Michael W. Trahan v. City of Crowley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-266

MICHAEL W. TRAHAN

V.

CITY OF CROWLEY

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

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 02-09331
SHARON M. MORROW, WORKERS’ COMPENSATION JUDGE

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

JAMES T. GENOVESE
JUDGE

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

Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED IN PART;
REVERSED IN PART; AND RENDERED

Michael B. Miller
Post Office Box 1630
Crowley, Louisiana 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Michael W. Trahan

Christopher R. Philipp
120 Caillouet Place
Post Office Box 2369
Lafayette, Louisiana 70502
(337) 235-9478
COUNSEL FOR DEFENDANT/APPELLEE:
City of Crowley

GENOVESE, JUDGE.

In this workers’ compensation case, claimant is appealing the judgment

granting the employer’s exception of prescription relative to his claims for penalties

and attorney fees. The employer has answered this appeal, seeking a reversal of the

award of permanent and total disability.1 For the following reasons, we affirm in part,

reverse in part, and render.

FACTS

On November 15, 1993, the claimant/employee, Michael Trahan (Trahan),

injured his back in the course and scope of his employment with the City of Crowley

(City). The City paid Trahan temporary total disability benefits (TTD) beginning

November 17, 1993 at a rate of $171.75 per week based upon an average weekly

wage (AWW) of $257.73. Trahan’s TTD benefits were relegated to supplemental

earnings benefits (SEB) on May 25, 1994 at a rate of $744.25 per month. On October

27, 1997, SEB was reduced to $266.34 per month as result of a job offer extended

by the City. Thereafter, on April 27, 1998, Trahan’s benefits were increased to

$369.39 per month, which is the amount he was receiving at trial.

Contending that he had been underpaid compensation benefits, Trahan filed a

Disputed Claim for Compensation (Form 1008) on December 16, 2002, asserting that

on November 15, 1993 he slipped and fell, injuring his back while working for the

City. Trahan also sought penalties and attorney fees. The City answered, generally

1
We note that in its brief to this court, the employer asserts three specifications of error and
identifies four issues presented for review. However, in its answer to appeal, the employer appeals
“the trial court’s decision awarding the plaintiff’s disability benefits.” Therefore, the workers’
compensation judge’s award of permanent and total disability is the only issue raised in the answer
to appeal which is properly before this court. La.Code Civ.P. art. 2133; Roszell v. Nat’l Union Fire
Ins. Co., 602 So.2d 87 (La.App. 3 Cir.), writ denied, 605 So.2d 1365 (La.1992) ; Lolan v. Louisiana
Indus., 95-602 (La.App. 3 Cir. 11/2/95), 664 So.2d 616.

1

denying the allegations set forth by Trahan, including the occurrence of a work-

related accident, the nature and extent of Trahan’s disability, and the amount of

workers’ compensation benefits to which he was entitled. The City also filed an

exception, asserting that Trahan’s claims for penalties and attorney fees had

prescribed.

Following the trial on August 11, 2005, the workers’ compensation judge

(WCJ) found that the City improperly calculated Trahan’s AWW by failing to include

certain fringe benefits in its computation. The WCJ ruled that the correct calculation

yielded an AWW of $205.63. On the issue of the reduction in SEB, the WCJ found

that the reduction implemented as a result of the job offer was improper since the

part-time job did not constitute a suitable job, and the offer of employment was not

in keeping with the dictates of Banks v. Industrial Roofing & Sheet Metal Works, Inc.,

96-2840 (La. 7/1/97), 696 So.2d 551. The WCJ also ruled in favor of Trahan and

awarded him permanent and total disability benefits as a result of the November 15,

1993 accident. Lastly, the WCJ granted the City’s exception of prescription, ruling

that Trahan’s claims for penalties and attorney fees had prescribed. For the reasons

that follow, we affirm in part, reverse in part, and render.

ISSUES

The issue presented by Trahan for our review is whether the WCJ committed

legal error in finding that Trahan’s claims for penalties and attorney fees had

prescribed. The issue presented by the City for our review in its answer to this appeal

is whether the WCJ erred in awarding Trahan disability benefits.

2

LAW AND DISCUSSION

Prescription

In response to Trahan’s claims for penalties and attorney fees, the City filed an

exception of prescription, asserting that any actions by the City occurring prior to

December 16, 2001, allegedly warranting the imposition of penalties and attorney

fees, had prescribed. The WCJ agreed and granted the exception of prescription. We

reverse and render.

Standard of Review

In general, an appellate court is to review factual findings issued in workers’

compensation matters according to the manifest error-clearly wrong standard of

review. However, when there are errors of law asserted on appeal, the appellate court

must make a determination of whether the workers’ compensation judge’s ruling was

legally correct. Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04),

895 So.2d 552, writ denied, 05-1027 (La. 6/3/05), 903 So.2d 467; McClain v.

Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112; Miller v.

Blacktype Farms, 06-1202 (La.App. 3 Cir. 3/7/07), 952 So.2d 867. The issue of

prescription presented by Trahan on appeal involves a question of law. Therefore,

we must determine whether the WCJ was legally correct in granting the City’s

exception of prescription.

In granting the City’s exception of prescription, the WCJ relied on the first

circuit decision of Craig v. Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885

So.2d 1234, writ denied, 04-2995 (La. 3/18/05), 896 So.2d 1004, which held that the

one-year prescriptive period set forth in La.Civ.Code art. 3492 applied to a penalties

and attorney fees claim under the provisions of the workers’ compensation act.

3

However, when subsequently presented with the same issue, this court, in Rave v.

Wampold Companies, 06-978 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, reached a

different result. This court held in Rave that “[i]t is clear from a reading of the

jurisprudence that when claims for penalties and attorney fees accompany the claims

for benefits, if the underlying claims have not prescribed, neither have the claims for

attorney fees and penalties.” Id. at 855.

In the instant matter, Trahan asserts that he is entitled to penalties and attorney

fees based upon certain actions on the part of the City. It was not argued before the

WCJ, nor is it asserted on appeal, that Trahan’s underlying claims have prescribed.

Rather, the narrow issue before this court is whether or not the resultant claims for

penalties and attorney fees have prescribed. We find Rave to be controlling.

Accordingly, we reverse the WCJ’s grant of the City’s exception of prescription, and

we will now consider the merits of Trahan’s claims for penalties and attorney fees.

Penalties and Attorney Fees

Trahan contends that various actions on the part of the City warrant the

imposition of penalties and attorney fees pursuant to La.R.S. 23:1201.2 In

considering the penalties and attorney fee claims, we note that La.R.S. 23:1201 has

undergone revisions since the occurrence of Trahan’s accident in 1993, and we are

mindful that “[t]he law in effect at the time of the denial of benefits governs a

workers’ compensation claimant’s request for penalties and attorney fees.” Mullins

v. Concrete Steel Erectors, 06-510, p. 10 (La.App. 3 Cir. 9/27/06), 940 So.2d 803,

811, writ denied, 06-2588 (La. 12/15/06), 945 So.2d 698 (citing Reed v. Abshire,

2
Although additional grounds were raised before the WCJ for the imposition of penalties and
attorney fees, only the improper calculation of AWW and the reduction of SEB were briefed by
Trahan on appeal. Therefore, this court will only consider and rule upon those issues which are
properly before this court.

4

05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224; Rivera v. M & R Cable Contractors,

Inc., 04-985 (La.App. 3 Cir. 12/15/04), 896 So.2d 90; Skipper v. Acadian Oaks Hosp.,

00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122). Trahan’s claims for penalties and

attorneys fees arose from actions by the City which occurred prior to the August 15,

2003 effective date of the amendment to La.R.S. 23:1201. Under the provisions of

the statute in effect at the time of the denial of Trahan’s benefits, La. R.S. 23:1201

provided that a claimant could recover 12% of unpaid benefits, or $2,000.00 per

violation, whichever was greater.

Pursuant to La.R.S. 23:1201(F), penalties shall be awarded for an employer’s

failure to properly pay benefits unless the claim is reasonably controverted or resulted

from conduct over which the employer or insurer had no control. In order to

reasonably controvert a claim, the employer must have some valid reason or evidence

upon which to base its denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063

(La. 12/1/98), 721 So.2d 885; Smith v. Kinder Ret. & Rehab. Ctr., 06-1480 (La.App.

3 Cir. 4/4/07), 954 So.2d 365.

Calculation of AWW

Trahan contends that he is entitled to penalties and attorney fees for the City’s

improper calculation of his AWW. Given our reversal herein of the WCJ’s grant of

the City’s exception of prescription, and the WCJ’s ruling in favor of Trahan on the

proper calculation of the AWW, we must now decide whether the City’s improper

calculation of Trahan’s AWW warrants the imposition of a penalty and an attorney

fee award.

The City argued before the WCJ that La.R.S. 23:1021(10)(c), does not provide

a statutory basis for the inclusion of fringe benefits in the calculation of AWW. We

5

agree with the WCJ that “[t]hese arguments are not supported by case law.” The

cases of Batiste v. Capital Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d

395, Cook v. Dewey Rusk Flooring, 93-1643 (La.App. 3 Cir. 8/10/94), 642 So.2d 234,

writ denied, 94-2804 (La. 1/13/95), 648 So.2d 1343, Daigle v. Sherwin-Williams Co.,

545 So.2d 1005 (La.1989), and Bananno v. Employer’s Mutual Liability Insurance

Co. of Wisconsin, 299 So.2d 923 (La.App. 3 Cir. 1974), have all held that fringe

benefits are to be included in the calculation of AWW. We find that the City did not

reasonably controvert this claim. Therefore, we award Trahan a $2,000.00 penalty

and will assess attorney fees for the City’s improper calculation of the AWW.

Reduction in SEB

Trahan also asserts that he is entitled to penalties and attorney fees for the

City’s reduction of SEB. On this issue, the WCJ also found in favor of Trahan and

ruled “that the reduction in benefits taken October 27, 1997 was not proper.” The

WCJ expressly noted that the correspondence extending the offer of employment to

Trahan gave “no description or information about the position being offered, no

hours, except to appear by 7[:00] a.m.[,] and no indications of the wages to be paid.”

The WCJ found that the offer of employment failed to meet the “minimum

requirements” of Banks, 696 So.2d 551. In addition thereto, the WCJ opined that it

was “questionable whether the job offer was still valid at the time the reduction began

on October 27, 1997.” Based upon these factual findings of the WCJ, we find that

the City did not have a reasonable basis upon which to controvert the claim.

Accordingly, we award Trahan a $2,000.00 penalty and will assess attorney fees for

the City’s improper reduction of SEB.

6

Permanent and Total Disability

The WCJ ruled that Trahan was permanently and totally disabled as a result of

his November 1993 work accident. In its answer to this appeal, the City contends that

Trahan is not entitled to permanent and total disability benefits.

Standard of Review

The WCJ’s award of permanent and total disability benefits in favor of Trahan

is a factual determination which is subject to the manifest error or clearly wrong

standard of review. Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir.

11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La. 3/31/06), 925 So.2d 1261.

Therefore, the WCJ’s determination that Trahan is permanently and totally disabled

is to be given great weight and will not be overturned unless this factual

determination is clearly wrong.

In her oral reasons for judgment, the WCJ thoroughly discussed Trahan’s

medical history, including mention of a prior back injury in 1979 at L4-5 requiring

surgical intervention. The WCJ noted Trahan’s treatment following the November

1993 accident with Dr. Stuart Phillips beginning February 17, 1994, and the lumbar

fusion which Dr. Phillips performed at L4-5 in March of 1996. Although Dr. Phillips

initially considered the surgery to be a success, his records in 1997 document that

Trahan’s condition “progressively deteriorated,” and despite Trahan’s continuing

complaints, Dr. Phillips did not think that he was a surgical candidate. Again

referencing Dr. Phillips’ records, the WCJ noted that by 2000 Trahan was walking

with the aid of a cane. And, by December 2001, Dr. Phillips was of the opinion that

Trahan suffered from failed back syndrome, that he was unable to return to work, and

that he was permanently and totally disabled.

7

Following Dr. Phillips’s retirement, Trahan began treating with Dr. Michel

Heard. It was Dr. Heard’s diagnosis that Trahan suffered from chronic pain syndrome

with left radiculitis. Moreover, Dr. Heard was also of the opinion that Trahan was

totally disabled, and he did not anticipate that Trahan would return to work. Dr.

Heard also agreed that surgical intervention was not an option for Trahan.

The WCJ thoroughly considered Trahan’s medical condition, his “continued

complaints, his limited education, and the amount of medication he takes” in reaching

the conclusion that he is permanently and totally disabled. We also note that Trahan

has had extensive urological treatment, including the insertion of a bladder

stimulation system which resulted in complications. Given that Trahan is over fifty

years of age, has a ninth grade education, has limited reading and writing skills, has

not worked since 1993, and considering his medical history, we find that the WCJ

was not manifestly erroneous in concluding that Trahan was permanently and totally

disabled. Therefore, we affirm the judgment of the WCJ awarding Trahan permanent

and total disability benefits.

DECREE

For the foregoing reasons, we reverse the judgment of the WCJ granting the

exception of prescription filed on behalf of the City of Crowley. We hereby render

judgment in favor of Michael W. Trahan awarding penalties in the amount of

$4,000.00 and attorney fees in the amount of $10,000.00, consisting of $7,500.00 on

the trial court level and $2,500.00 on appeal. Finally, we affirm the judgment of the

WCJ finding Michael W. Trahan to be permanently and totally disabled.

Costs of this appeal are assessed against the City of Crowley.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

8