Andre Guillory v. Allied Waste Industries, Inc. & Aig

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-159

ANDRE GUILLORY

VERSUS

ALLIED WASTE INDUSTRIES, INC. & AIG

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 09-01931
SAM L. LOWERY, WORKERS COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

AFFIRMED, AS AMENDED, AND REMANDED WITH INSTRUCTIONS.

Anthony Paul Palermo
Breazeale, Sachse & Wilson
P. O. Box 3197
Baton Rouge, LA 70821
(225) 387-4000
Counsel for Defendant/Appellant:
Allied Waste Industries, Inc.
AIG Domestic Claims, Inc.

Michael Bruce Holmes
Attorney at Law
P. O. Dr. 790
Kinder, LA 70648
(337) 738-2568
Counsel for Plaintiff/Appellee:
Andre Guillory

SAUNDERS, Judge.

This is a workers’ compensation case. The employee, who was on light duty

due to a prior accident, was driving a garbage truck so as to deliver the truck to a

crew in Kinder, Louisiana, whose truck had broken down. The employee was driving

this truck to the crew so that they could complete their collection route. Prior to

reaching the crew in Kinder, the employee had an accident that caused him injuries.

During trial, the employee stated that he had worked since the accident

sporadically doing odd-lot jobs. The workers’ compensation judge (WCJ) found,

inter alia, that the employee was entitled to temporary, total disability (TTD) benefits,

and that the employer and its insurer were arbitrary and capricious in denying the

employee TTD benefits.

The employer raised two assignments of error. The first is that the WCJ erred

in awarding the employee TTD benefits. We find merit in this assignment; however,

the employee requested that, in the event we find the employer’s first assignment of

error has merit, we amend the WCJ’s judgment to reflect that he was entitled to

Supplemental Earnings Benefits (SEB). Given the status of the record before us, we

grant the employee’s request and amend the WCJ’s judgment to reflect that he is

entitled to SEB from the date of December 12, 2008. Further, we remand the case for

a hearing to determine what, if any, offset the employer is entitled to receive due to

the employee’s income from odd-lot employment. Finally, we find no abuse of the

WCJ’s discretion in finding that the employer was arbitrary and capricious in failing

to pay the employee any wage indemnity benefits. All other aspects of the WCJ’s

judgment are affirmed.

FACTS AND PROCEDURAL HISTORY:

Andre Guillory (Guillory) was employed by Allied Waste Service (Allied) from

March of 2008 through December 18, 2008. Guillory was employed as a driver of

a rear end loader garbage truck. Guillory experienced three accidental injuries that

he claimed occurred during the course and scope of his employment. The dates of

those accidents are November 6, 2008, November 11, 2008, and December 12, 2008.

Guillory did not seek treatment for his first injury. Following the second

injury, Allied sent Guillory to Dr. Sunil Bharwani in Oakdale, Louisiana. On

December 8, 2008, Dr. Bharwani diagnosed Guillory with a tear of the meniscus of

his left knee and placed him on light duty. Allied accommodated Guillory’s

limitations by allowing him to perform clerical work in the Oberlin, Louisiana office

for two or three days.

On December 12, 2008, a fellow employee approached Guillory at the Oberlin

office and informed Guillory that a garbage truck had broken down in Kinder and that

a replacement truck needed to be delivered to the awaiting crew. Guillory agreed to

drive the replacement truck to the crew. According to Guillory, prior to reaching the

crew in Kinder, the replacement truck had a tire malfunction, causing Guillory to lose

control of the truck. Guillory was in a one vehicle accident wherein the truck was

rolled over. Guillory was transported from the scene by ambulance.

On December 17, 2008, Guillory was again examined by Dr. Bharwani and

again placed on light duty. The next day, on December 18, 2008, Allied terminated

Guillory. On January 8, 2009, Guillory had made written demand to Allied for

indemnity benefits and payment of medical mileage and approval of medical

examination. In a letter dated January 27, 2009, Allied, through its insurer, AIG, sent

Guillory a letter that stated, “[a]fter completing the investigation of your claim, we

find the facts presented do not appear to be covered under the Louisiana work comp

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act. Your injury does not appear to have arisen out of the course of employment.”

Guillory has not ever received any indemnity benefits or wages from Allied since

December 12, 2008. However, at no time in the course of the litigation does Allied

give any explanation for its conclusion that “the facts presented do not appear to be

covered under the Louisiana work comp act” nor any justification for its assertion that

Guillory’s “injury does not appear to have arisen out of the course of employment.”

Guillory filed a disputed claim for compensation against Allied and AIG. A

trial on the merits was held on October 14, 2009. In Guillory’s testimony, he stated

that he had engaged in odd-lot employment since the accident.

On October 27, 2009, the WCJ rendered a judgment in favor of Guillory

against Allied awarding him TTD benefits from December 13, 2008, a penalty of four

thousand dollars for Allied’s arbitrary and capricious failure to pay Guillory wage

indemnity benefits, a penalty of two thousand dollars for Allied’s arbitrary and

capricious failure to pay Guillory’s mileage reimbursement claims, a penalty of two

thousand dollars for Allied’s arbitrary and capricious failure to pay for a medical

examination from Guillory’s choice of orthopedist, and an award of eighteen

thousand, five hundred dollars representing attorney’s fees pursuant to La.R.S.

23:1201. Allied has appealed this judgment, alleging the following two assignments

of error:

ASSIGNMENTS OF ERROR:

1. The WCJ erred in awarding Guillory temporary, total disability benefits.

2. The WCJ erred in finding Allied arbitrary and capricious in not paying
Guillory temporary, total disability benefits.

ASSIGNMENT OF ERROR NUMBER ONE:

In its first assignment of error, Allied contends that the WCJ erred in awarding

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Guillory temporary, total disability benefits due to Guillory’s testimony that he

engaged in some form of employment after the work related injury. We find that

Allied’s assignment has merit.

In the case before us, Allied posits a question of law as to whether the WCJ

was legally correct in its application of La.R.S. 23:1221(1). When conducting an

appellate review of such questions of law, appellate courts simply determine if the

lower court was legally correct. Sanchez v. Louisiana Nursery, 09-1247 (La.App. 3

Cir. 4/7/10), 34 So.3d 1047.

Louisiana Revised Statutes 23:1221(1) (emphasis added) states that

compensation for temporary, total disability benefits shall be paid:

(a) For any injury producing temporary total disability of an employee
to engage in any self-employment or occupation for wages, whether or
not the same or a similar occupation as that in which the employee was
customarily engaged when injured, and whether or not an occupation for
which the employee at the time of injury was particularly fitted by
reason of education, training, or experience, sixty-six and two-thirds
percent of wages during the period of such disability.

(b) For purposes of Subparagraph (1)(a) of this Paragraph,
compensation for temporary disability shall not be awarded if the
employee is engaged in any employment or self-employment regardless
of the nature or character of the employment or self-employment
including but not limited to any and all odd-lot employment, sheltered
employment, or employment while working in any pain.

(c) For purposes of Subparagraph (1)(a) of this Paragraph, whenever the
employee is not engaged in any employment or self-employment as
described in Subparagraph (1)(b) of this Paragraph, compensation for
temporary total disability shall be awarded only if the employee proves
by clear and convincing evidence, unaided by any presumption of
disability, that the employee is physically unable to engage in any
employment or self-employment, regardless of the nature or character
of the employment or self-employment, including but not limited to any
and all odd-lot employment, sheltered employment, or employment
while working in any pain, notwithstanding the location or availability
of any such employment or self-employment.

(d) An award of benefits based on temporary total disability shall cease

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when the physical condition of the employee has resolved itself to the
point that a reasonably reliable determination of the extent of disability
of the employee may be made and the employee's physical condition has
improved to the point that continued, regular treatment by a physician
is not required.

In the case before us, Guillory testified as follows:

Q Now, since the accident, December 12th of 2008, have you been
able to do some work?

A Yes.

Q What have you been able to do?

A In fact - - in June, my niece, who lost her husband last year,
needed her house painted and she couldn’t afford to hire a
contractor, so she was trying to help me out and she knows my
situation and asked if I could help paint her house, so I told her
me and my sons could start on it and try and paint it for her. Yes,
we have been - - I painted her house.

....

Q Did your niece pay you for this work?

A Yes.

Q Did you keep a record of how much she paid you?

A Yes.

Q As you sit here, do you know how much that total amount was
that she paid for that job?

A $3,125.

Guillory further testified as to working at other jobs. The following is another

excerpt of his testimony:

Q And other than paint the house, is there anything else that you
have done?

A I drove a truck for Buster’s Crawfish three times to haul crawfish,
once to New Orleans and a couple times to Houston.

....

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Q And have you done anything else?

A Since I finished painting my niece’s house, a friend of mine who
also knows my situation asked if I could help paint their bedroom,
just the bedroom in their house.

....

Q Have you done any substitute teaching?

A I did. I did some substitute teaching like two or three days in
February of this last - - this year and again in March and a couple
in April and in May.

Given this testimony coupled with the clear language of La.R.S. 23:1221(1)(b),

we find that the WCJ was legally incorrect in awarding Guillory temporary, total

disability benefits. Accordingly, we reverse the WCJ’s judgment solely on whether

Guillory is entitled to temporary, total disability benefits under La.R.S. 23:1221(1)(b).

Guillory has requested in brief that should this court find that the WCJ was

legally incorrect in awarding him temporary, total disability benefits, that we amend

the judgment of the WCJ to reflect that Supplemental Earnings Benefits (SEB) should

have been awarded to him. To do so would require this court to conduct a de novo

review of the record to determine whether Guillory proved below that he is entitled

to SEB under La.R.S. 23:1221(3).

Louisiana Code of Civil Procedure Article 2164 states, in pertinent part, “[t]he

appellate court shall render any judgment which is just, legal, and proper upon the

record on appeal.” Our supreme court, in Gonzales v. Xerox Corp., 320 So.2d 163,

165-66 (La.1975) (citations and footnotes omitted) stated:

While the trial court remains the original forum for resolving
factual and legal issues, the Louisiana Constitution expressly extends
the jurisdiction of appellate courts in civil cases to the review of facts as
well as law.

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....

In addition to the constitutional authority, and consistent with it,
there is a very practical consideration which encourages our appellate
courts to exercise their jurisdiction to review factual findings: judicial
economy. When the entire record is before the appellate court, remand
for a new trial produces delay of the final outcome and congestion of
crowded dockets while adding little to the judicial determination
process. Although the appellate court does not gain the benefit of
personally viewing the witnesses, it does have a complete record and the
constitutional authority to decide.

The WCJ conducted a trial below that included exhibits, testimony, and

witnesses presented. As such, we find that the record before us is complete, and we

will look to that record to determine whether Guillory was entitled to SEB.

Louisiana Revised Statutes 23:1221(3) states, in pertinent part, that workers’

compensation is to be paid according to the following:

(3) Supplemental earnings benefits.

(a) For injury resulting in the employee’s inability to earn wages equal
to ninety percent or more of wages at time of injury, supplemental
earnings benefits equal to sixty-six and two-thirds percent of the
difference between the average monthly wages at time of injury and
average monthly wages earned or average monthly wages the employee
is able to earn in any month thereafter in any employment or self-
employment, whether or not the same or a similar occupation as that in
which the employee was customarily engaged when injured and whether
or not an occupation for which the employee at the time of the injury
was particularly fitted by reason of education, training, and experience,
such comparison to be made on a monthly basis. Average monthly
wages shall be computed by multiplying his “wages” by fifty-two and
then dividing the quotient by twelve.

Prior to trial, the parties stipulated to Guillory experiencing an accident giving

rise to injury as defined by La.R.S. 23:1021, while in the course and scope of his

employment on November 6, 2008, November 11, 2008, and December 12, 2008.

The parties also stipulated that Guillory’s average weekly wage was $767.20, that

Guillory was on light duty prior to the December 12, 2008 accident, and that Guillory

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was terminated on December 18, 2008. Finally, the parties stipulated that Guillory

had made written demand to Allied for indemnity benefits and payment of medical

mileage and approval of examination through correspondence on January 8, 2009,

and that Guillory received no indemnity benefits or wages from Allied since

December 12, 2008.

Given these stipulations, it is clear that Guillory is entitled to SEB. Therefore,

we render that Allied pay Guillory all SEB that he is entitled to receive from the date

of December 12, 2008. However, the record in unclear as to what income, if any,

Guillory earned during this time frame that would allow Allied an offset of paying

Guillory some of the SEB. Thus, we remand the case to determine what, if any, offset

Allied is entitled to receive due to Guillory’s income from painting his niece’s and

friend’s home, driving a crawfish truck, substitute teaching, or otherwise.

ASSIGNMENT OF ERROR NUMBER TWO:

Allied alleges in its second assignment of error that the WCJ erred in finding

Allied arbitrary and capricious in not paying Guillory temporary, total disability

benefits. Allied’s assignment of error is misguided.

The WCJ’s judgment did not state that the penalties were for Allied’s failure

to pay TTD benefits. The judgment states that Allied is responsible to Guillory for

penalties “said sum representing statutory penalties upon unpaid wage indemnity

benefits.” Therefore, we will treat Allied’s second assignment of error as a request

for this court to review whether Allied should be cast with penalties for failure to pay

any type of wage indemnity benefits to Guillory.

The standard of reviewing the propriety of penalties awarded by a WCJ is that

of abuse of discretion. Halker v. American Sheet Metal, 04-1407 (La.App. 3 Cir.

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3/16/05), 898 So.2d 629. Thus, we will determine whether the WCJ’s finding of

arbitrary and capricious behavior by Allied in denying Guillory wage indemnity

benefits was clearly an abuse of discretion. While we recognize that Allied’s

assignment of error specifies TTD benefits, this review is proper as Allied, in brief,

argues that it was not arbitrary and capricious in failing to pay Guillory SEB because

Guillory failed in his duty under La.R.S. 23:1221(3)(f).1

Allied argues that because Guillory did not notify it of his employment status,

it was not in a position to assess whether Guillory had earned ninety percent of his

pre-injury income in order to qualify for SEB. However, in a letter dated January 27,

2009, Allied, through its insurer, AIG, sent Guillory a letter that stated, “[a]fter

completing the investigation of your claim, we find the facts presented do not appear

to be covered under the Louisiana work comp act. Your injury does not appear to

have arisen out of the course of employment.”

The language of the January 27, 2009, letter is clear. Allied, through AIG,

informed Guillory of its position that his injuries/disabilities were not covered by

workers’ compensation. Thus, there was no reason for Guillory to notify Allied of

his employment status. As such, we find Allied’s argument is without merit.

Therefore, given that Allied has stipulated that Guillory’s injuries were a result

1
Louisiana Revised Statutes 23:1221(3)(f) states:

Any compensable supplemental earnings benefits loss shall be reported by the employee to
the insurer or self-insured employer within thirty days after the termination of the week for which
such loss is claimed. The director shall provide by rule for the reporting of supplemental earnings
benefits loss by the injured worker and for the reporting of supplemental earnings benefits and
payment of supplemental earnings benefits by the employer or insurer to the office and may prescribe
forms for such reporting. The office, upon request by the employer or insurer, shall provide
verification through unemployment compensation records under the Louisiana Employment Security
Law of any claimed supplemental earnings benefits loss and shall obtain such verification from other
states, if applicable.

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of work related accidents on November 6, 2008, November 11, 2008, and December

12, 2008, and that Guillory never received any indemnity benefits or wages from

Allied since December 12, 2008, we find no abuse of the discretion afforded to the

WCJ in finding that Allied was arbitrary and capricious in denying Guillory

indemnity wage benefits.2

CONCLUSION:

Allied raised two assignments of error. We found merit to the first assignment

of error. However, Guillory requested that, in the event we find Allied’s first

assignment of error has merit, we amend the WCJ’s judgment to reflect that Guillory

was entitled to SEB. Given the status of the record before us, we granted Guillory’s

request and amend the WCJ’s judgment to reflect that he is entitled to SEB starting

on December 12, 2008. Further, we remand the case for a hearing to determine what,

if any, offset Allied is entitled to receive in paying Guillory SEB due to Guillory’s

income from painting his niece’s and friend’s home, driving a crawfish truck,

substitute teaching, or otherwise.

In Allied’s second assignment of error, it claimed that the WCJ erred in finding

it arbitrary and capricious in not paying Guillory temporary, total disability benefits.

The WCJ’s judgment actually awarded Guillory penalties due to Allied’s arbitrary

2
The WCJ correctly noted Allied’s questionable behavior at the end of the litigation:

[W]e are talking here about a 50-some-year-old disabled veteran, college graduate with 30-
some-odd-year successful work history driving a 30-ton garbage truck full of garbage; and
apparently, from all I can gather, he is doing this to bail out the company. In gratitude, which I
suppose is not really the word I’m looking for here, sounds like retribution, I think the company has
plumbed to a new depth and added a new dimension to the term arbitrary and capricious and almost
callous. I just can’t fathom why they did what that did. I don’t think any of us know why they - -
I’m not even sure who the “they” is here. All the people from Allied seem to either not know
anything or passing it onto somebody. . . . But there was absolutely nothing done; and even [defense
counsel], who is better at [] this than most people I know, including me, can’t do much with this one
because there’s just nothing to say in these people’s defense.

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and capricious refusal to pay wage indemnity benefits. We found no abuse of

discretion in the WCJ’s determination that Allied’s actions with respect to SEB were

arbitrary and capricious.

All other aspects of the WCJ’s judgment were not raised as error by Allied.

Therefore we affirm that Allied is to pay Guillory a penalty of four thousand dollars

for its arbitrary and capricious failure to pay Guillory wage indemnity benefits, a

penalty of two thousand dollars for its arbitrary and capricious failure to pay

Guillory’s mileage reimbursement claims, a penalty of two thousand dollars for its

arbitrary and capricious failure to pay for a medical examination from Guillory’s

choice of orthopedist, and an award of eighteen thousand, five hundred dollars

representing attorney’s fees pursuant to La.R.S. 23:1201. All costs of this appeal are

assessed to Allied.

AFFIRMED, AS AMENDED, AND REMANDED WITH
INSTRUCTIONS.

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