Belt v. State, Through Louisiana Bd. of Cosmetology, Commerce Dept.

• Decision Date: 25 August 1986
• Docket Number: No. 85-521,85-521
• Citation: Belt v. State, Through Louisiana Bd. of Cosmetology, Commerce Dept., 493 So.2d 278 (La. App. 1986)
• Parties: Carol L. BELT, Plaintiff-Appellee, v. STATE of Louisiana, Through the LOUISIANA BOARD OF COSMETOLOGY, COMMERCE DEPARTMENT, Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 278

493 So.2d 278

Carol L. BELT, Plaintiff-Appellee, v. STATE of Louisiana, Through the LOUISIANA BOARD OF COSMETOLOGY, COMMERCE DEPARTMENT, Defendant-Appellant.

No. 85-521.

Court of Appeal of Louisiana Third Circuit.

Aug. 25, 1986.

David LaFargue, Marksville, for defendant-appellant.

John T. Bennett, Marksville, for plaintiff-appellee.

Before GUIDRY, PICKETT and TUCK, JJ. ¹

ROY B. TUCK, Judge Pro Tem.

This workmen's compensation proceeding was brought by Carol L. Belt against the State of Louisiana, Through The Louisiana Board of Cosmetology, Department of Commerce, seeking benefits as for total and permanent disability or, alternatively, benefits for partial disability, together with penalties and attorney's fees. Suit was filed February 7, 1984. On September 21, 1984, plaintiff filed certain interrogatories which were not immediately answered. A Motion to Compel Answers to Interrogatories was filed December 17, 1984 which was heard December 21, 1984 as a result of which the trial court rendered judgment in the amount of $500.00 as attorney's fees for prosecuting the rule. (The answers to Interrogatories are dated December 20, 1984, subsequent to the rule.) The defendant propounded interrogatories which bear a date of January 9, 1985. The answers appear to have been dated by plaintiff's counsel on January 17, 1985 and served January 21, 1985. By a Motion to Compel Answers to Interrogatories filed on January 23, 1985 counsel for defendant asserted that the answers were incomplete and evasive and sought judgment ordering defendant to answer fully and completely and for attorney's fees for prosecuting the rule. On January 25, 1985 additional interrogatories were filed by defendant. Plaintiff filed amended and supplemental answers to the first set of interrogatories on February 5, 1985 and on February 12, 1985 answered the second set of interrogatories propounded by the defendant. Additional supplements were filed. The trial court rejected the defendant's claim for attorney's fees for prosecuting the motion to compel. After trial, judgment was rendered on the merits awarding compensation for total and permanent disability, together with unpaid medical expenses and rejecting the plaintiff's claim for penalties and attorney's fees.

This suspensive appeal followed. The appellant contends that the trial court erred in: (1) finding that claimant could not perform the duties of her job without experiencing substantial pain; (2) finding that the claimant was not excluded from workmen's compensation coverage as a public official; (3) finding that the claimant was engaged in the performance of her duties at the time of the accident; (4) overruling defendant's exception of prematurity; and (5) refusing to award attorney's fees on the defendant's motion to compel answers to interrogatories.

The claimant answered the appeal and seeks an award of penalties and attorney's fees.

FACTS

The record establishes that from August 1981 down to and including the date of trial, the claimant, Carol L. Belt, served as a member of the Louisiana State Board of Cosmetology. The duties of the board, but not the members of the board, are spelled out by statute (R.S. 37:498) but, for purposes of this proceeding it suffices to say that the duties of the members include certain record keeping, travel to Baton Rouge for board meetings, travel to Baton Rouge every two weeks to administer tests to persons covered by the Louisiana Cosmetology Act, travel to the various beauty shops and schools located in the member's district to inspect the facilities and operations, the investigation of complaints and the supervision of inspectors employed by the board.

On February 11, 1983 the plaintiff, Carol L. Belt, borrowed a pickup truck from Donald Osterberger who was working on her car. She left St. Francisville, Louisiana and drove to a point 4.6 miles north of the Louisiana-Mississippi state line, picked up her daughter, who attended the Wilkinson County Christian Academy, located just south of Woodville, Mississippi, and returned to Louisiana. Mrs. Belt contends that she had received a complaint about some one operating without a license from a house located on Rosemound Loop Road which intersects with Louisiana U.S. Highway 61 at two different locations between St. Francisville and the state line. She states that it was her purpose to pick up her child and, on her return to St. Francisville, turn right off U.S. 61 onto Rosemound Loop Road to investigate the complaint. The turn was located slightly more than a mile south of the Louisiana-Mississippi state line. At a point approximately nine-tenths ( 9/10) of a mile south of the line her vehicle was struck in the rear by another southbound vehicle. Mrs. Belt was traveling slowly at the time of impact. She contends she was not braking but had slowed in preparation for her turn. The defendant suggests she was turning into a business known as the South of the Border Restaurant and Lounge.

Mrs. Belt sustained trauma to the head and face, apparently suffered some concussion and injuries to her neck and back. She was not hospitalized immediately but was treated by a number of physicians. She remained off work until March 7, 1983 after which she resumed at least partial performance of her duties. Mrs. Belt contends that she has worked in substantial pain, performing less than all the duties required of her, and is thus entitled to workmen's compensation benefits.

EXCEPTION OF PREMATURITY

Prior to its amendment by Acts 1983, 1st Ex. Sess., No. 1 § 1 which became effective July 1, 1983, La.R.S. 23:1314 provided in effect that suits for workmen's compensation shall be premature and shall be dismissed unless it be alleged and shown that:

1. " * * * the employee * * * is not being or has not been paid * * * the maximum percent of wages * * * or * * * "

2. " * * * the employee has not been furnished the proper medical attention, or * * * "

3. " * * * the employee has not been furnished with copies of the (medical) reports * * * after written request * * * " (Emphasis added)

As previously mentioned, Mrs. Belt returned to work on March 7, 1983 and was thereafter paid her regular salary. She was paid compensation benefits for the period February 18, 1983 through March 6, 1983 in the amount of $495.42 and $8,981.13 has been paid against total medical expenses of $26,142.76.

There is considerable evidence in the record that Mr. John W. Hook of Risk Management was aware of the claimant's continuing problems, conducted conversations with claimant's husband suggestive of a willingness to settle the claim and perhaps suggested that claimant should not have an attorney but, nevertheless, made no additional payments of benefits and made no effort to settle the claim. He was duly informed of the injury and the claim. On March 26, 1983 a statement was taken from the claimant at Mr. Hooks' instance by Mr. Ben Rogers, an independent adjuster. Mr. Hooks had three or four conversations with Mr. Belt about the matter. There were conversations at least on November 8, 1983 and as late as February 16, 1984.

In the petition filed herein the claimant avers in paragraph six (6) that subsequent to her return to work she had experienced substantial pain upon performance of her duties and was therefore disabled under the act. In Articles 10 and 11 of the petition plaintiff alleges that, despite amicable demand, the defendant has refused to reinstate her benefits.

Well settled in our law is the proposition that a worker who returns to work following his injury may still be considered totally and permanently disabled, and entitled to benefits, if he must function in substantial pain. ² Lemoine v. Employers Casualty Company, 378 So.2d 594 (La.App. 3rd Cir.1979) Writ Refused February 15, 1980; Bordelon v. Ranger Insurance Company, 413 So.2d 962 (La.App. 3rd Cir.1982); Harrington v. Starline, Inc., et al, 425 So.2d 307 (La.App. 3rd Cir.1982); LaPrarie v. Liberty Mutual Insurance Company, et al, 463 So.2d 908 (La.App. 2nd Cir.1985); Gibson v. Hayes Oilfield Construction Company, et al, 467 So.2d 1304 (La.App. 3rd. Cir.1985) Writ Denied June 28, 1985. Although an employer may be allowed credit for the continued payment of wages which pursuant to an express or implied agreement are paid in lieu of compensation, an employer is not entitled to credit against compensation liability for wages which are fully earned by the disabled employee. Occhipinti v. Marquette Casulty Company, 158 So.2d. 389 (La.App. 3rd Cir.1963) Writ Refused February 14, 1964; Pender v. National Fire And Marine Insurance Company, 255 So.2d. 95 (La.App. 3rd Cir.1971) Writs Refused December 13, 1971.

Thus where claimant was being paid no compensation at all, but due to economic circumstances, was compelled to return to her employment and continued the performance of her duties despite substantial pain, the trial court did not err in overruling the exception of prematurity. It is apparent that the trial court determined that the plaintiff's allegations were made with reasonable cause or foundation in fact and were justified under the facts. See Patton v. Silvey Companies, 395 So.2d 722 (La.1981).

ATTORNEY'S FEES--MOTION TO COMPEL

Defendant-Appellant contends that the trial court erred in refusing to award attorney's fees on the motion brought to compel answers to interrogatories objected to by plaintiff-appellee.

Clearly the trial judge is authorized under the provisions of LSA-C.C.P. Art. 1469(4) to allow attorney's fees and other reasonable expenses, unless the party failing to answer the interrogatories timely was "substantially justified or that other circumstances make an award of expenses unjust." The language of the statute and the jurisprudence make it clear that the trial judge is necessarily granted broad discretion in determining whether or not expenses and attorney's fees will be awarded. Smith v. Smith, 398 So.2d 549 (La.App. 1st Cir.19...