Patsy Sylvester Barbier v. Kraft Foods

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-872

PATSY SYLVESTER BARBIER

VERSUS

KRAFT FOODS

************

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF EVANGELINE, NO. 13-01121
ADAM JOHNSON, WORKERS’ COMPENSATION JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and David Kent Savoie, Judges.

AFFIRMED.

Michael B. Miller
Jacqueline B. Manecke
Attorneys at Law
Post Office Drawer 1630
Crowley, Louisiana 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Patsy Sylvester Barbier

Leslie E. Hodge
Lindsay F. Louapre
Brown Sims, P.C.
Poydras Center, Suite 2200
650 Poydras Street
New Orleans, Louisiana 70130
(504) 638-8472
COUNSEL FOR DEFENDANT/APPELLEE:
Kraft Foods

GENOVESE, Judge.

In this workers’ compensation case, Claimant, Patsy Sylvester Barbier,

appeals the judgment of the Office of Workers’ Compensation (OWC) finding her

average weekly wage (AWW) to be $911.55. For the reasons that follow, we

affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Barbier sustained a work related injury during the course and scope of

her employment as a sales representative with Kraft Foods (Kraft) on February 13,

2012. On February 7, 2013, she filed a Form 1008/Disputed Claim for

Compensation with the OWC, wherein she listed several bona fide issues in

dispute. The parties entered into stipulations relative to all issues except the

amount of Ms. Barbier’s AWW and the amount of attorney fees to which she was

entitled.

Following a trial on the merits on November 25, 1213,1 the workers’

compensation judge (WCJ) ruled that Ms. Barbier was a salaried employee who

was paid bonuses and that the correct corresponding calculation of her AWW was

$911.55. The WCJ also awarded Ms. Barbier $10,000.00 in attorney fees. A

judgment in accordance therewith was signed March 5, 2014. Ms. Barbier appeals

only the WCJ’s calculation of her AWW.

ASSIGNMENT OF ERROR

In her sole assignment of error, Ms. Barbier contends that the WCJ erred in

the calculation of her AWW. She contends that in making the AWW calculation,

the WCJ erroneously: (1) considered her to be a salaried employee; (2) disregarded

the amount that she should have actually been paid pursuant to the Fair Labor

1
These remaining issues were submitted to the WCJ on briefs and evidence. Thereafter,
the WCJ issued oral reasons on December 18, 2013.

Standards Act; and, (3) omitted a $500.50 non-monetary payment from the

calculation.2

LAW AND DISCUSSION

In reaching its conclusion as to the calculation of Ms. Barbier’s AWW, the

WCJ considered Ms. Barbier’s wage records and a document entitled Kraft Salary

Plus Breakout Training Session, which were introduced into evidence. Based upon

these exhibits, the WCJ concluded that “Ms. Barbier was a salaried employee and

[that] she received bonuses.” Based upon this determination, the WCJ computed

her AWW to be $911.55. As set forth above, Ms. Barbier takes issue with three

factors or components underlying the AWW calculation.

First, Ms. Barbier argues that although the WCJ determined that she was a

salaried employee who received bonuses, the evidence established that she was

actually “paid hourly with overtime, bonuses[,] and prizes.” She argues that “the

actual records show her pay was based on how many hours she worked at her

hourly rate[,] and not based on a salary.” She contends that her paychecks show

that her hourly wage rate was $17.5082, and that her pay fluctuated, depending on

the number of hours she worked. Thus, Ms. Barbier concludes that her AWW

should be calculated pursuant to La.R.S. 23:1021(13)(a)(i).3

2
Ms. Barbier specifically identifies these factors or components of the AWW calculation
as issues presented for our review.
3
Louisiana Revised Statues 23:1021(13)(a)(i) provides:

(13) “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[.]

2

To the contrary, Kraft disagrees with Ms. Barbier on her appropriate

classification and counters that the evidence shows that Ms. Barbier was, in fact, a

salaried employee who was paid bonuses. Additionally, according to Kraft, the

hours that Ms. Barbier considers overtime are really bonuses which are treated as

“other wages” for purposes of calculating AWW pursuant to La.R.S.

23:1021(13)(d).4

In the present case, the record, specifically Ms. Barbier’s check stubs,

supports the WCJ’s determination that Ms. Barbier was a salaried employee

earning $36,417.00 per year. As such, the minimum amount that she would

receive per week was $700.33. This amount was owed to Ms. Barbier even if she

worked less than forty hours in any given week. Additionally, Ms. Barbier’s

annual salary included payment for time that she was not working for holidays,

vacation, and sick leave. The fact that her pay is expressed in hourly terms on her

pay stubs does not negate her status as a salaried employee.

In addition to her annual salary, Ms. Barbier was eligible to receive

additional payment for hours that she worked in excess of forty hours per week.

This payment was structured pursuant to Kraft’s salary plus program. Evidence of

her eligibility for extra pay for these hours is supported by the Salary Plus

Breakout Training Session documentation in the record. This evidence likewise

supports the conclusion that Ms. Barbier was paid a salary; thus, she was

guaranteed a minimum payment per week regardless of the actual hours worked,

4
We note that, in brief, Kraft mistakenly cites La.R.S. 23:1021(12)(d) instead of La.R.S.
23:1021(13)(d) which provides, in pertinent part:

(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[.]
3

which minimum payment would be supplemented by Kraft pursuant to the salary

plus program.

Whether or not a claimant is an hourly employee is a factual determination

by the WCJ which is subject to the manifest error standard of review. Ryder v.

Garan’s, Inc., 98-192 (La.App. 3 Cir. 6/3/98), 716 So.2d 55, writ denied, 98-1814

(La. 10/30/98), 727 So.2d 1162. In this case, the WCJ’s conclusion that

Ms. Barbier was a salaried employee is reasonable in light of the record.

Therefore, we find no manifest error in this determination.

The second issued raised by Ms. Barbier relative to the calculation of her

AWW is that the WCJ failed to include an amount which she contends she “should

have been paid” pursuant to the Fair Labor Standards Act, 29 U.S.C. § 207, which

requires that an employee be paid time-and-a-half for the hours the employee

works over forty hours a week.5 However, we find no merit to this contention.

The method utilized by Kraft in paying Ms. Barbier a base salary along with

extra amounts for any hours she worked over forty hours each week is referred to

as a “fluctuating workweek” method. Kraft maintains that Ms. Barbier was not an

hourly employee and that this alternative method of payment “is proper under the

Fair Labor Standard Act (FLSA). See 29 C.F.R. § 778.114.” Given Ms. Barbier’s

pay structure, the WCJ agreed with Kraft that Ms. Barbier was not an hourly

employee and that her salary plus pay was akin to bonuses which are factored into

a claimant’s AWW in accordance with La.R.S. 23:1021(13)(d)’s provision to

account for “other wages.” We find no error in this determination by the WCJ.

5
In this regard, we note that Kraft asserts in brief that “[a]ny dispute [Ms. Barbier] may
have had regarding whether she should have been paid traditional time-and-a-half overtime
versus salary plus should have been brought by complaint to the Wage and Hour Division of the
United States Department of Labor[,]” which she did not do. Kraft opines that “[a]
determination on this issue is not within the province of the workers’ compensation court.”
4

Finally, Ms. Barbier argues that she received a non-monetary taxable prize

valued at $500.50 which should have been included in the calculation of her

AWW. She contends that this amount constitutes “other wages” as contemplated

by La.R.S. 23:1021(13)(d). Citing Sterling v. Asplundh Tree Expert Co., 03-266

(La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La. 1/30/04), 865

So.2d 79, and Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699

So.2d 395, Ms. Barbier notes that “[a]ny fringe benefit that is taxable must be

included in the employee’s pay unless the benefit is specifically excluded by law.”6

Ms. Barbier concludes that “[b]ecause the prize was a taxable fringe benefit she

received during the twenty six week period before her accident, this amount should

have been included in the calculation of her [AWW].”

Although Kraft agrees with the legal proposition that, unless specifically

excluded by law, fringe benefits are to be included in the calculation of an

employee’s AWW, Kraft argues that Ms. Barbier failed in her burden of proof in

this regard. Kraft asserts that Ms. Barbier “had the burden at trial of proving that

the non-monetary prize she received was, in fact, a taxable benefit.” Although “the

prize was listed as imputed income on [Ms. Barbier’s] pay stub[,]” Kraft argues

that this is insufficient proof of a taxable benefit. Kraft notes, for example, that

items such as group life insurance and health savings account contributions were
6
Louisiana Revised Statutes 23:1021(13)(f) provides:

(f) Income tax. In the determination of “wages” and the average weekly
wage at the time of the accident, no amount shall be included for any benefit or
form of compensation which is not taxable to an employee for federal income tax
purposes; however, any amount withheld by the employer to fund any nontaxable
or tax-deferred benefit provided by the employer and which was elected by the
employee in lieu of taxable earnings shall be included in the calculation of the
employee’s wage and average weekly wage including but not limited to any
amount withheld by the employer to fund any health insurance benefit provided
by the employer and which was elected by the employee in lieu of taxable
earnings shall be included in the calculation of the employee’s wage and average
weekly wage.

5

also included as “Other Taxable Benefits/Imputed Income” on Ms. Barbier’s

paychecks despite such benefits being specifically excluded in the calculation of

AWW. See La.R.S. 23:1021(13)(f). We agree with Kraft and find no error in the

WCJ’s determination that the amount of $500.50 was not to be included in the

calculation of Ms. Barbier’s AWW.

DECREE

For the reasons assigned, the judgment of the Office of Workers’

Compensation is affirmed. Costs of this appeal are assessed to Patsy Sylvester

Barbier.

AFFIRMED.

6