Barbara Leger v. Calcasieu Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1261

BARBARA LEGER

VERSUS

CALCASIEU PARISH SCHOOL BOARD

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 08-02426
HONORABLE SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

AFFIRMED IN PART, REVERSED IN PART.

Christopher M. Trahan
Raggio, Cappel, etc.
P. O. Box 820
Lake Charles, LA 70602
(337) 436-9481
Counsel for Defendant/Appellant:
Calcasieu Parish School Board

Todd A. Townsley
Townsley Law Firm
3102 Enterprise Blvd.
Lake Charles, LA 70601
(337) 478-1400
Counsel for Plaintiff/Appellee:
Barbara Leger

SAUNDERS, Judge.

Herein we address whether the trial court erred in finding that Barbara Leger’s

(Leger) wages from her employment with McDonald’s should have been included in

her workers’ compensation rate for the injuries she sustained in the course and scope

of her employment with the Calcasieu Parish School Board (School Board). We also

address whether the trial court erred in awarding penalties and attorney fees to Leger.

FACTS AND PROCEDURAL HISTORY:

Leger was employed as a school bus driver by the Calcasieu Parish School

Board from 1994 to 2007. On May 15, 2007, after dropping off the last of her

passengers, Leger’s bus was struck head-on by a drunk driver, who lost control of his

vehicle and veered into her lane. In the accident, Leger suffered severe injuries,

including a concussion, cracked ribs, facial lacerations, and a herniated disk in her

neck which required a cervical fusion.

At the time of the accident, Leger was also employed as a crew trainer by

McDonald’s. During the school year, Leger would begin her bus route at 6:20 a.m.

and finish by 7:30 a.m. She would then work at McDonald’s from 8:00 a.m. until

2:00 p.m. Finally, she would resume her bus driving duties from 2:30 p.m. until 4:00

p.m.

Leger’s injuries kept her from working until June 15, 2008, when she took a

job at Darrell’s Po-Boy Shop. She attempted to return to her job as a bus driver, but

her injuries would not allow it.

The School Board paid Leger’s workers’ compensation benefits based on her

average weekly wage derived from her income as a school bus driver. It took into

account her annual salary of $13,624.00 along with an additional $4,120.75—the total

of supplemental payments, pay for field trips, etc., received by Leger during the 52

weeks prior to the accident. These totals were added and then divided by 52 to come

up with Leger’s average weekly salary of $341.25. Her resulting workers’

compensation rate came to $227.52.

This case is before us because the lower court found that Leger’s average

weekly wage should include, in addition to her wages as a school bus driver, her

wages from her part-time employment at McDonald’s. The School Board appeals and

asserts the following assignments of error:

APPELLANT’S ASSIGNMENTS OF ERROR:

1. [The workers’ compensation judge] erred in holding that wages
from Ms. Leger’s part-time job at McDonald’s should have been
included in determining an average weekly wage, and the
appropriate weekly workers’ compensation rate, when she was
injured in an accident arising out of and in the course of her
salaried job at the Calcasieu Parish School Board.

2. [The workers’ compensation judge] erred in awarding penalties
and attorney fees.

LAW AND DISCUSSION ON THE MERITS:

The principle behind our workers’ compensation laws is that an employee is

entitled to compensation benefits if that employee suffers personal injury by accident

arising out of and in the course and scope of his employment. La.R.S. 23:1031(A).

In the matter before us, Leger suffered significant injuries due to an automobile

accident that occurred during the course and scope of her employment with the

School Board. At the time of the accident, Leger was also employed part-time at a

McDonald’s. She was rightfully awarded workers’ compensation benefits for her

injuries. The School Board does not question this. What the School Board does

question, in its first assignment of error, is whether Leger’s wages from her

employment at McDonald’s should have been included in the calculation that

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determined her workers’ compensation award.

An injured employee’s workers’ compensation benefit rate is determined by

calculating 66 and 2/3 percent of that employee’s wages—subject to a minimum and

maximum rate set by law. See La.R.S. 23:1221 and 23:1202.

Louisiana Revised Statutes 23:1021(12) defines wages as the “average weekly

wage at the time of the accident.” The statute provides additional rules for

determining the average weekly wage. It is in these rules that we find the root of the

dispute in this case.

Louisiana Revised Statutes 23:1021(12)(a)(iv) reads as follows:

(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.

Both the School Board’s and Leger’s arguments focus on the meaning of the

phrase “that employment” in La.R.S. 23:1021(12)(a)(iv)(bb). The School Board

argues that the phrase should be interpreted as referring to part-time employment

only, while Leger contends that it refers to any of the successive employments. The

distinction is an important one.

If the School Board’s reading is correct, it would mean that, because Leger was

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not injured in the course and scope of her employment with McDonald’s (her only

part-time employment), the statute would not apply in this case. If Leger is correct

in her reading that the statute refers to either of the successive employments, then the

statute would be applicable in this case as she was injured in her successive

employment as a school bus driver.

We note the trial court’s language on this issue in its oral reasons for judgment:

“Now reasonable minds can disagree as to the statute’s meaning; however, no

reasonable person could, or should, with a straight face argue that the wording is not

at best ambiguous.” We are of the same mind and find that both interpretations are

plausible. With that said, we are also mindful that workers’ compensation statutes

are to be interpreted liberally in favor of the employee.

The well-recognized beneficial design of the Workers’
Compensation Act is to set up a court-administered system to aid injured
workmen by relatively informal and flexible proceedings. Rhodes v.
Lewis, 01-1989 (La. 5/14/02), 817 So.2d 64. The provisions of the
workers’ compensation law are to be interpreted liberally in favor of the
worker in order to effectuate its purpose of relieving workers of the
economic burden of work-connected injuries by diffusing the cost on
channels of commerce. Lester v. Southern Cas. Ins., 466 So.2d 25 (La.
1985). See also Coats v. American Tel. & Tel. Co., 95-2670 (La.
10/25/96), 681 So.2d 1243; Harold v. La Belle Maison Apartments, 94-
0889 (La. 10/17/94), 643 So.2d 752.

McLin v. Industrial Specialty Contractors, Inc., 02-1539, p. 3 (La. 7/2/03), 851 So.2d

1135, 1139.

This court also finds significance in three jurisprudential decisions that

addressed issues similar to the one before us today: Jones v. Orleans Parish School

Board, 370 So.2d 677 (La.App. 4 Cir. 1979), Glynn v. City of New Orleans, 95-1353

(La.App. 4 Cir. 4/3/1996), 672 So.2d 1112, and Mitchell v. Winnfield Holding Corp.,

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

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869 So.2d 878.

The Jones case, like ours, involved a school board employee who also held a

separate part-time job. Jones worked as a teacher and also had a part-time job as a car

salesman. In addressing permanent partial disability stemming from Jones’ injury in

the course and scope of employment with the Orleans Parish School Board, the court

considered the compensation rate based on Jones’ pre-injury and post-injury earnings.

The court found that in determining the compensation rate, it must take into account

Jones’ wages from both his employment with the school board and as a car salesman.

In Glynn, the plaintiff was injured in his employment as a fire fighter for the

City of New Orleans. The court cited Jones and found that the lower court had made

the proper decision in including the plaintiff’s wages from his outside employment

with Delgado City College when calculating his earnings to determine the

compensation benefits.

Lastly, in Mitchell, the plaintiff was a full-time employee with Winnfield

Funeral Home and a part-time employee with Nurturing Nook Childcare Center. The

workers’ compensation judge, in calculating the plaintiff’s benefits, only included

Mitchell’s wages from his full-time employment with the funeral home. On appeal,

this court found that excluding his part-time wages was improper. It cited the

decisions from both Glynn and Jones.

The School Board has directed this court’s attention to the recently decided

case, Burnett v. Village of Estherwood, 06-680 (La.App. 3 Cir. 12/9/09), 25 So.3d

997. We find the case to be distinguishable from the matter before us. Burnett was

a uniquely fact-specific opinion wherein the plaintiff Chief of Police was injured

while on duty. As Chief of Police, he was on call twenty-four hours a day and had

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no set work schedule. This flexible schedule allowed him to earn money doing

various chores for people and businesses within the community. The court found that

because Burnett was a monthly employee rather than a full-time or part-time

employee, and because he earned the majority of his income from his successive

employments rather than from his monthly employment, his situation did not fall

within the legislature’s reasoning for enacting the statute. The same is not so in the

case before us. The majority of Leger’s income was derived from her employment

with the School Board, as opposed to her wages earned while working for

McDonald’s. Accordingly, we do not consider Burnett controlling in the present

case.

In light of the ambiguity in La.R.S. 23:1021(12)(a)(iv)(bb), the liberal

construction in favor of the employee regarding workers’ compensation laws, and the

cases cited above, we find that the lower court was correct in including Leger’s wages

from her employment with McDonald’s. Accordingly, we find that the School

Board’s first assignment of error is without merit.

In its second assignment of error, the School Board asserts that the lower court

erred in awarding penalties and attorney fees to Leger. We agree.

Louisiana Revised Statutes 23:1201 sets out the circumstances under which

penalties and attorney fees may be rewarded. It reads, in pertinent part:

F. Failure to provide payment in accordance with this Section or failure
to consent to the employee’s request to select a treating physician or
change physicians when such consent is required by R.S. 23:1121 shall
result in the assessment of a penalty in an amount up to the greater of
twelve percent of any unpaid compensation or medical benefits, or fifty
dollars per calendar day for each day in which any and all compensation
or medical benefits remain unpaid or such consent is withheld, together
with reasonable attorney fees for each disputed claim;

La.R.S. 23:1201(F). By the authority of this provision, the lower court awarded

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Leger $2,000.00 in penalties and $8,000.00 in attorney fees. The School Board

argues, and we agree, that the penalty and fees were improperly awarded under this

statute in light of the language of La.R.S. 23:1201(F)(2). It reads: “This subsection

shall not apply if the claim is reasonably controverted or if such nonpayment results

from conditions over which the employer or insurer had no control.”

We note that our supreme court has discussed the meaning of “reasonably

controverted” in Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721

So.2d 885, 890.

The phrase “reasonably controverted,” on the other hand,
mandates a different standard. In general, one can surmise from the
plain meaning of the words making up the phrase “reasonably
controvert” that in order to reasonably controvert a claim, the defendant
must have some valid reason or evidence upon which to base his denial
of benefits. Thus, to determine whether the claimant’s right has been
reasonably controverted, thereby precluding the imposition of penalties
and attorney fees under La.R.S. 23:1201, a court must ascertain whether
the employer or his insurer engaged in a nonfrivolous legal dispute or
possessed factual and/or medical information to reasonably counter the
factual and medical information presented by the claimant throughout
the time he refused to pay all or part of the benefits allegedly owed.

In Aswell v. Rockwood Ins. Co., 519 So.2d 394, 399 (La.App. 2 Cir. 1988), the

second circuit addressed the application of La.R.S. 23:1201(F)(2) and held:

When a substantial legal question exists as to entitlement to
benefits or where denial of benefits is based upon a close issue of law,
a defendant who denies benefits is not to be assessed with penalties and
attorney fees. Guidry v. Serigny, 385 So.2d 295 (La.App. 1 Cir. 1980),
writ denied, 386 So.2d 355 (La.1980); [Sones v. Mutual of Omaha Ins.
Co.], 272 So.2d 739 (La.App. 2 Cir. 1972), writ denied, 273 So.2d 292
(La.1973).

In our view, there is no doubt that the matter at issue was reasonably

controverted by the School Board. We have already discussed the notable ambiguity

attached to La.R.S. 23:1021(12)(a)(iv)(bb). While we have found in favor of Leger

on that issue, our decision was based on numerous factors—none of which were that

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the School Board’s actions were frivolous or not supported by well-reasoned

arguments. The lower court itself, in its oral reasons for judgment, commented on

La.R.S. 23:1021(12)(a)(iv)(bb) being ambiguous at best.

For these reasons, we find that the School Board’s nonpayment of all the

benefits due to Leger was based on a reasonably controverted issue of law.

Accordingly, we find that the award of penalties and attorney fees was not warranted.

The lower court’s ruling on this issue is reversed.

CONCLUSION:

For the foregoing reasons, we affirm the ruling of the lower court that Leger’s

wages from McDonald’s should be included in the calculation of her workers’

compensation benefits. We reverse the lower court’s award of penalties and attorney

fees in favor of Leger. The costs of this appeal are assessed equally between the

parties.

AFFIRMED IN PART, REVERSED IN PART.

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