Cherry D. Cotton v. First Fleet

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1363

CHERRY D. COTTON

VERSUS

FIRST FLEET

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 04-08214
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Shannon J. Gremillion, Judges.

REVERSED AND REMANDED.

George A. Flournoy
Flournoy & Doggett (APLC)
P. O. Box 1270
Alexandria, LA 71309-1270
Telephone: (318) 487-9858
COUNSEL FOR:
Plaintiff /Appellant - Cherry D. Cotten

Robert A. Dunkelman
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P.
P. O. Box 1786
Shreveport, LA 71166-1786
Telephone: (318) 221-1800
COUNSEL FOR:
Defendant/Appellee - First Fleet

THIBODEAUX, Chief Judge.

Plaintiff-appellant, Cherry D. Cotten, asserts that the Office of Workers’

Compensation (OWC) erred by failing to include the value of certain fringe benefits

in the calculation of Cotten’s average weekly wage (AWW) to determine Cotten’s

indemnity benefits. The OWC agreed with the defendant First Fleet’s position that

this court’s previous remand for recalculation of the AWW was limited to

establishing the number of days Cotten worked during the twenty-six weeks

preceding her injury. We reverse because we vacated the OWC’s judgment with

respect to AWW and remanded for an appropriate calculation of the AWW, and

because we find that the interest of justice requires us to do so.

I.

ISSUE

We shall consider whether the OWC should have included the value of

Cotten’s vacation pay and health insurance benefits in the calculation of Cotten’s

AWW, where this court vacated the OWC’s previous determination of Cotten’s

AWW because the OWC erroneously failed to establish the number of days Cotten

worked during the twenty-six weeks preceding the accident, where this court did not

mention fringe benefits in its opinion, though Cotten appealed on this ground, and

where we remanded for an appropriate calculation of AWW.

II.

FACTS

After a trial, the OWC determined that Cotten sustained an injury while

in the employ of First Fleet. See Cotton1 v. First Fleet, 07-29 (La.App. 3 Cir. 5/2/07),

957 So.2d 229, writs denied, 07-1488, 07-1543 (La. 10/5/07), 964 So.2d 947, 948.

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There was a typographical error in the spelling of Cotten’s name.

Relying on First Fleet’s pre-trial statement that an agreement as to the AWW could

probably be reached, Cotten’s counsel failed to introduce evidence of the fringe

benefits Cotten received. Thus, the OWC determined the amount of Cotten’s

worker’s compensation benefits without considering the value of the fringe benefits.

Cotten requested a new trial on the AWW issue, but the workers’ compensation judge

(WCJ) denied the motion.

Because Cotten was paid on the basis of miles driven, the OWC

improperly determined Cotten’s AWW by not applying La.R.S. 23:1021(12)(d).2

Cotton, 957 So.2d 229. Therefore, this court vacated the OWC’s determination of the

AWW and remanded the case for proper calculation:

[T]he WCJ’s judgment is vacated insofar as it purports to
set out Mrs. Cotton’s average weekly wage. This matter is
remanded to allow evidence to be adduced with regard to
the number of days worked by Mrs. Cotton during the
twenty-six weeks preceding the accident, and for a
recalculation of her average weekly wage as set out in
La.R.S. 23:1021(12)(d).

....

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The statute provides, in pertinent part:

“Wages” means average weekly wage at the time of the
accident. The average weekly wage shall be determined as:

....

Other wages. If the employee is employed on a unit,
piecework, commission, or other basis, his gross earnings from the
employer for the twenty-six week period immediately preceding the
accident divided by the number of days the employee actually worked
for the employer during said twenty-six week period and multiplied
by the average number of days worked per week; however, if such an
employee has worked for the employer for less than a twenty-six
week period immediately preceding the accident, his gross earnings
from the employer for the period immediately preceding the accident
divided by the number of days the employee actually worked for the
employer during said period and multiplied by the average number of
days worked per week.

La.R.S. 23:1021(12)(d).

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[W]e vacate the WCJ’s determination of the average
weekly wage and remand for a determination of the number
of days actually worked by Mrs. Cotton during the
twenty-six weeks prior to the April 1, 2004 accident so as
to allow an appropriate calculation both of average weekly
wage and the proper SEB [supplemental earnings benefits]
payment owed.

Id. at 239.

At the hearing, the OWC again refused to allow the evidence of the

fringe benefits and limited its inquiry to the number of days Cotten worked during the

twenty-six weeks preceding the accident. This appeal followed.

III.

STANDARD OF REVIEW

This case involves interpretation of our previous decision in this case,

construction of our rules of civil procedure and rules of appellate courts, as well as

determination of proper methodology to establish AWW, all of which are questions

of law that we review de novo. See Ewing v. Armstrong World Indus., Inc., 02-918

(La.App. 3 Cir. 2/19/03), 846 So.2d 813, writ denied, 03-738 (La. 2/13/04) 867 So.2d

699.

IV.

LAW AND DISCUSSION

First Fleet argues that because this court specifically mentioned La.R.S.

23:1021(12)(d) and not La.R.S. 23:1021(12)(f)—the statute that requires

consideration of fringe benefits in calculation of AWW—the remand was limited to

taking evidence of the number of days Cotten worked during the twenty-six weeks

preceding the accident. In support, First Fleet cites a long-established rule that

When an appellate court renders a final judgment on the
merits of a case, disposing of all of the issues tendered, and

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remands the case to the trial court for the purpose merely
of having a certain calculation made, or of having certain
specified facts ascertained, and with instructions to the trial
court to render judgment according to the opinion rendered
by the appellate court, the merits of the case are not subject
to review or reconsideration by means of another appeal.

Stassi v. Gureasko, 120 So.2d 489, 491 (La.1960). Thus, First Fleet asserts, the OWC

committed no error by relying on this rule and not considering Cotten’s fringe

benefits.

First Fleet further stresses that Cotten presented the same arguments in

its first appeal to this court, i.e., that the determination of AWW was improper not

only because the evidence of the number of days worked was not taken, but also

because the fringe benefits were not included in the calculation of the AWW.

Therefore, First Fleet argues, because this court did not specifically mention the issue

of fringe benefits, that relief was denied to Cotten.

Yet, this argument proves too much. The rule First Fleet cites states that

the trial court’s determination is not subject to the second review when the appellate

court rendered a final judgment “disposing of all of the issues tendered.” Id.

(emphasis added). Cotten requested in the first appeal that the value of her fringe

benefits be added to the calculation of her AWW. She, thereby, tendered the issue.

This court, as First Fleet correctly pointed out, did not mention this issue in its

remand and, therefore, did not dispose of it.

First Fleet strenuously argued that this court, in fact, disposed of this

issue because “when a Court’s Judgment is silent as to relief sought, that relief sought

is denied.” This articulation of the well-established rule is not exactly accurate. This

rule applies only when an appellate court interprets a judgment of the trial court.

Thus, the more precise expression of the rule is: “all of the issues presented by the

pleadings upon which evidence has been offered will be considered as having been

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disposed of by final judgment in the cause, and any demand passed over in silence

will be considered as having been rejected by the trial court.” Maricle v. Casablanca

Converters, Inc., 546 So.2d 275, 277 (La.App. 3 Cir. 1989) (citations omitted)

(emphasis added). Thus, where the appellate court does not address an issue a party

presents for review, it does not mean that the appellate court rejected the argument

or denied the relief sought. It means simply that the appellate court, for whatever

reason, refused or failed to address the issue or has found it unnecessary to review the

issue.

Because there is no presumption that the appellate court rejected or

denied the relief sought, the supreme court often does not simply reinstate the trial

court’s judgment where the appellate court erred as to one of the issues submitted for

its review, reversed based on that error, and did not consider other issues submitted

to it. See Logan v. La. Dock Co., Inc., 541 So.2d 182 (La.1989). Instead, in these

circumstances, “it is usually the better practice for . . . [the supreme] court to remand

the case to the court of appeal for such review.” Id. at 193 (citations omitted).

Accordingly, we shall examine whether the OWC should have included the value of

Cotten’s fringe benefits when it determined her AWW.

This court vacated the entire judgment pertaining to the AWW. Thus,

the OWC had to start anew and determine Cotten’s AWW based on law. Louisiana

Revised Statutes 23:1021(12)(f) requires that

any amount withheld by the employer to fund any
nontaxable or tax-deferred benefit provided by the
employer and which was elected by the employee in lieu of
taxable earnings shall be included in the calculation of the
employee’s wage and average weekly wage including but
not limited to any amount withheld by the employer to fund
any health insurance benefit provided by the employer.

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(emphasis added). Therefore, when this court vacated the OWC’s judgment, the

OWC should have re-determined Cotten’s AWW and included the value of the fringe

benefits.

Although this court remanded the case based on specific reasoning, it

vacated the entire judgment as to AWW. As explained above, there is no

presumption that the appellate court denied relief sought if the judgment of the

appellate court is silent as to additional relief that is requested, e.g., fringe benefits.

Moreover, this court was not silent on the relief—it vacated the judgment and the

remedy was the remand for a proper calculation of the AWW. Just because this court

was silent on an alternative reason for vacating the judgment and remanding, i.e., the

exclusion of fringe benefits from the calculation of AWW, it does not mean that the

OWC can fix the AWW contrary to the established, specific, and well-settled rules

of law.

Even if we accept, arguendo, First Fleet’s arguments, La.Code Civ.P. art.

2164 states that “[t]he appellate court shall render any judgment which is just, legal,

and proper upon the record on appeal.” “The purpose of this article is to give the

appellate court complete freedom to do justice on the record irrespective of whether

a particular legal point or theory was made, argued, or passed on by the court below.”

La.Code Civ.P. art. 2164 cmt. a (1960). Similarly, this court is empowered to review

issues not submitted to the trial court for consideration if the interest of justice clearly

so requires. Uniform Rules—Courts of Appeal, Rule 1–3.

It is also a well-settled rule that

whenever the mechanics of our law or the technicalities
involved therein work a hardship or, in the final analysis
are so designed as to defeat the ultimate ends of justice
then, in that event, ‘the mechanics or technicalities’ of the
law should be abandoned in order that the ends of justice
might, in every instance, be served.

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McClung v. Delta Shipbuilding Co., 39 So.2d 754, 756 (La.App. Orleans 1949).

Even though the language of our previous opinion in this case could be

viewed as overly restrictive, we are of the opinion that here, in addition to the reasons

already articulated above, the interest of justice clearly requires inclusion of Cotten’s

fringe benefits’ value into the calculation of her AWW. First, the inclusion of fringe

benefits into the calculation of AWW is a very well and long established rule,

dictated by an explicit mandate of La.R.S. 23:1021(12)(f) and decades of our

jurisprudence. See e.g. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir.

10/1/03), 856 So.2d 125, writ denied, 03-3017 (La. 1/30/04), 865 So.2d 79; Batiste

v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395; Morgan v.

Equitable Gen. Ins. Co., 383 So.2d 1067 (La.App. 3 Cir. 1980); Ardoin v. S. Farm

Bureau Cas. Ins. Co., 134 So.2d 323 (La.App. 3 Cir. 1961); Richmond v. Weiss &

Goldring, Inc., 124 So.2d 601 (La.App. 3 Cir. 1960). Second, although Cotten

argued for the inclusion of the fringe benefits in her previous appeal, we did not

consider that argument and remanded for recalculation of the AWW on other grounds

instead. Under these circumstances, the technicality of the somewhat limiting

language in our previous opinion should give way to the ends of justice.

This court vacated the judgment of the OWC and remanded for “an

appropriate calculation both of average weekly wage and the proper SEB payment

owed.” Cotton, 957 So.2d at 239. The appropriate calculation of the AWW includes

the value of fringe benefits, as mandated by our statutes and jurisprudence. Though

this court found it unnecessary to include the alternative grounds—fringe

benefits—for finding judgment of the OWC erroneous, it is not the reason to deny

Cotten the benefits that she is so obviously entitled to. Therefore, this is precisely a

case where the interest of justice requires us to remand this case to the OWC so that

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the WCJ makes an accurate determination of Cotten’s AWW according to the

mandates of our law.

V.

CONCLUSION

The OWC’s judgment not to consider the value of Cotten’s vacation pay

and health insurance benefits is reversed. We remand to the OWC for a proper and

accurate determination of Cotten’s AWW based on all relevant factors. Costs of this

appeal are assessed to First Fleet.

REVERSED AND REMANDED.

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