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Albert v. Strategic Rests. Acquisition Co. LLC

Court of Appeal of Louisiana, First Circuit

December 23, 2014

JO ANN ALBERT
v.
STRATEGIC RESTAURANTS ACQUISITION CO. LLC

Page 508

Appealed from the Office of Workers' Compensation, In and for the Parish of St. Tammany, State of Louisiana. Docket Number 13-06978. Gwendolyn F. Thompson, Workers' Compensation Judge Presiding.

Daren Sarphie, Metairie, LA, Counsel for Plaintiff/Appellee, Jo Ann Albert.

Daniel M. Redman, Christian B. Bogart, Metairie, LA, Counsel for Defendants/ Appellants, Strategic Restaurants Acquisition Co. LLC.

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

OPINION

Page 509

[2014 1001 La.App. 1 Cir. 2] WHIPPLE, C.J.

In this workers' compensation appeal, the employer and its workers' compensation insurer challenge the judgment of the Office of Workers' Compensation, which awarded the injured employee supplemental earnings benefits (" SEBs" ), attorney's fees, and penalties. For the following reasons, we amend the judgment in part and affirm, as amended.

FACTS AND PROCEDURAL HISTORY

On May 17, 2012, Jo Ann Albert, who was employed by Strategic Restaurants Acquisition Company, LLC (" Strategic" ) as a crew member at the Burger King in Covington, La., slipped and fell on grease in the restaurant. As a result of the fall, she fractured her right foot, which required surgery to repair. Following the surgery, she had continued complaints of pain, resulting in a second surgical procedure

Page 510

to remove the hardware placed in her foot. On December 12, 2012, the orthopedic surgeon reported that Albert was unable to return to her full-duty work requirements and that she was restricted to lifting no more than twenty pounds and standing for no more than one hour with frequent breaks. Albert was subsequently referred to a pain management physician for her continued complaints of pain, and she was ultimately diagnosed with reflex sympathetic dystrophy. On April 24, 2013, the pain management physician restricted Albert to sedentary work, commenting that her ability to stand and ambulate was very limited.

On August 15, 2013, Strategic terminated all weekly workers' compensation benefits being paid to Albert. Albert then filed a disputed claim for compensation, alleging that Strategic had improperly terminated her indemnity payments and seeking penalties, attorney's fees, costs and interest.

Strategic denied Albert's claim and requested that a preliminary determination hearing be scheduled with the workers' compensation judge, [2014 1001 La.App. 1 Cir. 3] pursuant to LSA-R.S. 23:1201.1. Albert filed a motion to strike Strategic's request for a preliminary determination hearing. Foil owing a hearing, the workers' compensation judge granted Albert's motion to strike, finding that Strategic had failed to show evidence of compliance with all of the procedures set forth in LSA-R.S. 23:1201.1(A), which are prerequisites for an employer's request for a preliminary determination hearing.

Albert's claim then proceeded to trial before the workers' compensation judge on February 5, 2014. At the trial, the parties stipulated that Albert was injured in an accident arising out of the course and scope of her employment with Strategic, and that she had sustained an injury to her right ankle/foot. The parties further stipulated that at the time of her injury, Albert's average weekly wage was $217.65. At the trial, Strategic did not contest the extent of Albert's physical limitations or whether her physical limitations were caused by her work-related injury. Instead, Strategic contended that it properly terminated Albert's indemnity benefits because there was evidence that Albert was able to earn more than ninety percent of her pre-accident wages. The only witnesses called to testify at trial were Albert and Rusty Pleune, a licensed and certified rehabilitation counselor who had worked with Albert. The documentary evidence introduced at the trial consisted of: (I) Albert's medical records; (2) correspondence from Pleune regarding potential job openings for Albert; and (3) detailed notes that Albert kept regarding various jobs that she had applied for after the accident, all to no avail.

Following the trial, the workers' compensation judge found that Strategic and its workers' compensation insurer, New Hampshire Insurance Company, had terminated Albert's indemnity benefits based on a vocational rehabilitation process that was " grossly insufficient." Accordingly, a judgment was signed on April 23, 2014, ordering Strategic to pay Albert SEBs in the amount of $158.00 per week for the period of August 16, 2013, through the date of trial, plus legal interest. The [2014 1001 La.App. 1 Cir. 4] judgment further ordered that Strategic pay Albert SEBs based on the annual weekly wage of $217.65 per week from the date of trial forward, with credit under the applicable credit formula for wages earned or wages Albert is able to earn each month, if any. The judgment also ordered that Strategic pay $6,500.00 in attorney's fees, plus legal interest, and a $2,000.00 penalty for its arbitrary and capricious termination of benefits " without probable cause."

Page 511

From this judgment, Strategic and its insurer appeal, contending that the workers' compensation judge erred in:

(1) striking the request for a preliminary determination hearing;
(2) awarding supplemental earnings benefits from August 16, 2013 through February 5, 2014;
(3) awarding supplemental earning benefits in the amount of $158.00 per week;
(4) awarding supplemental earnings benefits for any period of time after the trial; and
(5) awarding penalties and attorney's fees.

DISCUSSION

Request for a Preliminary Determination Hearing

(Assignment of Error No. 1)

Strategic first contends that the workers' compensation judge erred in striking the request for a preliminary determination hearing upon finding that Strategic did not comply with the mandatory procedures set forth in LSA-R.S. 23:1201.1. Strategic avers that had a preliminary determination hearing taken place, it would have had the opportunity to avoid Albert's claim for penalties and attorney's fees.

Louisiana Revised Statute 23:1201.1, as enacted by Acts 2013, No. 337, provides that employers may request a preliminary determination hearing in their answer to a disputed claim for compensation. LSA-R.S. 23:1201.1(H). Pursuant to the statute, when a request for a preliminary determination hearing is made, the workers' compensation judge shall initiate a telephone status conference with the parties to schedule discovery deadlines and facilitate the exchange of documents. [2014 1001 La.App. 1 Cir. 5] LSA-R.S. 23:1201.1(J)(3). The preliminary determination hearing shall then be held within ninety days of this status conference, with one thirty-day extension permitted. LSA-R.S. 23:1201.1(J)(2). An employer or pay or who has not complied with the requirements set forth in Subsection A through E of this Section or who has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion, shall not be entitled to a preliminary determination. An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to LSA-R.S. 23: 1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section. LSA-R.S. 23:1201.1(I)(1).

At issue herein is whether Strategic was entitled to a preliminary determination hearing despite not showing evidence of compliance with all of the requirements set forth in subsection A of LSA-R.S. 23:1201.1, specifically LSA-R.S. 23:1201.1(A)(2)and(A)(3). ...


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