Walter Zinn v. Zagis, Usa, Llc

Supreme Court of Louisiana
December 22, 2020
Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
WALTER ZINN
VS.
ZAGIS, USA, LLC
No.2020-C-00971
_ _ _ _ _ _
IN RE
: Walter Zinn - Applicant Plaintiff; Applying For Writ Of Certiorari, Office
of Workers' Compensation, District 3 Number(s) 16-04400, Court of Appeal, Third
Circuit, Number(s) 19-773;
_ _ _ _ _ _
December 22, 2020
Writ application granted. See per curiam.
Weimer, J., dissents.
Hughes, J., would grant and docket.
Crichton, J., dissents and assigns reasons.
Crain, J., concurs and assigns reasons.
BJJ
JTG
JBM
WJC
12/22/2020 “See News Release 050 for any Concurrences and/or Dissents.”

SUPREME COURT OF LOUISIANA
N
o. 2020-C-00971
W
ALTER ZINN VS.
VS.
ZAGIS, USA, LLC
O
N WRIT OF CERTIORARI TO THE 3RD CIRCUIT COURT OF
APPEAL,
PARISH OF EAST BATON ROUGE
P
ER CURIAM
Writ granted. In this w orkers’ compensation case, claimant Walter Zinn
(“Zinn”) settled his claim against his employer, Zagis, USA, LLC (“Zagis”) for
$40,000 on January 14, 2019 , which payment was disbursed through two checks.
These checks contained the following language on the backs:
DO NOT SIGN/ WRITE/STAMP BELOW THIS LINE.
N
otice to Injured Workers Being Paid Disability or Supplemental
Benefits
By endorsing this check, I certify that I have not worked for or earned
wages from any business or individual during the period covered by
this check, or that I have reported any earnings to the
employer/carrier paying me workers' compensation benefits. I
understand that making a false statement by endorsing this benefit
check may result in civil or criminal penalties.
Z
agis also sent Zinn a release, and demanded Zinn execute and return same as a
condition of the settlement.
Zinn’s counsel held the two checks for thirty days and then filed a motion for
penalties and attorney fees, based upon Zagis' failure to unconditi onally tender the
amount due under the settlement within thirty days . She did not notify Zagis’s
counsel that her client was not going to negotiate the checks because they were
conditional .
Given the particular facts of this case, we find the lower courts erred in
denying the motion for penalties and attorney fees and finding Zinn’s counsel was
12/22/2020

2

responsible for notifying Zagis of the conditional tender. La. R.S. 23:1201(G)
states:
G. If any award payable under the terms of a final, nonappealable
judgment is not paid within thirty days after it becomes due, there
shall be added to such award an amount equal to twenty-four percent
thereof or one hundred dollars per day together with reasonable
attorney fees, for each calendar day after thirty days it remains
unpaid, whichever is greater, which shall be paid at the same time
as, and in addition to, such award, unless such nonpayment results
from conditions over which the employer had no control. No
amount paid as a penalty under this Subsection shall be included in
any formula utilized to establish premium rates for workers'
compensation insurance. The total one hundred dollar per calendar
day penalty provided for in this Subsection shall not exceed three
thousand dollars in the aggregate.

Because Zagis failed to tender the settlement funds unconditionally within thirty
days as required by LSA 23:1201(G), an award of penalties and attorney's fees was
mandatory. Thus, the rulings of the lower courts are reversed and the matter is
remanded to the Office of Workers’ Compensation Judge for a determination of
appropriate penalties and attorney fees pursuant to the statute.