Carlos A. Juarez Versus Aj Lazo Construction, LLC, and Louisiana Construction and Industry Self Insurer's Fund (Lci) ( 2023 )

CARLOS A. JUAREZ NO. 22-CA-575
VERSUS FIFTH CIRCUIT
AJ LAZO CONSTRUCTION, LLC, AND COURT OF APPEAL
LOUISIANA CONSTRUCTION AND
INDUSTRY SELF INSURER’S FUND (LCI) STATE OF LOUISIANA
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7, STATE OF LOUISIANA
NO. 21-3075
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING
September 20, 2023
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel
AFFIRMED IN PART;
REVERSED IN PART
SUS
SMC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
CARLOS A. JUAREZ
Jean-Marc Bonin
Alexandre E. Bonin
R. Christian Bonin
COUNSEL FOR DEFENDANT/APPELLANT,
AJ LAZO CONSTRUCTION, LLC, AND LOUISIANA CONSTRUCTION AND
INDUSTRY SELF INSURERS FUND
Nathan L. Schrantz
SCHLEGEL, J.
Defendants/Appellants, AJ Lazo Construction, LLC (Lazo Construction) and
Louisiana Construction and Industry Self Insurers Fund (LCI), seek review of the
workers’ compensation court’s September 14, 2022 judgment entered in favor of
claimant/appellee, Carlos A. Juarez. Defendants contend that the court erred 1) in
calculating Mr. Juarez’s average weekly wage (AWW) used to determine Mr.
Juarez’s temporary total disability benefits (TTD); 2) by awarding Mr. Juarez
supplemental earning benefits (SEBs) at a zero-wage earning capacity; and 3) by
awarding penalties and attorney’s fees against defendants for failing to pay TTD
and SEB benefits at a proper rate. Mr. Juarez answered the appeal and argues that
he is entitled to 1) additional penalties and attorney’s fees for defendants’ failure to
investigate his claim regarding his AWW and compensation rate; and 2) additional
attorney’s fees incurred to respond to defendants’ appeal.
For the reasons stated more fully below, we reverse the judgment in part
with respect to 1) the increase of the AWW calculation and corresponding award
of past TTD benefits; and 2) the penalties and attorney’s fees awarded in
connection with the finding that defendants failed to pay TTD benefits at the
proper rate. We affirm the judgment in all other respects. Finally, we deny Mr.
Juarez’s request in his answer to the appeal for additional penalties and attorney’s
fees.
FACTS AND PROCEDURAL BACKGROUND
This matter arises out of a Disputed Claim for Compensation filed by Mr.
Juarez against Lazo Construction and its insurer, LCI. On July 7, 2020, Mr. Juarez
was working as a painter/drywall finisher for an uninsured subcontractor, Cuevas
Construction, LLC, when he injured his right shoulder and was unable to work the
following day. Mr. Juarez testified at trial that he only worked for Cuevas
Construction for two weeks ‒ from June 19, 2020 to July 7, 2020 ‒ prior to his
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injury. Prior to working for Cuevas Construction, Mr. Juarez testified that he did
not have a permanent employer, but that he worked for different contractors. Mr.
Juarez testified that Cuevas Construction paid him a rate of $18.00 per hour and he
worked ten hours per day.
Four days after the accident, Mr. Juarez went to the emergency department
at Ochsner Medical Center. He was diagnosed with right shoulder strain, received
an injection and was referred for an orthopedic evaluation. On July 29, 2020, Mr.
Juarez saw Dr. Chuck Cucchiara for right shoulder and neck pain. Dr. Cucchiara
determined that Mr. Juarez was physically unable to work due to his shoulder
injury, ordered an MRI, and referred him to a specialist. On September 1, 2020,
Dr. Douglas Bostick reviewed the MRI of Mr. Juarez’s shoulder and opined that he
had a myotendinous strain of the supraspinatus and possible tearing of the anterior
inferior labrum. He diagnosed Mr. Juarez with strain, impingement, and pain in
his right shoulder. Dr. Bostick kept Mr. Juarez on “out of work” status and
referred him to physical therapy.
Following written demand from Mr. Juarez’s counsel, defendants initiated
TTD benefits for Mr. Juarez on October 12, 2020. Because Cuevas Construction
was uninsured, Lazo Construction assumed the workers’ compensation obligation
for Mr. Juarez. Defendants paid TTD benefits to Mr. Juarez based on an AWW of
$720.00 resulting in a compensation rate of $480.02. Defendants contend that they
were unable to obtain any wage records from Cuevas Construction and therefore,
relied on Mr. Juarez’s statement regarding his hourly rate, as well as two checks he
received from Cuevas Construction before he was injured. Mr. Juarez provided
defendants with copies of two checks, the first one dated “3/7/2020” in the amount
of $954.00 and the other dated “6/27/2020” in the amount of $1,260.00. 1
1
Mr. Juarez contends that he received the check dated “3/7/20” during his second week of work just prior
to the accident. He provided defendants with a photograph of his bank account indicating that he
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On October 13, 2020, Mr. Juarez’s counsel sent a Notice of Disagreement
letter contending that defendants erred in their AWW calculation and were
underpaying Mr. Juarez’s TTD benefits. Specifically, Mr. Juarez argued that
defendants should have based his AWW and compensation rate on the average of
the two paychecks he received, which would have resulted in an AWW and
compensation rate of $1,107.00 and $688.00, respectively. Defendants refused to
modify the calculations, arguing that La. R.S. 23:1021(13)(a)(i) mandated that they
utilize the 40-hour presumption to determine the AWW for a full-time hourly
employee because Mr. Juarez had worked fewer than four weeks prior to the
accident.2
As a result, Mr. Juarez filed his Disputed Claim for Compensation on June
1, 2021, complaining of the underpayment of his TTD benefits and further
demanding penalties, attorney’s fees, costs and interest for defendants’ failure to
pay the correct compensation rate. On or about February 1, 2022, defendants
converted Mr. Juarez’s TTD benefits to SEBs at a rate of $160.00 per week based
on a minimum wage earning capacity of $480.00 per week. This prompted Mr.
Juarez to file a motion for leave to amend and supplement his Disputed Claim for
Compensation on February 7, 2022 to add claims that defendants acted arbitrarily
and capriciously by converting his TTD benefits to SEBs. He further complained
that he was not capable of earning $480.00 per week because he was a lifelong
laborer with no formal education, who only speaks Spanish. Mr. Juarez further
deposited this check into his bank account on July 8, 2020. Mr. Juarez testified at trial that he was from
Honduras and explained that when they write a date there, they place the day first and the month second.
2
La. R.S. 23:1021(13)(a)(i) provides as follows:
(13) “Wages” means average weekly wage at the time of the accident. The average
weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty
hours or more, his hourly wage rate multiplied by the average actual hours worked in the
four full weeks preceding the date of the accident or forty hours, whichever is greater[.]
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prayed for additional penalties and attorney’s fees due to the alleged improper
modification of his benefits.
Due to a conflict of opinions between the physicians, the workers’
compensation court appointed an independent medical examiner, Dr. John B.
Cazale, who on August 10, 2021, opined that Mr. Juarez could perform light or
light/medium work. He further opined that Mr. Juarez could not lift overhead or
climb a ladder. Dr. Cazale also stated that Mr. Juarez’s lifting restrictions would
be 20 to 25 pounds from the ground to the waist level, and not higher than the
waist level.
Following the IME, Mr. Juarez remained under Dr. Bostick’s care and
received physical therapy for his shoulder injury. Mr. Juarez contends that at the
time of trial on May 31, 2022, he had not been released to work by any of his
treating physicians. The parties stipulated at trial that Mr. Juarez was injured in the
course and scope of his employment and that he earned $5,536.00 for 26 weeks
prior to the accident on July 7, 2020.
Following trial, the workers’ compensation court determined that Mr. Juarez
had only worked for two full weeks prior to the work accident on July 7, 2020, but
agreed with Mr. Juarez that his AWW should have been $1,107.00 with a
compensation rate of $688.00. As a result, the workers’ compensation court
determined that defendants owed Mr. Juarez past indemnity for an underpayment
in the amount of $207.98 per week from July 7, 2020 through February 1, 2022,
when defendants stopped TTD benefits. The court further explained in its reasons
for judgment that defendants properly converted Mr. Juarez’s TTD benefits to
SEBs because the IME doctor determined that Mr. Juarez was “able to perform
some type of work.”
Nevertheless, the workers’ compensation court determined that defendants
had failed to prove Mr. Juarez’s earning capacity. Consequently, the court
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determined that Mr. Juarez was entitled to SEBs at a zero-wage earning capacity
from February 5, 2022 and ongoing. The court also awarded penalties in the
amount of $6,000.00 for three violations, including the failure to timely initiate
TTD benefits, failure to pay TTD benefits at the proper rate, and failure to timely
pay SEB benefits at the proper rate. The court additionally awarded $15,000.00 in
attorney’s fees for the violations.
DISCUSSION
In a workers’ compensation case, the appellate court’s review of factual
findings made by the lower court is the manifest error or clearly wrong standard.
Dean v. Southmark Construction, 03-1051 (La. 7/6/04), 879 So.2d 112, 117. The
factual findings of the workers’ compensation court will not be set aside by a
reviewing court unless they are found to be clearly wrong in light of the record
viewed in its entirety. Id.; Summers v. Ritz-Carlton New Orleans, 14-800 (La.
App. 5 Cir. 5/28/15), 171 So.3d 329, 335, writ denied, 15-1256 (La. 9/25/15), 178
So.3d 569. When legal error interdicts the fact-finding process in a workers’
compensation proceeding, the de novo standard of review applies, rather than the
manifest error standard. Dorion v. Gulf States Asphalt Co., L.P., 08-670 (La. App.
5 Cir. 4/28/09), 14 So.3d 44, 48, writ denied, 09-1167 (La. 9/18/09), 17 So.3d 972.
The interpretation of statutes pertaining to workers’ compensation involves a
question of law and warrants a de novo review to determine if the ruling was
legally correct. Butler v. Jefferson Par. Fire Dep’t, 15-659 (La. App. 5 Cir.
2/24/16), 186 So.3d 1231, 1235.
Average Weekly Wage Calculation
In their first assignment of error, defendants contend that the workers’
compensation court erred as a matter of law by calculating Mr. Juarez’s AWW
using the average of two weeks of non-sequential earnings instead of the 40-hour
presumption despite the clear language of La. R.S. 23:1021(13)(a)(i).
22-CA-575 5
We first consider whether the workers’ compensation court was clearly
wrong in its factual determination that Mr. Juarez worked two consecutive weeks
prior to his injury. It is clear from the record that the workers’ compensation court
considered and rejected the defendants’ arguments that the checks dated “3/7/20”
($954.00) and June 27, 2020 ($1,260.00) contradict Mr. Juarez’s testimony that he
worked two to three weeks prior to the work accident. Defendants fail to recognize
that Mr. Juarez also provided evidence that he deposited a check in the amount of
$1,260.00 on June 29, 2020, and a check in the amount of $954.00 on July 8, 2020,
thereby supporting his testimony regarding the consecutive weeks of work.
Accordingly, the finding that Mr. Juarez worked two consecutive weeks prior to
his injury did not constitute manifest error.
Nevertheless, we conclude that the workers’ compensation court erred as a
matter of law in calculating Mr. Juarez’s AWW when it failed to apply the 40-hour
presumption after making the factual determination that Mr. Juarez had only
worked two sequential weeks prior to the accident. La. R.S. 23:1021(13)(a)(i)
plainly states that “[i]f the employee is paid on an hourly basis and the employee is
employed for forty hours or more, [the AWW is] his hourly wage rate multiplied
by the average actual hours worked in the four full weeks preceding the date of the
accident or forty hours, whichever is greater”. Mr. Juarez did not work “four full
weeks” prior to the accident.
The workers’ compensation court erroneously relied upon Mr. Juarez’s
argument that it should liberally construe the statute in his favor by finding that La.
R.S. 23:1021(13)(a)(i) does not apply if an employee has not worked four full
weeks as previous courts had done when addressing similar circumstances,
particularly in Fusilier v. Slick Construction Company, 94-11 (La. App. 3 Cir.
6/1/94), 640 So.2d 788, and Upchurch v. Randall Well Service, 45,056 (La. App. 2
Cir. 4/14/10), 34 So.3d 500. In those matters, the appellate courts relied on the
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premise that workers’ compensation statutes should be interpreted liberally to
allow the employee maximum benefits, and therefore determined that the proper
calculation was to divide the actual hours worked or wages received only by the
numbers of weeks actually worked prior to injury, instead of four weeks, thereby
allowing for a higher number of hours or wages if the employee worked overtime
during the limited period. Fusilier, 640 So.2d at 792; Upchurch, 34 So.3d at 502-
03.3
In its extensive reasons for judgment, the workers’ compensation court
indicated that it accepted Mr. Juarez’s position as follows:
In this case, Claimant only worked for two weeks. He testified and the
evidence shows that he began working for Cuevas in June 2020 and
received two pay checks for the time worked through his date of
accident. He worked less than four full weeks prior to his work
accident. Thus, this court looks to Fusiler (sic) and Upchurch wherein
the Second and Third Circuits held that ‘the proper way to calculate
an average weekly wage for someone who has not worked four full
weeks was to use the actual wages divided by the actual number of
weeks worked.’ William Upchurch v. Randall Well Service, 34 So.3d
500, (2nd Cir. 2010) citing Todd Fusilier v. Slick Construction
Company, 640 So2d 788 (3rd Cir. 1994). The testimony and evidence
presented to the Court shows that Claimant worked two weeks. He
received $1,260 for the first week of work and $954 for the second
week of work. As such, his average weekly wage is $1,107 with a
compensation rate of $688 (the maximum rate).
Defendants, however, correctly point out that the legislature enacted La. R.S.
23:1020.1(D)(2) in 2012, which now provides that laws pertaining to workers’
compensation shall not be broadly and liberally construed in favor of either an
employer or employee and in fact, “shall be construed in accordance with the
basic principles of statutory construction and not in favor of either employer
or employee.” La. R.S. 23:1020.1(D)(3) further instructs that the liberalization or
broadening of workers’ compensation statutes shall be the exclusive purview of the
3
We observe that the Upchurch court qualified its decision by declaring that “[w]e decline to create a
bright line rule for cases in which La. R.S. 23:1021 does not apply. Our holding is limited to the facts
before us. A determination as to whether this statute is applicable must be made on a case-by-case basis.”
Id. at 503.
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legislature. See Hartman v. St. Bernard Parish Fire Department & Fara, 20-693
(La. 3/24/21), 315 So.3d 823, 829; Burgess v. Sewerage & Water Board of New
Orleans, 16-2267 (La. 6/29/17), 225 So.3d 1020, 1028; Griggs v. Bounce N’
Around Inflatables, LLC, 18-726 (La. 1/30/19), 281 So.3d 628, 632. Additionally,
this Court notes that La. R.S. 23:1020.1(C), which was also enacted in 2012,
provides 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” and “[t]o facilitate injured workers’ return to employment at a reasonable
cost to the employer.”
The starting point in the interpretation of any statute is the language of the
statute itself. Griggs, 281 So.3d at 631. When a law is clear and unambiguous and
its application does not lead to absurd consequences, the law must be applied as
written, and no further interpretation may be made in search of the legislative
intent. La. C.C. 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. C.C. art. 10.
With these principles in mind, we agree with defendants that the plain
language of La. R.S. 23:1021(13)(a)(i) is clear and unambiguous. As noted above,
La. R.S. 23:1021(13)(a)(i) simply provides that if the “employee is employed for
forty hours or more,” then his AWW is the average of the actual hours worked in
the four full weeks prior to the accident, or 40 hours, whichever is greater. Mr.
Juarez did not work four full weeks prior to the accident, and therefore the
workers’ compensation court should have utilized the 40-hour alternative provided
by the plain language of the statute. It is possible to apply La. R.S.
23:1021(13)(a)(i) as written to the present situation and therefore, it is not
necessary or appropriate to resort to outside jurisprudence to determine the AWW.
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The First Circuit Court of Appeal reached a similar conclusion in Harrison
v. Auto King, 03-1620 (La. App. 1 Cir. 5/14/04), 879 So.2d 796, which involved an
employee who was injured after working only one full week. The employee
worked approximately 16.5 hours of overtime during a seven-day period that the
employee urged the court to use to calculate his AWW. The appellate court
affirmed the workers’ compensation court’s decision to use the 40-hour
presumption to calculate the AWW and recognized that there was “no legislative
authority” to find otherwise. Id. at 801. We similarly find that pursuant to the
legislature’s explicit instruction in La. R.S. 23:1020.1(D)(3), we do not have the
authority to liberalize or broaden the scope of the provisions governing AWW
calculations.
Mr. Juarez also argued that by applying the statute as written, he would
unfairly receive nothing for the extra hours he worked in the two weeks prior to his
injury. However, we observe that if defendants paid Mr. Juarez indemnity based
on the AWW rate he suggests, he would receive much more in workers’
compensation benefits than he reported in actual wages on his 2020 tax returns.
The parties stipulated that based on his 2020 tax return, Mr. Juarez earned
$5,536.00 in the first 26 weeks of 2020 prior to his injury. Mr. Juarez contends
that he should have received a compensation rate of $688.00 for TTD benefits,
which would total $17,888.00 for 26 weeks. At the rate of $480.02 paid by
defendants, Mr. Juarez received $12,480.52 in a 26-week period. We do not find
that Mr. Juarez is deprived of benefits by applying the applicable AWW statute as
written.
Accordingly, we reverse the portion of the workers’ compensation court’s
judgment that determined the AWW should be $1,107.00 with a compensation rate
of $688.00, and further reverse the finding that Mr. Juarez is owed past indemnity
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for an underpayment of $207.98 per week beginning July 7, 2020 through
February 1, 2022.
Supplemental Earnings Benefits
In their second assignment of error, defendants argue that the workers’
compensation court committed a legal error by finding that Mr. Juarez was entitled
to SEBs at a zero-dollar wage earning capacity. Defendants argue that the IME
doctor determined that Mr. Juarez was capable of light to medium duty work and
therefore, defendants contend they are entitled to a presumption that Mr. Juarez
could earn at least minimum wage at $290.00 per week.
The purpose of SEB benefits is to compensate an injured employee for the
wage-earning capacity he lost as the result of an accident. Banks v. Industrial
Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. La.
R.S. 23:1221(3)(a)(i) provides that an employee is entitled to receive SEBs if he
suffers a work-related injury that results in his inability to earn ninety percent
(90%) or more of his average pre-injury wage. Id. Initially, the employee bears
the burden of proving by a preponderance of the evidence that the injury caused his
inability to earn that amount based on the facts and circumstances of the individual
case. Poissenot v. St. Bernard Parish Sheriff's Office, 09-2793 (La. 1/9/11), 56
So.3d 170, 174. The focus is on the amount of wages earned before and after the
accident, not the type of occupation or type of work performed. Id. at 175. The
burden does not shift to the employer merely because an employee proves he is
unemployed at the time of trial or unable to obtain the same type of job as before
the accident. Id. at 178. In determining whether an injured employee has made
out a prima facie case of entitlement to SEBs, the workers’ compensation court
should take into account all of the factors that may bear on an employee’s ability to
earn a wage. Id. at 174.
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The workers’ compensation court’s factual finding regarding Mr. Juarez’s
entitlement to SEBs is subject to the manifest error/clearly wrong standard, not de
novo review as suggested by defendants. In determining whether a hearing
officer’s finding that an employee has met his initial burden of proving entitlement
to SEBs is manifestly erroneous, a reviewing court must examine the record for all
evidence that bears upon the employee’s inability to earn 90% or more of his pre-
injury wages. Seal v. Gaylord Container Corp., 97-688 (La. 12/02/97), 704 So.2d
1161, 1166.
In concluding that Mr. Juarez met his initial burden to prove his inability to
earn 90% or more of his pre-injury wages, the workers’ compensation court found
as follows:
Claimant testified that he has been unable to obtain a job. He
testified that he has applied for jobs, but he has not received a
response regarding employment. Further, based on the restrictions
provided by Dr. Cazales [sic], Claimant is restricted from performing
certain tasks. Defendant scheduled Claimant for vocational
rehabilitation. The vocational counselor provided a job listing and
Claimant testified that he applied for the jobs presented to him.
However, he stated that he has not received a response. Claimant
testified that he has not applied for any other jobs. Claimant testified
that he has not performed any other work since the accident. As
previously mentioned, Claimant’s doctor has not released him to
return to work and the Court’s IME doctor has placed him under
restrictions.
In addition, we find that after examining the entire record, Mr. Juarez had
more than physical limitations that affected his ability to find work. Mr. Juarez’s
limited education, work history that is limited to hard labor and construction, and
language limitations are additional factors that mitigate in favor of the workers’
compensation court’s conclusion that Mr. Juarez met his initial burden of proof.
Consequently, we find that the workers’ compensation court’s finding that Mr.
Juarez met his initial burden of proof to establish a prima facie case of his inability
to earn 90% or more of his pre-injury wages was not clearly wrong.
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Having concluded that Mr. Juarez satisfied his initial burden, we now
consider whether defendants carried their burden of proving that jobs were
available to Mr. Juarez within his work restrictions and geographic area that would
enable him to earn 90% or more of his pre-injury wage. Only after the employee
satisfies his or her initial burden, the burden shifts to the employer to prove, by a
preponderance of the evidence, that the employee is physically able to perform a
certain job and that the job was offered to the employee or that the job was
available to the employee in his or the employer’s community or geographical
region. Poissenot, 56 So.2d at 174. An employer may discharge its burden of
proving job availability by establishing, at a minimum, the following, by
competent evidence: (1) the existence of a suitable job within claimant’s physical
capabilities and within claimant’s or the employer’s community or reasonable
geographic region; (2) the amount of wages that an employee with claimant’s
experience and training can be expected to earn in that job; and (3) an actual
position available for that particular job at the time that the claimant received
notification of the job’s existence. Banks, 696 So.2d at 557. “Suitable job” means
a job that claimant is not only physically capable of performing, but one that also
falls within the limits of claimant’s age, experience, and education, unless the
employer or potential employer is willing to provide any additional necessary
training or education. Id.The workers’ compensation court reasoned as follows in determining that
defendants failed to meet their burden and that Mr. Juarez’s SEBs should be based
on zero-wage earning capacity:
In the instant case, a listing of jobs was admitted into evidence.
However, no evidence or testimony was provided to show that the
jobs were located in Claimant’s geographical area, that the jobs were
within Claimant’s restrictions, or that the jobs were available.
Louisiana law does not require actual job placement. However, it does
require that specific information be provided in order to meet its
burden. Upon reviewing the testimony and evidence in this matter, the
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Court finds that Claimant’s SEB were improperly calculated. The
Court finds that a conversion from TTD to SEB was proper.
However, Defendant has failed to show Claimant’s earning capacity.
As such, Claimant’s SEB should be based on $0 earning capacity.
Considering the foregoing and applying the applicable minimum standard,
we conclude that the workers’ compensation court was not clearly wrong in
finding that defendants failed to present sufficient, competent evidence to carry
their burden with respect to the SEB award. Therefore, we affirm the workers’
compensation court’s finding that Mr. Juarez is entitled to SEBs at a zero-wage
earning capacity from February 5, 2022 and ongoing.
Penalties and Attorney’s Fees
In their final assignment of error, defendants argue that they are not liable
for penalties or attorney’s fees because they acted reasonably in calculating the
AWW based on the 40-hour presumption and Mr. Juarez failed to meet his burden
to prove he was incapable of earning 90% of his pre-injury wage.
The determination of whether an employer or insurer should be cast with
penalties and attorney’s fees is a question of fact subject to the manifest
error/clearly wrong standard. Summers, 171 So.3d at 347. Awards of penalties
and attorney’s fees in workers’ compensation cases are essentially penal in nature,
being imposed to discourage indifference and undesirable conduct by employers
and insurers. Salgado v. Tri-Parish Roofing & Home Improvements, 19-407 (La.
App. 5 Cir. 5/27/20), 296 So.3d 1201, 1208. La. R.S. 23:1201(F)(2) provides that
penalties and attorney’s fees for failure to properly pay benefits shall be assessed
against an employer or insurer unless the claim is reasonably controverted or
resulted from conduct over which the employer or insurer had no control. When
the employer or insurer commits multiple violations, La. R.S. 23:1201(F) allows
for the imposition of multiple penalties. Salgado, 296 So.3d at 1208. An
assessment of a penalty under La. R.S. 23:1201(F) may be “in an amount up to the
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greater of twelve percent of any unpaid compensation or medical benefits, or fifty
dollars per calendar day for each day in which any and all compensation or
medical benefits remain unpaid … together with reasonable attorney fees for each
disputed claim.” The statute, however, limits the amount of each separate penalty
to $2,000.00. The maximum amount of penalties that may be imposed, regardless
of the number of penalties, is $8,000.00. La. R.S. 23:1201(F).
The workers’ compensation court awarded a total of $6,000.00 in penalties
and $15,000.00 in attorney’s fees against defendants for three different violations:
1) the failure to timely initiate benefits; 2) the failure to pay TTD benefits at a
proper rate; and 3) the failure to pay SEB benefits at the proper rate. Because we
reversed the workers’ compensation court’s findings that defendants used the
improper AWW to calculate TTD benefits, we also reverse the award of penalties
for that violation and reduce the penalties awarded to Mr. Juarez from $6,000.00 to
$4,000.00. We further reduce the attorney’s fees awarded to Mr. Juarez to
$7,500.00, as we find a significant portion of the litigation between the parties
involved the claim that defendants improperly calculated Mr. Juarez’s AWW. We
otherwise find no manifest error in the workers’ compensation court’s award of
penalties and attorney’s fees. 4
Furthermore, because we find that defendants properly calculated the AWW
and compensation rate, we deny Mr. Juarez’s request in his answer to the appeal to
award additional penalties for defendants’ alleged failure to properly investigate
his claim to increase TTD benefits. We also deny Mr. Juarez’s request for
additional attorney’s fees for defending this appeal considering that this Court
4
Though defendants raised a general assignment of error with respect to the award of penalties and
attorney’s fees, they did not brief any issues regarding the awards for their failure to timely initiate TTD
benefits. As such, we find that to the extent defendants appealed the awards for this violation, the issue is
abandoned on appeal. See Uniform Rules – Courts of Appeal, Rule 2-12.4(B)(4) (“All assignments of
error and issues for review shall be briefed. The court may deem as abandoned any assignment of error or
issue for review which has not been briefed.”); Boutall v. Christakis, P.M., Co. LLC, 17-402 (La. App. 5
Cir. 12/27/17), 236 So.3d 1268, 1272.
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reversed a substantial portion of the workers’ compensation court’s judgment in
favor of the appealing parties.
DECREE
Considering the foregoing, we reverse the workers’ compensation court’s
September 14, 2022 judgment in part with respect to its findings 1) that Mr.
Juarez’s AWW should have been $1,107.00 with a compensation rate of $688.00;
and 2) that defendants owed Mr. Juarez past indemnity for the underpayment of his
TTD benefits in the amount of $207.98 per week from July 7, 2020 through
February 1, 2022. Based on these rulings, we also reduce the total penalties
awarded to Mr. Juarez to $4,000.00, and the total attorney’s fees awarded to
$7,500.00. We affirm the judgment in all other respects. Finally, we deny Mr.
Juarez’s request in his answer to the appeal for additional penalties and attorney’s
fees.
AFFIRMED IN PART;
REVERSED IN PART
22-CA-575 15
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-575
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
ALEXANDRE E. BONIN (APPELLEE) JEAN-MARC BONIN (APPELLEE) R. CHRISTIAN BONIN (APPELLEE)
NATHAN L. SCHRANTZ (APPELLANT)
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