Manuel Lumpkin v. A.B.E.L. Trucking of Louisiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0054

MANUEL LUMPKIN

VERSUS

A.B.E.L. TRUCKING OF LOUISIANA LLC

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 04
PARISH OF LAFAYETTE, NO. 08-20223
HONORABLE SHARON M. MORROW
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

William A. Repaske
Landry, Watkins, Repaske & Breaux
Post Office Drawer 12040
New Iberia, LA 70562
(337) 364-7626
COUNSEL FOR PLAINTIFF/APPELLEE:
Manuel Lumpkin

Amanda H. Carmon
Johnson, Stiltner & Rahman
2237 S. Acadian Thruway, Ste. 102
Baton Rouge, LA 70808
(225) 231-0934
COUNSEL FOR DEFENDANTS/APPELLANTS:
A.B.E.L. Trucking of Louisiana, LLC, and
Louisiana Workers’ Compensation Corporation

PETERS, J.

The defendant, A.B.E.L. Trucking of Louisiana LLC (A.B.E.L.), appeals the

judgment of the workers’ compensation judge (WCJ) classifying the plaintiff,

Manuel Lumpkin, Jr., as a commission worker for the purpose of determining his

indemnity benefits pursuant to the Workers’ Compensation Act. For the following

reasons, we affirm the WCJ’s judgment.

DISCUSSION OF THE RECORD

The facts of this matter are not in dispute and were stipulated to during the trial

on the merits. Mr. Lumpkin was hired by A.B.E.L. on October 13, 2007, as a truck

driver during the sugarcane grinding season. His pay was based on a commission of

thirty-three percent of each load that he hauled to the mill. He suffered a work-

related injury to his left knee on December 19, 2007. Mr. Lumpkin has remained

disabled since his injury and has received weekly indemnity benefits from A.B.E.L.

in the amount of $139.00.

The underlying issue in this litigation is the calculation of the average weekly

wage upon which the weekly indemnity benefit rate is based. Mr. Lumpkin asserts

that the average weekly wage should be calculated pursuant to La.R.S.

23:1021(12)(d), and this calculation would yield a correct weekly indemnity benefit

of $522.00 per week. Based on A.B.E.L.’s underpayment, he suggests he is entitled

to the difference between that paid and that owed, together with an award of penalties

and attorney fees. On the other hand, A.B.E.L. argues that the appropriate calculation

of the average weekly wage should be calculated using La.R.S. 23:1021(12)(a)(v)

which provides for employees engaged in seasonal employment. This calculation

would yield a correct weekly indemnity benefit of $139.99.

At the trial on the merits, the litigants stipulated to the following facts:

1) Mr. Lumpkin was employed as a truck driver by A.B.E.L. only during
the sugarcane grinding season.

2) Mr. Lumpkin only worked for A.B.E.L. for fifty-six days.

3) Mr. Lumpkin’s rate of pay was by commission: a percentage of each
load that he hauled.

4) A.B.E.L. paid Mr. Lumpkin $7,310.00 in 2007.

5) Mr. Lumpkin mailed a written demand for recalculation of his indemnity
benefits on December 3, 2008.

6) A.B.E.L. has paid and continues to pay Mr. Lumpkin indemnity benefits
in the amount of $139.00 per week.

Based on the evidence before it, the WCJ concluded that although Mr. Lumpkin’s

employment was seasonal, the fact that he was paid by commission required that the

workers’ compensation rate be based on the calculation most favorable to him, i.e.,

his rate of pay based on the wages he received via commission. The WCJ further

concluded that because there existed a valid question as to how Mr. Lumpkin’s

compensation rate should be calculated, A.B.E.L. should not be cast with penalties

and attorney fees for calculating his rate based on the seasonal employee provision.

A.B.E.L. appealed this judgment, arguing primarily that the WCJ erred in

failing to apply the seasonal employment formula in calculating the average weekly

wage. Mr. Lumpkin answered the appeal, asserting that the WCJ erred in denying his

request for penalties and attorney fees, and seeking additional attorney fees for work

performed on appeal.

OPINION

It is well established that the workers’ compensation act is
remedial in nature and that in order to effectuate the humane policies it
reflects, the law is to be liberally construed in favor of the injured
employee. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52
(La.1993); Glascock v. Georgia-Pacific Corp., 25,677 (La.App.2d.
Cir.3/30/94), 635 So.2d 474. An appellate court may overturn a

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judgment of a WCJ if she made a factual finding which is manifestly
erroneous or if she made an error of law, in which case, her decision is
owed no deference by a reviewing court. Box v. City of Baton Rouge,
2002-0198 (La.App. 1st Cir.4/2/03), 844 So.2d 405.

Roan v. Apache Chem. Transporters, 37,671, p. 3 (La.App. 2 Cir. 9/24/03), 855 So.2d
920, 923.

Louisiana Revised Statutes 23:1021(12) (emphasis added) reads in pertinent

part:

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

(a) Hourly wages.

(i) If the employee is paid on an hourly basis and the
employee is employed for forty hours or more, his hourly wage
rate multiplied by the average actual hours worked in the four full
weeks preceding the date of the accident or forty hours,
whichever is greater; or

(ii) If the employee is paid on an hourly basis and the
employee was offered employment for forty hours or more but
regularly, and at his own discretion, works less than forty hours
per week for whatever reason, then, the average of his total
earnings per week for the four full weeks preceding the date of
the accident; or

(iii) If the employee is paid on an hourly basis and the
employee is a part-time employee, his hourly wage rate multiplied
by the average actual hours worked in the four full weeks
preceding the date of the injury.

(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.

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(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.

(v) For an employee in seasonal employment, his annual income
divided by fifty-two.

(aa) For purposes of this Subparagraph, seasonal employment
shall be any employment customarily operating only during regularly
recurring periods of less than forty-four weeks annually.

(bb) If the employee was not engaged in the seasonal
employment more than one year prior to the accident, his annual income
shall be the average annual income of other employees of the same or
most similar class working in the same or most similar employment for
the same employer or, in the event that the employee was the only
individual engaged in that specific employment, then his annual income
shall be the average annual income of the other employees of the same
or most similar class working for a neighboring employer engaged in the
same or similar employment.

(b) Monthly wages. If the employee is paid on a monthly basis,
his monthly salary multiplied by twelve then divided by fifty-two.

(c) Annual wages. If the employee is employed at an annual
salary, his annual salary divided by fifty-two.

(d) 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.

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A reading of the quoted language from La.R.S. 23:1021(12) makes it clear that had

Mr. Lumpkin been paid a specific wage by A.B.E.L., his average weekly wage for the

calculation of weekly indemnity benefits would be properly calculated under La.R.S.

23:1021(12)(v). It is equally clear that had Mr. Lumpkin been employed in

something other than a seasonal employment situation, his average weekly wage

would be calculated pursuant to La.R.S. 23:1021(12)(d) because he was paid by

commission.

The question expressly before us is how to calculate the average weekly wage

of a seasonal worker who is not paid a specific wage, but who works on commission.

The answer to this question requires the proper interpretation of La.R.S.

23:1021(12)(d).

The fundamental question in all cases of statutory interpretation is
legislative intent. The rules of statutory construction are designed to
ascertain and enforce the intent of the legislature.

The meaning and intent of a law is determined by considering the
law in its entirety and all other laws on the same subject matter and by
placing a construction on the law that is consistent with the express
terms of the law and with the obvious intent of the legislature in
enacting the law. A statute must be applied and interpreted in a manner
that is logical and consistent with the presumed purpose and intent of
the legislature.

Further, it is presumed that every work, sentence, or provision in
a law was intended to serve some useful purpose, that some effect is to
be given to each such provision, and that no unnecessary words or
provisions were employed. As a result, courts are bound, if possible, to
give effect to all parts of a statute and to construe no sentence, clause or
word as meaningless and surplusage if a construction giving force to,
and preserving, all words can legitimately be found. Finally, it is
presumed that the legislature acts with full knowledge of well-settled
principles of statutory construction.

Moss v. State, 05-1963, pp. 15-16 (La. 4/4/06), 925 So.2d 1185, 1196 (citations and
footnote omitted).

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The legislature has given us some guidance concerning how to interpret the

Revised Statutes. La.R.S. 1:1, et seq. One of the basic rules is that “[t]he word

‘shall’ is mandatory and the word ‘may’ is permissive.” La.R.S. 1:3. Additionally,

“[w]hen the wording of a Section is clear and free of ambiguity, the letter of it shall

not be disregarded under the pretext of pursuing its spirit.” La.R.S. 1:4. Finally, in

looking at the organization of the statutes themselves, La.R.S. 1:12 provides: “The

classification and organization of the sections of the Revised Statutes is made for the

purpose of convenience, reference and orderly arrangement, and no implication or

presumption of a legislative construction shall be drawn therefrom.” Morever,

“[h]eadings to sections, source notes and cross references are given for the purpose

of convenient reference and do not constitute part of the law.” La.R.S. 1:13.

As previously stated, “It is well established that the workers’ compensation act

. . . is to be liberally construed in favor of the injured worker.” Roan, 855 So.2d at

923. Additionally, we note that the only reference to seasonal employees exists in the

section establishing the average weekly wage by reference to hourly wages. Had the

legislature intended for the same formula to be used for seasonal employees paid by

commission, it could have easily done so. While we recognize that the WCJ’s award

constitutes a windfall to Mr. Lumpkin under the facts of this case, we cannot

substitute what we may perceive to be the spirit of the law for the letter of the law.

In light of the liberal construction afforded the injured employee in the interpretation

of the Workers’ Compensation Act, we find no error in the WCJ’s calculation of Mr.

Lumpkin’s compensation rate based on him being paid by A.B.E.L. on a commission

basis.

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Moreover, we agree with the WCJ’s finding that this issue presented a close

question for which A.B.E.L. should not be penalized for contesting.

In order to reasonably controvert a claim, the defendant must have some
valid reason or evidence upon which to base his denial of benefits. See
Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721
So.2d 885, 890. The decision to impose penalties and attorney fees is
essentially a factual issue subject to the manifest error or clearly wrong
standard of review. Authement v. Shappert Engineering, 2002-1631, p.
12 (La.2/25/03), 840 So.2d 1181, 1188-89.”

Guillory v. Bofinger’s Tree Serv., 06-86, p. 14 (La.App. 1 Cir. 11/3/06), 950 So.2d
682, 692.

Accordingly, the WCJ’s denial of Mr. Lumpkin’s request for penalties and

attorney fees is affirmed. Considering the affirmation of this issue, Mr. Lumpkin’s

request for additional attorney fees for work performed on appeal is denied.

CONCLUSION

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

is affirmed in all respects. The costs of this appeal are assessed to A.B.E.L. Trucking

of Louisiana LLC.

AFFIRMED.

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