Lester Racca v. Acme Truck Lines, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1319

LESTER RACCA

VERSUS

ACME TRUCK LINES, INC.

**********

APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - District 4
PARISH OF LAFAYETTE, NO. 06-01439
SHARON MORROW, WORKERS COMPENSATION JUDGE

**********

JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, Marc T. Amy, Elizabeth
A. Pickett, and John E. Conery, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Saunders, J., dissents and assigns reasons.
Amy, J., concurs in part, dissents in part, and assigns reasons.

Michael B. Miller
Miller & Miller
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Lester Racca

Skylar J. Comeaux
Robicheaux & Collins
2014 W. Pinhook Road
Pinhook Tower, Suite 503
Lafayette, LA 70508
(337) 235-7888
COUNSEL FOR DEFENDANT/APPELLEE:
Acme Truck Lines, Inc.

SAUNDERS, Judge.

This is a workers‟ compensation case where a claimant was injured in a

motor vehicle accident while in the course and scope of his employment with a

truck-driving company. The parties could not agree on the claimant‟s average

weekly wage, and the employer also contended that the claimant had violated

La.R.S. 23:1208 by failing to tell his treating physician that he was not only

capable of working, but that he was actually working.

The Workers‟ Compensation Judge (WCJ) found, inter alia, that the

claimant‟s average weekly wage was $210.53, that the claimant had violated

La.R.S. 23:1208, that the claimant was capable of earning 90% of his pre-injury

wages, and that claimant was entitled to $8,000.00 in attorney‟s fees.

FACTS AND PROCEDURAL HISTORY:

Mr. Lester Racca, Sr. (Racca) was employed by Acme Truck Lines, Inc.

(Acme) as a driver on a piecework basis. Racca entered into a lease agreement

with Acme wherein he would be paid rental fees for the use of his truck and wages

as a driver. On November 19, 2005, Racca was involved in an automobile accident

while in the course and scope of his employment with Acme. He sustained a back

injury as a result of the accident, which required surgery. Racca‟s claim for

workers‟ compensation benefits was filed on March 7, 2006.

Trial began on February 19, 2008, and was continued until April 22, 2008.

The trial was completed on April 8, 2009. The oral ruling was made in February

2012.

The WCJ found that Racca was entitled to temporary total disability benefits

of $140.35 per week from November 26, 2005, through November 30, 2006, and

$316.66 per month in supplemental earnings benefits from December 1, 2006, until

March 21, 2007, subject to credits for post-accident wages paid of $932.57 and all

indemnity benefits paid. Further, the WCJ found that Acme owed Racca penalties

of $7,450.00 and attorney‟s fees of $8,000.00. Finally, the WCJ found that Racca

was in violation of La.R.S. 23:1208 no later than March 21, 2007, and, thus,

forfeited any benefits beyond that date. The WCJ also ruled that each party was to

pay its own costs.

Racca filed this appeal. He is alleging seven assignments of error.

ASSIGNMENTS OF ERROR:

1. The WCJ erred in its calculation of Racca‟s average weekly wage and
workers‟ compensation indemnity rate.

2. The WCJ erred in failing to award a penalty for underpayment of indemnity
benefits and for termination of benefits.

3. It was error for the WCJ to find that Racca violated La.R.S. 23:1208.

4. The WCJ erred in failing to allow the police report into evidence.

5. It was error for the WCJ to limit the attorney fee award to $8,000.00.

6. The WCJ erred in finding that Racca was capable of earning ninety percent
of his wages.

7. Racca‟s costs and expenses, along with legal interest on penalties and
attorney fees, should have been awarded in the judgment.

ASSIGNMENT OF ERROR NUMBER ONE:

In Racca‟s first assignment of error, he contends that the WCJ erred in its

calculation of his average weekly wage and, thus, his workers‟ compensation

indemnity rate. We find merit to this contention.

“Factual findings in a workers‟ compensation case are subject to the

manifest error or clearly wrong standard of appellate review.” Banks v. Indus.

Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556.

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
2

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.

La.R.S. 23:1021 (12)(d).

Here, the WCJ used Defendant‟s Exhibit #4 to determine Racca‟s gross

earnings in her calculation of his average weekly wage. Using Defendant‟s Exhibit

#4, the WCJ found that Racca‟s gross earnings were $4,428.96 for the twenty-six

week period immediately prior to the accident. Racca asserts in brief that there

were two days that he earned wages that should have been included in the WCJ‟s

calculations, November 7, 2005, and November 13, 2005.

The WCJ, in her reasons for ruling, addressed these two dates, stating:

The Claimant relies upon the W2 form, the Employer‟s Exhibit
#24, but the attachments to the W2 form show paychecks issued after
the week of the accident. One of those was for the week ending
November 30th for wages of One Hundred Thirty-Six Dollars and
Seventy-Nine Cents, and one was for the week ending December 7 th
for wages of Seven Hundred Ninety-Five Dollars and Seventy-Eight
Cents. Those were included in the W2[,] but would not be included in
the wage calculation[,] as they were [post-accident.] So the W2 is not
the proper evidence to rely upon.

This reasoning by the WCJ is in error. Our review of Defendant‟s Exhibit

#24 indicates that while the WCJ was correct in stating that the checks were issued

post-accident, they were for work Racca performed prior to the accident. The

check issued on November 30, 2005, was in payment for an invoice dated

November 7, 2005, a date prior to the accident. Likewise, the check issued

December 7, 2005, was for an invoice dated November 13, 2005. Thus, according

to La.R.S. 23:1021(12)(d), these two amounts should have been included in the

average weekly wage calculation.

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Accordingly, we vacate the portion of the WCJ‟s judgment finding that

Racca‟s average weekly wage is $210.31. As such, we must determine whether to

remand the case for further proceedings or conduct a de novo review of the record

to establish Racca‟s average weekly wage.

“The appellate court shall render any judgment which is just, legal, and

proper upon the record on appeal.” La.Code Civ.P. art. 2164. The Louisiana

Supreme Court, in Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 165-66

(1975) (citations and footnote omitted), stated the following:

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. . . .

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.

Here, neither Racca nor Acme asserts that there is evidence outstanding that

has any bearing on Racca‟s average weekly wage. Further, neither asserts that the

record before us is not complete. Thus, we will conduct a de novo review of the

record to determine Racca‟s average weekly wage.

Racca asserts that his proper average weekly wage should not be based on

his W-2 form, Defendant‟s Exhibit #24, because all of the payments made to him

were underpaid under his contract with Acme. Rather, Racca contends that we

should enforce the contract, as written, between Racca and Acme to compute

Racca‟s average weekly wage.

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Acme contends that such a determination by this court as to whether it

abided by the contract provisions in paying Racca is not proper given that such

enforcement of a contract is outside the subject matter jurisdiction of the workers‟

compensation courts. Acme correctly points out that La.R.S. 23:1310.3(F)

generally governs the subject matter jurisdiction of our workers‟ compensation

courts. It states:

Except as otherwise provided by R.S. 23:1101(B), 1361, and
1378(E), the workers‟ compensation judge shall be vested with
original, exclusive jurisdiction over all claims or disputes arising out
of this Chapter, including but not limited to workers‟ compensation
insurance coverage disputes, group self-insurance indemnity contract
disputes, employer demands for recovery for overpayment of benefits,
the determination and recognition of employer credits as provided for
in this Chapter, and cross-claims between employers or workers‟
compensation insurers or self-insurance group funds for
indemnification or contribution, concursus proceedings pursuant to
Louisiana Code of Civil Procedure Articles 4651 et seq. concerning
entitlement to workers‟ compensation benefits, payment for medical
treatment, or attorney fees arising out of an injury subject to this
Chapter.

La.R.S. 23:1310.0(F).

Racca counters that the interpretation and application of the contract

between he and Acme is part of the WCJ‟s duty in determining his average weekly

wage. We agree with Racca. It is clear that the interpretation and application of an

employment agreement as to a claimant‟s pay arises out of the workers‟

compensation statutes that authorize a WCJ to determine a claimant‟s average

weekly wage.

The contract between Racca and Acme pertaining to driver compensation,

Defendant Exhibit #25, states:

Your rate of compensation shall be as follows:

25% Of “Net Transportation Charge” is defined as Gross Revenues
invoiced by Acme in connection with the operation and/or use of the
Leased Equipment for transporting, stopovers, and/or detention of
shipments divided by a factor as stated in the Lease Addendum –
5

Exhibit “A” for the vehicle being driven. Gross revenues will not
include any amounts invoiced by Acme for fuel adjustments or any
amounts invoiced by Acme for non-leased equipment, permits, tolls,
accessorial charges, collection fees on Collect On Delivery (COD)
shipments, extra driver and labor/swamper charges.

The Lease Addendum, Defendant‟s Exhibit #26, states:

“NET TRANSPORTATION CHARGE” is defined as Gross
Revenues invoiced by Acme in connection with the operation and/or
use of the Leased Equipment for transporting, stopovers, and/or
detention of shipments divided by a factor of 1.048. Gross revenues
will not include any amounts invoiced by Acme for fuel adjustments
or any amounts invoiced by Acme for non-leased equipment, permits,
tolls, accessorial charges, collection fees on Collect On Delivery
(COD) shipments, extra driver and labor/swamper charges.

Racca argues that the W-2 forms, Defendant‟s Exhibit #24, should not be

used to calculate his average weekly wage because he was underpaid according to

the plain language of his contract. For example, Racca‟s wages for the week

ending November 30, 2005, were $795.78. According to Racca, however, if one is

to perform the calculations under the plain language of the contract, he should have

been paid $1,039.14. He reaches this figure by taking the gross revenues of the

truck for that week, $4,356.06, dividing it by 1.048 for a quotient of $4,156.55, and

then multiplying $4,156.55 by 25% for a product of $1,039.14.

However, Racca‟s argument for these calculations disregards the language in

the contract, stating, “[g]ross revenues will not include any amounts invoiced by

Acme for fuel adjustments or any amounts invoiced by Acme for non-leased

equipment, permits, tolls, accessorial charges, collection fees on Collect On

Delivery (COD) shipments, extra driver and labor/swamper charges.” When

looking at Defendant‟s Exhibit #22, it is clear that Acme based Racca‟s pay on

gross revenues after subtracting those fees indicated in the contract. For example,

in the week alluded to by Racca ending on November 30, 2005, the gross revenues

of the truck were $4,356.06. After subtracting those fees indicated in the contract,

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the net amount is $3,183.10. Multiplying $3,183.10 by 25% gives one a product of

$795.78, exactly what Racca was paid.

Therefore, given the plain language of the contract, we find that Defendant‟s

Exhibit #24, Racca‟s W-2 form, is the best source to determine his average weekly

wage. Louisiana Revised Statutes 23:1021(12)(d) states that Racca‟s average

weekly wage should be determined by taking “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.”

Here, according to Racca‟s W-2 form, his gross earnings from Acme for the

relevant period were $5,361.53. According to Defendant‟s Exhibit #24, Racca

worked sixty-nine days prior to the date of the accident, November 19, 2005. Thus,

we divide $5,361.53 by sixty-nine to obtain a quotient of $77.70. This number is

then multiplied by the average number of days worked by Racca per week. Racca

worked for Acme for twenty-one weeks. We next take the number of days worked,

sixty-nine, and divide it by twenty-one (21) to determine that Racca worked an

average of 3.29 days per week. Finally, when multiplying $7.70 by 3.29 we get

Racca‟s average weekly wage of $255.63.

In summation, we find that the WCJ erred in calculating Racca‟s average

weekly wage. Above, we vacated the WCJ‟s finding that Racca‟s average weekly

wage was $210.53. After a de novo review of the record, we render judgment

finding that Racca‟s average weekly wage is $255.63.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Racca proposes that the WCJ erred in

failing to award penalties for underpayment of indemnity benefits and for

termination of benefits. We do not agree.
7

A WCJ has broad discretion in awarding penalties and attorney fees and that

determination, in the absence of manifest error, should not be disturbed. Gradney

v. La. Commercial Laundry, 09-1465 (La.App. 3 Cir. 5/12/10), 38 So.3d 1115.

Here, according to our finding in Assignment of Error Number One, Racca‟s

average weekly wage is $255.63. Acme paid Racca based on an average weekly

wage of $260.61. Therefore, Acme was overpaying Racca, and it is clearly not

subject to a penalty for underpayment of wage benefits.

Additionally, Racca contends that his benefits were terminated improperly.

When addressing this issue, the WCJ, in her reasons for ruling, stated, “I do think

the evidence supports a finding that [Racca] was able to earn ninety percent or

more of his pre-injury wage at the time benefits were terminated. Therefore, I do

not assess a penalty or attorney‟s fee for that termination of benefits.”

The WCJ based her findings on a finding that Racca was not credible

regarding his ability to work. Deference must be given to a factfinder‟s credibility

determinations “for only the factfinder can be aware of the variations in demeanor

and tone of voice that bear so heavily on the listener‟s understanding and belief in

what is said.” Wackenhut Corrs. Corp. v. Bradley, 96-796, p. 4 (La.App. 3 Cir.

12/26/96), 685 So.2d 661, 663 (quoting Rosell v. ESCO, 549 So.2d 840 (La.1989)).

Here, the WCJ‟s credibility determination is reasonable. Thus, we will defer to her

determination regarding Racca‟s credibility and find that the WCJ did not commit

a manifest error in denying Racca penalties for wrongful termination of benefits.

ASSIGNMENT OF ERROR NUMBER THREE:

Next, Racca contends that it was error for the WCJ to find that he violated

La.R.S. 23:1208. We find no merit to this contention.

Louisiana Revised Statutes 23:1208 states, in pertinent part:

8

A. It shall be unlawful for any person, for the purpose of
obtaining or defeating any benefit or payment under the provisions of
this Chapter, either for himself or for any other person, to willfully
make a false statement or representation.

....

E. Any employee violating this Section shall, upon
determination by workers‟ compensation judge, forfeit any right to
compensation benefits under this Chapter.

This court, in Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App.

3 Cir. 6/21/06), 934 So.2d 239, 243-44, stated the following:

The determination by a WCJ as to whether a claimant has made
a false statement, willfully, for the purpose of obtaining workers‟
compensation benefits is a finding of fact[ ] and is, therefore, subject
to the manifest error standard of review. Phillips v. Diocese of
Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313.
However, we must keep in mind that La.R.S. 23:1208(E) is penal in
nature. Any statute that is penal in nature must be strictly construed in
favor of the one receiving benefits under that chapter of the law.
Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836
So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05),
899 So.2d 97.

[Louisiana Revised Statutes] 23:1208 authorizes
forfeiture of benefits upon proof that (1) there is a false
statement or representation; (2) it is willfully made; and
(3) it is made for the purpose of obtaining or defeating
any benefit or payment. The statute applies to any false
statement or misrepresentation made willfully by a
claimant for the purpose of obtaining benefits. All of
these requirements must be present before a claimant can
be penalized. Because this statute is penal in nature, it
must be strictly construed, both in its substantive ambit
and in its penalty provisions.

Concerning the standard of appellate review of a
forfeiture claim, the court in Rowan Cos., Inc. v. Powell,
02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858
So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858
So.2d 425 (citations omitted), stated:

The determination of whether there is a false
statement or representation willfully made
for the purpose of obtaining any benefit or
payment involves inherently factual
determinations and, thus, this court‟s review
of those findings by the WCJ is governed by
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the manifest error standard. Under that
standard of review, this court may only
reverse the WCJ‟s decision if we find (1)
there is no reasonable factual basis for the
finding in the record and (2) the finding is
clearly wrong or manifestly erroneous.

Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part
Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir.
3/10/03), 839 So.2d 1231, 1238, writ denied, 03–1068 (La.6/6/03),
845 So.2d 1093 (citations omitted))

In the case before us, the WCJ found that Racca told Dr. David Muldowny

that he could not or was not working, when, in fact, he was working. The WCJ

also found that Racca told Dr. Muldowny that he was not working for the purpose

of continuing to receive benefits.

Racca testified at trial that he knew he told Dr. Muldowny that he was

working at his last visit prior to trial. However, he could not remember if he told

Dr. Muldowny if he was working before then. In Dr. Muldowny‟s records, on

March 21, 2007, June 20, 2007, August 31, 2007, and October 10, 2007, it states

that Racca “presently is not working.” Specifically, in Dr. Muldowny‟s hand

written notes from August 31, 2007, and October 10, 2007, he states that Racca is

“not working.”

It is clear from the record and Racca‟s own testimony that he was working at

the Green Frog Lounge during the dates listed in the paragraph above. It is also

clear that Racca was very much aware of how and why he could receive benefits

despite a vague recollection of other matters.

Moreover, the record contains the testimony of Ms. Clara Breaux. She

testified that Racca would perform tasks at the Green Frog Lounge such as “take

the beer from the floor, and he‟d put it in the stock room. . . . Then, he would take

it from there and put it in the beer box, bend over and put it in the beer box, pick

the boxes up, cases of beer.” Further, according to Breaux, Racca would work
10

twelve hours straight and perform heavy lifting while showing no signs of

discomfort. Finally, according to Breaux, Racca would comment on his case that

he would receive a “big settlement.”

Given the status of the record, we find sufficient evidence to uphold the

WCJ‟s decision to terminate Racca‟s benefits. We cannot say that the WCJ was

manifestly erroneous or clearly wrong.

ASSIGNMENT OF ERROR NUMBER FOUR:

In his fourth assignment of error, Racca avers that the WCJ erred in failing

to allow the police report into evidence. We find that any such error would be

harmless.

Racca contends that the police report should have been allowed into

evidence to impeach Ms. Breaux‟s testimony. Breaux candidly stated in her

testimony that she was angry with Racca because he fired her and did not allow her

to attend her family‟s benefit that was hosted by the Green Frog Lounge. Thus,

Racca‟s purpose for submitting the police report, to show potential bias on

Breaux‟s part, is cumulative to that which was revealed by Breaux in her own

testimony. Thus, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NUMBER FIVE:

Racca‟s fifth assignment of error raises the issue of whether it was error for

the WCJ to limit the attorney fee award to $8,000.00. We find that the WCJ erred

in limiting this attorney‟s fee when she stated, “I award $8,000.00 in attorney‟s

fees for the items for which claimant prevailed, together with cost of court and

interest as provided by law.”

Our supreme court, in McCarroll v. Airport Shuttle, Inc., 00-1123, pp. 9-10

(La. 11/28/00), 773 So.2d 694, 700 stated:

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In our determination of the respective rights of the employee
and the attorney to the statutory attorney fees, a persuasive factor is
the methodology used to calculate the amount of the statutory attorney
fees. The only limitation on the amount is the reasonableness of the
fee awarded by the judge. Cain [ v. Employers Cas. Co., 236 La.
1085, 110 So.2d 108 (1959)]. The amount awarded rests within the
discretion of the workers‟ compensation judge, as long as that amount
is supported by the record. Some of the factors taken into account by
the judge in fixing the amount of the fee are the degree of skill and
ability exercised by the attorney, the amount of the claim, the amount
recovered for the employee, and the amount of time the attorney
devoted to the case. H. Alston Johnson, III, [LOUISIANA CIVIL LAW
TREATISE: WORKERS‟ COMPENSATION LAW AND PRACTICE] § 389
[(3rd ed. 1994)]. The amount awarded is intended to provide full
recovery, without statutory limitation, for attorney‟s services and
expenses in connection with the litigation. If the attorney were
allowed to collect the contractual attorney fees in addition to the full
compensation awarded in the statutory attorney fees, the attorney
would get double recovery (to the extent of the limited contractual fee)
for his services, at the expense of his client.

We therefore conclude that the statutory attorney fees, awarded
to the employee in cases of arbitrary behavior of the employer or the
insurer, were intended to benefit the employee, who would otherwise
have to pay the contractual attorney fees out of his or her benefits
recovered in the litigation, and were not intended to provide additional
fees to the employee‟s attorney, who received the amount of the
statutory attorney fees as full compensation for legal services in the
litigation.

Given our supreme court‟s directive in McCarroll, we find that the WCJ

erred in awarding statutory attorney fees solely for the issues where penalties were

awarded. However, we do not find that Racca‟s counsel is entitled to an attorney

fee award of the full amount evidenced by the affidavit he submitted. The record

contains an affidavit from Racca‟s counsel wherein he contends to have worked

147 hours at $225.00 per hour for a total of $33,075.00.

Acme does not dispute the amount of time that Racca‟s counsel claims to

have worked toward the case, nor does this court. However, in applying the factors

set forth in McCarroll, we amend the judgment of the WCJ to increase the attorney

fee award from $8,000.00 to $15,000.00.

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Further, Racca requests additional attorney‟s fees for work done on appeal.

We deny this request.

Racca is the appellant in this case and is not defending a judgment, but

seeking a new judgment. We do not grant him any additional relief on appeal that

would have required an award of attorney‟s fees had the relief been granted at the

trial level. Furthermore, as noted in Nitcher v. Northshore Regional Medical

Center, 11-1761, p. 19 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1014, writ denied,

12-1230 (La. 9/21/12), 98 So.3d 342:

[A]n increase in attorney fees generally should be granted when
a party who was awarded attorney fees in the trial court is forced to
and successfully defends against an appeal. Bergeron v. Watkins, 98-
0717 (La.App 1st Cir. 3/2/99), 731 So.2d 399, 405. Conversely, in
this case, rather than being forced to defend against an employer‟s
unsuccessful appeal, Nitcher was the party who brought this appeal.
Moreover, she has been only partially successful on appeal.
Consequently, we do not believe Nitcher is entitled to additional
attorney fees.

That being the case, under the facts of this case, we find that Racca is not entitled

to an award of attorney fees for work performed on appeal.

ASSIGNMENT OF ERROR NUMBER SIX:

Racca‟s sixth assignment of error is that the WCJ erred in finding that he

was capable of earning ninety percent of his wages. We find no merit to this

assignment of error.

“Factual findings in a workers‟ compensation case are subject to the

manifest error or clearly wrong standard of appellate review.” Banks, 696 So.2d at

556. A claimant is entitled to Supplemental Earnings Benefits (SEB) under La.R.S.

23:1221(3)(a)(i) “[f]or injury resulting in the employee‟s inability to earn wages

equal to ninety percent or more of wages at time of injury[.]” Our supreme sourt,

in Daigle v. Sherwin-Williams. Co., 545 So.2d 1005, 1006-09 (La.1989) (footnotes

omitted), stated:
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“The threshold prerequisite to the recovery of supplemental earnings
benefits, as set forth in subparagraph (3)(a) is that the employee‟s
injury result in his „inability to earn wages equal to ninety percent or
more of the wages he was earning at the time of the injury.‟” Payne v.
Country Pride Foods, Ltd., 525 So.2d 106, 109 (La.App. 3d Cir.1988).
The injured employee thus bears the burden of proving by a
preponderance of the evidence that the injury resulted in his inability
to earn that amount. . . .

....

Once the plaintiff has met his initial burden of proving
entitlement to supplemental earnings benefits by establishing his job-
related disability, the amount of such benefits must be calculated.
[Louisiana Revised Statutes] 23:1221(3)(a) provides that the benefits
are “sixty-six and two-thirds percent of the difference between the
average monthly wages at the time of injury and average monthly
wages earned or average monthly wages the employee is able to
earn.” The next step in the analysis requires an examination of what
the employee is earning or is able to earn. The statute further explains
this analysis in [La.R.S. 23:1221](3)(c)(i). The most logical
interpretation of this provision is that the employer, if he wishes to
contend that the employee is earning less than he is able to earn, bears
the burden of proving that the employee is physically able to perform
a certain job and that the job was offered to the employee or that the
job was available to the employee in his or the employer‟s community
or reasonable geographic region.

Racca‟s argument on this assignment is that the WCJ used language not

associated with the proper legal standard, more probable than not, to find that he

was not entitled to SEBs when she used the words “possibly” and “reasonable

possibility” that he could earn 90% of his pre-injury wage. However, given that

Racca had never “met his initial burden of proving entitlement to SEB,” it was

incumbent upon him to show that he was entitled to SEBs. It is clear that the WCJ

found that he failed to carry that burden, and the record before us supports that

finding. Moreover, we have already affirmed the WCJ‟s finding that Racca

forfeited his workers‟ compensation benefits under La.R.S. 23:1208. Thus, this

assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SEVEN:

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In his final assignment of error, Racca asserts that his costs and expenses,

along with legal interest on penalties and attorney fees, should have been awarded

in the WCJ‟s judgment. We do not agree.

Courts are given great discretion in the taxing of court costs and may assess

those costs in any manner it deems equitable. La.Code Civ.P. art. 1920. The

assessment of court costs is reviewed pursuant to an abuse of discretion. Trahan v.

Asphalt Assocs., Inc., 01-311 (La.App. 3 Cir. 10/17/01), 800 So.2d 18.

Here, the WCJ found that each of the parties should bear their own costs.

Given that Acme was slightly overpaying Racca‟s indemnity benefits and Racca

was found to be in violation of La.R.S. 23:1208, we find no abuse by the WCJ in

ruling that each party was to bear their own costs.

CONCLUSION:

Lester Racca, Sr. raised seven assignments of error. We found credence in

two of the seven assignments. First, we found that the WCJ erred in calculating

Racca‟s average weekly wage. After having found the record complete and ripe

for adjudication, we rendered judgment finding that Racca‟s average weekly wage

is $255.63 versus $210.53 as found by the WCJ. We also found that the WCJ

erred in awarding Racca attorney‟s fees only for those issues where Acme Truck

Lines, Inc. was penalized for failing to follow the workers‟ compensation statutes.

Thus, we increased Racca‟s attorney‟s fee award from $8,000.00 to $15,000.00.

Additionally, we denied Racca‟s request for attorney‟s fees for work done on

appeal given he filed this appeal seeking a new judgment and largely failed to do

so. Finally, we found no merit to any of the other issues raised by Racca. Each

party is to pay its own costs incurred in these proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

15

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1319

LESTER RACCA

VERSUS

ACME TRUCK LINES, INC.

SAUNDERS, J., dissents and assigns written reasons.

The majority opinion, as written, denied Racca’s request for additional

attorney’s fees for work done on appeal. Further, it had each party pay its own

costs.

I would both grant Racca’s request for attorney’s fees for work done on

appeal and assess Acme Truck Lines, Inc. with all costs of these proceedings based

upon McCarroll, 773 So.2d 694. There, our supreme court stated, “[t]he amount

awarded [in attorney’s fees] is intended to provide full recovery, without statutory

limitation, for attorney’s services and expenses in connection with the litigation.”

Id. at 700.

In my view, an award of attorney’s fees for work done on appeal and

assessment of all costs are necessary to bestow full recovery for services in

connection with the litigation. Therefore, I would award Racca attorney’s fees for

work done on appeal and assess all costs of this proceeding to Acme Truck Lines,

Inc. Accordingly, I respectfully dissent.

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NUMBER 12-1319

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

LESTER RACCA

VERSUS

ACME TRUCK LINES, INC.

AMY, J., concurring in part and dissenting in part.
I respectfully dissent from the majority opinion’s determination to increase

the award of attorney fees for work performed at the trial level. In my opinion, the

workers’ compensation judge correctly tailored the attorney fee award to those

items on which the penalties were awarded.

Here, the claimant seeks full attorney fees incurred in pursuit of his claim,

even those incurred in pursuit of aspects of the claim found to be meritless. In

support of this argument, the claimant cites McCarroll v. Airport Shuttle, Inc., 00-

1123 (La. 11/28/00), 773 So.2d 694, 700 and its statement that “[t]he amount

awarded is intended to provide full recovery, without statutory limitation, for

attorney’s services and expenses in connection with the litigation.” In my opinion,

however, the statement relied upon is inapplicable as urged given the starkly

differing backgrounds of McCarroll and the present matter.

In this case, the claimant seeks attorney fees for aspects of his litigation on

which he was unsuccessful. In McCarroll, 773 So.2d 694, however, the supreme

court addressed whether a claimant’s attorney could recover both statutory attorney

fees and those arising from the attorney’s contract with the claimant. The supreme

court denied that recovery as duplicative. It was only within that context that the

supreme court remarked upon the “full recovery” due a claimant. Accordingly, I

do not rely on McCarroll for the general proposition that a claimant’s attorney

receives litigation expenses related to aspects of the case on which a claimant was

unsuccessful. While the attorney fees awarded in McCarroll did, in fact, appear to

be for the entirety of the litigation, the McCarroll claim involved an employer’s

full denial of benefits; such a situation is not present in this case.

In this case, the claimant was unsuccessful on a large part of his claim and

was awarded only a portion of the penalties sought. Thus, I find that the figure

awarded by the workers’ compensation judge is reasonable and appropriately tied

to those aspects of the award arising under La.R.S. 23:1201. Accordingly, I would

affirm that award.

For these reasons, I dissent from the majority’s award of additional attorney

fees for work performed at the trial level. I concur in the remainder of the majority

decision.

2