Shell v. Wal-Mart Stores, Inc.

• Decision Date: 21 March 2001
• Docket Number: No. 00-0997.,00-0997.
• Citation: 782 So.2d 1155
• Parties: Donna Jean SHELL v. WAL-MART STORES, INC.
• Court: Court of Appeal of Louisiana — District of US

782 So.2d 1155

Donna Jean SHELL v. WAL-MART STORES, INC.

No. 00-0997.

Court of Appeal of Louisiana, Third Circuit.

March 21, 2001.

John K. (Mike) Anderson, Leesville, LA, Counsel for Donna Jean Shell.

Eric J. Waltner, Allen & Gooch, Lafayette, LA, Counsel for Wal-Mart Stores, Inc.

Court composed of YE LVERTON, THIBODEAUX, DECUIR, PETERS, and SULLIVAN, Judges.

DECUIR, Judge.

After a judgment awarding past due supplemental earnings benefits became final and remained unpaid for thirty days, plaintiff, Donna Shell, filed a petition for penalties and attorney fees. The Office of Workers' Compensation awarded Ms. Shell $2,500.00 in attorney fees and $3,000.00 in penalties pursuant to La.R.S. 23:1201(G) against her employer, Wal-Mart. Ms. Shell appeals and contends that the Office of Workers' Compensation misinterpreted La.R.S. 23:1201(G) by failing to award as a penalty twenty-four percent of the total judgment for each day the judgment remains unpaid. She also entreats us to increase her award of attorney fees. Wal-Mart also appeals, asking us to reverse the supplemental earnings benefits award of $85.00 per week because the Office of Workers' Compensation misinterpreted this Court's previous opinion and judgment in an unpublished opinion, Shell v. Wal-Mart Stores, Inc., 98-738 (La.App. 3 Cir. 12/9/98), 735 So.2d 132. Additionally, Wal-Mart claims the award of attorney fees was manifestly erroneous.

ISSUES

The issues presented for review are:

(1) whether the calculation of supplemental earnings benefits was correct;

(2) whether the workers' compensation judge properly applied La.R.S. 23:1201(G) when calculating the correct amount of penalties owed to Ms. Shell;

(3) whether the workers' compensation judge committed manifest error in awarding attorney fees to Ms. Shell; and,

(4) whether she is entitled to additional attorney fees for work done on appeal.

FACTS

On March 11, 1994, Donna Shell, an employee of Wal-Mart Stores, Inc., injured her back while lifting a microwave oven onto a shelf during the course and scope of her employment. Ms. Shell subsequently filed a claim for workers' compensation benefits, and a trial was held on April 1, 1997. Judgment was rendered in favor of Ms. Shell on August 20, 1997.

The workers' compensation judge held that Ms. Shell was entitled to back due supplemental earnings benefits (hereinafter "SEB"), medical benefits, modifications to her work environment, and medical treatment as recommended by Dr. Randall Lea, the independent medical examination doctor. Wal-Mart appealed the judgment to this Court which amended in part and affirmed, as amended, in an unpublished opinion. The judgment was amended so as to delete the requirement that Wal-Mart provide a place for Ms. Shell to lie down and rest while working. This Court also amended the SEB award, continuing it until Ms. Shell's wages equaled ninety percent of her pre-accident wages or until the maximum 520 week time limit, provided by statute, elapsed.

On December 23, 1998, the judgment of this Court became final. However, no payments were made by Wal-Mart on the judgment. The judgment should have been paid on or before January 22, 1999, thirty days subsequent to the date it became final. See La.R.S. 23:1201(G). Finally, on March 11, 1999, Wal-Mart paid $1,827.33, and thereafter began paying $11.33 to Ms. Shell as supplemental earnings benefits. Ms. Shell subsequently filed a petition for penalties and attorney fees for failure to pay the judgment in a timely fashion, and judgment in her favor was rendered on January 31, 2000. That judgment interpreted our Court's 1998 decision as awarding Ms. Shell SEB beginning the week of May 15, 1996, through the finality of the judgment of this Court on December 23, 1998, in the amount of 885.00 per week, subject to a credit for the amounts previously paid. The judgment also assessed penalties against Wal-Mart at the rate of $100.00 per day for the maximum amount allowable, $3,000.00, as a result of the delinquent payment of the judgment. Both parties have appealed.

LAW AND DISCUSSION

Standard of Review

Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An appellate court questions whether there is a reasonable factual basis in the record for the finding of the trial court and whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual findings only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, an appellate court should not disturb reasonable evaluations of credibility and reasonable inferences of fact where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder's choice cannot be manifestly erroneous or clearly wrong. Id. at 880; Morris v. Norco Constr. Co., 632 So.2d 332 (La.App. 1 Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163.

The interpretation of a statute is a question of law, which is not governed by the manifest error standard. The appellate court's review of a legal issue hinges on whether the trial court's decision is legally correct or incorrect. Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96); 677 So.2d 1118.

Supplemental Earnings Benefits

Wal-Mart argues that the workers' compensation judge erred in awarding Ms. Shell SEB in the amount of $85.00 per week because the evidence established Ms. Shell was able to perform part-time sedentary work. We disagree. The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks, 696 So.2d 551, 556. Under La.R.S. 23:1221(3)(a), an employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average preinjury wage. The injured employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn wages equal to ninety percent or more of the wages he earned at the time of injury. The determination is made by reference to the facts and circumstances of each individual case. Smith v. Louisiana Dep't of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129.

If the employee meets his burden, the burden of production then shifts to the employer to prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or was available to the employee in either the employee's or the employer's community or reasonable geographic region. Seal v Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161. The amount of SEB is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a).

This is the second time this Court has reviewed this case. In this review, we find that the workers' compensation judge correctly interpreted our previous opinion entitling Ms. Shell to SEB in the amount of $85.00 per week commencing on May 15, 1996, and continuing through December 23, 1998, which is the date this Court's judgment became final. This amount totals $11,475.00 plus interest. We clearly affirmed the workers' compensation judge's conclusion that Ms. Shell was entitled to back due supplemental earnings benefits for the full amount to which she was entitled, $85.00 per week, less any amount actually earned, from the date of termination and ongoing until modified employment was provided. In our opinion dated December 9, 1998, we unambiguously stated that the workers' compensation judge did not err in awarding Ms. Shell SEB. The only amendment made to the original judgment of the Office of Workers' Compensation was the duration of the benefits:

However, we do find that the workers' compensation judge erred in awarding these benefits only until Wal-Mart meets Dr. Lea's modifications and restrictions. Even if Wal-Mart meets those requirements, Ms. Shell will still earn less than ninety percent of her preaccident wages. Accordingly, Ms. Shell is entitled to SEB until either her wages equal ninety percent of her pre-accident wages or the time limit for receiving such benefits has':Aired pursuant to La. R. S. 23:1221(d).

Shell, 98-738, p. 15. Thus, to be clear in this matter, Wal-Mart is obligated to continue to pay supplemental earnings benefits in the amount of $85.00 per week to Ms. Shell until Ms. Shell is earning ninety percent of her pre-accident wages or until the time for receiving SEB has elapsed under La.R.S. 23:1221. The conditions justifying termination or modification of the amount of SEB have yet to be litigated and determined.

IPenalties Under La.R.S. 23:1201(G)

Louisiana Revised Statutes 23:1201(G) governs the payment of a final nonappealable judgment under Louisiana Workers' Compensation Law and provides as follows:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such...