Carol Fontenot v. David Sonnier D/B/A David's Mini Mart

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1215

CAROL FONTENOT

VERSUS

DAVID SONNIER D/B/A
DAVID’S MINI MART

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DIST. 04
PARISH OF LAFAYETTE, NO. 07-00491
HONORABLE SHARON MORROW
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and
J. David Painter, Judges.

AFFIRMED.
A. Gerard Caswell
Attorney at Law
142 N. 2nd Street
P. O. Box 1600
Eunice, LA 70535
(337) 457-7378
COUNSEL FOR PLAINTIFF/APPELLEE:
Carol Fontenot

Alex A. Lopresto, III
Jeansonne & Remondet, LLC
P. O. Box 91530
Lafayette, LA 70509-1530
(337) 237-4370
COUNSEL FOR DEFENDANT/APPELLANT:
David Sonnier d/b/a David’s Mini Mart

PETERS, J.

The defendant, David Sonnier d/b/a David’s Mini Mart (Mr. Sonnier), appeals

from a judgment of the workers’ compensation judge (WCJ) awarding the plaintiff,

Carol Fontenot, penalties and attorney fees as a result of Mr. Sonnier’s untimely

payment of a court-approved settlement. For the following reasons, we affirm the

WCJ’s judgment.

DISCUSSION OF THE RECORD

This matter stems from a work-related accident suffered by Ms. Fontenot while

an employee of David’s Mini Mart. Ms. Fontenot filed a disputed claim for

compensation with the Office of Workers’ Compensation seeking indemnity benefits,

medical expenses, and penalties and attorney fees from Mr. Sonnier. Although he

initially denied liability, the parties reached a settlement which was approved by the

WCJ via an August 25, 2008 Order of Approval. In the order, the WCJ awarded

judgment in favor of Ms. Fontenot in the amount of $8,000.00 for indemnity benefits

and ordered Mr. Sonnier to pay all medical expenses ($11,898.31) associated with her

injury. The order listed seven medical providers and the amount each was owed: Dr.

Greg Savoy- $473.00; Mamou Imaging- $60.00; Wal-Mart Pharmacy- $228.76; Dr.

Bobby Deshotel- $35.00; Savoy Medical Center- $9,904.55; Evangeline Emergency

Group- $650.00; and Dr. Eric Fontenot- $547.00. The order further provided that Mr.

Sonnier was free to negotiate with these providers so long as the negotiated payment

satisfied the debt owed in full. Ms. Fontenot’s claims against Mr. Sonnier were then

dismissed with prejudice upon the WCJ’s grant of a joint motion for dismissal. On

August 21, 2008, Ms. Fontenot’s counsel sent Mr. Sonnier’s counsel a letter

reminding him that pursuant to La.R.S. 23:1201(G), the terms of the settlement were

to be satisfied within thirty days of the approval of the settlement.

Subsequent to this judgment, Hurricane Gustav, a category 2 storm, came

ashore on the coast of Louisiana on September 1, 2008. As a result of the damage

and the lasting effects caused by the storm, Louisiana Governor Bobby Jindal issued,

by executive order, an emergency stay which provided for the suspension of all

deadlines in “legal, administrative, and regulatory proceedings, including liberative

prescription and peremptive periods in all courts, administrative agencies, and

boards” effective from August 29 through September 12, 2008. This order applied

specifically to workers’ compensation matters.

On September 2, 2008, Ms. Fontenot’s counsel sent a second letter reminding

Mr. Sonnier about the thirty-day delay for satisfying the settlement. On October 1,

2008, Mr. Sonnier paid Ms. Fontenot the $8,000.00 indemnity portion of the

judgment. He then had his store manager, Pat Deville, contact all of the medical

providers to commence negotiations.

Because all of the medical expenses had been turned over to collection

agencies, the negotiations took longer than thirty days. Ms. Deville eventually

negotiated payments with Savoy Medical Center for $2,575.18 on November 21,

2008, and Mamou Imaging for $48.00 on January 7, 2009. Ms. Fontenot had

previously paid the amounts owed to Wal-Mart Pharmacy and Dr. Bobby Deshotel,

so Ms. Deville paid her $263.76 on December 1, 2008. Ms. Deville obtained a letter

from Dr. Greg Savoy indicating that the $473.00 owed for Ms. Fontenot’s treatment

was written off. As to the remaining two amounts, Mr. Sonnier could locate neither

Dr. Fontenot nor the Evangeline Emergency Group, as Dr. Fontenot had moved out

of state and Evangeline Emergency Group was no longer employed by the hospital.

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On October 2, 2008, Ms. Fontenot filed a motion for penalties and attorney fees

based on Mr. Sonnier’s failure to pay the $19,898.31 settlement within the thirty-day

period provided by La.R.S. 23:1201(G). Following a hearing on the motion, the WCJ

rendered judgment in favor of Ms. Fontenot, awarding her a $3,000.00 penalty and

$1,000.00 in attorney fees for Mr. Sonnier’s failure to timely pay the medical

expenses.1 Mr. Sonnier appeals this judgment raising one assignment of error:

The Trial Judge erroneously determined that R.S. 23:1201(G) and
applicable case law gave her no discretion to consider the facts and
circumstances of this matter to determine whether penalties and attorney
fees are justified under R.S. 23:1201(G).

OPINION

Louisiana Revised Statutes 23:1201 provides for the award of penalties and

attorney fees in specified instances under the Workers’ Compensation Act. This

statute has been held to be penal in nature and, as such, is to be strictly construed just

as all penal statutes are construed. Trahan v. Coca Cola Bottling Co. United, Inc.,

04-100 (La. 3/2/05), 894 So.2d 1096. “The determination of whether an employer

should be cast with penalties and attorney fees is essentially a question of fact, and

the trial court’s finding shall not be disturbed absent manifest error.” Hayes v. La.

State Penitentiary, 06-553, p. 20 (La.App. 1 Cir. 8/15/07), 970 So.2d 547, 565, writ

denied, 07-2258 (La. 1/25/08), 973 So.2d 758 (citing Authement v. Shappert Eng’g,

02-1631 (La. 2/25/03), 840 So.2d 1181).

Mr. Sonnier argues that it was error for the WCJ to find that she had no

discretion in determining whether to award penalties and attorney fees pursuant to

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The WCJ’s judgment relates only to Mr. Sonnier’s failure to pay the medical expenses. In
the transcript from the hearing on the motion, the WCJ mentioned that she did not believe that Ms.
Fontenot was pursuing her claim with regards to the $8,000.00 indemnity payment, which was paid
on October 1, 2008, within the expanded thirty-day period.

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La.R.S. 23:1201(G). He argues that penalties and attorney fees should not be

awarded unless the employer’s actions in handling the claim were arbitrary and

capricious. Mr. Sonnier further interprets La.R.S. 23:1201(G) to read that penalties

and attorney fees are not justified if the employer reasonably controverted the

employee’s claim or unless the nonpayment resulted from conditions beyond the

employer’s control. He argues that a claim is reasonably controverted if the employer

espouses a valid reason for the delay in paying the judgment.

In explaining his delay in paying, Mr. Sonnier points out that the Order of

Approval’s terms allowed him to negotiate with the medical providers but set no time

limit on those negotiations. Furthermore, although the amounts owed to each

provider were listed in the order, it does not specifically order him to pay those

amounts. Based on these facts, Mr. Sonnier argues that he should have been allowed

a reasonable amount of time to complete his negotiations and that his good faith

negotiations and attempts to locate the providers prove that his actions were neither

arbitrary nor capricious or that he failed to reasonably controvert this claim. Thus,

he claims that the award of penalties and attorney fees was unjustified.

Louisiana Revised Statutes 23:1201(G) provides:

If any award payable under the terms of a final, nonappealable
judgment is not paid within thirty days after it becomes due, there shall
be added to such award an amount equal to twenty-four percent thereof
or one hundred dollars per day together with reasonable attorney fees,
for each calendar day after thirty days it remains unpaid, whichever is
greater, which shall be paid at the same time as, and in addition to, such
award, unless such nonpayment results from conditions over which the
employer had no control. No amount paid as a penalty under this
Subsection shall be included in any formula utilized to establish
premium rates for workers’ compensation insurance. The total one
hundred dollar per calendar day penalty provided for in this Subsection
shall not exceed three thousand dollars in the aggregate.

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We disagree with Mr. Sonnier’s interpretation of this statute. First off, the

language “shall not apply if the claim is reasonably controverted” does not apply to

this subsection, as it does to La.R.S. 23:1201(F). Subsection F applies to the actions

of the employer prior to a final judgment/settlement being obtained, whereas

Subsection G applies to the actions of the employer subsequent to such a time. See

Rodrigue v. Laforuche Parish Sch. Bd., 04-1136 (La.App. 1 Cir. 5/6/05), 909 So.2d

627, writ denied, 05-2366 (La. 3/17/06), 925 So.2d 546. Second, a plain reading of

Subsection G raises two questions: (1) was the payment timely, and (2) if not, did the

delay result from conditions beyond the employer’s control. The first question results

in a straight yes or no answer. The second question delves into the reasons behind

the employer’s late payment, which is a finding of fact subject to the manifest error

standard of review. If the WCJ finds that the employer had no control over the delay,

then no penalties and attorney fees are awarded. However, if the delay resulted from

the employer’s own actions, then the award is automatic.

During the hearing on the motion, the WCJ noted the difficulty Mr. Sonnier

experienced in negotiating these claims. However, the WCJ factually found that this

difficulty was not encompassed by the language “results from conditions over which

the employer had no control.” La.R.S. 23:1201(G). Reviewing this pursuant to the

manifest error standard, we find no error in this finding as it relates to payment of the

medical expenses, except for those relating to Dr. Fontenot and the Evangeline

Emergency Group, as Mr. Sonnier was unable to locate and pay them. In these two

instances, we find that the delay in payment was beyond Mr. Sonnier’s control.

Otherwise, we find that the delay as to the remaining medical providers was within

his control. With regard to his argument concerning the lack of a deadline in the

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order and its failure to specify that he pay the amounts listed, we find no merit in

those arguments. The inclusion of a deadline was unnecessary as La.R.S. 23:1201(G)

provided the thirty-day deadline. Furthermore, the amount paid by Mr. Sonnier

depended on his success in negotiating lower payments, so long as all payments were

satisfied within the thirty days. A failure to lower the amount within that time period

would result in a payment of the full amount listed.

Considering the foregoing, we find no error in WCJ’s judgment awarding Ms.

Fontenot a $3,000.00 penalty and $1,000.00 in attorney fees. Although penalties and

attorney fees are not justified in the two instances specified, the amount awarded for

the remaining providers’ expenses is the minimum allowable under La.R.S.

23:1201(G).

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’

compensation judge in all respects. We assess all costs of this appeal to David

Sonnier d/b/a David’s Mini Mart.

AFFIRMED.

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