RAPHEAL GUILLORY, JR.
R & R CONSTRUCTION, INC., ET AL.
FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 16-03817 CHARLOTTE BUSHNELL,
WORKERS' COMPENSATION JUDGE
Comeaux Comeaux, Stephens & Grace COUNSEL FOR
DEFENDANTS/APPELLANTS: Zurich North American Insurance R
& R Construction, Inc.
Jacqueline K. Becker Michael B. Miller Miller and Associates
COUNSEL FOR PLAINTIFF/APPELLEE: Rapheal Guillory, Jr.
Kenneth M. Habetz, Jr. Brandt & Sherman COUNSEL FOR
INTERVENORS/APPELLEES: Kenneth M. Habetz, Jr. Brandt &
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and Elizabeth A. Pickett, Judges.
D. SAUNDERS, JUDGE.
case, we must decide whether the imposition of penalties and
attorney fees for Employer's failure to properly tender
settlement funds to Employee pursuant to the terms of their
settlement agreement is incorrect. We must also decide
whether the inclusion of certain statutory language on the
settlement checks imposed impermissible conditions on
Employee's receipt of the settlement funds contrary to
the terms of the settlement agreement.
was injured during the course and scope of his employment.
Subsequently, Employee entered into a settlement agreement
with Employer, wherein Employer stipulated to the
unconditional tender of a lump sum settlement to Employee on
or before a specified date. The workers' compensation
judge approved the settlement agreement, and it was stated on
the record. Thereafter, Employer failed to pay Employee
pursuant to the terms of their agreement. Ultimately,
Employee filed for a new trial, seeking penalties and
attorney fees for Employer's failure to tender settlement
funds pursuant to the terms of their settlement agreement.
Following a hearing, the workers' compensation judge
found in Employee's favor.
now appeals the workers' compensation judge's ruling,
alleging two assignments of error. Its argument is that the
imposition of penalties and attorney fees for the alleged
improper tender of settlement funds is inconsistent with
Louisiana Law and that the inclusion of certain statutory
language on the settlement checks does not constitute
impermissible conditions on Employee's receipt of the
settlement funds contrary to the terms of the settlement
AND PROCEDURAL HISTORY:
August 23, 2013, Rapheal Guillory ("Employee") was
injured in the course and scope of his employment with
R&R Construction, Inc., who was insured by Zurich North
America Insurance Company (hereinafter collectively referred
to as "Employer"). Initially, Employee received
compensation for his injuries, but those benefits were
terminated on May 20, 2016. As a result, Employee filed suit
against Employer seeking benefits, as well as penalties and
attorney fees for termination of his benefits.
to trial, the parties reached a settlement of Employee's
workers' compensation claim which was placed on the
record on March 8, 2017. Pursuant to the parties'
agreement, Employer agreed to pay Employee a lump sum in full
and final settlement of his claims no later than March 24,
March 27, 2017, Employer's counsel untimely
hand-delivered to Employee's counsel a Receipt and
Release, a Joint Motion and Order of Dismissal, and two
checks totaling $225, 930.04. The checks contained certain
statutory language that allegedly imposed impermissible
conditions on Employee's receipt of the settlement funds,
which was not part of the settlement agreement between the
parties. The expenses totaling $2, 224.40, a portion of the
settlement agreement, was not delivered until March 30, 2017,
and was made payable to Miller and Associates with the same
conditional language. Thereafter, Employee's counsel
sought permission from Employer's counsel to either
scratch through the conditional language so that the checks
could be endorsed and deposited, or to return the checks so
that they could be reissued without the conditional language.
Employer's counsel responded that he did not have the
authority to do either.
April 17, 2017, Employer filed a Motion to Enforce Settlement
Agreement and Motion for Penalties and Attorney fees which
was heard on May 4, 2017. Following a hearing, the
workers' compensation judge found that Employer's
tender of settlement funds was neither timely nor
unconditional. However, because the amount of penalties
awarded could not be determined on the face of the judgment,
Employee filed motion for a new trial on June 29, 2017, which
was heard on July 24, 2017. Following a hearing, the
workers' compensation judge signed an amended judgment
which included penalties and attorney fees for Employer's
failure to properly pay settlement funds.
timely filed a motion for suspensive appeal, seeking reversal
of the amended judgment signed July 24, 2017. Pursuant to
that motion, Employer is presently before this court alleging
two assignments of error. Employee timely filed an answer to
this appeal alleging one assignment of error, seeking an
increase in the award of attorney fees.