’s attorney concerning the services
provided by her. Despite this failure, she identified several jobs within sedentary-
1 light duty restrictions identified by a functional capacity evaluation (FCE) and
approved by Dr. Nason. A list of these positions were sent to Lanthier’s attorney, on
April 4, 2003, and was approved by Dr. Nason on April 28, 2003.
Following a hearing on Family Dollar’s motion to compel, the workers’
compensation judge ordered Lanthier to meet with Hebert within thirty days of the
issuance of its order, July 16, 2003. The order further provided that Intracorp would
“conduct its vocational rehabilitation services and counseling pursuant to the
Louisiana Revised Statutes regarding same.” Three days later, Stephanie Nadler, St.
Paul Travelers’ claims adjuster, terminated Lanthier’s SEBs based on the labor
market survey performed by Hebert indicating the availability of jobs within the
sedentary/light duty range and based on Dr. Nason’s approval of the positions.
Lanthier amended her disputed claim to seek penalties and attorney’s
fees based on Family Dollar’s failure to authorize treatment, tests, and medication
recommended by Dr. Nason. During the trial on the merits, the workers’
compensation judge sustained Family Dollar’s motion for a directed verdict on the
issue of the alleged La.R.S. 23:1208 violation. At the conclusion, the matter was
taken under advisement. Thereafter, the workers’ compensation judge issued oral
reasons finding that Family Dollar arbitrarily and capriciously terminated Lanthier’s
SEBs and awarded her $6000 in penalties and $10,000 in attorney’s fees based on
Family Dollar’s failure to authorize the recommended treatment, tests, and
medication. This suspensive appeal by Family Dollar followed.
ISSUES
Family Dollar argues two errors were committed by the workers’
2 compensation judge in reaching his decision. It argues that it cannot be penalized for
Lanthier’s failure to cooperate with the vocational rehabilitation counselor and that
the workers’ compensation judge erred in finding that it acted arbitrarily and
capriciously in terminating her benefits. Lanthier answered the appeal seeking
penalties based on Family Dollar’s arbitrary and capricious termination of her SEBs
and its failure to provide her proper vocational rehabilitation. She further seeks
judicial interest on all amounts awarded to her and additional attorney’s fees for work
performed on appeal.
TERMINATION OF BENEFITS
We will address Family Dollar’s two assignments of error together as
they address the same issue: its termination of Lanthier’s SEBs.
In Chelette v. Riverwood International USA, Inc., 02-1347, pp. 4-5
(La.App. 3 Cir. 4/30/03), 843 So.2d 1245, 1249, rev’d in part on other grounds, 03-
1483 (La. 10/17/03), 858 So.2d 412, we stated:
Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551; La.R.S. 23:1221(3)(a).
Once the claimant has met this initial burden of proving entitlement to SEB, the burden of proof shifts to the employer if it wishes to prove the employee is earning less than he or she is able to earn. The employer bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in the employee’s or the employer’s community or reasonable geographic region. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).
3 In Banks, 696 So.2d at 557, the Louisiana Supreme Court concluded that “an employer may discharge its burden of proving job availability by establishing, at a minimum, [three criteria] by competent evidence.” The employer must show:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
Id.
Later, in 1999, this court decided East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99); 746 So.2d 715, which co-exists with Banks and clarifies the Banks criteria. In East-Garrett, we stated:
We find that it is implicit in the holding of Banks that the employer must establish that the jobs are still in existence when it is determined that they are within the employee’s capabilities. Otherwise, the employee may be put in a position of having to apply for jobs that she might not be capable of performing, essentially a vain and useless act.
Id. at 721.
Louisiana Revised Statute 23:1226(E) provides the only recourse
available to an employer when an employee refuses to accept rehabilitation. In that
instance, the “[r]efusal to accept rehabilitation as deemed necessary by the workers’
compensation judge shall result in a fifty percent reduction in weekly compensation,
including supplemental earnings benefits pursuant to La.R.S. 23:1221(3), for each
week of the period of refusal.” However, the reduction may only take place after the
issue is presented to the workers’ compensation judge by the employer; unilateral
action by the employer is not allowed. First Baptist Church of Lake Arthur v.
4 Fontenot, 98-1158 (La.App. 3 Cir. 2/3/99), 736 So.2d 230.
Lanthier was already receiving SEBs at the time Family Dollar
terminated her benefits, so her entitlement to such benefits is not an issue.
Accordingly, the burden is on Family Dollar to prove that it satisfied the requirements
of Banks, as clarified by East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3
Cir. 11/3/99), 746 So.2d 715. After reviewing the evidence, we find that although it
satisfied the first two requirements of Banks, it did not satisfy the third by proving
that the positions identified by Hebert were still available on April 28, 2003, when
they were approved by Dr. Nason.
The workers’ compensation judge found that these positions were stale,
pursuant to Chelette. We agree. Hebert testified that she identified six positions,
four on April 4, 2003, and two on April 11, 2003. She sent notice of these positions
to Dr. Nason on April 14, 2003, which were approved by him on April 28, 2004.
Based on Dr. Nason’s approval of the positions, which paid more than ninety percent
of Lanthier’s pre-injury wage, Nadler terminated Lanthier’s SEBs on July 19, 2003.
This was three days after the workers’ compensation judge ordered Lanthier to meet
with her vocational rehabilitation counselor within thirty days.
Family Dollar presented no evidence that the positions identified by
Hebert were still available on April 28, 2003. Although it raised the issue of
Lanthier’s refusal to accept vocational rehabilitation, it did not allow her time to
comply with the workers’ compensation judge’s order before terminating her benefits.
Moreover, a total termination of benefits is not allowed when an employee refuses
vocational rehabilitation. All that is allowed is a fifty-percent reduction, to be
5 enforced by the workers’ compensation judge. Accordingly, Family Dollar
overstepped its rights by unilaterally terminating Lanthier’s SEBs. Finding no error
in the workers’ compensation judge’s judgment, we affirm.
ANSWER TO APPEAL
In answering Family Dollar’s appeal, Lanthier argues that the workers’
compensation judge erred in failing to award her penalties based on Family Dollar’s
arbitrary and capricious termination of her SEBs and in failing to provide her proper
vocational rehabilitation. She further argues that she should be awarded judicial
interest on all amounts awarded to her and additional attorney’s fees for work
Penalties
With regard to the award of penalties, we note that La.R.S. 23:1201 was
amended, effective July 3, 2003, to provide in part:
I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary and capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
The workers’ compensation judge found and we affirmed that Family
Dollar was arbitrary and capricious in terminating Lanthier’s SEBs. Thus, it is
subject to a penalty as a result of its actions. As La.R.S. 23:1201(I) was in effect at
the time Family Dollar withheld Lanthier’s compensation benefits, it controls the
amount of penalties that may be awarded. Lanthier has already been awarded $6000
in penalties. Thus, we may only award her an additional $2000 in penalties based on
Family Dollar’s arbitrary and capricious termination of her SEBs. As no further
6 penalties may be awarded, we will not address her request for additional penalties
based on Family Dollar’s failure to provide her proper vocational rehabilitation.
Judicial Interest
Louisiana Revised Statute 23:1201.3(A) provides that “[a]ny
compensation awarded and all payments thereof directed to be made by order of the
workers’ compensation judge shall bear judicial interest from the date compensation
was due until date of satisfaction.” Accordingly, Lanthier is entitled to an award of
judicial interest on her SEBs retroactive from July 20, 2003, until paid. However, she
is not entitled to judicial interest on the amounts awarded as penalties and attorney’s
fees. Pursuant to Smith v. Quarles Drilling Co., 04-0179 (La. 10/29/04), 885 So.2d
562, judicial interest on penalties and attorney’s fee will not be awarded in the
absence of a prayer for such relief. As there has been no such prayer in this instance,
Lanthier is not entitled to interest on these awards.
Work Performed on Appeal
Lanthier further requests that we award her additional attorney’s fees for
work performed by her attorney on appeal. As she has successful defended Family
Dollar’s appeal, we award her an additional $2000 in attorney’s fees.
CONCLUSION
For the foregoing reasons, the judgment of the workers’ compensation
judge is amended to award Lanthier an additional $2000 in penalties and judicial
interest on the compensation benefits reinstated, as of July 20, 2003, until paid. The
judgment is affirmed in all other respects. An additional $2000 in attorney’s fees is
awarded to Lanthier for work performed on appeal. The costs of this matter are
7 assessed to the defendant-appellant, Family Dollar Store.