Nadine Lanthier v. Family Dollar Store

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-779

NADINE LANTHIER

VERSUS

FAMILY DOLLAR STORE

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 01-06757
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

AFFIRMED AS AMENDED.

Michael B. Miller
Miller & Miller
P. O. Box 1630
Crowley, LA 70527-1630
(337) 785-9500
Counsel for Plaintiff/Appellee:
Nadine Lanthier

Michael J. Tarleton
Matthew J. Ungarino
David I. Bordelon
Ungarino & Eckert
3850 North Causeway Blvd.
1280 Lakeway Two
Metairie, LA 70002
(504) 836-7531
Counsel for Defendant/Appellant:
Family Dollar Store

GREMILLION, Judge.

The defendant, Family Dollar Store, appeals the judgment of the

workers’ compensation judge reinstating the indemnity benefits of the plaintiff,

Nadine Lanthier, and casting it with penalties and attorney’s fees. For the following

reasons, we affirm as amended.

FACTS

This matter has previously been before us several different times. We

refer to our preceding opinions for the facts pertaining to Lanthier’s work-related

injury. Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/2/02), 827 So.2d

547, vacated, 02-2663 (La. 11/27/02), 836 So.2d 5, on remand, 02-429 (La.App. 3

Cir. 1/8/03), 848 So.2d 605; Lanthier v. Family Dollar Store, 01-437 (La.App. 3 Cir.

813 So.2d 1212, writ denied, 02-1253 (La. 8/30/02), 823 So.2d 951.

At the commencement of the current dispute, Lanthier was receiving

supplemental earnings benefits (SEBs) in the amount of $491.78 per month. On May

1, 2003, she filed an amended disputed claim for compensation based on an alleged

violation of La.R.S. 23:1208 by a Family Dollar employee. Fourteen days later,

Family Dollar filed a motion to compel Lanthier to participate in the vocational

rehabilitation efforts provided for her by Sharon Hebert, a vocational rehabilitation

counselor for Intracorp. Intracorp was hired by St. Paul Travelers Insurance

Company, Family Dollar’s workers’ compensation provider. Hebert had attempted

to meet with Lanthier on several occasions, but was prevented from doing so because

she did not agree to conditions set out by Lanthier’s attorney concerning the services

provided by her. Despite this failure, she identified several jobs within sedentary-

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light duty restrictions identified by a functional capacity evaluation (FCE) and

approved by Dr. Nason. A list of these positions were sent to Lanthier’s attorney, on

April 4, 2003, and was approved by Dr. Nason on April 28, 2003.

Following a hearing on Family Dollar’s motion to compel, the workers’

compensation judge ordered Lanthier to meet with Hebert within thirty days of the

issuance of its order, July 16, 2003. The order further provided that Intracorp would

“conduct its vocational rehabilitation services and counseling pursuant to the

Louisiana Revised Statutes regarding same.” Three days later, Stephanie Nadler, St.

Paul Travelers’ claims adjuster, terminated Lanthier’s SEBs based on the labor

market survey performed by Hebert indicating the availability of jobs within the

sedentary/light duty range and based on Dr. Nason’s approval of the positions.

Lanthier amended her disputed claim to seek penalties and attorney’s

fees based on Family Dollar’s failure to authorize treatment, tests, and medication

recommended by Dr. Nason. During the trial on the merits, the workers’

compensation judge sustained Family Dollar’s motion for a directed verdict on the

issue of the alleged La.R.S. 23:1208 violation. At the conclusion, the matter was

taken under advisement. Thereafter, the workers’ compensation judge issued oral

reasons finding that Family Dollar arbitrarily and capriciously terminated Lanthier’s

SEBs and awarded her $6000 in penalties and $10,000 in attorney’s fees based on

Family Dollar’s failure to authorize the recommended treatment, tests, and

medication. This suspensive appeal by Family Dollar followed.

ISSUES

Family Dollar argues two errors were committed by the workers’

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compensation judge in reaching his decision. It argues that it cannot be penalized for

Lanthier’s failure to cooperate with the vocational rehabilitation counselor and that

the workers’ compensation judge erred in finding that it acted arbitrarily and

capriciously in terminating her benefits. Lanthier answered the appeal seeking

penalties based on Family Dollar’s arbitrary and capricious termination of her SEBs

and its failure to provide her proper vocational rehabilitation. She further seeks

judicial interest on all amounts awarded to her and additional attorney’s fees for work

performed on appeal.

TERMINATION OF BENEFITS

We will address Family Dollar’s two assignments of error together as

they address the same issue: its termination of Lanthier’s SEBs.

In Chelette v. Riverwood International USA, Inc., 02-1347, pp. 4-5

(La.App. 3 Cir. 4/30/03), 843 So.2d 1245, 1249, rev’d in part on other grounds, 03-

1483 (La. 10/17/03), 858 So.2d 412, we stated:

Supplemental earnings benefits are awarded when a work-related
injury prevents the claimant from earning ninety percent of his
pre-injury wages. La.R.S. 23:1221(3). The amount of SEB is based
upon the difference between the claimant’s pre-injury average monthly
wage and the claimant’s proven post-injury monthly earning capacity.
Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840
(La.7/1/97); 696 So.2d 551; La.R.S. 23:1221(3)(a).

Once the claimant has met this initial burden of proving
entitlement to SEB, the burden of proof shifts to the employer if it
wishes to prove the employee is earning less than he or she is able to
earn. The employer bears the burden of proving that the employee is
physically able to perform a certain job and that the job was offered to
the employee or that the job was available to the employee in the
employee’s or the employer’s community or reasonable geographic
region. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).

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In Banks, 696 So.2d at 557, the Louisiana Supreme Court
concluded that “an employer may discharge its burden of proving job
availability by establishing, at a minimum, [three criteria] by competent
evidence.” The employer must show:

(1) the existence of a suitable job within claimant’s physical
capabilities and within claimant’s or the employer's community or
reasonable geographic region;

(2) the amount of wages that an employee with claimant’s
experience and training can be expected to earn in that job; and

(3) an actual position available for that particular job at the time
that the claimant received notification of the job’s existence.

Id.

Later, in 1999, this court decided East-Garrett v. Greyhound Bus
Lines, 99-421 (La.App. 3 Cir. 11/3/99); 746 So.2d 715, which co-exists
with Banks and clarifies the Banks criteria. In East-Garrett, we stated:

We find that it is implicit in the holding of Banks that the
employer must establish that the jobs are still in existence
when it is determined that they are within the employee’s
capabilities. Otherwise, the employee may be put in a
position of having to apply for jobs that she might not be
capable of performing, essentially a vain and useless act.

Id. at 721.

Louisiana Revised Statute 23:1226(E) provides the only recourse

available to an employer when an employee refuses to accept rehabilitation. In that

instance, the “[r]efusal to accept rehabilitation as deemed necessary by the workers’

compensation judge shall result in a fifty percent reduction in weekly compensation,

including supplemental earnings benefits pursuant to La.R.S. 23:1221(3), for each

week of the period of refusal.” However, the reduction may only take place after the

issue is presented to the workers’ compensation judge by the employer; unilateral

action by the employer is not allowed. First Baptist Church of Lake Arthur v.

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Fontenot, 98-1158 (La.App. 3 Cir. 2/3/99), 736 So.2d 230.

Lanthier was already receiving SEBs at the time Family Dollar

terminated her benefits, so her entitlement to such benefits is not an issue.

Accordingly, the burden is on Family Dollar to prove that it satisfied the requirements

of Banks, as clarified by East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3

Cir. 11/3/99), 746 So.2d 715. After reviewing the evidence, we find that although it

satisfied the first two requirements of Banks, it did not satisfy the third by proving

that the positions identified by Hebert were still available on April 28, 2003, when

they were approved by Dr. Nason.

The workers’ compensation judge found that these positions were stale,

pursuant to Chelette. We agree. Hebert testified that she identified six positions,

four on April 4, 2003, and two on April 11, 2003. She sent notice of these positions

to Dr. Nason on April 14, 2003, which were approved by him on April 28, 2004.

Based on Dr. Nason’s approval of the positions, which paid more than ninety percent

of Lanthier’s pre-injury wage, Nadler terminated Lanthier’s SEBs on July 19, 2003.

This was three days after the workers’ compensation judge ordered Lanthier to meet

with her vocational rehabilitation counselor within thirty days.

Family Dollar presented no evidence that the positions identified by

Hebert were still available on April 28, 2003. Although it raised the issue of

Lanthier’s refusal to accept vocational rehabilitation, it did not allow her time to

comply with the workers’ compensation judge’s order before terminating her benefits.

Moreover, a total termination of benefits is not allowed when an employee refuses

vocational rehabilitation. All that is allowed is a fifty-percent reduction, to be

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enforced by the workers’ compensation judge. Accordingly, Family Dollar

overstepped its rights by unilaterally terminating Lanthier’s SEBs. Finding no error

in the workers’ compensation judge’s judgment, we affirm.

ANSWER TO APPEAL

In answering Family Dollar’s appeal, Lanthier argues that the workers’

compensation judge erred in failing to award her penalties based on Family Dollar’s

arbitrary and capricious termination of her SEBs and in failing to provide her proper

vocational rehabilitation. She further argues that she should be awarded judicial

interest on all amounts awarded to her and additional attorney’s fees for work

performed on appeal.

Penalties

With regard to the award of penalties, we note that La.R.S. 23:1201 was

amended, effective July 3, 2003, to provide in part:

I. Any employer or insurer who at any time discontinues
payment of claims due and arising under this Chapter, when such
discontinuance is found to be arbitrary and capricious, or without
probable cause, shall be subject to the payment of a penalty not to
exceed eight thousand dollars and a reasonable attorney fee for the
prosecution and collection of such claims.

The workers’ compensation judge found and we affirmed that Family

Dollar was arbitrary and capricious in terminating Lanthier’s SEBs. Thus, it is

subject to a penalty as a result of its actions. As La.R.S. 23:1201(I) was in effect at

the time Family Dollar withheld Lanthier’s compensation benefits, it controls the

amount of penalties that may be awarded. Lanthier has already been awarded $6000

in penalties. Thus, we may only award her an additional $2000 in penalties based on

Family Dollar’s arbitrary and capricious termination of her SEBs. As no further

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penalties may be awarded, we will not address her request for additional penalties

based on Family Dollar’s failure to provide her proper vocational rehabilitation.

Judicial Interest

Louisiana Revised Statute 23:1201.3(A) provides that “[a]ny

compensation awarded and all payments thereof directed to be made by order of the

workers’ compensation judge shall bear judicial interest from the date compensation

was due until date of satisfaction.” Accordingly, Lanthier is entitled to an award of

judicial interest on her SEBs retroactive from July 20, 2003, until paid. However, she

is not entitled to judicial interest on the amounts awarded as penalties and attorney’s

fees. Pursuant to Smith v. Quarles Drilling Co., 04-0179 (La. 10/29/04), 885 So.2d

562, judicial interest on penalties and attorney’s fee will not be awarded in the

absence of a prayer for such relief. As there has been no such prayer in this instance,

Lanthier is not entitled to interest on these awards.

Work Performed on Appeal

Lanthier further requests that we award her additional attorney’s fees for

work performed by her attorney on appeal. As she has successful defended Family

Dollar’s appeal, we award her an additional $2000 in attorney’s fees.

CONCLUSION

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

judge is amended to award Lanthier an additional $2000 in penalties and judicial

interest on the compensation benefits reinstated, as of July 20, 2003, until paid. The

judgment is affirmed in all other respects. An additional $2000 in attorney’s fees is

awarded to Lanthier for work performed on appeal. The costs of this matter are

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assessed to the defendant-appellant, Family Dollar Store.

AFFIRMED AS AMENDED.

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