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FLORES v. A & Z Tobacco, LLC

Court of Appeal of Louisiana, Third Circuit

November 19, 2014

BELINDA FLORES
v.
A & Z TOBACCO, LLC, D/B/A PAK A SAK

Page 1005

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3, PARISH OF CALCASIEU, NO. 12-03305. CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE.

James Ray Morris, Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: A & Z Tobacco, LLC.

Scott James Pias, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Belinda Flores.

Larry Arlen Roach, Jr., Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: A & Z Tobacco, LLC.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Billy Howard Ezell, Judges. Thibodeaux, Chief Judge, concurs in part and dissents in part and assigns written reasons.

OPINION

Page 1006

[14-505 La.App. 3 Cir. 1] EZELL, Judge.

In this workers' compensation appeal, A& Z Tobacco, LLC raises issues concerning an award of penalties and attorney fees for failure to pay a judgment within thirty days pursuant to La.R.S. 23:1201(G). Belinda Flores, the claimant, answered the appeal claiming that the award of penalties should have been greater and asking for additional attorney fees for work performed on appeal.

Page 1007

FACTS

Ms. Flores was injured on April 14, 2012, while working for A& Z. At the time of her injury she was moving and lifting a case of beverages when she felt a pop in her right arm and shoulder. She injured her rotator cuff which ultimately required surgery. Ms. Flores filed a workers' compensation claim on May 9, 2012. A& Z contested whether Ms. Flores suffered an injury.

Trial was set for April 24, 2013. After discussions with the workers' compensation judge, the parties entered into an agreement on a motion to compel discovery. Trial of the matter was continued until June 24, 2013. On the day set for trial, the parties entered a stipulation settling the case which was recited in open court. A& Z agreed to pay back indemnity to Ms. Flores in the amount of $9,619.02. It was also agreed that indemnity would continue at the rate of $178.13 a week while Ms. Flores received treatment from Dr. Brent Cascio, an orthopedic surgeon. If Ms. Flores required surgery, A& Z agreed to pay for medical care for six weeks after surgery. If Ms. Flores required physical therapy after surgery, then A& Z agreed to pay for ten weeks of medical care. A& Z also agreed to pay outstanding medical bills in the amount of $845.47. Additionally, A& Z agreed to pay penalties in the amount of $4,000.00 and attorney fees in the amount of [14-505 La.App. 3 Cir. 2] $7,500.00. Also, Dr. Anand Roy personally obligated himself to pay the stipulated penalties and attorney fees if A& Z did not pay.

On July 25, 2013, Ms. Flores filed a motion for contempt of court and for penalties pursuant to La.R.S. 23:1201(G). Ms. Flores also complained that improper contact had been made with her treating physicians. On July 26, 2013, A& Z presented a check in the amount of $21,964.49. A hearing was held on September 18, 2013. After taking the matter under advisement, the workers' compensation judge rendered judgment on December 26, 2013. The court awarded penalties in the amount of $2,000.00 and attorney fees in the amount of $3,000.00 pursuant to La.R.S. 23:1201(G) for failure to timely pay a final and nonappealable judgment within thirty days. The trial court also held that any verbal communication or personal conferences with any of Ms. Flores's health care providers was to be conducted pursuant to La.R.S. 23:1127.

A& Z filed the present appeal. It argues that penalties and attorney fees were inappropriate. A& Z also argues that a stipulation was entered into at trial about contact with Ms. Flores's health care providers and the judgment should have been worded in conformity with the stipulation. Ms. Flores answered the appeal claiming that the amount of penalties should be increased and asking for additional attorney fees for work performed on appeal.

PENALTIES AND ATTORNEY FEES

A& Z sets forth three reasons that penalties and attorney fees were inappropriately awarded pursuant to La.R.S. 23:1201(G). It first argues that Ms. Flores waived and compromised any right to the penalties and attorney fees when she cashed the check. Next, it argues that there was not a final and nonappealable judgment at the time it made payment. Finally, A& Z argues that it was unable to [14-505 La.App. 3 Cir. 3] pay the judgment due to conditions over which it had no control, falling under the exception in La.R.S. 23:1201(G).

Awards of penalties and attorney fees in workers' compensation cases are essentially penal in nature and are imposed to deter indifference and ...


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