Phillips v. United Parcel Service

669 So. 2d 1375, 1996 La. App. LEXIS 336, 1996 WL 83216
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1996
DocketNo. 28110-CA
StatusPublished
Cited by5 cases

This text of 669 So. 2d 1375 (Phillips v. United Parcel Service) 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
Phillips v. United Parcel Service, 669 So. 2d 1375, 1996 La. App. LEXIS 336, 1996 WL 83216 (La. Ct. App. 1996).

Opinion

h MARVIN, Chief Judge.

Having been employed by two different employers [at a bank for whom he worked 40 hours a week at $6.50 an hour or $260 a week, and at UPS for whom he worked at $10.10 an hour averaging about 17.2 hours or $173.82 a week] and having suffered a disabling injury on the UPS job, the claimant appeals a judgment of the Workers’ Compensation Hearing Officer rejecting his demands to reinstate the Supplemental Earnings Benefits which had been paid him by UPS and to have the SEB calculated on the basis of his average monthly wages from both jobs. Claimant continued to work for the bank after his injury.

UPS had paid claimant temporary total disability benefits for about six weeks following the January 27, 1994, injury, and the SEB thereafter, calculated solely on his UPS wages, before terminating the SEB in June 1994. Relying on LRS 23:1021(10)(a)(iv)(bb) and 1221(3), UPS said it terminated the SEB because the claimant was able to earn, and had earned, wages from the bank that were equal to 90 percent of his UPS wages. The WCHO agreed.

Disagreeing with the WCHO’s interpretation of the law, and determining that the record lacks a factual finding necessary for resolution of the SEB reinstatement demand, we reverse and remand.

DISCUSSION

Relying on § 1221(3) and subpart (aa) of subsection (10)(a)(iv) of § 1021, the claimant, Phillips, argues for reinstatement of SEB payments until he is able to earn 90 percent of the combined wages he was earning from both jobs, bank and UPS, when he was injured. We shall hereafter simply refer to the respective subpart of § 1021(10)(a)(iv) upon which each litigant relies, either aa or bb.

The SEB is provided to an employee whose injury results in him being unable to earn wages equal to 90 percent of his wages at the time of injury. The benefit is 66¾ percent of the difference between his average monthly wages at \fthe time of injury and the average monthly wages he earns or is able to earn thereafter. § 1221(3). That section, originally enacted in 1983, mandates that average monthly wages shall be computed as 4.3 times the weekly wages as defined in§ 1021(10). Neither statute explicitly limits computation of the average wages, whether weekly or monthly, to the wages earned in the employment in which the employee was injured, as does the workers’ compensation law of some other states. See Malone & Johnson, Workers’ Compensation Law and Practice, 14 Louisiana Civil Law Treatise (3d ed. 1994), § 325 at p. 104.

As explained in Chapter 15, §§ 321-328, Malone-Johnson, wage calculation issues, historically, have given “difficulty everywhere” because some employees moonlight, holding successive employments or working for joint employers, some work more or less than 40 hours per week, by order or by choice, and some employees are paid piecemeal, while others are paid by the hour, day, week or month.

The law we have considered in this claimant’s appeal derives from statutes enacted or reenacted in 1983 [§ 1021(9), defining part-time employment and (10)(a)(i)-(iii), dealing with average weekly wage computations for workers paid by the hour]; in 1989 [§ 1031 B, distinguishing the right of action of a disabled worker who is employed jointly by two or more employers]; and in 1991 [subsections (iv) and (v) of § 1021(10)(a), providing for the determination of benefits for part-time and seasonal employees, repealing and reenacting the language of former § 1261, enacted in 1985].

In the 1991 act adopting the two specific subparts aa and bb in subsection 10(a)(iv) of § 1021, the legislature obviously considered the problems that had arisen when a part-time employee works in successive employments for two or more employers, and the benefits to which he is entitled for a compen-sable injury,_j3and, in part, the wages on which the benefit is based. See Malone-[1377]*1377Johnson, Chapter 15. We quote and emphasize the language in subsection (iv):

A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from, other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.

Subpart aa clearly obligates the employer in whose service a part-time employee in successive employments suffers a compensable injury, to pay the benefits due the employee os provided in this chapter, Chapter 10 of Title 23, the w.c. law. The benefits that are due the part-time employee in such a circumstance are provided in § 1221 of Chapter 10.1 Section 1221(3), the 1983 statute, bases the SEB on the average monthly wages of the employee as defined in R.S. 23:1021(10). Neither § 1221(3) nor § 1021(10) clearly states whether the average monthly wages of a part-time employee injured in that successive employment who is full-time in the other successive employment are to be considered his combined wages, or only the wages paid by the part-time employer in whose service he was injured.

Subpart aa speaks only of benefits being due the successive employee in such circumstances, but does not qualify the benefits due by limiting the wages on Uwhich the benefits are based to the average, actual weekly hours worked or forty hours weekly, whichever is less, as does subpart bb. Compare § 1021(10)(a)(iii).

Professor Johnson suggests that the legislature attempted to deal with successive employment — whether full-time or part-time— in a comprehensive manner in 1991 by enacting subsection (iv) which contains the sub-parts aa and bb. Without drawing the distinction between the employment disability (one or both jobs?) as the subparts seem to do, Professor Johnson concludes that a part-time worker in one of the successive employments is entitled to benefits by determining his wages on an hourly basis in the employment in which he was injured and the total hours worked for all employers — but not to exceed his average actual hours worked or JO hours weekly, which is less. Malone-Johnson, § 325, pp. 110-111. The LABI Workers’ Compensation Deskbook’s analysis of the bb language, originally enacted in 1985, is similar to Professor Johnson’s. See Part IIA, pp. IIA-2 and 3 (1992 ed.).

While considering Professor Johnson’s suggestion and respecting his experience and intellect, we have concluded that the legislature’s attempt leaves very much to be desired by the WCHOs and the courts, and by employers and employees in the respective positions of UPS and Phillips.

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Bluebook (online)
669 So. 2d 1375, 1996 La. App. LEXIS 336, 1996 WL 83216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-united-parcel-service-lactapp-1996.