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Gabriel v. Delta Air Lines, Inc.

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

CARL E. GABRIEL
v.
DELTA AIR LINES, INC. & ACE AMERICAN INSURANCE COMPANY

         ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 STATE OF LOUISIANA NO. 14-49 HONORABLE SHERAL C. KELLAR, JUDGE PRESIDING

          PLAINTIFF/APPELLANT, CARL E. GABRIEL In Proper Person.

          COUNSEL FOR DEFENDANT/APPELLEE, DELTA AIR LINES, INC. & ACE AMERICAN INSURANCE COMPANY Leslie E. Hodge Kelly F. Walsh

          Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst

          ROBERT M. MURPHY JUDGE

         Claimant, Carl Gabriel, appearing in proper person, has appealed the November 2, 2016 judgment of the Workers' Compensation Court which determined his average weekly wage and corresponding compensation rate. For the reasons that follow, we affirm the judgment of the Workers' Compensation Court.

         FACTS AND PROCEDURAL HISTORY

         On August 25, 2008, claimant began working for defendant, Delta Airlines, Inc., as a "Ready Reserve" employee. On October 19, 2008, claimant was injured in the course and scope of his employment. On November 6, 2009, claimant filed a Disputed Claim for Compensation, asserting that defendant failed to properly pay indemnity benefits and authorized medical benefits. On February 23, 2011, claimant filed a First Amended and Supplemental Disputed Claim for Compensation, adding new assertions and claiming that he is entitled to the maximum amount of compensation benefits. On October 31, 2011, the workers' compensation court rendered a judgment finding claimant's "average weekly wage shall be calculated using an hourly rate of $10.50 for a 40 hours work week, and it shall include claimant's bonus and shared rewards from the employer."[1]Defendant appealed this judgment, arguing that the workers' compensation court erred in calculating the average weekly wage because claimant was a part-time employee and it was error to apply the 40-hour presumption in La. R.S. 23:1021(12)(a)(i) to increase the average weekly wage.[2] Gabriel v. Delta Air Lines, 12-428 (La.App. 5 Cir. 01/30/13), 106 So.3d 1285, 1292, writ denied, 13-0917 (La. 05/31/13), 118 So.3d 399. Finding no error in the workers' compensation court's application of the 40-hour presumption and calculation of claimant's average weekly wage, this ruling was affirmed. Id

         On January 2, 2014, claimant filed a Disputed Claim for Compensation alleging, among other things, that his "Workers' Compensation Rate is incorrect." Claimant alleged that the compensation payments made to him were incorrect because they failed to include his "shared rewards" and bonus. It was agreed that this issue would be submitted to the workers' compensation judge on briefs. On September 24, 2014, defendant submitted its brief arguing that its calculation of compensation payments was correct and included claimant's shared rewards. However since claimant did not receive a bonus, a bonus was not included in the calculation. In support of its position, defendant submitted five exhibits: (1) a document given to employees explaining defendant's shared rewards program, (2) claimant's paychecks including check stubs dated September 23, 2008, September 30, 2008, October 15, 2008, and October 31, 2008 indicating the amount of hours worked, gross pay and net pay, (3) print outs from an online check inquiry documenting the payments made to claimant on September 23, 2008, September 30, 2008, October 15, 2008 and November 4, 2008, (4) claimant's deposition taken May 8, 2014, and (5) a notice concerning employment as a ready reserve employee signed by claimant on July 21, 2008. Claimant moved to strike exhibit two arguing that this evidence had not been presented in the trial of his compensation claim and that it was uncertified and unauthenticated. Following a hearing on claimant's motion to strike, the workers' compensation judge granted claimant's motion. Defendant sought supervisory review from this Court. Gabriel v. Delta Airlines, Inc., 15-76 (La.App. 5 Cir. 3/10/15)(unpublished writ disposition). This Court granted defendant's writ application holding:

… this Court agrees that the issue of how to calculate Mr. Gabriel's average weekly wage remains unresolved. Specifically, since the record thus far is silent and both parties disagree, the amount of 'shared rewards' and 'bonus' payments Mr. Gabriel received during his employment must be determined by the Workers' Compensation Court. Before this determination is made, all parties shall be entitled to produce otherwise admissible evidence in support of their calculation of the average weekly wage. Based upon the record before us, we are unable to determine the basis upon which the compensation judge excluded relator's exhibit. Accordingly, the writ is granted, the ruling of the Workers' Compensation Court striking Delta's exhibit is vacated, and the matter is remanded for proceedings consistent herewith.

Id. In response to this Court's writ disposition, the workers' compensation court issued an order setting a hearing on the calculation of claimant's average weekly wage stating "each party shall advise the court of their calculation of Mr. Gabriel's average weekly wage and shall produce otherwise admissible evidence in support of their calculation of Mr. Gabriel's average weekly wage." On July 31, 2014, a hearing was held on calculation of the average weekly wage. At the hearing, the workers' compensation judge asked claimant to present his evidence. Claimant, appearing in proper person, stated that he received a bonus in the amount of $1, 175.01 and asked if he and defendant could stipulate to an average weekly wage. The court allowed the parties to go off of the record in an attempt to reach a stipulation. The parties were unable to reach a stipulation. Claimant agreed that his base weekly salary was $420.00. Claimant argued that he was paid weekly and that September 30, 2008 check in the amount of $777.00 represented his base pay of $420.00 plus his shared rewards. Claimant stated that the October 15, 2008 check in the amount of $819.25 represented his base pay of $420.00 plus his shared rewards. Claimant argued that he received a bonus check in the amount of $1, 175.04. Claimant explained that dividing the bonus check by four and adding it to the amounts in September 30 and October 15 checks, claimant arrived at $3, 611.00, which divided by four gives an average weekly wage of $902.75.

         Defendant agreed that claimant's base weekly wage was $420.00. Defendant argued that claimant was paid bi-weekly based on the dates claimant was paid. Regarding shared rewards, defendant referred to exhibit one, which describes the shared rewards program and explained that the program provides for a maximum of $100 per month per individual in shared rewards if the group's operational goals are met. Defendant also pointed out that at the trial on claimant's claim for compensation, claimant testified that if they met a certain performance, they would get "an extra hundred dollars or so." Defendant submitted exhibit number two, claimant's paychecks and check stubs for the four weeks prior to the accident, [3] and pointed out to the court how these payments were broken down. Defendant explained that for the check dated October 15, 2008, gross earnings in the amount of $819.25, was for 68.5 hours of work plus shared rewards in the amount of $100. Defendant went on to argue that for the purposes of calculating the average weekly wage including the shared reward, applying La. R.S. 1021.12(d), the shared reward must be divided by the number of weeks claimant worked prior to the accident. Since claimant worked a total of 10.28 weeks prior to the accident, the $100 must be divided by 10.28 which results in $9.73. Defendant concluded that $9.73 should be added to the base wage of $420.00 to reach an average weekly wage of $429.73.

         With regard to any bonus received by claimant, defendant argued that the October 31, 2011 judgment stated that bonus should be included in calculation of the average weekly wage but did not state that claimant actually received any bonus. Defendant argued that pursuant to exhibit five, the document signed by claimant explaining that as a ready reserve employee, claimant would not receive any bonuses. Defendant further argued that the check dated November 4, 2008 is not a bonus, rather it is a nontaxable stock option which is not included in the calculation of average weekly wage pursuant to La. R.S. 2310.21.13(f). Alternatively, defendant argued that this amount was not earned in the four weeks prior to claimant's accident and as such should not be included in the average weekly wage.

         Claimant had no objections to exhibits one, three, four and five. Claimant reiterated his objection to exhibit two; the workers' compensation judge overruled the objection and admitted this exhibit.

         Claimant then argued that defendant did not comply with the provision of the ready reserve employee program prohibiting ready reserve employees from receiving additional compensation as evidenced by the fact that he received a raise from $10.50 to $10.82 and shared rewards benefits. Claimant argued that there is no evidence that the November 4, 2008 check in the amount of $1, 175.04 was a stock option. Claimant argued that the bonus in the amount of $1, 175.04 was earned in the four ...


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