Udell Lejeune, Jr. v. State of Louisiana, Dotd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-121

UDELL LEJEUNE, JR.

VERSUS

STATE OF LOUISIANA, DOTD

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 06-08127
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and James T. Genovese, Judges.

AFFIRMED AND AMENDED IN PART,
REVERSED IN PART, AND RENDERED.

Michael B. Miller
Attorney at Law
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
Counsel for Plaintiff/Appellant:
Udell Lejeune, Jr.

Sylvia M. Fordice
Assistant Attorney General
556 Jefferson Street, 4th Floor
Lafayette, La 70501
(337) 262-1700
Counsel for Defendant/Appellant:
State of Louisiana, Through the Department
of Transportation and Development

DECUIR, Judge.

In this workers’ compensation dispute initiated by the employee, Udell

LeJeune, Jr., the employer, State of Louisiana, through the Department of

Transportation and Development (DOTD), appeals the calculation of the weekly

compensation rate and the failure to award a credit for overpayment of temporary

total disability benefits. DOTD also questions the amount of attorney fees awarded,

the award of expenses, and the penalty assessed for late payment of a medical bill.

LeJeune also appeals, assigning as error the workers’ compensation judge’s failure

to award legal interest.

FACTS

Udell LeJeune was employed by DOTD as a mobile equipment operator on

January 27, 2005, when he was injured while in the course and scope of his

employment. The record shows that LeJeune was not disabled from his injuries until

late June of 2005, and, as a result, compensation benefits were paid to him beginning

the following month. On November 27, 2006, LeJeune filed this disputed claim for

benefits alleging that his benefits were improperly reduced for a two-month period

in 2006. DOTD reconvened seeking a credit for overpayment of benefits.

Following a trial on the merits, the workers’ compensation judge found:

(1) LeJeune is entitled to reasonable and necessary medical care
as a consequence of his work-related accident on January 27,
2005.

(2) The weekly compensation rate, which begins on January 28,
2005, is $310.31, subject to a credit.

(3) A $2,000.00 penalty is awarded for failure to pay the waiting
week.

(4) A $2,000.00 penalty is awarded for failure to pay a missing
check.

(5) A $2,000.00 penalty is awarded for failure to timely pay a
medical bill.

(6) A $950.00 penalty is awarded for commencing the payment of
benefits nineteen days late.

(7) The claimant is due attorney fees in the amount of $18,675.00.

(8) The claimant is due expenses of $708.00.

In this appeal, DOTD’s initial assignment of error addresses the date of

disability, found by the workers’ compensation court to be January 28, 2005. DOTD

contends LeJeune’s disability did not commence until late June 2005. LeJeune does

not dispute this contention and, in fact, concedes the point. Consequently, we will

amend the judgment so as to reflect June 28, 2005 as the starting date of LeJeune’s

disability.

We now turn to the remaining issues raised in the appeal, which include:

(1) whether the average weekly wage was correctly calculated
with the addition of $18.50 in holiday pay and $46.09 in annual
leave;

(2) whether LeJeune was overpaid in indemnity benefits and
DOTD is due a credit;

(3) whether a $33.00 radiology bill was paid untimely;

(4) whether the attorney fee and expense awards were correct;

(5) whether LeJeune is entitled to legal interest; and

(6) whether additional attorney fees should be awarded for work
done on this appeal.

CALCULATION OF BENEFITS

In the instant case, the record shows LeJeune’s average weekly wage was

calculated at $400.88 based on his wages in the four weeks preceding the accident.

The workers’ compensation judge then added to that figure an estimated pro rata

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amount of fringe benefits, including sick leave, vacation time, and holiday pay, for

which LeJeune is eligible as a DOTD employee. The average weekly wage was then

recalculated at $465.47. DOTD contends this figure is incorrect, as the average

weekly wage of $400.88 reflects both wages and fringe benefits paid to LeJeune in

the four full weeks preceding his accident.

In the factually similar case of Hargrave v. DOTD, 09-818 (La. App. 3 Cir.

4/7/10 ), _____ So.3d _____, this court reversed the workers’ compensation judge’s

inclusion of fringe benefits in the average weekly wage calculation. The Hargrave

case and the case before us now involve the same defendant, the same position of

employment – albeit by two different claimants, the same DOTD Human Resources

witness, the same attorneys for both the claimants and DOTD, and the same workers’

compensation judge. We held:

An hourly employee’s average weekly wage is calculated for
compensation purposes by multiplying his hourly pay rate by the greater
of forty hours or the average actual hours worked in the four full weeks
preceding the accident. La.R.S. 23:1021(12)(a)(i). In this particular
case, there were no specific findings regarding the actual hours worked
by claimant or his hourly wage rate. By deduction, however, the
claimant’s hourly rate on the date of the accident was $13.697, or
$1,095.76 divided by eighty hours. It is clear from the evidence that
during the four full weeks preceding the date of the accident, the
claimant took eight hours of sick leave and may have taken some annual
leave. Kay McRae, Human Resources Manager for DOTD, testified that
for the four full weeks preceding the date of the accident, which
comprised the time period of May 30, 2005 to June 26, 2005, the
claimant was paid for forty hours per week. Ms. McRae also testified
that for this claimant, paid sick leave and paid annual leave for hours not
worked during the four weeks are included in the eighty hours of
bi-weekly pay, if the claimant had adequate accumulated leave balances.
Although there was no evidence of any holiday pay during the four full
weeks prior to the date of the accident, Ms. McRae also indicated that
holiday pay would be included in the bi-weekly eighty hours. The
claimant would be paid for the holiday, whether he worked or not. If the
claimant worked on the holiday, however, he would be paid overtime
hours. Thus, the only way an employee would be paid more than forty
hours per week for the fifty-two weeks in the year would be if the

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employee were paid overtime. The claimant did not work any overtime
hours during the four full weeks preceding the date of the accident.

The pay structure employed by DOTD is similar to that of the
claimant in Ivory v. Southwest Developmental Center, 07-1201 (La.App.
3 Cir. 3/5/08), 980 So.2d 108. In each case, the claimant was an hourly
employee with a basic bi-weekly pay period of eighty hours. In each
case, the department employee testifying regarding the composition of
the eighty-hour pay period stated that the eighty hours would include all
paid leave and holidays. With the exception of overtime hours worked,
an employee could not be paid more than forty hours a week for fifty-
two weeks during the year. In Ivory, the claimant earned compensatory
hours for working on most holidays, while Hargrave would actually be
paid overtime for working on a holiday.

Here, as in Ivory, we have determined that the claimant is paid on
an hourly basis, and his average weekly wage is calculated using La.R.S.
23:1021(12)(a)(i) and that fringe benefits in the form of annual and sick
leave are already included in that calculation. Accordingly, for the
reasons assigned in Ivory, we find the workers’ compensation judge
erred in adding fringe benefits to the average weekly wage calculation
and, consequently, in determining the compensation rate of $424.28.
The correct average weekly wage is $547.88, which when multiplied by
the TTD rate of sixty-six and two-thirds percent gives a compensation
rate of $365.25.

09-818, pp. 3-4.

Following this same analysis in the instant case, and based on the evidence

before us, we find the workers’ compensation judge erred in the average weekly wage

calculation. The correct wage figure is $400.88, resulting in a weekly compensation

rate of $267.27.

OVERPAYMENT OF BENEFITS

The evidence in the record before us shows that DOTD has been making bi-

weekly indemnity payments in the amount of $556.02 or $556.00 since benefits were

initiated. The correct amount of bi-weekly payments which should have been made

is $534.54. Therefore, based on the evidence before us, and for the reasons explained

in Hargrave, we award DOTD a credit for the overpayment of benefits which, the

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record suggests, is now approaching $3,000.00. DOTD is hereby entitled to suspend

the payment of benefits until such time as its past overpayments and any additional

overpayments accruing in the interim are recouped.

LATE PAYMENT OF A MEDICAL BILL

The parties contest whether DOTD was properly notified of an outstanding

radiology bill in the amount of $33.00, which DOTD ultimately paid according to the

applicable fee schedule eight months after the service was provided. The workers’

compensation judge was satisfied that DOTD was properly notified of the bill and

paid it untimely. We find no abuse of discretion in this factual conclusion.

ATTORNEY FEES AND EXPENSES

DOTD contends the workers’ compensation judge erred in awarding

$18,675.00 in attorney fees and $708.00 in litigation expenses. In Hargrave, we

upheld an award of $18,900.00 in fees for the same attorney, finding no abuse of

discretion. For the same reason, we affirm the amount awarded in the present case,

as the attorney documented the work performed to the satisfaction of the workers’

compensation judge.

Nevertheless, we reverse the award of expenses in the amount of $708.00,

which included such items as postage, mileage, and copying costs. Nothing in

La.R.S. 23:1201(F) provides for an award of such costs, and we decline to expand the

statutory benefit beyond which the legislative language allows.

With regard to LeJeune’s request for attorney fees for work done on appeal, we

again follow Hargrave and award $1,500.00. While we find the workers’

compensation judge’s award of fees to be already very generous, we do recognize the

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longstanding jurisprudence of this court allowing an additional amount for appellate

work.

LEGAL INTEREST

As explained in Smith v. Quarles Drilling Co., 04-179 (La. 10/29/04), 885

So.2d 562, a party is entitled to legal interest on an award of penalties and attorney

fees if the party prayed for interest in his pleadings. LeJeune appropriately prayed for

interest on any penalty or attorney fee that may be awarded, and we therefore award

same as requested.

DECREE

For the above and foregoing reasons, the judgment of the Office of Workers’

Compensation awarding weekly indemnity benefits to Udell LeJeune, Jr. in the

amount of $310.31 is reversed. Judgment is hereby rendered awarding LeJeune

$267.27 per week in indemnity benefits, granting a credit to DOTD for overpayment

of benefits as described herein, and assessing legal interest on the penalties and

attorney fees awarded. We hereby amend the judgment so as to reflect June 28, 2005

as the starting date of LeJeune’s disability and to award appellate attorney fees of

$1,500.00. We reverse the award of expenses. In all other respects, the judgment is

affirmed. Costs of this appeal in the amount of $1,597.50 are assessed equally to

LeJeune and DOTD.

AFFIRMED AND AMENDED IN PART, REVERSED IN PART, AND

RENDERED.

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