Peter Olivier, Sr. v. After Crash, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-1655

PETER OLIVIER, SR.

VERSUS

AFTER CRASH, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 02-09522
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Glenn B. Gremillion, Judges.

AFFIRMED.

Kevin L. Camel
Cox, Cox & Filo
723 Broad St.
Lake Charles, LA 70601
(337) 436-6611
Counsel for Plaintiff/Appellee
Peter Olivier, Sr.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
Counsel for Defendant/Appellant
After Crash, Inc.

GREMILLION, Judge.

The defendant, After Crash, Inc., appeals the judgment of the workers’

compensation judge finding that it relied on incorrect information from the Social

Security Administration (SSA) in taking the reverse offset from indemnity benefits

it owed the plaintiff, Peter Olivier, Sr. We affirm.

FACTS

Prior to Olivier being found permanently and totally disabled (PTD) via

a September 6, 2002 judgment, the Social Security Administration (SSA) determined

that he was entitled to Social Security Disability (SSD) benefits as of May 1999. He

began receiving SSD benefits in the amount of $941.80, which was $1,104.80, the

maximum amount of SSD he could receive, minus $163.00, the federal offset amount.

Subsequent to the September 6, 2002 judgment, Olivier began receiving PTD benefits

in the amount of $1115. This judgment also entitled After Crash to take the reverse

offset allowed by La.R.S. 23:1225. Information received from the SSA on June 13,

2001, indicated that the original federal offset amount was $816.20. This was based

on Olivier receiving a total family benefit of $1758. Thus, After Crash offset

Olivier’s PTD benefits by $816.50, reducing his PTD benefits from $1115 per month

to $258.77 per month. However, his SSD benefits were only increased by $163 per

month rather than by $816.50 per month.

Inquiries to the SSA by Olivier’s counsel determined that an error had

been made by the SSA in determining the federal offset amount. Instead of Olivier’s

total family benefit being $1,104.80, the amount received by him prior to the federal

offset, the amount used was $1758. Upon learning this, counsel for Olivier informed

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After Crash, in a letter dated October 29, 2002, that the correct amount of its reverse

offset should be $163 per month, rather than $816.20 per month, and requested that

it correct Oliviers’ PTD benefits to reflect the difference.

On November 7, 2002, Olivier’s counsel sought the corrected

information from the SSA. After this was received, he forwarded the information to

After Crash in a December 6, 2002 letter, again requesting that it correct the reverse

offset taken from Olivier’s PTD benefits. When After Crash failed to do so, Olivier

filed a disputed claim for compensation seeking the correction of the reverse offset

and penalties and attorney’s fees.

Following a trial on the merits, the workers’ compensation judge

rendered a judgment finding that the correct amount of After Crash’s reverse offset

was $163 per month. In further finding that it was put on notice that the initial

information received from the SSA was incorrect due to information it received

pertaining to Olivier’s family status prior to September 2002, the workers’

compensation judge awarded Olivier $2000 in penalties and $5000 in attorney’s fees.

This suspensive appeal by After Crash followed.

DISCUSSION

At the outset, we note that a workers’ compensation judge’s factual

findings are reviewed pursuant to the manifest error—clearly wrong standard of

review. Sharbono v. Fire Safety Sales and Serv., 04-265 (La.App. 3 Cir. 9/29/04),

883 So.2d 1066. This includes the decision to award penalties and attorney’s fees.

Thomas v. Browning-Ferris, Inc., 03-1518 (La.App. 3 Cir. 3/31/04), 871 So.2d 1161.

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After reviewing the record, we find no error in the workers’

compensation judge’s determination that the correct reverse offset to be taken by

After Crash is $163, rather than $816.20. After the first incorrect information, the

SSA sent several notices to Olivier’s counsel and to the workers’ compensation judge

showing that $163 was the correct amount taken by the SSA, as the federal offset

prior to the reverse offset being granted to After Crash. Accordingly, this ruling is

affirmed.

We further find no error in the workers’ compensation judge’s decision

to award Olivier penalties of $2000 and attorney’s fees of $5000 due to After Crash’s

reliance on the incorrect matter and its failure to investigate after being put on notice.

The workers’ compensation judge found that After Crash should have been put on

notice that the amount was incorrect as it had information pertaining to Olivier’s

family status prior to September 2002. Albeit true, we find that After Crash was

definitely put on notice after receiving information from Olivier’s counsel, including

information from the SSA, that the amount it was offsetting was incorrect.

Accordingly, we affirm the awards of penalties and attorney’s fees. Olivier has

further requested attorney’s fees for work performed on appeal. However, since he

failed to file an answer to appeal requesting this, we are precluded from making such

an award. La.Code Civ.P. art. 2133.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation

judge is affirmed. The costs of this appeal are assessed to the defendant-appellant,

After Crash, Inc.

AFFIRMED.

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