Basco v. State Through Dept. of Corrections
| Decision Date | 24 May 1976 |
| Docket Number | No. 10714,10714 |
| Citation | 335 So.2d 457 |
| Parties | Landry E. BASCO v. The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, and Houston General Insurance Co. |
| Court | Court of Appeal of Louisiana — District of US |
Jack C. Fruge, and Chris Fruge, Ville Platte, for appellant.
John W. Wilson and James F. Abadie, Baton Rouge, for appellees.
Before LANDRY, COVINGTON and PONDER, JJ.
Defendants, State of Louisiana, Through the Department of Corrections (Department), and its workmen's compensation insurer, houston General Insurance Co. (Insurer), appeal from judgment awarding plaintiff Landry E. Basco (Appellee) maximum benefits for total permanent disability, together with statutory penalties and attorney's fees. We affirm in part and reverse in part.
Plaintiff, now retired, was a former Civil Service employee. The primary legal issues on appeal are: (1) Whether Civil Service Rule 11.21, which restricts the taking of sick leave by Civil Service employees, violates La.R.S. 23:1163 by requiring a civil service employee to pay his own workmen's compensation benefits; and (2) Whether statutory penalties provided by La.R.S. 23:1163 are assessable against total compensation awarded or assessable only against compensation payments more than sixty days past due.
Plaintiff was employed as a Farm Supervisor II in the Agri-Business Division (Division) of the Department on the state prison farm at Angola, Louisiana. As such, plaintiff's duties consisted mainly of supervising inmate labor on a portion of the prison's vast sugar cane farm. It was plaintiff's duty to instruct prisoners in the operation of tractors, mixing and application of insecticides, herbicides and fertilizer, the maintenance of equipment and machinery, and all other phases of work required in planting, cultivating and harvesting sugar cane on approximately 1,400 acres of prison land. Additionally, plaintiff did some welding and performed heavy manual labor when prison labor was short or inmates were unable to perform specific tasks. Plaintiff was also required to travel extensively by truck over rough farm roads in the performance of his supervisory duties. On January 2, 1974, plaintiff sustained severe neck and shoulder injuries while unloading a tractor during the course and within the scope of his employment. The injuries initially disabled plaintiff from January 4 through February 17, 1974, a period of 6 and 3/7ths weeks. On February 18, 1974, plaintiff resumed employment but could not satisfactorily perform his duties and therefore worked intermittently until July 11, 1974, missing a total of 14 and 3/7ths weeks during this period. Because of his inability to function as a Farm Supervisor, plaintiff was transferred to the position of Correctional Officer II (Prison Guard) on July 12, 1974. As a Prison Guard, plaintiff was paid the same salary that he had received as Farm Supervisor. Plaintiff remained employed as a Prison Guard until November 28, 1974, when he went on sick leave, in which status he continued until his disability retirement on April 9, 1975.
The accident was reported to the Division, which in return informed the Department, who reported the incident to insurer shortly following the occurrence of the event. On May 2, 1974, Appellee was paid compensation in the sum of $417.87, representing compensation at the rate of $65.00 weekly for the 6 and 3/7ths weeks work lost between January 4 and February 17, 1974. No further compensation was paid Appellee until November 8, 1974, when Appellee received a check for $928.58 for compensation due from February 18 to July 11, 1974.
When injured on January 2, 1974, Appellee had accumulated 1301.7 hours of sick leave and 1506.7 hours of annual leave. After his injury, Appellee took sick leave for each day of absence and received full pay daily until his retirement on April 9, 1975. The $417.87 check received by Appellee on May 2, 1974, was endorsed by Appellee to the Department, for which transfer Appellee received credit for an additional 110 hours of sick leave. The number of hours sick leave thus credited to Appellee was determined by dividing Appellee's hourly rate of pay into the sum of $417.87 transferred to the Department. Admittedly, this procedure was followed pursuant to fixed Department policy in compliance with Civil Service Rule 11.21 which states:
'When an employee is absent from work due to disabilities for which he is entitled to workmen's compensation, he may, at his option use sick leave and annual leave not to exceed the amount necessary to receive total payments for leave and workmen's compensation equal to his regular salary.'
The record establishes that prior to Appellee's endorsement of the $417.87 check to the Department, Appellee was fully advised of the application of Rule 11.21 above, and that Appellee consented to said transfer of funds. However, despite Appellee having been paid his full salary because of his having taken sick leave, Appellee declined to endorse the November 8, 1947 compensation check for $928 .58 to the Department.
Appellee claims compensation benefits of $65.00 weekly for 500 weeks commencing July 12, 1974, subject to credit for payments made, together with interest, penalties of 12% On all unpaid benefits, and attorney's fees in the sum of $4,000.00.
The trial court awarded Appellee compensation at the rate of $65.00 weekly for 500 weeks commencing July 12, 1974, subject to credit for payments made, with interest, penalties of 12% On all unpaid benefits, and attorney's fees in the sum of $2,500.00. The trial court also held Civil Service Rule 11.21 invalid in violation of La.R.S. 23:1163 and rendered judgment in favor of Appellee against the Department in the sum of $417.87. The contention of Department and insurer that Appellee's wages as Prison Guard were not earned and were therefore wages in lieu of compensation for which credit should have been given in off-set of compensation found to be due, was rejected by the trial court.
The Department and insurer have appealed contending the trial court erred in: (1) Holding Civil Service Rule 11.21 invalid; (2) Rendering judgment in favor of Appellee against the Department in the sum of $417.87; (3) Rejecting the contention that Appellee's wages as Prison Guard were unearned and in lieu of compensation; (4) Awarding Appellee penalties and attorney's fees; and, alternatively, (5) Awarding Appellee penalties on all compensation due rather than restricting penalties to compensation past due more than sixty days.
Appellee has answered the appeal seeking an increase in attorney's fees. Appellee has also requested additional judgment agaisnt The Department and insurer in the sum of $74.10 for taking the deposition of Appellee's medical expert Dr. Davidson Texada. The additional item of deposition costs sought by Appellee is not seriously questioned by Appellants.
The record establishes that the Department and the State Civil Service Commission have interpreted Rule 11.21 to mean that a civil service employee receiving compensation benefits for a work-related injury may not receive compensation payments and sick leave payments in an aggregate amount exceeding the employee's regular wages. It is the Department's policy to explain the rule to each employee affected thereby and permit the employee to elect the hereinafter explained option. It is also shown that the rule is applied uniformly and without exception.
The record discloses that in each case of this nature, the injured employee is informed that he may either receive compensation benefits and claim sufficient hours of sick leave weekly as will afford him income equal to his regular salary, or he may receive compensation benefits and take full sick leave each week. In this latter case, he must return compensation benefits to the Department when finally received, in return for the Department's recrediting certain portions of his sick leave. The final result in both cases is the same.
The Department considers the rule a limitation on the amount of sick leave an injured employee is entitled to take during a period in which the employee is receiving workmen's compensation benefits for a work related injury. As applied by the Department, the rule affects only the amount of sick leave which an employee may claim in a case of this nature. Its application does not in any manner affect the amount of compensation to which the employee is entitled. In this case Appellee was making a salary of $170.40 weekly for a 45 hour work week, when Appellee was injured. He was therefore then earning an hourly salary of $3.79. For the initial 6 and 3/7th weeks of work missed, Appllee was paid compensation of $65.00 weekly or $417.87, which would have constituted Appellee's sole income but for sick leave benefits provided by Civil Service Rules. Appellee was allowed to utilize approximately 28 hours sick leave weekly during his absence from work due to his injuries. The sick leave plus compensation benefits equalled Appellee's regular salary. The record also shows that where an injured employee receiving compensation elects to claim total weekly sick leave and thus receives full salary plus compensation benefits, in every instance, the employee is required to refund the compensation amount to the Department and receive in lieu thereof hourly sick leave credit determined by dividing the employee's hourly rate of pay into the amount of compensation refunded, which is precisely what was done in this instance.
The trial court held Civil Service Rule 11.21 invalid upon finding that the rule, as applied, violates La.R.S. 23:1163, which prohibits an employer from obtaining reimbursement from an employee of any of the employer's cost of providing compensation insurance. The trial court so found on the ground that the rule violates the statute by requiring an employee to indirectly pay his...
To continue reading
Request your trial