Sterling v. Asplundh Tree Expert Co.

886 So. 2d 1270, 4 La.App. 3 Cir. 0781, 2004 La. App. LEXIS 2691, 2004 WL 2537409
CourtLouisiana Court of Appeal
DecidedNovember 10, 2004
DocketNo. 04-781
StatusPublished

This text of 886 So. 2d 1270 (Sterling v. Asplundh Tree Expert Co.) 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
Sterling v. Asplundh Tree Expert Co., 886 So. 2d 1270, 4 La.App. 3 Cir. 0781, 2004 La. App. LEXIS 2691, 2004 WL 2537409 (La. Ct. App. 2004).

Opinion

J^SCOFIELD, Judge.1

This case comes to us after rulings on two post-judgment motions. Claimant, Richard Sterling, appeals the decision of an office of workers’ compensation judge (WCJ) in favor of Defendant, Asplundh Tree Expert Co. (Asplundh), dismissing Claimant’s petition for additional post-judgment penalties and attorney’s fees. Asplundh answered the appeal arguing that the WCJ erred in ruling that Claimant had not forfeited his right to benefits under La.R.S. 23:1208. We affirm the decision of the WCJ.

FACTUAL AND PROCEDURAL HISTORY

Claimant worked for Asplundh for six years before the accident of September 1999, which gave rise to this litigation. Following the accident, Asplundh paid Claimant’s full wages until February 12, 2000. Thereafter, Claimant filed a claim for benefits, penalties and attorney’s fees. The WCJ ruled in favor of Claimant on all issues, and Asplundh took a suspensive appeal to this court which fully affirmed the judgment of the WCJ. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La.1/30/04), 865 So.2d 79.2

On October 31, 2003, Asplundh applied for writs of certiorari to the supreme court seeking a reversal of one relatively minor aspect of this court’s earlier ruling. In that writ application, Asplundh argued that Claimant’s paid vacation and holidays should not have been included in calculating Claimant’s weekly compensation benefits. If Asplundh’s application for writs had been successful, it would have 12resulted in a reduction of weekly benefits payable to Claimant from $283.85 per week to $270.00 per week.

On January 20, 2004, Claimant filed a motion with the WCJ seeking penalties and attorney’s fees because of Asplundh’s alleged failure to timely pay that part of the earlier judgment which had not been the subject of Asplundh’s writ application. Claimant contends that since only the $13.85 difference in the weekly compensation benefits remained a viable issue, the entire remainder of the judgment became final and was payable within thirty days from this court’s earlier October 1, 2003 ruling.3 The WCJ denied Claimant’s motion.

Asplundh’s post-trial motion, which is also the subject of this appeal, was filed on February 11, 2004. In that motion, As-plundh complains that included in the medical bills sent to Asplundh by Claimant, pursuant to the earlier decision of this court, were bills pertaining to Claimant’s unrelated hernia operation. Asplundh’s motion contends that the submission of these unrelated medical bills for payment represented a willful, false statement and claim and thus Claimant’s benefits should be forfeited pursuant to La.R.S. 23:1208. This motion was denied by the WCJ.

Claimant appeals the decision of the WCJ, and Asplundh has answered the appeal re-urging its motion.

[1273]*1273DISCUSSION

We first address Claimant’s motion wherein he contends that all facets of the earlier judgment, with the exception of the subject matter of Asplundh’s writ application, were payable within thirty days from October 1, 2003, the date of the earlier decision by this court. Claimant contends that once this thirty-day period |3expired, Asplundh had no further recourse to challenge any aspect of the earlier decision other than the subject of the writ application; therefore, as to that portion of the judgment which was not the subject of the writ application, it became final and payable.

Asplundh contends that there is no provision in the law allowing portions of a judgment to become final on a piecemeal basis. According to Appellee, when an application for writs of certiorari to the supreme court is timely made, the entire judgment is suspended until the supreme court disposes of the writ. In support of this contention, Asplundh cites La.Code Civ.P. art. 2166, which provides in pertinent part:

A.... The judgment of a court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the supreme court for a writ of certio-rari is timely filed.
[[Image here]]
E. If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiora-ri.

We agree with Appellee that La. R.S. 23:1201(G) pertains to a “final, non-appealable judgment” and that there is nothing in the law suggesting that this provision should somehow be interpreted to mean that only those portions of a judgment which are the precise subject of a writ application would be suspended pending their disposition by the supreme court. Moreover, since this statute is penal in nature, it must be strictly construed by the courts. Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14; Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although Claimant’s arguments |4contain some logic, this court cannot read into this penal statute that which is not provided in the wording of the statute itself.

We now turn to Asplundh’s motion to suspend benefits because Claimant submitted to it medical expenses unrelated to the injuries of which Claimant complains in this lawsuit. Asplundh’s motion is based upon La.R.S. 23:1208, which provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
[[Image here]]
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Asplundh brings to our attention the case of Resweber v. Haroil Const. Co., 94-2708, [1274]*127494-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12, which provides:

Section 1208 is clear and unambiguous and as such will be applied as written. La.Civ.Code art. 9; La.R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining or defeating any benefit or payment.” Section 1208 has no language limiting it to only certain types of false statements, ie., statements other than those relating to prior injuries. The legislature has imposed no notice requirement in Section 1208, apparently being of the opinion that any claimant should be on notice that false statements made willfully for the purpose of obtaining workers’ compensation benefits will not be tolerated and will result in the forfeiture of those benefits.

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

Related

Sharbono v. Steve Lang & Son Loggers
696 So. 2d 1382 (Supreme Court of Louisiana, 1997)
Sterling v. Asplundh Tree Expert Co.
856 So. 2d 125 (Louisiana Court of Appeal, 2003)
Williams v. Rush Masonry, Inc.
737 So. 2d 41 (Supreme Court of Louisiana, 1999)
Fontenot v. Reddell Vidrine Water Dist.
836 So. 2d 14 (Supreme Court of Louisiana, 2003)
Resweber v. Haroil Const. Co.
660 So. 2d 7 (Supreme Court of Louisiana, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
886 So. 2d 1270, 4 La.App. 3 Cir. 0781, 2004 La. App. LEXIS 2691, 2004 WL 2537409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterling-v-asplundh-tree-expert-co-lactapp-2004.