APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION. NO. 2013-00810, DISTRICT " 8" . Honorable Diane R. Lundeen, Workers' Compensation Judge.
Thomas A. Gennusa, II, Joseph S. Piacun, Reid S. Uzee, GENNUSA PIACUN & RULI, Metairie, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
M. Jeremy Berthon, Baton Rouge, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Rosemary Ledet).
Daniel L. Dysart, Judge
[2014-0926 La.App. 4 Cir. 1] In this worker's compensation matter, appellant, Dean Groover, appeals the trial court judgment, seeking (1) a recalculation of his average weekly wage so as to include tips he received as part of his pay and (2) a reversal of the lower court's determination that he is not entitled to
supplemental earnings benefits. Appellees, Lafitte's Boudoir, d/b/a " Big Daddy's" (" Big Daddy's" ) and Louisiana Workers' Compensation Corporation (" LWCC" ), Big Daddy's worker's compensation carrier, answered the appeal, seeking to set aside the lower court's award of (1) future medical expenses and (2) penalties and attorney's fees. For the reasons that follow, we affirm in part, vacate in part and remand.
PROCEDURAL AND FACTUAL BACKGROUND
Sometime in 2006, Dean Groover was approached by an associate of Rick Colacurcio, the owner or lessee of several establishments located on Bourbon Street in the French Quarter, to work on the conversion of a bar into a live music club. Mr. Groover then became employed by Mr. Colacurcio for other duties, including the maintenance of several apartments, and the stocking of three bars, [2014-0926 La.App. 4 Cir. 2] including " Big Daddy's." Mr. Groover was on the payroll for Big Daddy's, and the parties stipulated that his weekly pay was $400. Mr. Groover's pay was drawn on the account of Big Daddy's; the records introduced into evidence confirm that Mr. Groover received $400 per week from Big Daddy's from July, 2007 through September 3, 2007.
On September 3, 2007, Dean Groover was involved in an altercation with another employee, Saint Jones, and as a result of this altercation, Mr. Groover injured his right shoulder, necessitating medical treatment, including surgery. Three days after the altercation, Mr. Groover's employment with Big Daddy's was terminated by Mr. Colacurcio.
Mr. Groover initiated this matter by filing a Disputed Claim for Compensation with the Office of Workers' Compensation (" OWC" ) on February 1, 2013. The matter then proceeded to trial on October 17 and 25, 2013 before an OWC judge. On February 20, 2014, judgment was rendered in favor of Mr. Groover. The OWC judge concluded that: Mr. Groover was in the course and scope of his employment at the time of his fall on September 4, 2007; Mr. Groover was not the aggressor in the incident; Mr. Groover sustained injuries to his right shoulder, neck and head in the incident; Mr. Groover's subsequent thumb injury [2014-0926 La.App. 4 Cir. 3] and resulting surgical procedures were not causally related to the incident; and Mr. Groover is entitled to ongoing necessary and related medical care for his right shoulder.
The OWC judge further determined that Mr. Groover's average weekly wage was $400, and therefore, his workers' compensation rate was $266.67. The OWC judge further determined that Mr. Groover had carried his burden of proving entitlement to temporary total disability (" TTD" ) benefits from September 8, 2007 through May 18, 2009, for which Big Daddy's owed $23,392.77. The February 20, 2014 judgment also awarded:
o $4,050.00 representing fifteen weeks of permanent partial disability benefits of 66 2/3% of Mr. Groover's weekly wage
for a " permanent and seriously disfiguring" scar. Big Daddy's was given a credit of this amount because the TTD benefits awarded exceeded the permanent partial disability (" PPD" ) award by 73 weeks;
o Medical bills as follows:
- City of New Orleans, Department of E.M.S. - $704
- Tulane University Hospital and Clinic - $5,933.32
- Ochsner - $1,693.73
- Medical Center of Louisiana New Orleans - $30,391.63
- Louisiana Physical Medicine & Rehabilitation Associates - $1,300
- East Jefferson Imaging Center - $210
- Dr. Anwar Bruni - $792
- Prescription medications - $255.54
The OWC judge, finding Big Daddy's and LWCC to have been " arbitrary, capricious or unreasonable in failing to pay Mr. Groover's indemnity benefits," [2014-0926 La.App. 4 Cir. 4] awarded $2,000 in penalties pursuant to La. R.S. 23:1201 F and attorney's fees of $14,000 pursuant to La. R.S. 23:1201 F.
The February 20, 2014 judgment, however, denied supplemental earnings benefits because the OWC judge found that Mr. Groover either earned or was capable of earning 90% of his pre-accident wages since May 19, 2009. It further denied penalties and attorney's fees sought in connection with the failure to timely pay medical bills, finding that Mr. Groover failed to establish that he had made written demand for payment under La. R.S. 23:1201 E.
From this judgment, Mr. Groover timely filed a petition for a devolutive appeal. Big Daddy's and LWCC (sometimes hereafter collectively referred to as " Appellees" ) answered the appeal, seeking to set aside the award of penalties and attorney's fees and the OWC judge's finding that Mr. Groover is entitled to ongoing medical care.
Standard of Review in General
This Court, in Greer v. Whole Foods Mkt., Inc., 13-0455, p. 4 (La.App. 4 Cir. 1/15/14), 133 So.3d 80, 84, writ denied, 14-0258 (La. 4/4/14), 135 So.3d 1184, reiterated the well-settled standard of review of a workers' compensation judgment:
The standard of review applied in a workers' compensation case is the " manifest error-clearly wrong" standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556. The findings of the workers' compensation court will not be set aside by the appellate court unless they are found to be clearly wrong after reviewing the record in its entirety. Id. See also Irving v. Transit Mgmt. of Se. Louisiana, Inc., 10--0360, p. 2 (La.App. 4 Cir. 7/20/10), 44 So.3d 796, 798. In addition, the appellate court will [2014-0926 ...