Kenneth Perry v. Perry & Sons Vault & Grave Service

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1519

KENNETH PERRY

VERSUS

PERRY & SONS VAULT & GRAVE SERVICE

************

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 02-4847,
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of John D. Saunders, Billie Colombaro Woodard, and Michael G.
Sullivan, Judges.

REVERSED IN PART, AMENDED, AND AFFIRMED AS AMENDED.

Darrell R. Sims
Darrell R. Sims, LLC
434 North Columbia Street, Suite 200
Covington, Louisiana 70433
(504) 846-8320
Counsel for Plaintiff/Appellee:
Kenneth Perry

Bradley J. Gadel
Bradley J. Gadel, APLC
Post Office Box 1632
Alexandria, Louisiana 71309-1632
(318) 445-4480
Counsel for Defendant/Appellant:
Perry & Sons Vault & Grave Services, Inc.

Deanne B. McCauley
Rabalais, Unland & Lorio
5100 Village Walk, Suite 300
Covington, Louisiana 70433
(985) 893-9900
Counsel for Defendants/Appellees:
Scott Perry, Jr. Sanitation Services, Inc.
Louisiana Commerce and Trade Association Self Insurers’ Fund

SULLIVAN, Judge.

On October 26, 2001, Kenneth Perry was injured as he drove to an auto parts

store to pick up parts for a vehicle owned by Perry & Sons Vault & Grave Services,

Inc. (Perry & Sons). He filed a claim for workers’ compensation benefits with

Louisiana United Businesses Association Self-Insurers Fund (LUBA-SIF), Perry &

Sons’ workers’ compensation carrier. LUBA-SIF began paying him indemnity and

medical benefits upon receiving notice of his claim but terminated those benefits when

it received a sworn statement in which Kenneth stated that his wages were paid by

Scott E. Perry, Jr. Sanitation Services, Inc. (Sanitation Services). After LUBA-SIF

terminated his benefits, Kenneth filed a disputed claim against Perry & Sons, LUBA-

SIF, Sanitation Services, and its workers’ compensation carrier, Louisiana Commerce

and Trade Association Self-Insurers Fund (LCTA-SIF), asserting that he is entitled

to workers’ compensation benefits from both Perry & Sons and Sanitation Services.

The workers’ compensation judge (WCJ) determined that Kenneth was an employee

of Perry & Sons at the time he was injured and awarded him indemnity and medical

benefits and $5,000.00 in attorney fees against LUBA-SIF. Perry & Sons and LUBA-

SIF appeal. We reverse in part, amend, and affirm as amended.

Facts

Scott Perry, Jr. incorporated Sanitation Services approximately forty-five years

ago. The corporation provides residential and commercial waste pickup services.

Kenneth is Mr. Perry’s son. He began working for the corporation in approximately

1983. He drives a twenty cubic ton garbage truck five days a week. He also performs

light mechanic work on the vehicles owned by Sanitation Services. He explained that

Sanitation Service employees report mechanical problems with Sanitation Services’

vehicles to him. He checks out the complaints and makes the repairs he is capable of

performing, and any repairs he cannot perform are performed by third parties.

Mr. Perry incorporated Perry & Sons approximately ten years ago. Kenneth

also performs services for Perry & Sons, which include driving a truck, light

maintenance on Perry & Sons’ vehicles, opening graves, and placing vaults in the

ground. He performs these services only after he has completed his work for

Sanitation Services or on weekends. Kenneth estimated that he spends approximately

70% of his work time performing services for Sanitation Services and 30% of his time

performing services for Perry & Sons. He is paid wages by Sanitation Services only.

Mr. Perry testified that he is the “quarterback” of these two corporations and

that he directs the activities of both corporations and their employees. Mr. Perry

further testified that Kenneth’s job description primarily involves Sanitation Services,

but includes doing anything else that he tells him to do, whether it is for Perry & Sons

or Sanitation Services. Mr. Perry testified that he believes he has the discretion to

instruct his employees what work to perform regardless of which company pays their

salary.

The WCJ held that Kenneth is an employee of Perry & Sons. Additionally, the

WCJ found that LUBA-SIF was arbitrary and capricious in terminating Kenneth’s

benefits because it judicially admitted that Perry & Sons was his employer in a

petition of intervention, which it filed in Kenneth’s lawsuit for personal injuries

against the driver of the automobile that hit him and caused his injuries.

Standard of Review

On appeal, the WCJ’s findings of fact cannot be reversed unless they are

manifestly erroneous. If the review on appeal reveals a reversible error of law, a de

novo review of the record must be conducted. Jackson v. Iberia Parish Gov’t, 01-925

(La.App. 3 Cir. 3/20/02), 813 So.2d 589, writ denied, 02-1075 (La. 6/14/02), 817

So.2d 1159, citing Rosell v. ESCO, 549 So.2d 840 (La.1989).

2

Motion to Dismiss Appeal

Kenneth filed a motion to dismiss this appeal on the basis that LUBA-SIF

judicially admitted that it was his employer when it intervened in his personal injury

suit. The following allegations in LUBA-SIF’s petition of intervention are the basis

of Kenneth’s motion to dismiss this appeal:

4.

Intervenor shows that on or about October 26, 2001, Kenneth
Perry received injuries while performing duties within the course and
scope of his employment.

5.

As a result of the accident and injuries alleged therein by the
original plaintiff, KENNETH PERRY has made a claim under the
Workers’ Compensation Act against your intervenor.

6.

Pursuant to law and the claim made by KENNETH PERRY, your
intervenor has paid to and on behalf of KENNETH PERRY indemnity
benefits and medical benefits.

“A judicial confession is a declaration made by a party in a judicial proceeding.

That confession constitutes full proof against the party who made it.” La.Civ.Code

art. 1853. For a statement to be a judicial confession, it must expressly acknowledge

an adverse fact. Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). See

also Broussard v. Leger, 624 So.2d 1304 (La.App. 3 Cir. 1993), writ denied, 93-2762

(La. 1/7/94), 631 So.2d 452.

LUBA-SIF’s allegations in its petition of intervention do not admit the

correctness of a fact alleged against it. The allegations do admit that Kenneth was in

the course and scope of his employment when he was injured, but they do not admit

that he was an employee of Perry & Sons. Thus, they are not a judicial admission.

Accordingly, we deny the motion to dismiss and reverse the WCJ’s finding that

3

LUBA-SIF judicially admitted that Kenneth was injured in the course and scope of

employment with Perry & Sons.

Discussion

Is Kenneth an employee of Perry & Sons?

In their first assignment of error, Perry & Sons and LUBA-SIF argue that

Kenneth was not an employee of Perry & Sons, nor was he a borrowed servant of

Sanitation Services. Kenneth asserts that Sanitation Services and Perry & Sons are

joint employers. The WCJ rejected this contention. Sanitation Services contends that

the WCJ’s determination is correct.

The WCJ determined that Kenneth was an employee of Perry & Sons at the

time of his accident and that he was not a borrowed servant of Sanitation Services.

The WCJ determined that Kenneth was a Perry & Sons employee even though he was

never paid a salary by this corporation. This determination was predicated on cases

where there was no “economic relationship” between the alleged employee and

employer.

“As a general rule for an employer-employee relationship to exist, there must

be a contract of employment, either expressed or implied, whereby services are

furnished in anticipation of compensation.” Deville v. Pugh, 490 So.2d 800, 802

(La.App. 3 Cir. 1986). While exceptions to this general rule have been recognized,

the cases cited by the WCJ in support of his conclusion reflect that the exceptions

have been in the context of vicarious liability to third parties. For example, in Avery

v. Commercial Union Insurance Co., 621 So.2d 184 (La.App. 3 Cir. 1993), the

defendant’s brother and former employee was performing a favor for the defendant

by cleaning the property around the defendant’s business. In doing so, he started a

fire to burn trash which spread out of control. Smoke from the fire obscured the

4

vision of drivers on the adjacent highway, causing an accident. The brother was found

to be a servant for whose actions the defendant was vicariously liable. In Whittington

v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3 Cir.), writs denied, 443 So.2d

591, 592 (La.1983), a class of nursing students was being driven by a fellow student

nurse on a field trip when an accident occurred, killing the plaintiffs’ wife and mother.

The trip was not required by the institute, but the students would receive additional

credit if they attended. The institute designated the date, time, and driver and

provided transportation and supervision for the trip. The student driver was found to

be the institute’s servant, and the institute was found vicariously liable for her

negligence.

The WCJ also cited Whetstone v. Dixon, 616 So.2d 764 (La.App. 1 Cir.), writs

denied, 623 So.2d 1333 (La.1993), in support of his determination that Kenneth was

an employee of Perry & Sons. In Whetstone, a volunteer deacon caused an

automobile accident while on a mission for the church. The deacon’s relationship

with the church was ongoing. In finding the deacon an employee of the church, the

court relied upon jurisprudence which specifically addressed the relationships of

religious and charitable organizations with their volunteers, see Doe v. Roman

Catholic Church, 602 So.2d 129 (La.App. 4 Cir. 1992), vacated and remanded, 606

So.2d 524 (La.1992), on remand, 615 So.2d 410 (La.App. 4 Cir. 1993),1 and the fact

that the church had no paid employees.

The WCJ also cited Deville, 490 So.2d 800, in support of his conclusion that

Perry & Sons is Kenneth’s employer. However, the court in Deville rejected the

1
The supreme court’s reversal of the fourth circuit’s opinion was a reversal of that court’s
remand to the trial court for a new trial. It was not a reversal of the court’s determination of the
legal issues addressed therein.

5

plaintiff’s contention that he was an employee and owed wages, specifically, because

he was not paid a salary by the defendant.

None of the cases cited by the WCJ were determined on the basis of a

claimant’s status as an employee for purposes of entitlement to workers’

compensation benefits. Our review of the jurisprudence reveals that, in the context

of claims for workers’ compensation benefits, lack of compensation has been an

important factor in determining that an employer-employee relationship did not exist.

In Trunk v. Medical Center of Louisiana, 03-275 (La.App. 4 Cir. 12/17/03), 863 So.2d

675, the plaintiff, a medical student at Louisiana State University (LSU), sought

damages for injuries she suffered as a result of a slip and fall at the Medical Center.

The court determined she was not an employee of LSU and, hence, not a borrowed

employee of the Medical Center because she was not paid for her services. In Jordan

v. Central Management Co., 99-748 (La.App. 3 Cir. 10/13/99), 745 So.2d 116, writ

denied, 99-3231 (La. 1/14/00), 753 So.2d 220, the claimant, a licensed practical nurse

on staff with the defendant, was injured while performing hairdressing services for a

resident of the defendant’s nursing home. This court determined she was not the

defendant’s employee at the time she was injured because she was paid by residents,

not the defendant, for her hairdressing services. In another student setting, the

plaintiff was a student at a commercial school which specialized in training medical

support personnel. While in training at a hospital, the plaintiff was instructed to assist

restraining a patient who was infected with HIV and suffered from AIDS. As a result,

the student contracted HIV, and he filed suit against the school and hospital to recover

damages. The court found the student did not render services “in anticipation of

compensation” and was not an employee of the school or a borrowed employee of the

hospital. Dustin v. DHCI Home Health Servs., Inc., 95-1989 (La.App. 1 Cir. 5/10/96),

6

673 So.2d 356. In Genusa v. Pointe Coupee Volunteer Fire District No. 4, 93-2214

(La.App 1 Cir. 10/7/94), 644 So.2d 851, the claimant, a volunteer fireman, injured his

back while attempting to repair a fire truck. The WCJ denied benefits, citing the fact

that the claimant was not compensated. On appeal, the claimant argued that “the

essence of the employment relationship is not based upon remuneration, but upon the

right of control.” Id. at 852. Citing the general rule that for an employer-employee

relationship to exist there must compensation, the court of appeal rejected the

argument.

Our consideration of this issue leads us to the conclusion that the WCJ

committed an error of law in his analysis of Kenneth’s relationship with Perry & Sons

and that, because Kenneth was not paid wages by Perry & Sons, he was not an

employee of the company. We reverse this finding of the WCJ.

Is Kenneth a borrowed servant of Perry & Sons?

The WCJ rejected Kenneth’s contention that he was Perry & Sons’ borrowed

servant at the time of his injury. On appeal, Perry & Sons and LUBA-SIF argue

Kenneth was not a Perry and Sons employee; Sanitation Services and LCTA-SIF 2

argue he was not a Sanitation Services employee; and they all contend he was not

Perry & Sons’ borrowed employee at the time of his injury. For the following

reasons, we find the WCJ’s determination of this issue clearly wrong.

The factors to be considered when determining whether an employee is a

borrowed servant are: (1) who has the right of control over the employee beyond the

mere suggestion of details or cooperation; (2) who selected the employee; (3) who

2
Sanitation Services and LCTA-SIF contend the issue of borrowed servant is not before this
court because Kenneth did not file an answer to Perry & Sons’ and LUBA-SIF’s appeal. The WCJ
granted Kenneth relief on one of the grounds asserted in his claim. Pursuant to La.Code Civ.P. art.
2133, he was not required to answer the appeal if he did not seek to have the judgment modified,
revised, or reversed on this issue. Perry & Sons’ appeal put his employer-employee relationship at
issue. Diefenthal v. Longue Vue Mgmt. Corp., 561 So.2d 44 (La.1990).

7

paid the employee’s wages; (4) who had the right to fire the employee; (5) who

furnished the tools and the place to perform the work; (6) was the new employment

over a considerable length of time; (7) whose work was being done at the time of the

accident; (8) was there an agreement between the borrowing and lending employers;

(9) did the employee acquiesce in the new work situation; and (10) did the original

employer terminate his relationship with or relinquish his control over the employee.

Green v. Popeye’s Inc., 619 So.2d 69 (La.App. 3 Cir.1993).

No single factor is decisive, and no fixed test is used to determine the existence

of a borrowed servant relationship. Trunk, 863 So.2d 675. However, there is a

presumption that the general employer retains control of his employee, and the party

who alleges that an employee has become a borrowed servant bears the burden of

proving that issue by a preponderance of the evidence. Harrington v. Hebert, 00-1548

(La.App. 3 Cir. 5/23/01), 789 So.2d 649.

The evidence established that Mr. Perry wears two hats: one as head of Perry

& Sons and one as head of Sanitation Services. He controls the employees of both

corporations and has the right to fire any employee of either corporation at any time.

Kenneth worked twenty years for Sanitation Services, which paid his wages. Since

Perry & Sons’ inception, he has performed services for the corporation and was

performing services for Perry & Sons when he was injured. Sanitation Services and

Perry & Sons maintain separate equipment. Because Mr. Perry owned and operated

both corporations and directed his employees, including his sons, to perform work for

both corporations, we find there was an implicit agreement between Perry & Sons and

Sanitation Services to exchange the services of employees of both corporations

between the two corporations as determined solely by Mr. Perry. Kenneth clearly

acquiesced to this arrangement.

8

The last factor of the borrowed servant analysis, “did the original employer

terminate his relationship with or relinquish his control over the employee,” was an

important factor in the WCJ’s determination:

The evidence does not show that Mr. Scott Perry ever terminated his
relationship with Mr. Kenneth Perry with respect to his employment
through the sanitation company. The employment may have been over
a considerable period of time. Certainly Mr. Scott Perry retained a right
to discharge Mr. Kenneth Perry if he had so chosen to do and the
Sanitation Services company maintained the obligation to pay Mr.
Kenneth Perry.

Because there is no clear showing of a termination of the
relationship between Mr. Scott Perry as the employer for Sanitation
Services and Mr. Scott Perry as the employer for the Perry and Sons
Vault company, because Sanitation Services maintained the right - the
obligation to pay Mr. Kenneth Perry because there is no accounting
between the two companies to assess the time that Mr. Kenneth
performed work for the Perry and Sons Vault company being charged
back against the sanitation company, the Court finds that this is not a
case of a borrowed servant.

In Humphreys v. Marquette Casualty Co. , 235 La. 355, 103 So.2d 895 (La.

1958), the supreme court was presented with a similar situation. N. P. Martone

managed a ranch owned by a partnership which consisted of his wife and mother-in-

law. Independently, he conducted rice farming operations. The ranch employed ranch

hands who Martone used in his rice farming operations when needed. The ranch

hands were paid by the ranch and overseen by Martone whether they were performing

ranching operations or farming operations. Two of the ranch hands were electrocuted

when performing farming duties for Martone’s farming operations. The supreme

court considered the relationship of Martone in both of his capacities to the employees

and determined that the ranch hands were borrowed servants of his rice farming

operation when they died, explaining:

They were paid by Bon-Air Ranch, but the evidence clearly shows that
the method of payment was by the custom of the particular vicinity in
which the deceased worked. The general employer continued to pay his
employees’ salaries when they were loaned to rice farmers, because he,

9

likewise, borrowed servants from the rice farmers during their slack
seasons, and these servants’ salaries were paid by their general
employers. Mr. N. P. Martone, as manager of his rice farming business,
had direct control over the deceased. Their hours, duties, and method
of work were controlled by him. There is no doubt that he could have
discharged the deceased had they not worked in an obedient and
satisfactory manner. It is an extraneous circumstance that he could have
also discharged them when he was acting as Manager of Bon-Air Ranch.
The deceased employees were aware of the custom of swapping
employees, and they knew that they were working as farmers and not as
‘cowboys’.

Id. at 901-02 (emphasis added).

We find the supreme court’s analysis in Humphreys applicable to Mr. Perry as

the owner and operator of Perry & Sons and Sanitation Services. Mr. Perry’s

testimony was clear that he controlled the duties and work of the employees of both

corporations and that he would fire anyone who failed to do as told. As in

Humphreys, we find it “extraneous” that he could fire Kenneth when acting as owner

of Sanitation Services because the evidence establishes that he could also fire him as

the owner of Perry & Sons. Additionally, as the owner of both corporations,

Mr. Perry was not concerned about an accounting between the two corporations for

services provided to each corporation by employees of its sister corporation. His

primary concern was seeing that the work got done. Accordingly, we conclude that

Kenneth was an employee of Sanitation Services and Perry & Sons’ borrowed

employee at the time of his injury.

Perry & Sons and LUBA-SIF cite the case of Wise v. Employers Mutual

Liability Insurance Co. of Wisconsin, 224 So.2d 33 (La.App. 1 Cir.), writ denied, 254

La. 776, 226 So.2d 769 (La.1969), in support of their position that Kenneth was not

Perry & Sons’ borrowed employee. In Wise, the claimant was employed by Superior

Casing Crews, Inc. His employment included driving heavy trucks and handling

heavy equipment. While on call, he was contacted by his foreman and instructed to

10

report to Superior Testers, Inc. and help load two heavy testing units on the truck.

The employee completed the task and delivered the units as required. The claimant

was again contacted later that day and instructed to report to Superior Casing Crews,

Inc.’s site to load another piece of Superior Testers, Inc.’s equipment and deliver it.

He was injured when loading the unit on his truck.

Superior Casing Crews, Inc. contended that the claimant was Superior Testers,

Inc.’s borrowed employee when he was injured. It pointed to the fact that the claimant

was paid by Superior Testers, Inc. on that occasion. The court of appeal affirmed the

trial court’s determination that the claimant employee was in the course and scope of

his employment with Superior Casing Crews, Inc. at the time of his injury, noting that

Superior Testers, Inc. had never before paid claimant for his services and that Superior

Testers, Inc.’s equipment was being loaded onto the Superior Casing Crews, Inc. truck

for it to be delivered by the claimant who was a truck driver for Superior Casing

Crews, Inc. This was apparently the type of work Superior Casing Crews, Inc.

provided to all of its customers, not just Superior Testers, Inc., so the claimant was

performing the same work he performed for Superior Casing Crews, Inc. That is not

the situation here. Furthermore, the claimant had provided the same services to

Superior Testers, Inc. but had never been paid by Superior Testers, Inc. previously.

More importantly, we note that while both corporations in Wise were incorporated by

the same person, the court’s discussion indicates that the corporations were operated

independently of each other and that the incorporator did not personally control the

employees as Mr. Perry does.

All of the defendants argue that Kenneth provided services to Perry & Sons

gratuitously as a result of his love and affection for his father because Kenneth was

not paid separately by that corporation. As discussed above, Mr. Perry operated both

11

corporations as he saw fit, instructing his employees to do whatever work needed to

be done, regardless of which corporation paid their salaries and which corporation’s

work was being performed. We find no merit in this argument.

Kenneth asserts that his employment with Sanitation Services and Perry & Sons

was a joint employment. The WCJ held this is not a case of a joint employer

relationship because the two activities of the companies were distinct and separate

from each other. We find no error with this conclusion.

Joint employment requires a “common enterprise that contemplates the

employment and control of the claimant by one of the interested parties for the benefit

of all.” Kahl v. Baudoin, 449 So.2d 1334, 1336 (La.1984), quoting Babineaux v.

Southeastern Drilling Corp., 170 So.2d 518 at 529 (La.App. 3 Cir. 1965), writs

denied, 247 La. 613-15, 172 So.2d 700, appeal dismissed, 86 S.Ct. 67, 38 U.S. 16.

Even though Perry & Sons and Sanitation Services are owned and operated by the

same individual, they are not common enterprises. Each corporation provides

different services which are not dependent upon, related to, or complementary of the

services provided by the other corporation.

A general employer and a borrowing special employer are solidarily liable for

workers’ compensation benefits. La.R.S. 23:1031(C). Therefore, Perry & Sons and

LUBA-SIF are solidarily liable with Sanitation Services and LCTA-SIF for Kenneth’s

workers’ compensation benefits. However, we cannot render judgment in Kenneth’s

favor against Sanitation Services and LCTA-SIF because he did not appeal the WCJ’s

judgment dismissing his claims against them and that judgment is now final. This

situation is addressed by La.R.S. 23:1031(C) which provides that Perry & Sons has

the right to seek contribution for payments made on behalf of Kenneth from Sanitation

12

Services and LCTA-SIF, unless they contracted for a specific method of contribution.

Attorney Fees

The basis of the WCJ’s $5,000.00 award of attorney fees is his conclusion that

LUBA-SIF made a “judicial admission” that Kenneth was employed by Perry & Sons.

As previously discussed, LUBA-SIF did not make a judicial admission in its petition

of intervention that Perry & Sons was Kenneth’s employer. Accordingly, the award

of attorney fees on this basis was error. However, LUBA-SIF’s actions do warrant the

imposition of attorney fees under La.R.S. 23:1201.2. In J.E. Merit Constructors, Inc.

v. Hickman, 00-943, p. 5 (La. 1/17/01), 776 So.2d 435, 437-38 (footnote omitted), the

supreme court discussed the appropriateness of an award for attorney fees when

workers’ compensation benefits were discontinued:

Under La. R.S. 23:1201.2, reasonable attorney’s fees are awarded
as a penalty under the workers’ compensation law when an employer
discontinues payment of benefits, “when such discontinuance is found
to be arbitrary, capricious, or without probable cause.” Arbitrary and
capricious behavior is willful and unreasonable action, without
consideration and regard for the facts and circumstances presented.
Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d
41, 45-46. An award of attorney’s fees in a workers’ compensation case
is essentially penal in nature, as it is intended to discourage indifference
and undesirable conduct by employers and insurers. Sharbono v. Steve
Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382 (citations
omitted). Attorney’s fees should not be imposed in doubtful cases,
where a bona fide dispute exists as to the employee’s entitlement to
benefits, and the mere fact that an employer loses a disputed claim is not
determinative. Id.

This is not a doubtful case. There was no question that Kenneth was entitled

to workers’ compensation benefits. The only question was which insurance company,

if not both, was obligated to pay those benefits. LUBA-SIF knew that, if it had paid

the benefits and was found not to be Kenneth’s employer, it had recourse against

LCTA-SIF to recoup the amounts paid. Additionally, it could have entered into an

13

agreement with LCTA-SIF regarding Kenneth’s benefits, as both were potentially

solidarily liable for the payment of those benefits. Instead, Kenneth was arbitrarily

allowed to suffer without benefits or medical treatment, and the burden was placed

upon him to file suit to establish the liability of the two insurance companies.

Accordingly, we find LUBA-SIF’s discontinuance of Kenneth’s benefits was

arbitrary, capricious, and without probable cause. The award of attorney fees is

affirmed.

Penalties

Kenneth urges that the WCJ erred in not awarding him penalties for the

termination of his benefits. Perry & Sons did not appeal this issue, and Kenneth did

not file an answer to complain of the denial of penalties. Therefore, this issue is not

before us. La.Code Civ.P. art. 2133.

Disposition

For the foregoing reasons, the WCJ’s judgment is reversed with regard to the

determinations that LUBA-SIF judicially admitted that Kenneth Perry was injured in

the course and scope of his employment with Perry & Sons Vault & Grave Services,

Inc. and that Kenneth Perry was not an employee of Perry & Sons Vault & Grave

Services, Inc.; the judgment is amended to provide that Perry & Sons Vault & Grave

Services, Inc. was the borrowing employer of Kenneth Perry at the time of his injury

and is liable to him for compensation benefits. The judgment’s award of attorney fees

is affirmed.

REVERSED IN PART, AMENDED, AND AFFIRMED AS AMENDED.

14