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Harvey v. B E & K Construction8/23/2000
Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
BROWN, J., concurs in the results.
The single issue presented by this workers' compensation ruling is whether an award of $6,000 in attorney fees was excessive. For the reasons that follow, we amend the judgment of the Workers' Compensation Judge (WCJ) by reducing the award to $2,500. We also reject the additional $1,500 in attorney fees sought by plaintiff for this appeal.
Facts
Plaintiff, Jeffrey Harvey ("Harvey"), was injured in March 1994 while in the course and scope of his employment with defendant, B E & K Construction Company ("BE&K;). Harvey's workers' compensation claim was litigated, a judgment was rendered in his favor, and that judgment was affirmed on appeal. See Harvey v. B E & K Construction, 30,825 (La. App. 2d Cir. 8/19/98), 716 So.2d 514. By November 1998, BE&K;had necessary information concerning Harvey's earnings, but failed to pay benefits in a timely fashion. Harvey filed a claim for compensation in January 1999, seeking not only supplemental earning benefits, but also penalties and attorney fees for late payment of benefits. After a mediation conference and the enrollment of new counsel for BE&K; BE&K;agreed to pay supplemental earning benefits, but not penalties and attorney fees. Trial on the issues of penalties and attorney fees was scheduled for August 26, 1999, and approximately a week before trial, BE&K;indicated that it would stipulate to liability for penalties and attorney fees. Although the parties agreed to a penalty of $2,500, a hearing was held to resolve the amount of the award for attorney fees.
At a hearing on the matter, Harvey introduced four exhibits into evidence. The first was a November 2, 1998 letter from BE&K;s counsel enclosing copies of earning forms for completion by Harvey. The letter stated that as soon as BE&K;received the completed forms, it would forward him the appropriate supplemental earning benefits checks. The second exhibit was a letter by Harvey's counsel dated November 18, 1998 to BE&K;enclosing the monthly report forms and attaching check stubs to each form. The third exhibit was a check dated March 30, 1999, paid by BE&K;s insurer to Harvey in the amount of $24,690.60. The last exhibit consisted of a copy of the original judgment and notice of judgment from August 1997. While these exhibits showed the prior events in the litigation for which BE&K;admitted that it should be penalized, no evidence concerning the amount of time expended by Harvey's attorney was introduced.
Harvey also asserted that after the pre-trial conference, for reasons unknown, BE&K;s counsel sent Harvey's counsel a set of interrogatories and request for production "like she had never even heard the claim before." Counsel argued that he "had to spend hours and hours answering those things and sending them back" and stated that this discovery made no sense to him because the only issues remaining concerned penalties and attorney fees.
At the conclusion of the hearing, the trial court gave oral reasons for judgment. After going over the factual history of the case, the court found BE&K;to be arbitrary and capricious with respect to payment of supplemental earning benefits, and noted that the parties already stipulated to a penalty of $2,500. With respect to attorney fees, the trial court stated:
The Court is going to award attorney fees in this matter, not necessarily based on the time spent by the claimant's attorney, but in compliance with jurisprudence as set out by our appellate courts as a penalty against BE&K;Construction fo
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