Ervin Guillory v. Interstate Hotels & Resorts

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-650

ERVIN GUILLORY

VERSUS

INTERSTATE HOTELS & RESORTS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 04-02240
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

AFFIRMED.

Lawrence B. Frieman
Juge, Napolitano, Guilbeau, Ruli,
Frieman & Whiteley
3320 W. Esplanade Avenue North
Metairie, LA 70002
(504) 831-7270
Counsel for Defendant/Appellee:
Interstate Hotels & Resorts

Richard E. Smith
The Glenn Armentor Corporation
300 Stewart Street
Lafayette, LA 70501
(337) 233-1471
Counsel for Plaintiff/Appellant:
Ervin Guillory

DECUIR, Judge.

In this workers’ compensation case, the pivotal question is whether the

calculation of the average weekly wage of the claimant, who was injured in the course

and scope of his full-time employment, should include wages received from his part-

time employer.

FACTS

On November 24, 2002, Ervin Guillory was injured while in the course and

scope of his full-time employment for the Hilton Towers in Lafayette. At the time,

he was also employed part-time with Hebert’s Janitorial in Youngsville. Guillory

continues to be disabled and is unable to work at either of his jobs.

Guillory earned $6.45 an hour at the Hilton and/or an average weekly wage

(AWW) of $258.00 per week applying the forty-hour presumption. This translates

to an indemnity rate of $172.00. He earned $6.50 an hour at Hebert’s or an AWW of

$122.28, two-thirds of which would be $81.52. From the date of the accident until

March 10, 2004, the Hilton paid indemnity benefits at the rate of $306.08 per week.

It is unclear how the Hilton arrived at this rate, but when it realized its mistake it

reduced Guillory’s payment to $172.00 per week less a $44.93 credit to recover its

overpayment.

Guillory filed a workers’ compensation claim. The parties waived a trial on the

merits and submitted the case on briefs. The workers’ compensation judge rendered

judgment in favor of the Hilton, finding that the new rate was correctly calculated and

properly excluded part-time wages. In addition, the workers’ compensation judge

found the Hilton was entitled to a credit, but the $44.93 deduction was excessive.

Accordingly, he reduced the weekly credit to $15.00 and ordered the Hilton to

reimburse Guillory $29.93 per week retroactive to the date it first asserted its credit.

Guillory lodged this appeal.

DISCUSSION

Guillory contends the trial court erred in concluding that the average weekly

wage calculation for an employee injured in the course and scope of his full-time

employment should not include wages from his part-time employer.

This court addressed a similar circumstance in Lott v. Louisiana Power & Light

Co., 377 So.2d 1277, 1280-1281 (La.App. 3 Cir. 1979), stating:

LSA-R.S. 23:1031 evidences the intent of the legislature to make
an employer’s workmen’s compensation liability to an injured employee
depend only upon the wages which that employer pays to the employee
and not upon the total income of the employee.

....

It is evident, therefore, that the only time wages from other
employers are included in computing the employer’s workmen’s
compensation liability is when the employers are joint employers of the
same employee. That is not the case here. SOMC was not a joint
employer of Huey Lott with any other employer. The workmen’s
compensation liability of SOMC is based only upon the wages paid by
them to H. R. Lott, namely, $385.00 per month.

Able counsel for plaintiff has additionally referred us to the recent
case of Jones v. Orleans Parish School Bd., supra. In that case, our
learned brethren of the Fourth Circuit appear to hold that in calculating
the earning differential of an employee for purposes of fixing the extent
of recovery for partial disability under LSA-R.S. 23:1221(3), one must
use the sum of the salaries earned by such partially disabled employee
from all employment at time of injury. Although the court in Jones was
concerned with the calculation of benefits due under a different section
of the Workmen’s Compensation Act, we acknowledge that the holding
in Jones does lend support to the position which plaintiff advocates. We
respectfully disagree with the holding in Jones, supra, and decline to
follow same. In our view Louisiana’s workmen’s compensation law
clearly and explicitly limits the employer’s liability for workmen’s
compensation benefits to a statutorily fixed percentage of the “average
weekly wage” paid by the responsible employer to the employee (subject
to minimum and maximum benefits). In our opinion, although our law,
as presently constituted, may in certain isolated cases, such as the instant
case, not fully provide for loss of earning capacity, to fix an employer’s
liability for payment of benefits on all income of the employee,
regardless of the source, would be patently unfair to the employer
responsible for the payment of benefits.

2

Guillory argues that the legislature’s 1991 amendment of La.R.S. 23:1021(12)

makes Lott no longer relevant. The statute states in pertinent part:

(iv) A part-time employee, as defined in R.S. 23:1021(9) and who
is employed by two or more different employers in two or more
successive employments, shall be entitled to receive benefits as follows:

(aa) If an employee is employed by two or more different
employers in two or more successive employments and the employee
incurs a compensable injury under the provisions of this Chapter in one
of the employments, the employer in whose service the employee was
injured shall pay the benefits due the employee as provided in this
Chapter.

(bb) If the employee is a part-time employee in one of the
successive employments, is injured in that employment, but as a result
of the injury also incurs loss of income from other successive
employments, that employee shall be entitled to benefits computed by
determining wages under the provisions of this Subsection using his
hourly rate in employment at the time of injury and using the total hours
worked for all employers of the part-time employee, but not to exceed
his average, actual weekly hours worked or forty hours weekly,
whichever is less.

The amendment clearly carves out an exception to Lott by allowing a part-time

employee injured at his part-time employment to cumulate wages from another

unrelated part-time or full-time employer. However, the statute specifically limits the

number of hours to be used in the calculation to forty. That limitation squarely

addresses the issue before us. Guillory was injured at his full-time job and, therefore,

any cumulation with an unrelated employer would take him beyond the forty-hour

limit.

Guillory next directs our attention to Mitchell v. Winnfield Holding Corp., 03-

677 (La.App. 3 Cir. 12/17/03), 861 So.2d 931, writ denied, 04-0191 (La. 4/02/04),

869 So.2d 878, wherein this court allowed cumulation of wages from claimant’s part-

time and full-time employment. The critical distinguishing feature in Mitchell is that

the claimant was employed by one owner.

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One critical tradeoff in the workers’ compensation scheme is that while the

employer “was deprived of the defenses afforded to him by the general law and he

was assured that, in case any of his employees were injured, they would be entitled

to no more than the amount stipulated in the statute as compensation during the

period of disability.” Atchison v. May, 201 La. 1003, 10 So.2d 785. This provides

predictability for the employer by defining the nature of his exposure. Both the

statute and Mitchell maintain this predictability. The statute by setting a maximum

and Mitchell because the single employer is aware of how much his employee works

for him.

In the present case, there are multiple unrelated employers so Mitchell is

inapplicable and applying the statute serves no purpose because Guillory’s AWW is

already being calculated based on a forty hour week. Accordingly, we find no error

in the judgment of the workers’ compensation judge.

DECREE

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

is affirmed. All costs of these proceedings are taxed to claimant, Ervin Guillory.

AFFIRMED.

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