Dodd v. Nicolon Corp.

*1238 ON REHEARING PER CURIAM. We granted this rehearing to reconsider our holding that plaintiff is not entitled to penalties and attorney’s fees for an arbitrary failure to timely pay compensation following her second period of disability. In our original opinion we incorrectly stated that plaintiff was required to give written notice for compensation during the second period of disability. In fact, R.S. 22:658 requires payment within 60 days after receipt of satisfactory proof of loss. The record is clear that defendant Nicolon was aware of plaintiff’s disability. R.S. 22:658 further provides that failure to pay within 60 days after proof of loss and demand for payment, shall subject the employer to “12% damages on the total amount of the loss”, and reasonable attorney’s fees, for the prosecution and collection of such loss, if the failure to pay is arbitrary, capricious or without probable cause. There is ample evidence in the record to show that defendant was aware of the second disability, and this lawsuit is certainly a sufficient demand. There is no reason why compensation should not have been recommenced immediately. The fact that payment thereof, in a lump sum, was voluntarily made after 60 days had elapsed, does not excuse the failure. The judgment heretofore rendered is therefore amended, so that there will be judgment herein in favor of plaintiff and against defendants, for penalties in the amount of 12% of $1,805.00. Since the record reflects no action taken on the part of the attorney in connection with the collection of the above amount, which was voluntarily paid, an attorney’s fee will be awarded only in connection with the collection of the penalties herein awarded, for which we think a fee of $100.00 will be adequate. As amended, the judgment below is affirmed. All costs shall be equally shared by the plaintiff and defendants. AMENDED AND AFFIRMED.