Russell v. State2/21/2001
AMENDED AND, AS AMENDED, AFFIRMED.
THIBODEAUX, Judge.
The defendant-appellant, State of Louisiana, Through the Department of Transportation and Development (hereinafter "DOTD"), appeals the judgment of the Office of Workers' Compensation awarding penalties and attorney fees to the plaintiff-appellee, Mr. Francis Russell. Penalties and attorney fees were awarded as a result of the State's failure to timely pay benefits to Mr. Russell. For the following reasons, we amend the judgment to increase the attorney fees from $1,000 to $2,500 for work performed at the trial level and award an additional $2,500 for the handling of this appeal. We also amend the penalty award from $2,000 to $1,900. We affirm in all other respects.
I. ISSUES
The issues presented for review are: (1) whether a delay of thirty-eight days by DOTD in paying Mr. Russell the full amount of his indemnity benefits entitles him to an award of penalties and attorney fees? and (2) was the award of $2,000 in penalties and $1,000 in attorney fees to Mr. Russell excessive?
II. FACTS
Mr. Francis Russell worked for the Department of Transportation and Development as a laborer. On October 12, 1996 while working on a highway, Mr. Russell was using a mechanical auger which twisted him to the ground. As a result, Mr. Russell was injured and is now receiving workers' compensation benefits in the amount of $576.03 every twenty-eight days. On May 4, 1999, DOTD issued a draft for $20.57 labeled as a last payment representing the date of April 5, 1999 to Mr. Russell, instead of the usual payment of $576.03. The previous payment which he had received was dated April 6, 1999, representing the period of March 8, 1999, through April 4, 1999. Mr. Russell's benefits were paid every twenty-eight days and, thus, he was being paid for the previous month. Therefore, before receiving the May 4, 1999 draft in the amount of $20.57, he had not received any indemnity benefits since April 4, 1999.
After the $20.57 draft was received, several attempts were made to contact the Office of Risk Management adjuster, Mr. Ramsey Horn, about the discrepancy. Mr. Horn did not return phone calls from both Mr. Russell or his attorney. Written correspondence was then generated on May 11, 1999, requesting an explanation. No response was received. On May 14, 1999, another attempt was made by Mr. Russell and his attorney, through a handwritten fax, to Mr. Horn requesting an explanation. Again, no response. Finally, after numerous unsuccessful attempts to contact Mr. Horn, a 1008 claim was filed by Mr. Russell with the Office of Workers' Compensation on May 17, 1999.
Mr. Horn responded after the filing of litigation and advised Mr. Russell that the $20.57 draft was a computer error and would be corrected. Several days passed and no payment was issued by DOTD. Mr. Russell and his attorney again made numerous unsuccessful attempts to contact Mr. Horn inquiring why the payment had not been received.
Finally, on June 11, 1999, a draft for the past due benefits was ultimately generated and mailed. As a result of DOTD's untimely handling of this situation, Mr. Russell went without the full amount of his indemnity benefits for over thirty-eight days.
A trial on the merits was held on May 3, 2000. Judgment was rendered in favor of Mr. Russell in the amount of $2,000 in penalties and $1,000 in attorney fees. DOTD has appealed from this decision and Mr. Russell filed an answer requesting an increase in the attorney fees award and for attorney fees in handling this appeal.
III. LAW AND DISCUSSION
Standard of Review
The appellate cour
Page 1 2 3 Louisiana Employee Leasing Services
Employee Leasing Services
|