Billy Carrier v. City of Eunice

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-748

BILLY CARRIER

VERSUS

CITY OF EUNICE

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 08-05423
SAM L. LOWERY, WORKERS COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED AS AMENDED.

John Fayne Wilkes, III
Borne & Wilkes, L.L.P.
P. O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
COUNSEL FOR DEFENDANT-APPELLEE:
City of Eunice

Michael Benny Miller
Miller & Miller
P. O. Box 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF-APPELLANT:
Billy Carrier

PICKETT, Judge.

The claimant-appellant, Billy Carrier, appeals the judgment of the workers’

compensation judge (WCJ), arguing that the judgment contains certain omissions and

that the award of attorney fees is abusively low. The employer, City of Eunice, has

answered the appeal, arguing that the claimant’s benefits should be changed from

temporary total disability benefits (TTDs) to supplemental earnings benefits (SEBs),

and that the attorney fees awarded are too high. The city also seeks damages for

frivolous appeal.

STATEMENT OF THE CASE

Carrier was injured while in the course and scope of his employment with the

City of Eunice on February 20, 2006. While the City of Eunice initially paid benefits,

several disputes arose beginning in 2008. These included the proper calculation of

benefits, the City of Eunice’s alleged failures to make certain payments or late

payments, whether Carrier was actually injured on the job, and Carrier’s cooperation

with the vocational rehabilitation specialist.

The parties negotiated agreements on most of these matters before trial,

including the fact that Carrier was in the course and scope of his employment when he

was injured. The City of Eunice acknowledged paying $8,000.00 in penalties before

trial. The issues presented for determination at the hearing on September 13, 2010,

were: (1) calculation of average weekly wage benefit; (2) attorney fees due to Carrier;

and (3) whether Carrier’s benefits should be converted from TTD benefits to SEBs.

The judgment in the case was delayed pending the supreme court’s opinion in

Hargrave v. State of Louisiana through the Department of Transportation and

Development, 10-1044 (La.1/19/11), 54 So.3d 1102. The WCJ issued a judgment on

March 3, 2011, setting the average weekly wage, awarding $10,000.00 in attorney

fees, and ordering a face-to-face meeting between Carrier and a vocational

rehabilitation specialist. The WCJ found the issue of the conversion of benefits was

premature, pending the results of the rehab consultation.

Both parties appeal the judgment of the WCJ.

ASSIGNMENTS OF ERROR

Carrier asserts five assignments of error:

1. The workers’ compensation judge failed to include in the judgment that
Mr. Billy Carrier was injured in the course and scope of his employment
with the City of Eunice on February 20, 2006.

2. The workers’ compensation judge erred in failing to include in the
judgment the $8,000.00 award for penalties, subject to a credit for the
payment made by defendant of $8,000.00

3. The attorney fee awarded by the workers’ compensation judge was
unreasonably low.

4. The workers’ compensation judge erred in not including legal interest on
all amounts due in the judgment.

5. It was error for the workers’ compensation judge to fail to award
expenses in the judgment.

Answering the appeal, the City of Eunice asserts (1) that the WCJ erred in

failing to convert Carrier’s benefits from TTD benefits to SEB benefits; (2) that the

attorney fees award was abusively high and that Carrier is not entitled to additional

attorney fees for work done on appeal; and (3) Carrier’s appeal is frivolous and the

city is entitled to an award of attorney fees defending the appeal.

DISCUSSION

Carrier’s first two assignments of error have no merit. Before trial, the parties

stipulated that Carrier was injured in the course and scope of his employment and that

the City of Eunice had paid an $8,000.00 penalty to Carrier. The WCJ was not asked

to decide these issues, so there was no reason for the judgment to include findings on

either of the issues.

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Carrier and the City of Eunice both argue that the WCJ abused his discretion in

awarding attorney fees. The amount of attorney fees rests within the discretion of the

WCJ, as long as it is supported by the record, and will not be disturbed on appeal

absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.

11/28/00), 773 So.2d 694. Factors considered in setting the attorney fee award

include the skill and ability of the attorney, the amount of the claim, the amount

recovered, and the time devoted by the attorney to the case. Id.

The only evidence in the record to support the attorney fee award in this case is

an affidavit from Carrier’s attorney indicating he worked 137 hours at a rate of

$225.00 an hour. We find that the WCJ did not abuse his discretion by not awarding

the full amount requested in the affidavit, as it is reasonable to find that there was

work performed by Carrier’s attorney that was not related to the disputed issues set for

trial or for which penalties were paid by the City of Eunice. Carrier’s third

assignment of error and the City of Eunice’s second assignment of error lack merit.

Next, Carrier seeks $781.70 for expenses. Like attorney fees, these amounts

are reviewed by this court for abuse of discretion. We find no abuse of discretion in

the omission of these amounts.

Finally, Carrier seeks interest on the amounts awarded in the judgment.

Specifically, he seeks interest on the attorney fees award. Because Carrier sought

attorney fees in his initial demand, he is entitled to legal interest from the date of the

judgment. See Hargrave v. State, Dep’t of Trans. and Dev., 09-818 (La.App. 3 Cir.

4/7/10), 35 So.3d 437, affirmed, 10-1044 (La.1/19/11), 54 So.3d 1102. Therefore, we

will amend the judgment to award legal interest on the attorney fees award from the

date of the judgment.

In its first assignment of error, the City of Eunice argues the WCJ should have

converted Carrier’s TTD benefits to SEBs. The manifest error standard of appellate

review governs this issue. Smith v. La. Dep’t of Corrections, 93-1305 (La. 2/28/94),

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633 So.2d 129. The WCJ found that it was premature to convert the benefits and as

part of his judgment ordered additional vocational rehabilitation in an effort to resolve

the issue of whether Carrier was capable of returning to work. It is clear from the

WCJ’s reasons for ruling that he found the rehabilitation services provided to Carrier

were insufficient:

There’s no way that a reasonable, fair-minded person can look at
both the transcript and the chronology of events and not conclude, or at
least strongly suspect, that this vocational rehabilitation was conducted
solely, totally, and completely in support of the employer’s motives and
benefit. The entire exercise was self-serving for the employer and utterly
useless for the worker.

I find it disingenuous for the defendant to complain that Mr.
Carrier has been less than cooperative and enthusiastic in response to his
vocational rehabilitation program which in my most charitable and
expansive moments I’d describe as formulaic and bureaucratic.

The WCJ found that the medical evidence did show that Carrier could possibly

engage in some employment. Thus, he ordered face-to-face meetings with a

vocational rehabilitation counselor to determine what type of work, if any, Carrier

could perform, taking into account not only his physical condition but also his skills

and mental abilities. We find no manifest error in the determination of the WCJ’s

order or in his decision to delay ruling on the issue of conversion to SEBs until after

proper vocational rehabilitation had been accomplished. This assignment of error

lacks merit.

In response to the City of Eunice’s request that we award damages for frivolous

appeal, we find that Carrier was successful, at least partially, in his appeal. Thus, we

find no merit in the argument that the appeal is frivolous.

Finally, Carrier seeks attorney fees for work done on appeal. Given that he was

partially successful in his appeal and that he successfully defended the answer to the

appeal, we award $2,000.00 for work done on appeal.

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CONCLUSION

The judgment of the WCJ is amended to include an award of legal

interest on the attorney fees awarded to Carrier from the date of the judgment below.

In all other respects, the judgment of the WCJ is affirmed. We award additional

attorney fees to Carrier in the amount of $2,000.00. Costs of this appeal are assessed

to the City of Eunice in the amount of $2,373.18

AFFIRMED AS AMENDED.

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