Fontenot v. Reddell Vidrine Water District2/21/2001
Woodard, J., dissents and assigns written reasons.
Peters, J., dissents and assigns written reasons.
AFFIRMED AS AMENDED.
SULLIVAN, Judge.
Louisiana Workers' Compensation Corporation (LWCC) appeals a judgment awarding a total of $6,000.00 in statutory penalties to claimant, Michael J. Fontenot. Because we find the amount of the penalties exceeds that allowed by law, we amend the judgment as follows.
Facts
Mr. Fontenot was injured in the course and scope of his employment with the Reddell Vidrine Water District on October 7, 1997. The Water District's compensation insurer, LWCC, began paying Mr. Fontenot temporary total disability (TTD) benefits at a rate of $169.23 per week from October 24, 1997 through February 1, 1999, at which time LWCC began paying supplemental earnings benefits (SEB) of $97.56 per month. On March 16, 1999, Mr. Fontenot filed a disputed claim that alleged improper payment of compensation benefits and medical expenses. After a trial, the workers' compensation judge determined that LWCC (1) miscalculated Mr. Fontenot's initial TTD rate, (2) improperly reduced his TTD benefits to SEB, and (3) improperly refused to authorize emergency treatment for an aggravation of his work-related injury. The workers' compensation judge imposed a $2,000.00 penalty for each violation, for a total of $6,000.00 in penalties, and awarded $7,500.00 in attorney fees.
LWCC appeals, arguing that the workers' compensation judge erred in (1) awarding two penalties of $2,000.00 each for Mr. Fontenot's "claim for compensation" and (2) awarding a $2,000.00 penalty for the denial of treatment at a hospital emergency room. Opinion
LWCC first argues that La.R.S. 23:1201, as interpreted in LeJeune v. Trend Services, Inc., 96-550 (La.App. 3 Cir. 6/4/97); 699 So.2d 95, permits only one penalty of $2,000.00 for both the initial miscalculation in benefits and for the reduction from TTD to SEB. Mr. Fontenot argues that Lejuene was decided under a prior version of the statute and that the current version does permit additional penalties.
In LeJeune, 699 So.2d at 101, we held that La.R.S. 23:1201(E), as amended on January 1, 1993 and effective through June 29, 1995, permitted "one maximum penalty of $2,000.00 for failure to timely pay any and all compensation benefits and one maximum penalty of $2,000.00 for failure to pay any and all medical benefits." In reaching this conclusion, we rejected the employee's argument that he was entitled to two penalties of $2,000.00 each for the failure to authorize physical therapy and for the failure to authorize surgery. The employee based that argument on the current version of the statute, but we found his claim to be governed by the 1993 version. That earlier version of La.R.S. 23:1201 provided in part:
E. If, pursuant to this Chapter, any compensation or medical benefits payable without an order is not paid within the time period provided in Subsection B, C, or D of this Section, there shall be added to such unpaid compensation a penalty of an amount equal to twelve percent thereof or a total penalty of not more than fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such compensation, unless such nonpayment results from conditions over which the employer or insurer had no control. . . . Whenever the employee's right to such compensation or medical benefits has been reasonably controverted by the employer or his insurer, the penalties set forth in this Subsection shall not apply. . . . The total fifty dollar per calen
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