Latashia v. Perez, Both Individually and on Behalf of Unborn Child of Travis Chiokai (Deceased) v. Irby Construction Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-454
LATASHIA V. PEREZ, BOTH INDIVIDUALLY
AND ON BEHALF OF UNBORN CHILD OF
TRAVIS CHIOKAI (DECEASED)

VERSUS

IRBY CONSTRUCTION COMPANY, ET AL.

RREKKRREREK

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION — DISTRICT NO. 3
PARISH OF CALCASIEU, NO. 17-07615
DIANNE M. MAYO, WORKERS’ COMPENSATION JUDGE

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VAN H. KYZAR
JUDGE

KRERERRERERER

Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.

AFFIRMED IN PART
AND REVERSED IN PART.

John J. Rabalais

Rabalais, Unland

1404 Greengate Drive, Suite 110

Covington, LA 70433

(985) 893-9900

COUNSEL FOR DEFENDANTS/APPELLANTS:
Irby Construction Company
Old Republic Insurance Company

Thomas A. Filo

Cox, Cox, Filo, Camel & Wilson, L.L.C.

723 Broad Street

Lake Charles, LA 70601

(337) 436-6611

COUNSEL FOR PLAINTIFF/APPELLEE:
Latashia V. Perez, Individually and On Behalf of her Minor Child,
Avery C, Chiokai

KYZAR, Judge.

The defendants, Irby Construction Company and Old Republic Insurance
Company, appeal from a workers’ compensation judgment denying their motion for
summary judgment and granting summary judgment in favor of the plaintiff,
Latashia V. Perez, individually and on behaif of her minor child, Avery C. Chiokai.
For the following reasons, we affirm in part and reverse in part.

DISCUSSION OF THE RECORD

This matter stems from the November 7, 2017 death of Travis Chiokai, an
employee of Irby Construction Company. On that date, Mr. Chiokai was working
on electrical lines while attached to a “long line” from a helicopter. He suffered fatal
injuries when he fell 100 feet to the ground after the line securing him to the
helicopter was severed. At the time of his death, Mr. Chiokai was engaged to and
living with Latashia V. Perez, who was pregnant with their unborn child.

On November 20, 2017, Ms. Perez, individually and on behalf of her unborn
child, filed a disputed claim for compensation against Irby Construction and
Republic Insurance Company (referred to collectively as Irby Construction), seeking
death benefits as a result of Mr. Chiokai’s work-related accident and penalties and
attorney fees due to Irby Construction’s handling of her claim. Irby Construction
answered, disputing Ms. Perez’s claim for benefits and arguing that the unborn
child’s claim was premature at that time.

Avery C. Chiokai was born on December 15, 2017, and Mr. Chiokai was
confirmed as her father via paternity testing. Commencing with her birth, Irby
Construction began paying her death benefits in the amount of $624.57 per week.

On January 19, 2018, Irby Construction filed peremptory exceptions of no
cause and no right of action, asserting that as Mr. Chiokai’s concubine, Ms. Perez

was not entitled to death benefits pursuant to La.R.S. 23:1253. However, following

a hearing on the exceptions, the workers’ compensation judge (WCJ) denied Irby
Construction’s exceptions. A written judgment denying the exceptions was rendered
by the WCJ on February 28, 2018. Thereafter, Irby Construction sought a writ of
certiorari and review from this court. Although not contained in the appeal record,
this court denied Irby Construction’s writ on June 6, 2018. In doing so, this court
stated:
No evidence was adduced at the hearing on the exception. Thus,
whether Ms. Perez occupied the position of concubine, which was the
burden of proof imposed on Applicants in their exception, was not
demonstrated. We do not reach the question of whether, as concubine
of Mr. Chiokai and the mother of his child, Ms. Perez is entitled to death
benefits despite the language of La.R.S. 23:1253, because it was not
proven that she was his concubine.
Perez v. Irby Constr. Co., 18-192, p. 2 (La.App. 3 Cir. 6/6/18), 247 So.3d 906, 908.

Thereafter, Irby Construction moved for summary judgment, re-urging its
argument that Ms. Perez was not entitled to death benefits pursuant to La.R.S.
23:1253 because she was Mr. Chiokai’s concubine. It further argued that Avery
could only receive death benefits from the date of her birth, rather than from the date
of Mr. Chiokai’s death. In response, Ms. Perez filed a cross motion for summary
judgment, in which she stated that “all parties have agreed to try the remaining
claims via stipulation and Cross Motions for Summary Judgment.” She further
asserted that the only unresolved issues dealt with her claim for death benefits,
Avery’s claim for death benefits for the time period between Mr. Chiokai’s death
and her birth, and the issue of penalties and attorney fees. Irby Construction then
moved for summary judgment on the issue of whether it was arbitrary and capricious
in its handling of Ms. Perez’s claim.

The parties submitted the matter based on the following stipulations:

l. Avery C. Chiokai, born December 15, 2017, is the daughter of
Travis Chiokai, who was killed in an on-the-job accident on

10.

11.

12.

13.

November 7, 2017, while in the course and scope of his
employment with Defendant, Irby Construction Co.

At the time of his death, the Louisiana maximum compensation
rate for all indemnity benefits was $653.00 per week.

At the time of the accident, Travis Chiokai’s average weekly
wage was $1,921.75.

Irby Construction Co. and Old Republic Ins. Co. have paid death
benefits under the Louisiana Workers’ Compensation Act at the
rate of $624.57 per week commencing on Avery’s date of birth,
December 5, 2017.

Irby Construction Co. and Old Republic Ins. Co. have not paid
any death benefits to Avery between November 7, 2017 (the date
of Travis’ death) and December 15, 2017 (the date of Avery’s
birth).

If owed, the amount of unpaid death benefits for Avery will be
$3,033.63 (4 weeks and 6 days).

Irby Construction Co. and Old Republic Ins. Co. have disputed
(and have not paid) death benefits to Avery’s mother, Latasha
Perez.

If owed, death benefits to Latashia Perez will currently be $28.43
per week (the difference between the death benefit paid to Avery
and the maximum workers’ compensation rate in effect on the
date of the accident).

If owed, back due death benefits to Latashia Perez as of March
11, 2019 will be $1,990.10 ($28.43 x 70 weeks).

Latashia Perez was not married to Travis Chiokai at the time of
his death and she was a “concubine” within the meaning of La.
R.S. 23:1253.

Latashia Perez and Avery Chiokai were “wholly dependent”
upon Travis Chiokai’s earnings for support at the time of his
death within the meaning of La. R.S. 23:1231 and La. R.S.
23:1232(8).

Claimants stipulate that they are only seeking penalties and
attorney fees for the non-payment of Avery and Latashia’s
benefits and therefore are entitled to a maximum of two penalties
and attorney fees.

In the event the Court makes an award of penalties an[d] attorney
fees in connection with the non-payment of Avery’s benefits, and
determines that Irby Construction Co. and Old Republic Ins. Co.

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14.

15.

16.

17.

Following a March 20, 2019 hearing, the WCJ rendered oral reasons, finding
that Ms. Perez was entitled to death benefits and that Avery was entitled to death
benefits from the date of Mr. Chiokai’s death. The WCJ further held that Irby
Construction was arbitrary and capricious in its handling of this claim and awarded
both Ms. Perez and Avery $2,000.00 in penalties and $3,000.00 in attorney fees. A

written judgment was rendered in this matter on March 27, 2019. It is from this

were arbitrary and capricious in failing to pay for those benefits,
the parties stipulate to the sum of $2,000 in penalties and $3,000
in attorney fees.

In the event the Court makes an award of penalties and attorney
fees in connection with the non-payment of Latashia’s benefits,
and determines that Irby Construction Co. and Old Republic Ins.
Co. were arbitrary and capricious in failing to pay those benefits,
the parties stipulate to the sum of $2,000 in penalties and $3,000
in attorney fees.

None of the above stipulations shall have the affect of admitted
[sic] or conceding that any benefits are owed, and both parties
reserve their rights to appeal any adverse rulings and to assert
any potential credits owed.

Notwithstanding paragraph 15, the parties agree that neither the
claimant no[r] employer or insurer will appeal the agreed upon
amount of penalties and attorney fees although each reserve their
right to appeal entitlement to any award of penalties and attorney
fees.

The parties agree that these stipulations shall form the sole
submissions with respect to the parties Cross Motions for
Summary Judgment and the Court may decide the Motions based
solely on legal arguments and entitlement (or non-entitlement) to
benefits and or penalties and attorney fees as a matter of law.

judgment that Irby Construction appeals.

On appeal, Irby Construction raises six assignments of error:

l.

The Workers’ Compensation Judge erred when she awarded
unpaid death benefits to the minor child, Avery C. Chiokai, in
the amount of $3,033.63 for the time period between the date of
the November 7, 2017 accident and when the child was born
alive.

2. The Workers’ Compensation Judge erred when she awarded
back due death benefits to Latashia V. Perez in the amount of
$1,990.10 as of March 11, 2019.

3. The Workers’ Compensation Judge erred when she awarded
death benefits be paid to Latashia V. Perez in the amount of
$28.43 per week from March 11, 2019 forward.

4. The Workers’ Compensation Judge erred when she awarded a
$2,000.00 penalty to Latashia V. Perez, on behalf of the minor
child, Avery C. Chiokai, and $3,000.00 in attorney fees to
Thomas A. Filo in connection with the non-payment of benefits

to the minor child, Avery C. Chiokai.

5. The Workers’ Compensation Judge erred when she awarded a
$2,000.00 penalty to Latashia V. Perez and $3,000.00 in attorney
fees to Thomas A. Filo in connection with the non-payment of
death benefits to Latashia V. Perez.

6. The Workers’ Compensation Judge erred when she denied the
Motion for Summary Judgment filed by the Appellants and not
dismissing the action of the Appellees with prejudice.

OPINION
The supreme court set forth the law applicable to summary judgment in
Maggio v. Parker, 17-1112, p. 4 (La. 6/27/18), 250 So.3d 874, 878, as follows:

A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the relief
prayed for by a litigant. It is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; i.e.,
whether there is any genuine issue of material fact, and whether the
movant is entitled to judgment as a matter of law[.] See, e.g., Dunn v.

City of Kenner, 15-1175, p.10 (La. 1/27/16), 187 So.3d 404, 412.
In this instance, the parties have stipulated to the facts at issue, thus, there remain no
genuine issues of material fact, and the only issue before us is whether either party
is entitled to judgment as a matter of law.

The all-important question with regard to death benefits is whether the person
seeking the benefits was dependent upon the employee for support at the time of the

his/her death. La.R.S. 23:1254. “[T]he mere expectation or hope of future

contribution to support of an alleged dependent by an employee, shall not constitute

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proof of dependency as a fact.” /d. The amount of death benefits awarded to the
employee’s dependents is based upon whether they were wholly or partially
dependent on the employee for support, with the maximum amount awarded being
no more than 65% of the employee’s wages. La.R.S. 23:1232.

Under certain circumstances, the employee’s spouse is conclusively presumed
to be wholly and actually dependent. La.R.S. 23:1251. This presumption applies to
the spouse who was living with the employee at the time of his death. La.R.S.
23:1251(1). It also applies to the employee’s minor child (and a child, who is over
the age of eighteen, if the child is physically or mentally incapable of earning) (1) if
the child was living with the employee at the time of his death or (2) if the child was
not living with the employee, but the employee was ordered to pay child support,
regardless of whether the support was being paid. La.R.S. 23:1251(2) and (3). This
presumption extends to the age of twenty-three if the child is enrolled full-time in an
accredited educational institution. Jd Absent the conclusive presumption of
dependency provided by La.R.S. 23:1251, dependency is “determined in accordance
with the facts as they may be at the time of the accident and deathf.|” La.R.S.
23:1252.'

Other than through marital and parental relationships, dependency may arise
if a familial relationship exists between the employee and the person seeking death
benefits. Louisiana Revised Statutes 23:1253 provides, in part, that “[n]o person
shall be considered a dependent, unless he is a member of the family of the deceased
employee, or bearing to him the relation of husband or widow, or lineal descendant

or ascendant, or brother or sister, or child.” However, La.R.S. 23:1253 was amended

' The sole exception to the rule of dependency is provided when the deceased employee
leaves no surviving legal dependents, whether wholly or partially dependent. In that instance,
La.R.S. 23:1231(B) awards a lump sum of $75,000.00 to the employee’s surviving children, who
are over the age of majority, or barring none, to the deceased’s surviving parents. La.R.S.
23:1231(B)(2), @).

by 2012 La. Acts No. 793, § 1, to include the following language: “Regardless of
dependency, no payments shall be made to the concubine of the deceased employee
nor the concubine’s children, unless those children are related to the deceased
employee by blood or adoption.”

The main questions raised by this appeal are: (1) whether Avery, who was
born after Mr. Chiokai’s death, is entitled to death benefits from the date of his death,
and (2) whether Ms. Perez, who the parties stipulated was Mr. Chiokai’s concubine
and was wholly dependent upon him at the time of his death, is entitled to death
benefits as a member of his family pursuant to La.R.S. 23:1253.

Assignment of Error Number One

In its first assignment of error, Irby Construction argues that the WCJ erred
by awarding Avery death benefits in the amount of $3,033.63, representing the time
period between Mr. Chiokai’s accident and her birth. We disagree, but for other
reasons.

In her oral reasons for judgment, the WCJ explained her reasoning for
awarding Avery death benefits for the time period in question:

The next issue up for discussion is whether or not the child is
entitled to benefits prior to death. Under Louisiana Civil Code Article

24, there are two kinds of persons, natural and juridical persons. A

natural person is a human being. Civil Code Article 25.

Commencement and end of natural personality: Natural personality

commences from the moment of live birth and death. Civil Code Article

26, Unborn Child, an unborn child shall be considered a natural person

for whatever relates to its interests from the moment of conception.

Applying Civil Code Article 26 to the facts of this case, the
dependent child was born four weeks and six days after the death of the
deceased father; and while in the mother’s womb, [she] was considered

a natural person because there was workers’ compensation benefits that

were to [her] interest and benefits.

[Her] dependency was established from the moment of
conception because every time [her] mother ate, [she] ate; every

prenatal vitamin she took, [she] took; every time [her] mother went to
the doctor, [she] was checked. But for the nourishment provided for

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[her] mother through [her] deceased father, [she] may not have been
bor alive. Being born alive was [a] prerequisite of [her] getting the
death workers’ compensation benefits that was to [her] interest and
benefited [her].

After reviewing the briefs, the arguments, and the stipulation of

the fact, this court grants that there’s only one conclusion that can be

reached, that Avery was a human being from the moment of conception,

thus entitled to four weeks and six days of death benefits.

After performing a de novo review of this issue, we find that the WCJ erred
in awarding Avery death benefits based on a finding of her actual dependency upon
Mr. Chiokai pursuant to La.R.S. 23:1252. Rather, we find that Avery is entitled to
death benefits for the time period in question because she is conclusively presumed
to have been wholly dependent upon Mr. Chiokai via La.R.S. 23:1251(2)(A),
because, although in utero, she was living with him at the time of his death.

For the purposes of the Louisiana Workers’ Compensation Law, “‘[c]hild’ or
‘children’ covers only children born of marriage, step-children, posthumous children,
adopted children, and children born outside of marriage who have been
acknowledged under the provisions of the Civil Code.” La.R.S. 23:1021(3).
Although the supreme court, in Williams v. American Employers Insurance Co., 237
La. 101, 110 So.2d 541 (1959), held that a posthumous illegitimate child was not
included in the definition of a “child” in La.R.S. 23:1021(3),’ the United States
Supreme Court, in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 165, 92
S.Ct. 1400, 1401 (1972), subsequently held that “Louisiana’s denial of equal

recovery rights to dependent unacknowledged illegitimates violates the Equal

Protection Clause of the Fourteenth Amendment.” In Weber, a dependent

* That statute provided, “‘Child’ or ‘Children’ covers only legitimate children,
stepchildren, posthumous children, adopted children, and illegitimate children acknowledged
under the provisions of Civil Code Articles 203, 204, and 205.”

8

unacknowledged illegitimate child and a posthumous illegitimate child were
classified as other dependents of the decedent. However, they received no
compensation benefits as a result of the decedent’s death because the maximum
benefit allowable under the workers’ compensation law was awarded to his four
legitimate children.

In its opinion below, the Louisiana Supreme Court held that the United States
Supreme Court’s opinions in Levy v. Louisiana, 391 U.S. 68, 88 8.Ct. 1509 (1968),
and Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct.
1515 (1968),° were inapplicable in a workers’ compensation setting:

There is nothing whatsoever in either of those United States
Supreme Court opinions that would compel the conclusion in
compensation cases that a state may not make a distinction between
legitimate and illegitimate children which would protect legitimate
family relationships but permit recovery by illegitimates in the absence
of the former. The circumstances of those decisions did not require a
holding on the issue of the right of an illegitimate child as opposed to a
legitimate one, and we do not find anything in the language of the court
which would bear on such a contest.

Unlike Louisiana Civil Code Article 2315, our compensation law
does not treat illegitimate children as “non persons” (as the United
States Supreme Court in Levy held that the Article does); the
acknowledged illegitimate child is placed on a par with legitimate
children, the unacknowledged illegitimate child is not denied a right to
recover compensation, he being merely relegated to a less favorable
position as are other dependent relatives such as parents; no “wrong”
has been inflicted on the deceased father by the employer from whom
compensation is here sought; and no tort feasor goes free because of the
law.

For ourselves, we find nothing invidious in the distinction made
in the compensation statute which would protect such legally
recognized family relationships, anymore than the preference given
legitimate dependent children (even illegitimate ones when they are
duly acknowledged) over dependent parents. We think that such
classification is permitted to the state legislature in dealing with social
and economic problems, and that the Equal Protection Clause of the

* These opinions held that La.Civ.Code art. 2315, which barred an illegitimate child from
recovering damages for the wrongful death of its mother and a mother from recovering damages
for the wrongful death of her illegitimate child, respectively, constituted an invidious
discrimination against illegitimate children and, thus, violated the Equal Protection Clause of the
Fourteenth Amendment.

Fourteenth Amendment of the United States Constitution creates no
barrier to it as contained in such statute.

Stokes v. Aetna Cas. & Sur. Co., 257 La. 424, 433-34, 242 So.2d 567, 570 (1970).

In reversing the Louisiana Supreme Court, the Supreme Court held that
La.R.S. 23:1021(3) failed to promote Louisiana’s interest in protecting legitimate
family relationships by denying death benefits to dependent unacknowledged
illegitimate children. The Court stated, “Nor can it be thought here that persons will
shun illicit relations because the offspring may not one day reap the benefits of
workmen’s compensation.” Weber, 406 U.S. at 173. It further held:

The state interest in legitimate family relationships is not served
by the statute; the state interest in minimizing problems of proof is not
significantly disturbed by our decision. The inferior classification of
dependent unacknowledged illegitimates bears, in this instance, no
significant relationship to those recognized purposes of recovery which
workmen’s compensation statutes commendably serve.

The status of illegitimacy has expressed through the ages
society’s condemnation of irresponsible liaisons beyond the bonds of
marriage. But visiting this condemnation on the head of an infant is
illogical and unjust. Moreover, imposing disabilities on the illegitimate
child is contrary to the basic concept of our system that legal burdens
should bear some relationship to individual responsibility or
wrongdoing. Obviously, no child is responsible for his birth and
penalizing the illegitimate child is an ineffectual—as well as an
unjust—way of deterring the parent. Courts are powerless to prevent
the social opprobrium suffered by these hapless children, but the Equal
Protection Clause does enable us to strike down discriminatory laws
relating to status of birth where—as in this case—the classification is
justified by no legitimate state interest, compelling or otherwise.

id. at 175-76 (footnotes omitted).
With regard to posthumously born illegitimate children, the Supreme Court
stated:
The affinity and dependency on the father of the posthumously
born illegitimate child are, of course, not comparable to those of
offspring living at the time of their father’s death. This fact, however,
does not alter our view of the case. We think that a posthumously born

illegitimate child should be treated the same as a posthumously born
legitimate child, which the Louisiana statutes fail to do.

10

id. at 169 n.7.

In Winn v. Thompson-Hayward Chemical Co., 522 So.2d 137 (La.App. 2 Cir.
1988), the second circuit affirmed the lower court judgment which held that
informally acknowledged illegitimate children, who were living with the decedent
at the time of his death, were entitled to the presumption of dependency provided by
La.R.S. 23:1251. Despite the legislature’s failure to amend the definition of “child”
or “children” to conform to Weber, the second circuit felt “mandated by the federal
[and 1975 state] constitution to interpret § 1021 to include informally acknowledged
illegitimates in the same classifications as formally acknowledged illegitimates and
legitimates.” /d. at 142 (alteration in original).

The version of La.R.S. 23:1021(3) in effect when Weber was decided
provided:

“Child” or “children” covers only legitimate children, step-
children, posthumous children, adopted children, and illegitimate
children acknowledged under the provisions of Civil Code Articles 203,

204, and 205.

At the time Winn was decided, La.R.S. 23:1021(3) had been amended to remove the
reference to Article 204, which had been repealed. The final amendment to La.R.S.
23:1021(3) occurred in 2004, when it was amended to read:

“Child” or “children” covers only children born of marriage,
step-children, posthumous children, adopted children, and children
born outside of marriage who have been acknowledged under the
provisions of the Civil Code.

Based on the wording of La.R.S. 23:1021(3), we likewise feel constrained to
interpret the definition of “child” to include a posthumously born illegitimate child
such as Avery. The failure to do so would be, as Weber held, a violation of the Equal
Protection Clause of both the United States and the Louisiana Constitutions. In this

instance, the parties stipulated that Ms. Perez was the concubine of Mr. Chiokai at

the time of his death and that both she and Avery were wholly dependent upon Mr.

11

Chiokai at that time. As Justice Tate stated in Henderson v. Travelers Insurance
Co., 354 So.2d 1031, 1033 (La.1978), “The status as concubine arises when a man
and a woman live together in a permanent relationship as husband and wife, although
without benefit of matrimony or a putative marriage.” Because Ms. Perez is
stipulated to have been Mr. Chiokai’s concubine, it is admitted that she was living
with Mr. Chiokai at the time of his death. Thus, Avery, who was in utero, was also
living with him at the time of his death and is conclusively presumed to have been
wholly and actually dependent upon Mr. Chiokai at the time of his death as his
posthumously born illegitimate child. La.R.S. 23:1251. This finding was not
questioned by Irby Construction, who commenced paying death benefits to Avery at
the time of her birth.

The only question remaining is whether Avery’s conclusive presumption of
dependency entitles her to receive death benefits from the date of Mr. Chiokai’s
death. We find that it does.

In Eason v. Alexander Shipyards, 47 So.2d 114, 119 (La.App.Orleans 1950),
the appellate court stated:

The Legislature has declared that the term “child,” as used in

Section 8 of the Workmen’s Compensation Act, shall include

posthumous children, and there is no doubt in our minds that the

framers of the act intended, in view of the provisions of the Civil Code
which place unborn children, as to certain rights, on a parity with other
children, to vouchsafe to an unborn child the same privileges and
benefits under the act as are enjoyed by other children of the deceased
workman. We think that it was the legislative intent that a child in utero,

upon being born alive, would be entitled to the death benefits provided

for in the act, the same to be computed from the time of the death of the

deceased workman.

Although Eason involved children born of a putative marriage between the deceased
and his putative spouse, this reasoning, in light of Weber, should also apply to a

posthumously born illegitimate child conclusively presumed to be dependent upon

the deceased employee.

12

The presumption provided by La.R.S. 23:1251 is a conclusive presumption
“that cannot be overcome by any additional evidence or argument because it is
accepted as irrefutable proof that establishes a fact beyond dispute[.] BLACK’Ss LAW
DICTIONARY 1204 (11th ed. 2019). Based on this presumption, Avery is entitled to
death benefits from the date of Mr. Chiokai’s death, so long as she was born alive.
See La.Civ.Code art. 26. Had Avery not survived birth, she would never have
existed for the purposes of recetving workers’ compensation benefits. /d@. Although
the Williams court held a prior version of La.Civ.Code art. 26° inapplicable in a death
benefits case, that matter concerned a showing of actual dependency under La.R.S.
23:1252, based upon “the facts as they existed at the time of the employee’s death.

Accordingly, because Avery is conclusively presumed to have been
dependent upon Mr. Chiokai, she is entitled to the payment of weekly death benefits,
equal to thirty-two and one-half percent of his wages, from the date of his death.
La.R.S. 23:1251(2); La.R.S. 23:1231(A); and La.R.S. 23:1232(4). Thus, the
judgment of the WC] awarding Avery $3,033.63 in death benefits for the four-week,
six-day period in question is affirmed.
Assignments of Error Number Two and Number Three

In its second and third assignment of error, Irby Construction argues that the
WC] erred in awarding past and future death benefits to Ms. Perez based on La.R.S.
23:1253’s language that “[r]egardless of dependency, no payments shall be made to
the concubine of the deceased nor the concubine’s children, unless those children

are related to the deceased by blood or adoption.” Irby Construction asserts that our

4 Louisiana Civil Code Article 29, which formed, in part, the basis for La.Civ.Code art. 26,
provided:

Children in the mother’s womb are considered, in whatever relates to
themselves, as if they were already born; thus the inheritances which devolve to
them before their birth, and which may belong to them, are kept for them, and
curators are assigned to take care of their estates for their benefits.

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interpretation of this language will be a matter of first impression for this court; we
agree with this statement because no court has interpreted La.R.S. 23:1253 since its
2012 amendment.

Irby Construction argues that a plain reading of La.R.S. 23:1253 specifically
forbids the payment of death benefits to a concubine, while allowing the concubine’s
child to receive benefits, as long as the child is related by blood or adoption to the
employee. Thus, it asserts that the meaning of La.R.S. 23:1253 is unambiguous and
should be applied as written. However, Ms. Perez argues that although she was Mr.
Chiokai’s concubine, she is still entitled to death benefits as the mother of his child.
She bases her argument on past Louisiana Supreme Court precedent and the wording
of La.R.S. 23:1232(8), La.R.S. 23:1252, and La.R.S. 23:1253.

During her oral reasons, the WC] held that Ms. Perez was entitled to death
benefits because she “was totally dependent on the deceased and she had a child that
was a blood relative of the deceased.” In so holding, the WCJ adopted her prior
ruling from March 5, 2018, in which she denied Irby Construction’s exception of no
cause of action, wherein she stated:

As to the issue of whether or not claimant has a cause of action
and/or right of action, this court feels she does have both.

The claimant lived with deceased prior to his death and became
pregnant. At the time of his death, the claimant was totally dependent
upon the deceased employee for everything. The baby was born who
is receiving benefits and the claimant filed for her dependent benefits.

Employer states that she is not a dependent of the deceased
because she was a concubine; therefore, she has no right of and no cause
of action.

Claimant states that she is the mother of deceased’s child and was
totally dependent upon him at the time of his death; therefore, she has
a cause of action as a dependent and she 1s the right person to bring said
action.

The Court finds that claimant was a dependent of the deceased,
thus entitling her to bring said suit and, therefore, the right person to

14

bring action to seek the benefits she is due under the statute. The Court
arrives at this decision by looking at three statutes and a [Third] Circuit
case: LA-R.S. 23:1252 reads as follows: “In all other cases, the
question of legal and actual dependency in whole or in part shall be
determined in accordance with the facts as they may be at the time of
[the accident and death; in such other cases if there are] a sufficient
number of persons wholly dependent to take up maximum
compensation, the death benefits shall be equally divided among them,
and persons partially dependent, if any, shall receive no part thereof.”

LS-R.S. 23:1253 in the last couple of lines states: “Regardless
of dependency, no payments shall be made to the concubine of the
deceased or the concubine’s children, unless those children are related
to the deceased employee by blood or adoption.”

LS-R.S. [23:]1232(8) states: “If other dependents other than
those enumerated, 32 and one half percentage of wages subject to a
maximum of 65 percent of dependents.”

The Court, reading these statutes together, finds the other persons
can be entitled to benefits if they can show their dependency; therefore,
if a woman living with a man at the time of his death and has a child
that is related to him by blood. She can receive said benefits as long as
it does not impinge upon that child’s right to benefits. Such is the case
here. Claimant was pregnant, living and dependent upon the deceased
at the time of his death. A girl child was born after deceased who was
related to him by blood.

In Mary Heathcoate (O/B/O Christopher Farmer — Deceased)
versus D & D Drilling and Exploration, (La. Appeals 3rd Circuit, 2016),
the facts are very similar to the case at hand: A mother living with the
deceased at the time of death and had a child for the deceased and stated
that she was dependent upon him. The employer initially then amended
their answer alleging 1208 fraud. In a Motion for Summary Judgment
they were able to show that Ms. Heathcoate had put the baby up for
adoption and was being supported by the prospective parents. The
court granted the Motion for Summary Judgment and in their
discussions they stated: “To establish her entitlement to workers’
compensation Ms. Heathcoate is required to show that she was
financially dependent upon Mr. Farmer”, LA-R.S. 23:1253. '“!Thus,
the issue of a financial support is relevant to her claim.!”!

In this case, claimant has established that she is related to a blood
child of the deceased and her dependency.

Because she and Mr. Chiokai were not married, Ms. Perez will only receive

death benefits if she is an “other dependent” under La.R.S. 23:1232(8), which allows

payments to “other dependents” if the employee is survived by no legal dependents.

15

Other than the conclusively presumed dependency afforded to spouses and children
by La.R.S. 23:1251, an “other dependent” must prove “legal and actual dependency
in whole or in part” based upon the facts in existence at the time of the decedent’s
death. La.R.S. 23:1252. “No person shall be considered a dependent, unless he is a
member of the family of the deceased employee, or bearing to him the relation of
husband or widow, or lineal descendant or ascendant, or brother or sister, or child.”
The supreme court has interpreted the term “member of the family” in its broadest
sense based upon the definition contained in La.Civ.Code art. 3506(12).’ Thus, a
dependent family member need not be related by a legal or blood relationship to the
employee. “All that is required is a family or household and the existence of the
dependency of a member thereof as illustrated by the facts of the particular case.”
Archibald v. Empl’rs. Liab. Assurance Corp., 202 La. 89, 96, 11 So.2d 492, 494
(1942).
In Archibald, 11 So.2d at 493-94, the supreme court further stated:

It is well settled that the Workmen’s Compensation Act is to be
liberally construed with the view of carrying out its purpose.
Undoubtedly, the Legislature intended to allow compensation to those
who were dependent upon an employee for support.

From a reading of the various provisions of the Act touching the
question of dependency, it is apparent that dependents other than blood
relatives are entitled to compensation. The statute provides that certain
blood relatives of a deceased employee may be considered dependents,
and in addition thereto, the Act provides that persons who are members
of the family of the deceased may also be dependents. This, in our
opinion, clearly shows that the Legislature intended to give others than
those related by blood the right to claim compensation as dependents
by reason of their being members of the family of the deceased and
dependent upon him for support. Otherwise, the phrase “member of the

family” would be meaningless and wholly unnecessary.

In paragraph E of Section 8, subsection 2, of the Act, quoted
above, after stating that if there be neither widow, widower or certain

* La.Civ.Code art. 3506(12) defines family: ‘Family in a limited sense, signifies father,
mother, and children. In a more extensive sense, it comprehends all the individuals who live under
the authority of another, and includes the servants of the family.

16

blood relatives, provision is made for the payment of compensation to
other dependents than those enumerated, without designating who these
dependents may be. This clearly shows that the Legislature never
intended that “family” was to be given a restricted meaning.

The supreme court reiterated this broad interpretation in Thompson v. Vestal
Lumber & Manufacturing Co., 208 La. 83, 118, 22 So.2d 842, 853 (1944) (on
rehearing) (second alteration in original), in which the supreme court held that the
term “legal dependent”:

[Djoes not mean legitimate—as distinguishing legitimate from
illegitimate relations of the deceased employee. The term “legal
dependents” means dependents who are legally entitled to
compensation under the statute. The term is applicable to actually
dependent members of the family of the deceased, as well as to the
surviving relations who are conclusively presumed to have been
dependent upon his earnings for support. In the opening sentence, and
in the next following sentence, in this subsection of the statute, the term
“legal dependents” is used in a context which leaves no doubt that the
term “legal dependents” has reference to dependent members of the
family of the deceased employee, as well as to the surviving relations
who are conclusively presumed to have been dependent upon the
earnings of the deceased employee for support. This meaning of the
term “legal dependents” is emphasized in paragraph (D) of subsection
2, where it is declared: “In all other cases, the question of legal and
actual dependency in whole or in part, shall be determined in
accordance with the facts as they may be at the time of the accident and
death.” [The italics are ours.]

The supreme court relied on Archibald to find that the employee’s illegitimate
children were entitled to death benefits as dependent members of his family.

In Henderson, 354 So.2d 1031, the supreme court reversed a prior morality-
based finding® that refused to accord “other dependent” status to a concubine. In
reaching its decision, the supreme court stated:

In the present case, the court of appeal reluctantly followed

Humphreys, since it had not yet been overruled. However, the
intermediate court correctly noted that the Humphreys decision is

* In Humphreys v. Marquette Casualty Co., 235 La. 355, 377, 103 So.2d 895, 902 (1958),
the supreme court stated, “We feel that we can add little to [the appellate court’s] opinion, except
to say that it was never within the contemplation of the legislature to include under the provisions
of LSA-R.S. 23:1232, a dependent who had lived in open concubinage with the deceased during
his lifetime.”

17

inconsistent with Archibald and Thompson, cited above, and with the
intent of the compensation act as a whole.

In these latter decisions we held that the workmen’s
compensation act was designed to protect all dependent members of the
family household from the loss of support caused by a wage-earner’s
death through work-accident. The industry which caused the loss
should bear it, not the individual nor the taxpayer through welfare
benefits. “Undoubtedly, the Legislature intended to allow
compensation to those who were dependent upon an employee for
support.” Archibald, at 11 So.2d 493-94. See Thompson, at 22 So.2d
857.

As Professor Malone noted in his authoritative treatise, the denial
of compensation to the concubine because of mora! turpitude “is more
moralistic than it is sound. No other claimant need prove his moral
worthiness so long as he or she is dependent. It would seem that the
fault of the dependent concubine should no more exclude her from
compensation than should the fault of the employee himself. ... The
social need for compensation here is as great as though the dictates of
convention had been met. It does not seem fair that the employer or his
insurer should benefit by the windfall.” Malone, Louisiana Workmen’s
Compensation Law, Section 304, p. 399 (1951).

We are unable to find in the terms of the compensation act itself
any legislative intent to deny compensation benefits to any dependent
member of the decedent’s family household because of moral
unworthiness. Under the terms of the act, a// dependent members of
the family are entitled to compensation, subject only to the priority of
preferred claimants who exhaust the statutory maximum weekly
payments.

Further, we are unable to find any general legislative policy
indicating a desire to punish a concubine by depriving her of all benefits
or rights whatsoever because of her status. The status is not punishable
by criminal penalty, for instance. Historically, the civil penalty has
been, not to deprive the concubine of any right whatsoever to receive
donations or testamentary dispositions, but only to limit the amount
which may be donated. La.Civil Code art. 1481.

In Sizeler v. Sizeler, 170 La. 128, 127 So. 388, 389-90 (1930),
for instance, we pointed out that “In the absence of express legislation
on the subject, we have no judicial authority or power to draw a
distinction between the classes of beneficiaries named in life insurance
policies”, so as to deny recovery to a concubine. Similarly, here, in the
absence of indication that the legislature desired to exclude concubines
from the dependency benefits otherwise allowable under the terms of
the statute, we conclude that we erred in Humphreys in importing moral
unworthiness as a criterion for eligibility for compensation benefits,
and in thus excluding dependent concubines alone from the
compensation benefits to which a// dependent members of the deceased

18

wage earner’s family household are entitled by statute. We therefore
overrule Humphreys.

Id. at 1033-34 (footnotes omitted).
A question now arises whether the precedent set down in Henderson will

continue in light of La.R.S. 23:1253, as amended. Prior to 2012, La.R.S. 23:1253
had virtually remained unchanged since 1916,’ as follows:

If there is no one wholly dependent and more than one person
partially dependent, so much of the death benefit as each is entitled to
shall be divided among them according to the relative extent of their
dependency. No person shall be considered a dependent, unless he is a
member of the family of the deceased employee, or bearing to him the
relation of husband or widow, or lineal descendant or ascendant, or
brother or sister, or child.

As previously stated, La.R.S. 23:1253 (emphasis added) was amended in 2012, to
add the language at issue:
If there is no one wholly dependent and more than one person
partially dependent, so much of the death benefit as each is entitled to

shall be divided among them according to the relative extent of their

dependency. No person shall be considered a dependent, unless he is a

member of the family of the deceased employee, or bearing to him the

relation of husband or widow, or lineal descendant or ascendant, or
brother or sister, or child. Regardless of dependency, no payments

shall be made to the concubine of the deceased employee nor the

concubine’s children, unless those children are related to the

deceased employee by blood or adoption.

The Louisiana Civil Code sets out the following rules of statutory construction.
“When a law is clear and unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further interpretation may
be made in search of the intent of the legislature.” La.Civ.Code art. 9. “When the
language of the law is susceptible of different meanings, it must be interpreted as

having the meaning that best conforms to the purpose of the law.” La.Civ.Code art.

10. “The words of a law must be given their generally prevailing meaning.”

"The only change occurred in 1926, when the legislature changed “legally adopted child”
to “child.” 1926 La. Acts No. 85, § 1.

19

La.Civ.Code art. 11. “When the words of a law are ambiguous, their meaning must
be sought by examining the context in which they occur and the text of the law as a
whole.” La.Civ.Code art. 12. “Laws on the same subject matter must be interpreted
in reference to each other.” La.Civ.Code art. 13.

As stated, Irby Construction argues that a plain reading of the highlighted
language, while allowing Avery death benefits, denies death benefits to Ms. Perez,
because she was Mr. Chiokai’s concubine. Conversely, Ms. Perez asserts that
because she is Avery’s mother, she is entitled to death benefits upon proof of actual
dependency. In addition to the precedent set forth in Henderson, Ms. Perez bases
her argument on the rule of statutory construction concerning the rule of the last
antecedent.

The last antecedent rule was laid out in Sutherland’s treatise on statutory
construction, as follows:

Referential and qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent. The last
antecedent is “the last word, phrase, or clause that can be made an
antecedent without impairing the meaning of the sentence.” Thus a
proviso usually applies to the provision or clause immediately
preceding it. A qualifying phrase separated from antecedents by a
comma is evidence that the qualifier is supposed to apply to all the
antecedents instead of only to the immediately preceding one. As with
all the rules of interpretation, the last antecedent rule is merely another
aid to discover legislative intent or statutory meaning, and is not
inflexible and uniformly binding. In general, then, where the sense of
an entire act requires that a qualifying word or phrase apply to several
preceding or even succeeding sections, the qualifying word or phrase is
not restricted to its immediate antecedent.

NORMAN J. SINGER AND SHAMBIE SINGER, 2A SUTHERLAND STATUTES AND
STATUTORY CONSTRUCTION, § 47:33 (7th Ed. 2010 & Supp. 2018) (emphasis added)
(footnotes omitted).

In Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 380 (2003), the

Supreme Court stated that “[w]hile this rule is not an absolute and can assuredly be

overcome by other indicia of meaning, we have said that construing a statute in

20

accord with the [last antecedent] rule is “quite sensible as a matter of grammar.’
Nobelman v. American Savings Bank, 508 U.S. 324, 330, 113 S.Ct. 2106, 124
L.Ed.2d 228 (1993).”

Applying the last antecedent rule in this instance, the qualifying phrase
“unless those children are related to the deceased employee by blood or adoption” is
separated from the antecedents “to the concubine” and “the concubine’s children”
by acomma. Thus, according to Sutherland, the placement of the comma indicates
that the qualifying language should apply to both the concubine and the concubine’s
children. This interpretation would align the statute, in part, with the supreme
court’s holding in Henderson. However, La.R.S. 23:1253, as amended, would limit
the death benefits awarded to concubines to only those concubines whose children
were fathered or adopted by the decedent.

Because La.R.S. 23:1253 is susceptible of two constructions, we will review
its legislative history in order to determine whether the legislature intended the
statute to be construed broadly or narrowly. In State Farm Mutual Automobile
Insurance Co. v. U.S. Agencies, L.L.C., 05-728, 05-729, p. 5 (La.App. | Cir. 3/24/06),
934 So.2d 745, 748, writ denied, 06-933 (La. 6/16/06), 929 So.2d 1288), the first
circuit noted that “[c]ommentary at legislative committee meetings and journals of
the houses of the state legislature are helpful to courts in determining the purpose
and true legislative intent behind a law. A court may take notice of these records
and journals, where preserved, as they are a matter of public record.”

Effective August 1, 2012, the legislature enacted La.R.S. 23:1020.1,° which

laid out the purpose, legislative intent, and statutory construction principles

*La.R.S. 23:1021.1 was enacted by 2012 La. Acts No. 860, § 1.
2}

applicable to workers’ compensation matters from that time forward and reads, in

pertinent part:

B. Purpose. The legislature declares that the purpose of this
Chapter is all of the following:

(1) To provide for the timely payment of temporary
and permanent disability benefits to all injured workers
who suffer an injury or disease arising out of and in the
course and scope of their employment as is provided in
this Chapter.

(2) To pay the medical expenses that are due to all
injured workers pursuant to this Chapter.

(3) To return such workers who have received
benefits pursuant to this Chapter to the work force.

C. Legislative intent. The legislature finds all of the following:

(1) That the Louisiana Workers’ Compensation
Law is to be interpreted so as to assure the delivery of
benefits to an injured employee in accordance with this
Chapter.

(2) To facilitate injured workers[] return to
employment at a reasonable cost to the employer.

D. Construction. The Louisiana Workers’ Compensation Law
shall be construed as follows:

(1) The provisions of this Chapter are based on the
mutual renunciation of legal rights and defenses by
employers and employees alike; therefore, it is the specific
intent of the legislature that workers’ compensation cases
shall be decided on their merits.

(2) Disputes concerning the facts in workers’
compensation cases shall not be given a broad, liberal
construction in favor of either employees or employers;
the laws pertaining to workers’ compensation shall be
construed in accordance with the basic principles of
statutory construction and not in favor of either employer
or employee.

(3) According to Article III, Section 1 of the
Constitution of Louisiana, the legislative powers of the
state are vested solely in the legislature; therefore, when

22

the workers’ compensation statutes of this state are to be
amended, the legislature acknowledges its responsibility
to do so. If the workers’ compensation statutes are to be
liberalized, broadened, or narrowed, such actions shall be
the exclusive purview of the legislature.

Since none of goals outlined under the “Purpose” section of La.R.S. 23:1020.1 are
specifically applicable to the issue at hand, we find them of no help in interpreting
the meaning of La.R.S. 23:1253 that best conforms to the purpose of the law.
La.Civ.Code art. 10.

During the 2012 legislative session, companion bills were introduced into the
Louisiana Legislature seeking to amend La.R.S. 23:1231(B)(2), La.R.S. 23:1251(2),

and La.R.S. 23:1253. Senate Bill 520 sought to amend La.R.S. 23:1231(B)(2),
relative to the payment of death benefits to dependents and surviving parents:

However, if the employee leaves no legal dependents entitled to
benefits under any state or federal compensation system, one lump sum
of seventy-five thousand dollars shall be paid to the surviving
biological and_adopted children of the employee to be divided
equally among them, which shall constitute the sole and exclusive
compensation _in_ such cases. If the employee leaves no legal
dependents and _ no biological or adopted children under any state or
federal compensation system, the sum of seventy-five thousand dollars
shall be paid to each surviving parent of the deceased employee, in a
lump sum, which shall constitute the sole and exclusive compensation
in such cases.

House Bill 737 sought to amend La.R.S, 23:1231(B){2),"” as follows:

(2) Ifthe employee leaves no dependents, whether biological or
adopted, entitled to benefits under any state or federal compensation
system, one lump sum payment of seventy-five thousand dollars shall
be paid to the employee’s surviving biological and adopted children
who are over the age of majority, to be divided equally among them,
which shall constitute the sole and exclusive compensation in such
cases.

” Words underlined and in boldface type are the proposed additions to the existing law.

10 . os .
Words that are struck through are deletions to the existing law; words which are
underlined are additions to the existing law.

23

(3) Hewevertf the employee leaves netegal dependents

decedents! ''! entitled to benefits under any—state—er—federal
compensation system Paragraph (2) of this Subsection, the sum of
seventy-five thousand dollars shall be paid to each surviving parent of
the deceased employee, in a lump sum, which shall constitute the sole
and exclusive compensation in such cases.

Senate Bill 520 also proposed to amend La.R.S. 23:1251(2), relative to the
persons conclusively presumed to be dependent:

(2) A child under the age of eighteen years (or over eighteen
years of age, if physically or mentally incapacitated from earning) upon
the parent with whom he is living at the time of the injury, or until the
age of twenty-three if enrolled and attending as a full-time student in
any accredited educational institution. A _child_under the age of
eighteen years, or over eighteen years of age, (if physically or
mentally incapacitated from earning, with a valid child support
order from a court of competent jurisdiction against the deceased
parent, regardless of whether child support is actually being paid,
or until the age of twenty-three if enrolled as a full-time student in
any educational institution.

House Bill 737 sought the following amendment to La.R.S. 23:1251(2):

(2) A child under the age of eighteen years (or over eighteen
years of age, if physically or mentally incapacitated from earning) upon
the parent with whom he is living at the time of the injury of the parent,
or until the age of twenty-three if enrolled and attending as a full-time
student in any accredited educational institution. A child under the age
of eighteen years (or over eighteen years of age, if physically or
mentally incapacitated from earning) with a valid child support order
from_a court of competent jurisdiction against the deceased parent,
regardless of whether child support is actually being paid, or until the
age of twenty-three if enrolled and attending any accredited educational
institution as a full-time student.

Finally, Senate Bill 520 and House Bill 737 both sought to amend to La.R.S. 23:1253,

as follows:

If there is no one wholly dependent and more than one person
partially dependent, so much of the death benefit as each is entitled to
shall be divided among them according to the relative extent of their
dependency. No person shall be considered a dependent, unless he is a
member of the family of the deceased employee, or bearing to him the
relation of husband or widow, or lineal descendant or ascendant, or
brother or sister, or child. Regardless of dependency, no payments

shall be made to the concubine of the deceased employee nor the

i
The word “decedents” was later amended to “dependents”

24

concubine’s children, unless those children _are related to the
deceased employee by blood or adoption.

During a March 21, 2012 hearing before the Senate Committee on Labor and
Industrial Relations, Senator Sharon Weston Broome, Senate Bill 520’s sponsor,
stated that the purpose of the bill was to bring the workers’ compensation laws in
line with succession laws. She stated that the proposed amendment to La.R.S.
23:1251(B)(2) authorized a lump sum payment of $75,000.00 to an employee’s
majority descendants, in preference to his/her parents, regardless of dependency.
Senator Broome further explained that the conclusive presumption of dependency,
provided by La.R.S. 23:1251, was extended to the employee’s minor children if a
valid child support order was in effect against the employee, regardless of whether
it was being paid. The only mention of the proposed amendment to La.R.S. 23:1253
occurred when Senator Edwin Murray questioned Senator Broome about a proposed
amendment to the bill, which would have deleted the language pertaining to the
concubine and the children of the concubine. However, this amendment was
withdrawn without being formally voted on.

Representative Chris Broadwater discussed the intent of House Bill 737
before the House Committee on Labor and Industrial Relations on March 29, 2012.
His explanation mirrored Senator Broome’s explanation that the proposed
amendment to La.R.S. 23:1231(B) sought to bring the statute in line with succession
laws. Representative Broadwater further proffered an amendment to the bill, which
struck the proposed amendment of La.R.S. 23:1253 from House Bill 737. He
explained that it made no sense to exclude the children of a concubine from receiving
death benefits, despite the fact that they had been raised by the employee “from the

time they were a child.” Thus, he stated that the language did not make good sense

and could lead to absurd consequences. This amendment was adopted by the
committee.

During the Senate Committee on Labor and Industrial Relations’
consideration of House Bill 737 on April 19, 2012, Representative Broadwater
reiterated that the intent of his bill was to bring La.R.S. 23:1231 in line with
succession law so that major biological and adopted children of the employee would
receive the lump sum payment ahead of surviving parents and to extend the
presumption of dependency to the employee’s children if an existing child support
order was in effect. When questioned about the proposed amendment to La.R.S.
23:1253 contained in Senate Bill 520, Representative Broadwater stated that
although the proposed language had originally been included in his bill, it was
stricken for the following reasons:

[W]e struck that [language], and the reason we struck that, there was

concern that it may lead to some absurd consequences in some cases.

Under the original language of the bill, if you had a situation where .. .

the husband, as being the deceased employee, if he had raised children

as his own for their entire life, even though they were not his actual

children, they would be denied an opportunity for benefits the way we

currently had the bill drafted and that did not seem to be correct or

possibly good social policy and so we elected to strike that from my
version of the bill.

That’s correct, if [children not born of the marriage] could show actual
dependency, it would still make them eligible for the benefit.

During consideration of Senate Bill 520 before the House Committee on
Labor and Industrial Relations on April 19, 2012, Representative Broadwater, a
member of the committee, was asked, in the absence of Senator Broome, to explain
the reasoning behind House Bill 737’s proposed amendment to La.R.S. 23:1253. He
stated that he had originally included the language at issue in House Bill 737, for the

following reasons:

26

In the initial draft of the bill, there was concern that you could
have a situation where legitimate children of the deceased worker were
being denied death benefits going to them, but instead going to the
children of a concubine and so the initial draft of the bill sought to
address that. However, I think what we failed to contemplate is that
once you have the amendment to the current law as proposed in the bill,
that allows for a child support order, you now have remedied that
situation because you would now have several ways to show
entitlement to the death benefits. Number one, actual dependency,
which is a legitimate child who is actually or wholly or partially
dependent upon that deceased worker’s wages, or a legitimate child,
who could not prove actual or partial dependency, but who at least had
gone through the step of getting the child support enforcement order,
so now they would not be deprived even though they were a legitimate
child and should be entitled to a benefit. So once we add that, my
feeling was that that provision relating to children of a concubine
became no longer necessary and that’s why I elected to strike it from
my bill.

An amendment was then passed by the committee to delete the subject language
from Senate Bill 520, and the bill, as amended, was passed out of committee.
However, this amendment was rejected during a Senate floor vote on May 14, 2012,
despite the fact that the Senate Committee on Labor and Industrial Relations had
passed the companion bill, House Bill 737, out of committee without this language.

Senate Bill 520, enrolled as Act No. 793 on June 4, 2012, included the
language, “Regardless of dependency, no payments shall be made to the concubine
of the deceased employee nor the concubine’s children, unless those children are
related to the deceased employee by blood or adoption.” House Bill 737, enrolled
as Act No. 99 on May 2, 2012, contained no amendment to La.R.S. 23:1253. Both
acts became effective on August 1, 2012.

Based on the foregoing, we believe that the main focus of Senate Bill 520 and
House Bill 737 was to bring La.R.S. 23:1231’s payment of death benefits in line
with Louisiana’s succession laws and to extend La.R.S. 23:1251’s conclusive
presumption of dependency to minor children that the employee was supporting

through a child support order. We have no direct explanation from Senator Broome

27

for why she sought to amend La.R.S. 23:1253. All we have are Representative
Broadwater’s explanations for why he struck that same language from House Bill
737. Thus, we find Senate Bill 520’s legislative history of no help in determining
the legislature’s intent in amending La.R.S. 23:1253.

In Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products.,
Inc., 96-1716, 96-1727, p. 9 (La. 7/1/97), 696 So.2d 1373, 1378, the supreme court
stated:

Where a statute is ambiguous and susceptible of two constructions, the

courts will give that construction which best comports with the

principles of reason, justice, and convenience, for it is to be presumed

that the legislature intended such exceptions to its language as would
avoid its leading to injustice, oppression, or absurd consequences.

In Perdomo v. RKC, LLC, 17-112, p. 4 (La.App. 5 Cir. 11/29/17), 232 So.3d
90, 94 (citing Breaux v. Hoffpauir, 95-2933 (La. 5/21/96), 674 So.2d 234), the fifth
circuit stated that “[o]ne of the primary purposes of the Workers’ Compensation Act
is to provide protection to workers; and a policy behind the Act is to keep the injured
employee and his or her family from destitution.” /d. In Trahan v. Coca Cola
Bottling Co. United, Inc., 04-100, pp. 6-7 (La. 3/2/05), 894 So.2d 1096, 1102, the
supreme court stated, “In interpreting the Workers’ Compensation Act, courts must
be mindful of the basic history and policy of the compensation movement, which
includes the provision of social insurance to compensate victims of industrial
accidents.” With regard to death benefits, the supreme court stated that
“(ujndoubtedly, the Legislature intended to allow compensation to those who were
dependent upon an employee for support.” Archibald, 11 So.2d at 493-94.

Based on these considerations, we find that the construction of La.R.S.

23:1253 that best comports with the principles of reason, justice, and convenience

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and the policy behind the Workers’ Compensation Law,’ would be the one asserted
by Ms. Perez. As the mother of Mr. Chiokai’s child, and a person who, as a member
of his family, was wholly and actually dependent upon him at the time of his death,
it would be an injustice to deny Ms. Perez death benefits. Workers’ compensation
is a social policy that was designed to protect the injured worker and his family from
destitution. While the legislature may have a legitimate social rationale for denying
death benefits to a concubine and her children from another partner, that rationale
falls when the concubine is the mother of the employee’s child. Here, the parties
admit that Ms. Perez, the mother of his child, was wholly dependent upon Mr.
Chiokai at the time of his death. Thus, it would indeed be unreasonable to conclude
that she was not a member of his family, and to hold otherwise would surely lead to
an absurd consequence not countenanced by the legislature in its amendment of
La.R.S. 23:1253. Accordingly, we affirm the judgment of the WCJ finding that Ms.
Perez is entitled to receive death benefits as an “other dependent” of Mr. Chiokai.

Based on our finding affirming the award of death benefits to both Ms. Perez
and Avery, we need not address Irby Construction’s sixth assignment of error
relating to the WCJ’s grant of summary judgment in favor of Ms. Perez.
Assignments of Error Number Four and Number Five

In its fourth and fifth assignments of error, Irby Construction argues that the
WCJ erred in awarding $2,000.00 in penalties and $3,000.00 in attorney fees to both
Ms. Perez and Avery in connection with the non-payment of death benefits to both
parties. We agree.

Pursuant to La.R.S. 23:1201(F)(2), an employer’s failure to provide workers’

compensation benefits shall result in the assessment of penalties and attorney fees

" In LaR.S. 23:1020.1({A), the legislature stated that Chapter 10 of Title 23 (Labor and
Workers’ Compensation) was to be cited as the “Louisiana Workers’ Compensation Law.”

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against the employer unless “the claim is reasonably controverted or if such
nonpayment results from conditions over which the employer or insurer had no
control.” In Brown v. Texas-LA Cartage, Inc, 98-1063, pp. 8-9 (La. 12/1/98), 721
So.2d 885, 890 (footnote omitted), the term “reasonably controverted” was defined
by the supreme court:

The unambiguous language of La. R.S. 23:1201 clearly
establishes that penalties and attorney fees for failure to timely pay
benefits shall be assessed unless the claim is reasonably controverted
or such nonpayment results from conditions over which the employer
or insurer had no control. Unreasonably controverting a claim, which
is the exception at issue in this case, requires action of a less egregious
nature than that required for arbitrary and capricious behavior.
Arbitrary and capricious behavior consists of willful and unreasoning
action, without consideration and regard for facts and circumstances
presented, or of seemingly unfounded motivation. BLACK’S LAW
DICTIONARY 104, 211 (6" ed.1990). Stated another way, such behavior
arises from unrestrained exercise of the will or personal preference or
lacks a predictable pattern. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY UNABRIDGED 110, 333 (1966).

The phrase “reasonably controverted,’ on the other hand,
mandates a different standard. In general, one can surmise from the
plain meaning of the words making up the phrase “reasonably
controvert” that in order to reasonably controvert a claim, the defendant
must have some valid reason or evidence upon which to base his denial
of benefits. Thus, to determine whether the claimant’s right has been
reasonably controverted, thereby precluding the imposition of penalties
and attorney fees under La. R.S. 23:1201, a court must ascertain
whether the employer or his insurer engaged in a nonfrivolous legal
dispute or possessed factual and/or medical information to reasonably
counter the factual and medical information presented by the claimant
throughout the time he refused to pay all or part of the benefits allegedly
owed.

Furthermore, “An employer should not be liable for penalties or attorney fees for
taking a close factual or legal question to court for resolution.” Young v. City of
Gonzales, 14-1299, p. 9 (La.App. 1 Cir. 3/12/15), 166 So.3d 1070, 1077.

Because penalty and attorney fee awards are “imposed to deter indifference
and undesirable conduct by employers and their insurers toward workers|[,]” they are

penal in nature; thus, the provisions of La.R.S. 23:1201(F) must be strictly construed.

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Trahan, 894 So.2d at 1108. Whether such an award is warranted is a factual
determination, which will not be reversed on appeal absent manifest error. Bailey v.
Rent A Center, 18-677 (La.App. 5 Cir. 5/29/19), 274 So.3d 797. “[T]he mere fact
that an employer loses a disputed claim is not determinative.” /d. at 806.

In her oral reasons for judgment, the WCJ gave no reasons for awarding
penalties and attorney fees to Ms. Perez and Avery, other than to state “that the
defendant was arbitrary and capricious in [the] handling of this case[.]” However,
we find that the WCJ was manifestly erroneous in awarding penalties and attorney
fees due to the close legal questions presented in this matter. As stated, the issue of
whether a concubine is entitled to death benefits is a question of first impression
under La.R.S. 23:1253, as amended. Moreover, no case has ever addressed whether
a posthumously born illegitimate child was entitled to death benefits from the date
of the deceased employee’s death, as opposed to the child’s date of birth. The only
reported case touching on this issue was Eason, 47 So.2d 114. However, because
that matter dealt with a posthumously born child of a putative marriage, the holding
in that case was not directly on point. Accordingly, we find that Irby Construction
engaged in a non-frivolous legal dispute by bringing these two close and thought-
provoking legal issues to court for resolution. Thus, the judgment of WCJ awarding
Ms. Perez and Avery penalties and attorney fees is reversed.

DISPOSITION

For the forgoing reasons, the judgment of the workers’ compensation judge
awarding death benefits to Avery J. Chiokai, from the date of Travis Chiokai’s death,
and back-due and future death benefits to Latashia V. Perez is affirmed; however,
the judgment awarding Latashia V. Perez and Avery J. Chiokai, each, $2,000.00 in
penalties and $3,000.00 in attorney fees is reversed. The costs of this appeal are

assessed equally between the parties.

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AFFIRMED IN PART AND REVERSED IN PART.

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