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Perez v. IRBY Construction Co.

Court of Appeals of Louisiana, Third Circuit

June 6, 2018

LATASHIA V. PEREZ, BOTH INDIVIDUALLY AND ON BEHALF OF UNBORN CHILD OF TRAVIS CHIOKAI (DECEASED)
v.
IRBY CONSTRUCTION COMPANY, ET AL.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 03 PARISH OF CALCASIEU, NO. 17-07615 HONORABLE DIANNE MARIE MAYO, DISTRICT JUDGE

          John J. Rabalais, Janice B. Unland, Rabalais Unland COUNSEL FOR DEFENDANTS/APPLICANTS: Irby Construction Company Old Republic Insurance Company

          CThomas A. Filo Cox, Cox, Filo, Camel & Wilson, L.L.C. OUNSEL FOR PLAINTIFF/RESPONDENT: Latashia V. Perez, Latashia V. Perez, o/b/o Unborn Child

          Court composed of, Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          SHANNON J. GREMILLION JUDGE

         Applicants, Irby Construction Company and Old Republic Insurance Company, seek supervisory review of the decision of the workers' compensation judge's (WCJ) failure to maintain their exception of no cause/right of action. For the reasons that follow, we deny Applicants' writ application.

         FACTS AND PROCUEDRAL POSTURE

         Travis Chiokai was killed on November 7, 2017, in a work-related accident. At the time, Mr. Chiokai was not married, but was romantically involved with Latashia Perez, who filed a Disputed Claim for Compensation seeking death benefits on her own behalf and on behalf of her then-unborn child. The child was born and confirmed by DNA testing to be the child of Mr. Chiokai. The child has been paid death benefits. Applicants contested benefits for Ms. Perez on the basis La.R.S. 23:1253, which bars death benefits to the deceased employee's "concubine." Applicants filed an exception of no right/cause of action, which the WCJ denied. This application followed.

         ANALYSIS

         Death benefits pursuant to the Louisiana Workers' Compensation Act are determined by La.R.S. 23:1231, which provides:

A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
B. (1) If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.
(2) If the employee leaves no legal dependents, whether biological or adopted, entitled to benefits under any state or federal compensation system, one lump sum payment of seventy-five thousand dollars shall be paid to the employee's surviving biological and adopted children who are over the age of majority, to be divided equally among them, which shall constitute the sole and exclusive compensation in such cases.
(3) If the employee leaves no dependents entitled to benefits under Paragraph (2) of this Subsection, one lump sum of seventy-five thousand dollars shall be paid to the surviving biological and adopted children of the employee to be divided equally among them, which shall constitute the sole and exclusive compensation in such cases. If the employee leaves no legal dependents and no biological or adopted children entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to ...

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