Weldon v. Holiday Inn-Jennings

76 So. 3d 115, 11 La.App. 3 Cir. 203, 2011 La. App. LEXIS 1156, 2011 WL 4578587
CourtLouisiana Court of Appeal
DecidedOctober 5, 2011
DocketNo. 11-203
StatusPublished
Cited by4 cases

This text of 76 So. 3d 115 (Weldon v. Holiday Inn-Jennings) 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
Weldon v. Holiday Inn-Jennings, 76 So. 3d 115, 11 La.App. 3 Cir. 203, 2011 La. App. LEXIS 1156, 2011 WL 4578587 (La. Ct. App. 2011).

Opinion

PICKETT, Judge.

hBoth the claimant, Kirk Weldon, and the employer, Holiday Inn-Jennings appeal a judgment of the Office of Workers’ Compensation awarding Weldon penalties and attorneys’ fees.

STATEMENT OF THE CASE

Kirk Weldon was injured while lifting a hot water heater in the course and scope of his employment with Holiday Inn on February 6, 2004. On May 10, 2005, the parties entered a consent judgment into the record, which stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants pay weekly compensation benefits beginning February 7, 2004 in the amount of $266.55 per week, based upon an average weekly wage of $399.82 ($384.62 plus $15.20 in fringe benefits). IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants will pay for the medication, Aci-phex, and reasonable and necessary medical treatment related to the injury of KIRK WELDON. Defendants reserve the right to contest the connection of the hernia with the accident.

On January 20, 2010, Weldon filed a Motion and Order for Penalties and Attorneys’ Fees. Weldon asserted that Holiday Inn violated the consent judgment by terminating weekly benefits, failing to approve and pay for a prescription for Aci-[?]*?phex, and failing to reimburse Weldon properly for mileage to receive medical treatment. A hearing on the motion was held on June 3, 2010. At the hearing, Weldon, in addition to the issues raised in the motion, alleged that Holiday Inn failed to pay medical bills from March 26, 2008, and he sought additional penalties and attorneys’ fees.

Holiday Inn claimed it had the right to decrease Weldon’s compensation because he earned over $27,000.00 from the sale of his stock in a barbecue sauce company. It claimed they never terminated Weldon’s benefits, but it did admit to decreasing the benefits to $400.00 per month. Holiday Inn argued that Weldon |acould not produce the prescription for Aciphex that was not filled, so its failure to pay had not been proven. On the issue of mileage reimbursement, it was clear that Holiday Inn miscalculated the mileage reimbursement on one occasion and paid the reimbursement four months after it was submitted on another occasion. Finally, Holiday Inn argued that it did not pay the medical bills from March 2008 because they related to Weldon’s treatment for a hiatal hernia, which was specifically not covered by the May 2005 judgment. Further, they argued that those bills were incurred prior to a previous judgment awarding penalties and attorneys’ fees, so res judicata barred those claims now.

The Workers’ Compensation Judge (WCJ) entered oral reasons into the record on October 4, 2010. The trial court found that Holiday Inn terminated benefits in May 2010 and awarded $8,000.00 in penalties pursuant to La.R.S. 23:1201(1). The WCJ also found that Holiday Inn failed to pay for Aciphex and “improperly or tardily paid for the medical mileage and medical bills.” Finding that the $8,000.00 penalty was the maximum that he could award, though, he did not award additional penalties. The WCJ also awarded attorneys’ fees of $12,937.50 (fifty-seven and a half hours at $225 per hour).

Both parties now appeal the judgment of the WCJ.

ASSIGNMENTS OF ERROR

In its appeal, Holiday Inn assigns two errors:

1. The trial court committed manifest error in awarding penalties in the amount of $8,000.00 for termination of benefits.
2. The trial court committed manifest error in awarding an attorney fee in the amount of $12,937.50.

Weldon asserts five assignments of error:

1. The Workers’ Compensation Judge erred in failing to allow the payment ledger showing indemnity payments made into evidence.
|s2. The Workers’ Compensation Judge erred in failing to award penalties due to the failure of defendants to properly pay weekly benefits.
3. The Workers’ Compensation Judge erred in failing to award penalties for failure to guarantee and/or pay for medical benefits.
4. It was error for the Workers’ Compensation to fail to include expenses in the judgment.
5. It was error for the Workers’ Compensation Judge to fail to include legal interest on all amounts due in the judgment.

In addition, Weldon seeks attorneys’ fees for work done on this appeal.

DISCUSSION

Payment Ledger

We will begin by discussing the evidentiary issue raised by Weldon. Wei-[120]*120don sought to introduce a ledger of payments from Holiday Inn received by his attorney on his behalf. Holiday Inn objected to the introduction of the ledger, prepared by Weldon’s attorney’s secretary, on the grounds that Weldon failed to lay a proper foundation for the document. Weldon proffered the document and now argues that the ledger should have been admitted. He claims that since the check stubs are available and could have been admitted, the ledger is clearly admissible. We disagree. A WCJ has the discretion to admit evidence that would be inadmissible according to the Code of Evidence. La. R.S. 23:1317. We find here that the WCJ did not abuse his discretion in denying the admission of the ledger and in not considering the ledger in making his ruling. This assignment of error lacks merit.

Penalty for Termination of Benefits

Holiday Inn argues that the WCJ erred in awarding an $8,000.00 penalty for the termination of benefits pursuant to La.R.S. 23:1201(1). The record is clear that Holiday Inn never terminated benefits to Weldon, though it did stipulate that it ^reduced the benefits from $266.55 per week to $400.00 per month. Weldon, in brief to this court, agrees that benefits were never terminated. The WCJ’s determination was clearly erroneous. We reverse the judgment of the WCJ awarding an $8,000.00 penalty to Weldon. As we find the penalty award inappropriate, we also reverse the award of attorneys fees. As we have found that the trial court committed manifest error and applied the incorrect law, we will review the remainder of the issues de novo.

Failure to Pay Weekly Benefits

While Weldon does not seriously dispute that the award of an $8,000.00 penalty for discontinuance of benefits is improper, he does argue that the WCJ erred in failing assess penalties against Holiday Inn for (1) paying benefits monthly rather than weekly beginning in September 2009 and (2) reducing benefits to $400.00 per month beginning in November 2009. Weldon argues that each of these violations should result in a $3,000.00 penalty pursuant to La.R.S. 23:1201(G).

Holiday Inn argues that filing a Motion for Penalties and Attorney Fees is the improper procedure to recover the fees. The claim they are authorized to modify the payments agreed to under the consent judgment because the payments were not for temporary total disability, citing La.R.S. 23:1310.8(F). We disagree. It is clear from the record that Holiday Inn violated the May 10, 2005, judgment when they stopped paying benefits weekly and began paying benefits monthly. Louisiana Revised Statutes 23:1201(G) states:

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

Related

Conner v. Bridgefield Casualty Insurance Co.
185 So. 3d 754 (Louisiana Court of Appeal, 2015)
Shailow v. Gulf Coast Social Services
166 So. 3d 1239 (Louisiana Court of Appeal, 2015)
Lois J. Shailow v. Gulf Coast Social Services
Louisiana Court of Appeal, 2015
Magbee v. Federal Express
105 So. 3d 1048 (Louisiana Court of Appeal, 2012)
Paul Magbee v. Federal Express
Louisiana Court of Appeal, 2012
Bihm v. Unit Drilling Co.
102 So. 3d 1058 (Louisiana Court of Appeal, 2012)
Thomas Boyd Bihm v. Unit Drilling Company
Louisiana Court of Appeal, 2012

Cite This Page — Counsel Stack

Bluebook (online)
76 So. 3d 115, 11 La.App. 3 Cir. 203, 2011 La. App. LEXIS 1156, 2011 WL 4578587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weldon-v-holiday-inn-jennings-lactapp-2011.