Bykiia Ceaser v. Lake Charles Care Center

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-572

BYKIIA CEASER

VERSUS

LAKE CHARLES CARE CENTER

**********

ON APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 19-01058
JONATHAN W. BROWN, WORKERS’ COMPENSATION JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of D. Kent Savoie, Jonathan W. Perry, and Wilbur L. Stiles, Judges.

AFFIRMED AS AMENDED.

Corey M. Meaux
Parker & Landry, LLC
4023 Ambassador Caffery Pkwy., Ste. 320
Lafayette, Louisiana 70503
(337) 362-1603
COUNSEL FOR EMPLOYER/APPELLANT:
Lake Charles Care Center

Tina L. Wilson
Cox, Cox, Filo, Camel & Wilson, LLC
723 Broad Street
Lake Charles, Louisiana 70601
(337) 436-6611
COUNSEL FOR CLAIMANT/APPELLEE:
Bykiia Ceaser

PERRY, Judge.

In this workers’ compensation case, the employer, Lake Charles Care Center

(“LCCC”), appeals the workers’ compensation judgment awarding the claimant,

Bykiia Ceaser (“Ms. Ceaser”) medical expenses, indemnity benefits, a penalty, and

attorney fees. For the following reasons, the judgment of the Office of Workers’

Compensation is affirmed as amended.

FACTS AND PROCEDURAL HISTORY

Ms. Ceaser was employed as a licensed practical nurse with LCCC when she

was involved in a rear-end collision on January 23, 2019, while in the course and

scope of her employment. She allegedly injured her neck and back as a result of the

accident.

On February 13, 2019, Ms. Ceaser filed a Form 1008 Disputed Claim for

Compensation with the Office of Workers’ Compensation. Therein, Ms. Ceaser

sought indemnity and medical benefits, penalties, and attorney fees for LCCC’s

denial of her workers’ compensation claim.

In its March 2019 Answer, LCCC denied Ms. Ceaser’s entitlement to

workers’ compensation benefits, disputed her disability, and denied liability for

penalties and attorney fees for its handling of Ms. Ceaser’s claim. In an Amended

Answer filed in August 2019, LCCC admitted Ms. Ceaser was within the course and

scope of her employment when the accident herein occurred. LCCC also alleged

Ms. Ceaser committed fraud under La.R.S. 23:1208.1 by failing to disclose her

pre-employment history of treatment for a back injury.

Trial was held on October 11, 2021. After taking the matter under advisement,

the workers’ compensation judge (“WCJ”): (1) found Ms. Ceaser’s injuries were

compensable injuries related to the accident at issue herein; (2) ordered LCCC to

authorize Ms. Ceaser’s medical treatment, pay any outstanding medical expenses,

and reimburse Ms. Ceaser for any out-of-pocket accident-related medical expenses;

(3) ordered LCCC to pay Ms. Ceaser “indemnity benefits along with back due

indemnity benefits from February 7, 2019 to present at the maximum compensation

rate (which includes her part-time employment with Grand Cove Nursing Home)[;]”

(4) awarded a $2,000.00 penalty for LCCC’s failure to pay indemnity benefits;

(5) awarded Ms. Ceaser an attorney fee of $4,500.00; and (6) denied Ms. Ceaser’s

claim for penalties and attorney fees for LCCC’s failure to pay medical benefits.1

Soon after rendering judgment, the WCJ issued written reasons explaining its

ruling.2 On the issue of indemnity benefits, the WCJ noted “it is undisputed

Ms. Ceaser was employed as a Licensed Practical Nurse (LPN) with LCCC as a

full-time employee.” It also quoted La.R.S. 23:1021(13)(a)(iv) and referred to this

court’s decision in Leger v. Calcasieu Parish School Bd., 09-1261 (La.App. 3

Cir. 4/7/10), 34 So.3d 1042, writ denied, 10-1005 (La. 6/25/10), 38 So.3d 348, in

support of its ruling that Ms. Ceaser is entitled to have the wages from her part-time

employment included in the calculation of her workers’ compensation benefits. The

WCJ concluded:

a ruling that excludes the part-time wages of a [sic] Ms. Ceaser would
put an additional financial burden on her as a result of the current
accident. As such, LCCC shall pay any indemnity benefits, including
the wages from Ms. Ceaser’s employment at Grand Cove Nursing
Home in the calculation, up to the maximum benefit allowed.

Following a motion for new trial filed by LCCC,3 the WCJ issued an amended

judgment on June 9, 2022. Therein, the WCJ’s calculation of indemnity benefits

owed to Ms. Ceaser was explained as follows:

1
The judgment was signed March 2, 2022.
2
The WCJ’s written reasons were dated March 7, 2022.
3
LCCC asked for clarification on the calculation of Ms. Ceaser’s indemnity award since
neither the judgment nor the WCJ’s written reasons specified an actual amount. LCCC’s motion
also noted the judgment’s failure to mention the denial of its fraud claim against Ms. Ceaser.

2

Ms. Ceaser earned $18.60 per hour at LCCC for an average weekly
wage of $744.00. Additionally, at Grand Cove, Ms. Ceaser worked for
an average weekly wage of $608.00 ($19/hr x 32 hrs weekly). This
exceeds the statutory maximum and as a result, LCCC shall commence
payment of indemnity benefits along with back due indemnity benefits
from February 7, 2019 to present at the maximum compensation rate of
$665.00 weekly.

Also, LCCC’s claim against Ms. Ceaser for fraud pursuant to La.R.S. 23:1208.1 was

denied.4

APPELLANT’S ASSIGNMENTS OF ERROR

LCCC filed a suspensive appeal contending the WCJ: (1) committed manifest

error in concluding Ms. Ceaser’s current complaints are causally related to the

accident at issue herein; (2) committed legal error by improperly calculating

Ms. Ceaser’s average weekly wage (“AWW”); and (3) committed manifest error in

awarding penalties and attorney fees.

APPELLANT’S ARGUMENTS

LCCC contends the accident at issue herein did not cause Ms. Ceaser’s

injuries. It alleges Ms. Ceaser’s injuries are attributable to either her prior workers’

compensation claim or her preexisting medical conditions, such as fibromyalgia and

diabetes.

LCCC asserts Ms. Ceaser failed to prove actual wages or hours worked at

Grand Cove Nursing Home (“Grand Cove”) at the time of her accident. It argues

the WCJ legally erred in accepting Ms. Ceaser’s self-serving testimony, with no

other corroborating documentation, at trial to establish her AWW. Alternatively,

LCCC asserts the WCJ legally erred by including part-time wages in calculating

Ms. Ceaser’s AWW. It argues the correct calculation of Ms. Ceaser’s AWW, based

4
LCCC has not assigned as error or argued in brief that the WCJ erred in denying its claim
Ms. Ceaser committed fraud by failing to disclose her pre-employment history of treatment for a
back injury.

3

on forty hours earning $18.60, is $744.00 with a corresponding compensation rate

of $496.00 per week. 5

Lastly, LCCC argues the WCJ erred in awarding Ms. Ceaser a penalty and

attorney fees for its failure to pay indemnity benefits. It alleges the basis of its denial

was its reliance upon conflicting medical opinions on whether Ms. Ceaser’s

complaints were causally related to the accident at issue herein versus preexisting

medical issues. Thus, LCCC argues the WCJ erred in finding it was arbitrary and

capricious in its denial thereof.

APPELLEE’S POSITION

Ms. Ceaser contends the WCJ’s determinations concerning causation as well

as whether the refusal to pay workers’ compensation benefits warrants the

imposition of penalties and attorney fees are factual determinations which are

subject to review for manifest, or clear, error. She asserts the record in this matter

shows the WCJ’s factual determinations were reasonable and, thus, not clearly

wrong, or manifestly erroneous.

Ms. Ceaser asserts the WCJ’s acceptance of her testimony as credible proof

of wages earned as a part-time employee at Grand Cove is, likewise, a factual

determination subject to manifest error review. She argues LCCC offered no

countervailing evidence to dispute her testimony; thus, the WCJ’s reliance and

acceptance of her testimony cannot be clearly wrong or manifestly erroneous.

Ms. Ceaser further argues the WCJ correctly used wages from both the job of

injury and her part-time job at Grand Cove in calculating her AWW and

corresponding indemnity rate. She contends this court’s holding in Leger, 34 So.3d

1042, supports the WCJ’s decision.

5
An injured employee’s workers’ compensation benefit rate is determined by calculating
sixty-six and two-thirds percent of that employee’s wages, subject to a maximum and minimum
rate set by law. See La.R.S. 23:1221 and La.R.S. 23:1202.

4

STANDARD OF REVIEW

Appellate courts review factual determinations in workers’ compensation

cases using the manifest error or clearly wrong standard of review. Banks v. Indus.

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

applying the manifest error–clearly wrong standard, the appellate court must

determine not whether the trier of fact was right or wrong, but whether the fact

finder’s conclusion was a reasonable one. Id.

Nevertheless, “when legal error interdicts the fact-finding process in a
workers’ compensation case, the manifest error or clearly wrong
standard of review no longer applies and de novo review of the matter
is required.” Gaines v. Home Care Solutions, LLC, 15-895, p. 9
(La.App. 4 Cir. 4/6/16), 192 So.3d 794, 801 (citing Marti v. City of New
Orleans, 12-1514 (La.App. 4 Cir. 4/10/13), 115 So.3d 541), writ
denied, 16-847 (La. 6/17/16), 192 So.3d 765. “‘Likewise,
interpretation of statutes pertaining to workers’ compensation is a
question of law and warrants de novo review to determine if the ruling
was legally correct.’” Id. (quoting Tulane Univ. Hosp. & Clinic
v. Lockheed Martin Corp., 11-179, p. 3 (La.App. 4 Cir. 6/29/11), 70
So.3d 988, 990).

Johnson v. Office of Tourism, 19-853, p. 5 (La.App. 3 Cir. 5/6/20), 297 So.3d 1070,

1073-74.

LAW AND DISCUSSION

Causation

In a workers’ compensation action, the employee has the burden of

establishing a work accident caused injury by a preponderance of the evidence.

Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). In Montou v. Boise Cascade

Co., 14-1248, p. 5 (La.App. 3 Cir. 4/1/15), 160 So.3d 637, 642, writ denied, 15-870

(La. 6/5/15), 171 So.3d 952, this court stated, “The employee must show that the

accident ‘directly produc[ed] at the time objective findings of an injury which is

more than simply a gradual deterioration or progressive degeneration.’

La.R.S. 23:1021(1).” In addition, “an employer takes his employee as he finds him,

5

a preexisting condition does not prevent recovery through workers’ compensation.”

Tate v. Cabot Corp., 01-1652, p. 5 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ

denied, 02-2150 (La. 11/22/02), 829 So.2d 1044.

At trial, Ms. Ceaser acknowledged having preexisting injuries from a prior

work accident with a different employer in 2016 and being treated by Dr. Patrick

Juneau. At the time, Dr. Juneau ordered MRIs of the cervical and lumbar spine,

noting a disc protrusion at C5-6 and C6-7. Ms. Ceaser had cervical steroid injections

with no relief. Dr. Juneau recommended an anterior cervical discectomy and fusion

at C5-6 and C6-7. Ms. Ceaser, however, did not undergo the cervical surgery. She

further testified that she had not sought any medical treatment for over a year for her

previous work accident, which occurred in 2016.

On the evening of her motor vehicle accident on January 23, 2019, Ms. Ceaser

sought treatment at the emergency room at Lake Area Medical Center for spasms in

her lower back, numbness in her legs, and tightness in her neck. She next sought

treatment on February 4, 2019, with Dr. Paul E. Fenn, Jr., for neck and lower back

pain.

Dr. Fenn, whose deposition and medical records were entered into evidence

at trial, noted his first examination revealed Ms. Ceaser had neck pain with stiffness

and inflammation, left worse than right, and low back pain with generalized

radiculopathy down both lower extremities. Dr. Fenn initially limited Ms. Ceaser to

light duty work, and on February 7, 2019, he restricted Ms. Ceaser from all work

activities. Dr. Fenn continued to treat Ms. Ceaser until July 2019, after which her

care was transferred to Dr. Juneau.

Dr. Juneau testified that he first treated Ms. Ceaser for complaints of neck and

back pain in July 2017. He eventually recommended anterior cervical discectomy

with instrumented fusion at C5-6 and C6-7 on October 17, 2017.

6

Following Ms. Ceaser’s accident in January 2019, Dr. Juneau noted

Ms. Ceaser presented with symptoms of bilateral cervical radiculomyelopathy,

which he testified were not present when he last saw her on November 16, 2017.

Dr. Juneau also noted the prior disc protrusion at the C5-6 level appeared larger on

the post-accident MRI as compared to the pre-accident MRI. Because of

Ms. Ceaser’s symptoms, Dr. Juneau recommended cervical discectomy and fusion

at C5-6 and C6-7. Dr. Juneau acknowledged he never withdrew his prior surgery

recommendation, made in 2017; however, he testified Ms. Ceaser’s preexisting

condition was such that it was more susceptible of re-injury and created a greater

level of disability with a subsequent accident.

In addition to the depositions and medical records of Drs. Juneau and Fenn,

the parties jointly offered into evidence at trial the deposition of Ms. Ceaser’s

OB/GYN, Dr. Scott Bergstedt; the second medical opinion report of Dr. John

R. Budden; the report of independent medical examiner, Dr. David Drez; and

medical records of Dr. Clark Gunderson, who Ms. Ceaser saw for an independent

medical examination associated with her prior workers’ compensation claim.6

Dr. Bergstedt saw Ms. Ceaser on January 14, 2019, approximately one week

prior to the accident at issue herein. Ms. Ceaser reported back pain at this

appointment; however, the treatment of Dr. Bergstedt focused solely on her

gynecological care.

Dr. Budden examined Ms. Ceaser for a second medical opinion on September

18, 2019. It was his opinion that Ms. Ceaser’s symptoms from the accident were

most likely a cervical and lumbar strain, which should have been resolved.

Dr. Budden attributed Ms. Ceaser’s symptoms to fibromyalgia.

6
Dr. Gunderson admitted Ms. Ceaser had disc protrusions at C5-6 and C6-7 prior to the
January 23, 2019 accident, but he related her complaints to fibromyalgia.

7

We are mindful that when the WCJ is presented multiple opinions from

medical professionals, the “decision to credit one physician’s testimony over

another’s is a credibility determination which, in the absence of manifest error or

clear wrongness, cannot be reversed on appeal.” Rochon v. Iberia Parish Sch. Bd.,

95-1370, p. 7 (La.App. 3 Cir. 3/27/96), 673 So.2d 239, 244 (rehearing granted for

other reasons).

The WCJ’s written reasons for ruling reveal his analysis of the evidence

relevant to causation. He wrote, in part:

The defendants contend the injuries are attributable to Ms. Ceaser’s
prior workers’ compensation claim and injuries. As evidence of this,
they present the prior recommendation of surgery by Dr. Juneau.
Ms. Ceaser decided against this recommended surgery and testifies that
she was afraid to have the surgery. The defendants also rely on
Dr. Juneau’s testimony that the injuries complained of would not have
healed on its own. The contention is that no matter what came after the
denial of the surgery, the injury would always remain. Defendants go
further in asserting that awarding Ms. Ceaser medical treatment for the
same recommended surgery, would give her a “second bite at the
apple,” since she has already settled her previous claim (and
presumptively the settlement took the recommended surgery into
account).

While these concerns are warranted and justified, the Court was
particularly persuaded by the testimony of Ms. Ceaser and Dr. Juneau
in which the prior injury and symptoms were explained. First,
Ms. Ceaser testified she had not sought any medical treatment for over
a year for the previous work accident. This testimony is corroborated
by the medical records and Dr. Juneau’s testimony that the injury had
become “stable”, and the current motor vehicle accident caused a
“destabilization[”]. This could, and had resulted in the new pain that
caused Ms. Ceaser’s behavior to change. This had also led to
Ms. Ceaser seeking new treatment for the pain.

The defendants also rely on the testimony of Dr. Budden. He
opines the current complaints are the result of Ms. Ceaser’s
fibromyalgia and diabetes. He believes these diseases would cause the
same complaints and would get worse as they progress over time. In
reviewing the medical records, he also believes the records do not
indicate an injury as a result of a motor vehicle accident.

The Court is again persuaded by Dr. Juneau’s testimony.
Specifically, he explains Ms. Ceaser’s diseases could “amplify” the
symptoms she feels when compared to the average patient. It should

8

also be noted that although he does not find causality, Dr. Budden states
there was no exaggeration of complaints by Ms. Ceaser. After her
testimony, the Court finds the same. Ms. Ceaser was exceptionally
forthcoming with her testimony about her disorders, and current
conditions. She testified that her prior workers’ compensation claim
was handled succinctly and when she felt healthy enough, she had
returned to work -- at two jobs. This behavior is an example of the type
of conduct the Workers’ Compensation Act encourages. It corroborates
what the Court gleaned from Ms. Ceaser’s testimony and solidifies her
credibility. Ms. Ceaser testified, that prior to the January 23, 2019
accident, she was able to work without any physical limitations. She
continued that although her pain from the prior existing injuries never
fully went away, she had learned to deal with it. The same was said
about her diabetes and fibromyalgia. She explained how she dealt with
“flare-ups”, and how she made adjustments to her diet and lifestyle to
manage the difficulties. Additionally, Ms. Ceaser portrayed what her
life was like prior to the January 2019 accident and the physical
limitations she encountered after the accident.

This testimony, along with the testimony of the doctors, and a
review of the medical records evidence the fact that at the very least the
accident herein aggravated Ms. Ceaser’s prior back injuries. For these
reasons, the Court believes the claimant has proven by a preponderance
of the evidence that the injuries complained of herein are causally
related to the motor vehicle accident which occurred in the course and
scope of Ms. Ceaser’s employment on January 23, 2019. As a result,
the claim is compensable.

Our review of the record supports this determination, and we find no manifest

error in the WCJ’s decision to give more weight to Dr. Juneau’s opinion or in the

ultimate determination that the accident at issue herein caused Ms. Ceaser’s injuries.

Finding the factual determinations to be reasonable in light of the record reviewed

in its entirety, we cannot say the WCJ was clearly wrong in finding the accident at

issue herein caused Ms. Ceaser’s injuries.

Average Weekly Wage

Louisiana Revised Statutes 23:1021 provides, in part:

(13) “Wages” means average weekly wage at the time of 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

9

wage rate multiplied by the average actual hours worked
in the full four weeks preceding the date of the accident or
forty hours, whichever is greater; or

....

(iv) A part-time employee, as defined in R.S. 23:1021(9)[7]
and who is employed by two or more different employers
in two or more successive employments, shall be entitled
to receive benefits as follows:

(aa) If an employee is employed by two or
more different employers in two or more
successive employments and the employee
incurs a compensable injury under the
provisions of this Chapter in one of the
employments, the employer in whose service
the employee was injured shall pay the
benefits due the employee as provided in this
Chapter.

(bb) If the employee is a part-time employee
in one of the successive employments, is
injured in that employment, but as a result of
the injury also incurs loss of income from
other successive employments, that
employee shall be entitled to benefits
computed by determining wages under the
provisions of this Subsection using his hourly
rate in employment at the time of injury and
using the total hours worked for all
employers of the part-time employee, but not
to exceed his average, actual weekly hours
worked or forty hours weekly, whichever is
less.

It is undisputed that LCCC employed Ms. Ceaser full-time at a pay rate of

$18.60 per hour. At trial, Ms. Ceaser testified that in addition to being employed

full-time at LCCC, she was also employed part-time at Grand Cove, working

weekend double shifts, equaling approximately thirty-two hours, earning $19.25 per

7
The definition of “part-time employee” is provided by La.R.S. 23:1021(11), not
La.R.S. 23:1021(9). Furthermore, a “part-time employee” is defined as “an employee who as a
condition of his hiring knowingly accepts employment that (a) customarily provides for less than
forty hours per work week, and (b) that is classified by the employer as a part-time position.”
La.R.S. 23:1021(11).

10

hour. Consequently, the WCJ included wages from both LCCC and Grand Cove in

the calculation of Ms. Ceaser’s workers’ compensation indemnity award.8 LCCC

presents a twofold objection to the WCJ’s calculation of Ms. Ceaser’s AWW.

Firstly, LCCC argues the WCJ’s calculation of Ms. Ceaser’s AWW

improperly included unproven income from Grand Cove. LCCC submits there is no

evidence in the record that she actually worked at Grand Cove at the time of the

accident at issue herein. LCCC points to discovery responses submitted into

evidence at trial wherein Ms. Ceaser listed Grand Cove as a previous employer but

stated she left Grand Cove because she “wanted to do something different.”

LCCC contends that this court’s decision in Burns v. St. Frances Cabrini

Hosp., 02-518 (La.App. 3 Cir. 10/30/02), 830 So.2d 572, indicates that testimony

and corroborating evidence should have been introduced at trial to establish

Ms. Ceaser’s AWW in accordance with La.R.S. 23:1317(A), which provides, in

pertinent part:

[A]ll findings of fact must be based upon competent evidence and all
compensation payments provided for in this Chapter shall mean and be
defined to be for only such injuries as are proven by competent
evidence, or for which there are or have been objective conditions or
symptoms proven, not within the physical or mental control of the
injured employee himself.

LCCC relies upon the following expression by this court in Burns, 830 So.2d at 574,

to support its argument that testimony and corroborating evidence should have been

introduced to establish Ms. Ceaser’s AWW at trial:

To establish his AWW, Mr. Burns testified and introduced
documents prepared by and provided to him by Cabrini, including
check stubs, his 1999 Employee Performance Review, a 1995
memorandum to employees regarding paid time off and extended sick
leave, and a 1998 memorandum regarding payment for unused sick
leave. Cabrini did not object to the introduction of the documents and
does not dispute the contents of the documents. We have reviewed

8
Despite Ms. Ceaser’s testimony, the WCJ’s judgment noted her part-time pay rate at
Grand Cove as $19.00 per hour.

11

Mr. Burns’ testimony and the documents introduced by him and find
the evidence competent and sufficient to substantiate the findings of the
WCJ as required by La.R.S. 23:1317(A).

Ms. Ceaser refutes LCCC’s reliance upon Burns, 830 So.2d 572, as supportive

of its argument that Ms. Ceaser’s testimony regarding her wages must be

accompanied by corroborating documentary evidence. She argues there was no such

requirement pronounced by this court in Burns, 830 So.2d 572, where the claimant

testified and introduced documents, including check stubs, regarding his wages.

Though the trial court reviewed and relied upon this evidence, Ms. Ceaser asserts

there was no statement by this court that both were necessary to prove the claimant’s

wages. Thus, Ms. Ceaser asserts LCCC’s reliance upon Burns, 830 So.2d 572, is

misplaced.

Secondly, and only alternatively should we accept Ms. Ceaser’s testimony as

sufficient proof of her employment with and wages from Grand Cove, LCCC

contends the WCJ legally erred when it calculated Ms. Ceaser’s AWW. It argues

the calculation of Ms. Ceaser’s AWW excludes her part-time wages.

Ms. Ceaser contends the WCJ correctly concluded that the AWW calculation

should include her part-time wages. She argues this court’s holding in Leger, 34

So.3d 1042, clearly supports the WCJ’s decision.

In Leger, 34 So.3d 1042, the claimant was a school bus driver injured in a

head-on collision who also had a job at a fast food restaurant. The school board paid

the claimant workers’ compensation benefits based on her AWW derived from her

income as a school bus driver—annual salary, supplemental payments, pay for field

trips, et cetera—received during the fifty-two weeks prior to the accident. These

totals were added and then divided by fifty-two to determine the claimant’s average

weekly salary and her resulting compensation rate. The claimant, however, believed

her part-time wages should have been included in the calculation that determined

12

her workers’ compensation award. The parties’ arguments focused on

La.R.S. 23:1021(13)(a)(iv)(bb)9 and its meaning of the phrase “that employment.”

Id. at 1045. The employer argued the phrase should be interpreted as referring to

part-time employment only, while the claimant argued it referred to any of the

successive employments. This court affirmed the trial court’s finding that an

ambiguity existed in La.R.S. 23:1021(13)(a)(iv)(bb), thereby allowing a liberal

interpretation which favored the claimant and resulted in her part-time wages being

included in the calculation of her AWW and corresponding indemnity rate.

We, however, find Guillory v. Interstate Hotels & Resorts, 05-650 (La.App. 3

Cir. 12/30/05), 918 So.2d 550, more analogous to the present matter. Therein, the

claimant had both a full-time job and a part-time job. He was injured while in the

course and scope of his full-time job, and his disability made him unable to work at

either job. The claimant was paid indemnity benefits based on his income at his

full-time job—hourly rate multiplied by forty hours. The claimant, however,

believed his part-time wages should have been included in the calculation that

determined his workers’ compensation award. The trial court disagreed; thus, the

question posed on appeal was “whether the calculation of the average weekly wage

of the claimant, who was injured in the course and scope of his full-time

employment, should include wages received from his part-time employer.” Id. This

court affirmed the trial court’s exclusion of the claimant’s part-time wages in the

calculation of his AWW and corresponding indemnity rate.

In rejecting the claimant’s contention in Guillory, 918 So.2d at 551-52

(emphasis added), this court explained:

9
Louisiana Revised Statutes 23:1021(12) was revised by 2013 La. Acts No. 337, § 1, such
that it was renumbered as La.R.S. 23:1021(13). When Leger, 34 So.2d 1042, was decided,
La.R.S. 23:1021(13)(a)(iv)(bb) appeared as La.R.S. 23:1021(12)(a)(iv)(bb).

13

This court addressed a similar circumstance in Lott v. Louisiana
Power & Light Co., 377 So.2d 1277, 1280-81 (La.App. 3 Cir. 1979),
[writ denied, 381 So.2d 1232 (La. 1980),] stating:

LSA-R.S. 23:1031 evidences the intent of the
legislature to make an employer’s workmen’s
compensation liability to an injured employee depend only
upon the wages which that employer pays to the employee
and not upon the total income of the employee.

....

It is evident, therefore, that the only time wages
from other employers are included in computing the
employer’s workmen’s compensation liability is when the
employers are joint employers of the same employee.
That is not the case here. . . .

Able counsel for plaintiff has additionally referred
us to the recent case of Jones v. Orleans Parish School
Bd.[, 370 So.2d 677 (La.App. 4th Cir. 1979)], supra. In
that case, our learned brethren of the Fourth Circuit appear
to hold that in calculating the earning differential of an
employee for purposes of fixing the extent of recovery for
partial disability under LSA-R.S. 23:1221(3), one must
use the sum of the salaries earned by such partially
disabled employee from all employment at time of injury.
Although the court in Jones was concerned with the
calculation of benefits due under a different section of the
Workmen’s Compensation Act, we acknowledge that the
holding in Jones does lend support to the position which
plaintiff advocates. We respectfully disagree with the
holding in Jones, supra, and decline to follow same. In
our view Louisiana’s workmen’s compensation law
clearly and explicitly limits the employer’s liability for
workmen’s compensation benefits to a statutorily fixed
percentage of the “average weekly wage” paid by the
responsible employer to the employee (subject to
minimum and maximum benefits). In our opinion,
although our law, as presently constituted, may in certain
isolated cases, such as the instant case, not fully provide
for loss of earning capacity, to fix an employer’s liability
for payment of benefits on all income of the employee,
regardless of the source, would be patently unfair to the
employer responsible for the payment of benefits.

Guillory argues that the legislature’s 1991 amendment of
La.R.S. 23:1021(12) makes Lott no longer relevant. . . .

....

14

The amendment clearly carves out an exception to Lott by allowing a
part-time employee injured at his part-time employment to cumulate
wages from another unrelated part-time or full-time employer.
However, the statute specifically limits the number of hours to be
used in the calculation to forty. That limitation squarely addresses
the issue before us. Guillory was injured at his full-time job and,
therefore, any cumulation with an unrelated employer would take him
beyond the forty-hour limit.

In this case, we find the WCJ legally erred in awarding Ms. Ceaser indemnity

benefits at the rate of $665.00 weekly. Under La.R.S. 23:1021(13)(a), Ms. Ceaser

is limited to no more than forty hours. See Guillory, 918 So.2d 550. In view of it

being undisputed that LCCC employed Ms. Ceaser full-time at a pay rate of $18.60

per hour, the amended judgment of the WCJ issued on June 9, 2022, shall be

amended to reflect:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED;
Ms. Ceaser earned $18.60 per hour at LCCC for an average weekly
wage of $744.00. LCCC shall commence payment of indemnity
benefits along with back due indemnity benefits from February 7, 2019,
to present at the maximum compensation rate of $496.00 weekly.

Consequently, having found merit in LCCC’s argument concerning the WCJ’s

calculation of Ms. Ceaser’s AWW, we need not consider LCCC’s argument relative

to whether Ms. Ceaser proved actual wages or hours worked at Grand Cove.

Penalties and Attorney Fees

The remaining assignment of error presents the issue of whether a penalty and

attorney fees should have been awarded to Ms. Ceaser for LCCC’s failure to pay

indemnity benefits. The WCJ awarded a single $2,000.00 penalty and attorney fees

in the amount of $4,500.00.

In brief, LCCC’s arguments primarily concern whether its denial of

Ms. Ceaser’s claim for indemnity benefits should have been viewed as being

arbitrary and capricious by the WCJ. A review of the judgment herein reveals the

WCJ found LCCC was “arbitrary and capricious in its denial of indemnity benefits.”

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The record reveals Ms. Ceaser has never received any indemnity payments.

In view of this fact, we find the claim before us concerns a “failure to provide

payment” under La.R.S. 23:1201(F), which necessarily encompasses the

“reasonably controverted” standard of La.R.S. 23:1201(F)(2). The WCJ’s

assessment of a penalty and attorney fees were, however, based on his use of the

“arbitrary, capricious, or without probable cause” standard of La.R.S. 23:1201(I),

which is used when an employer “discontinues payment of claims[.]” Therefore, we

find the WCJ applied the wrong legal standard in this case.

Under La.R.S. 23:1201(F)(2):

[F]ailure to provide payment in accordance with this Section . . . shall
result in the assessment of a penalty . . . together with reasonable
attorney fees for each disputed claim . . . . Penalties shall be assessed
in the following manner:

....

(2) This Subsection shall not apply if the claim is
reasonably controverted or if such nonpayment results
from conditions over which the employer or insurer had
no control.

In Gradney v. La. Comm. Laundry, 09-1465, p. 6 (La.App. 3 Cir. 5/12/10), 38

So.3d 1115, 1120, this court noted:

Penalties and attorney fees are awarded when an employer or his
insurer fails to timely pay benefits owed to an employee, unless the
claim for benefits has been reasonably controverted or the nonpayment
was a result of conditions over which the employer or his insurer had
no control. La.R.S. 23:1201(F); Brown v. Texas-LA Cartage, Inc., 98-
1063 (La.12/1/98), 721 So.2d 885.

An employee’s right to benefits will be considered to be
reasonably controverted when the employer or his insurer had
“sufficient factual information to reasonably counter the factual
information presented by the claimant.” Thibodeaux v. L.S. Womack,
Inc., 94-1375, p. 2 (La.App. 3 Cir. 4/5/95), 653 So.2d 123, 125.

LCCC alleges it denied Ms. Ceaser’s indemnity claim because divergent

medical opinions made it doubt the accident herein caused Ms. Ceaser’s present

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medical complaints. Pointing to the medical records relevant to the issue of

causation, LCCC argues its reliance on the opinions of Drs. Bergstedt, Drez,

Budden, and Gunderson made its denial of indemnity benefits reasonable and does

not entitle Ms. Ceaser to penalties and attorney fees.

During closing arguments at trial, counsel for Ms. Ceaser pointed to notes of

Connie Freese, Claims Adjuster for Risk Management, which were entered into

evidence as Joint Exhibit 15. Ms. Freese did not testify at trial, but her notes dated

February 4, 2019, indicate the claim was not deemed compensable because LCCC

did not view Ms. Ceaser’s motor vehicle accident as being work related.

Our review of the record reveals a notice of controversion dated February 12,

2019, was sent to Ms. Ceaser; however, it contains no explanation.10 On March 7,

2019, LCCC filed an answer denying Ms. Ceaser’s entitlement to workers’

compensation benefits. On August 7, 2019, LCCC filed an amended answer

admitting Ms. Ceaser was injured in the course and scope of her employer. Despite

this, LCCC did not make any indemnity payments.

We find the record furnishes no basis for this court to conclude LCCC

reasonably controverted Ms. Ceaser’s claim for indemnity benefits. Thus, we

decline to vacate the penalty and attorney fees which were awarded to Ms. Ceaser.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed as

amended. The costs of this appeal are assessed against Employer/Appellant, Lake

Charles Care Center.

AFFIRMED AS AMENDED.

10
This notice is also contained in Joint Exhibit 15.

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