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Bossier Electric v. Cubley6/14/2002
In this worker's compensation case, the employer, Bossier Electrical Contractors, Inc., appeals a judgment finding that the claimant, George Cubley, was entitled to temporary total disability benefits and supplemental earnings benefits, subject to a credit for the employer's prior payments. The worker's compensation judge denied the employer's claim for forfeiture and reimbursement of benefits paid and assessed penalties and attorney fees. For the following reasons, we reverse in part and affirm in part.
FACTS
The claimant began working as an electrician at Bossier Electrical Contractors, Inc. ("BEC") in April 1998. At that time, he completed an employee health questionnaire and did not list all of his prior surgical procedures. Claimant had been previously diagnosed with carpal tunnel syndrome and had undergone surgery on his left wrist in 1997. Despite this condition, claimant had been able to perform his duties as an electrician.
On August 12, 1999, claimant injured his left elbow pulling cable through a conduit while working for BEC at a college in Shreveport. The claimant did not seek medical treatment at the time and continued working until October 25, 1999, when he was terminated due to a reduction in BEC's workforce. On that same date, claimant saw Dr. Marion Milstead for treatment of his left elbow injury and the resulting aggravation of his carpal tunnel condition.
On December 16, 1999, BEC began paying the claimant temporary total disability (TTD) benefits at the maximum rate of $384 per week, retroactive to the date of November 11, 1999. BEC mistakenly paid claimant TTD benefits of $367 for the week of May 7-13, 2000, an under payment of $17. Thereafter, BEC resumed TTD payments of $384 weekly through October 28, 2000.
The claimant began working as an electrical inspector for the City of Shreveport on October 16, 2000, with an annual salary of $25,132. BEC began paying claimant supplemental earnings benefits (SEB) on December 1, 2000, based on his new salary. BEC did not pay SEB for the period of October 28, 2000, when the TTD payments ended, through November 30, 2000.
In December 1999, BEC filed a claim for forfeiture of claimant's benefits and reimbursement for compensation paid, contending that claimant failed to truthfully answer the health questionnaire and that he made false statements to obtain benefits in violation of LSA-R.S. 23:1208.1 and 23:1208. Claimant filed a claim alleging that BEC had failed to authorize medical treatment for his left elbow and failed to timely pay disability benefits. The claimant also sought penalties and attorney fees. The matters were consolidated for trial.
After a hearing, the worker's compensation judge (WCJ) issued oral reasons for judgment, finding that claimant had not violated the statutory forfeiture provisions and that he was entitled to medical treatment related to his left elbow injury. The WCJ rendered judgment ordering BEC to pay claimant the $17 shortage in TTD benefits and awarding claimant SEB of $642.31 for the period of October 16, 2000 through November 30, 2000, subject to a credit for TTD already paid by BEC. The WCJ assessed a penalty of $2,000 for BEC's failure to timely pay benefits and awarded claimant $4,000 in attorney fees. BEC filed a motion to modify the judgment to reflect the WCJ's finding that BEC was entitled to a credit for compensation paid prior to the disability date. After a hearing, the WCJ rendered an amended judgment adding a clause that BEC was entitled to a credit for any TTD benefits paid prior to December 6, 1999, the date of claimant's disability from work. BEC appeals the judgment.
DISCUSSION
BEC co
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