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Hunter v. Town of Richwood

Court of Appeals of Louisiana, Second Circuit

May 22, 2019

EUCKLE HUNTER, JR. Plaintiff-Appellant
v.
TOWN OF RICHWOOD Defendant-Appellee

          Appealed from the Office of Workers' Compensation, District 1 East Parish of Ouachita, Louisiana Trial Court No. 17-04335 Linda Lea Smith Workers' Compensation Judge

          LAW OFFICES OF STREET & STREET Counsel for Appellant By: C. Daniel Street

          HUDSON, POTTS & BERNSTEIN, L.L.P. By: Johnny R. Huckabay II Counsel for Appellee

          Before GARRETT, STEPHENS, and BLEICH (Ad Hoc), JJ.

          GARRETT, J.

         Euckle Hunter, Jr., the claimant in this workers' compensation case, appeals from a judgment which denied the fraud claim he made against his employer, the Town of Richwood ("the Town"), under La. R.S. 23:1208. Hunter contended that, after he filed suit against the third party who injured him, the Town filed an intervention in that suit and improperly sought to recover penalties and attorney fees assessed against it in Hunter's workers' compensation case by "mislabeling" these payments as "temporary total disability." We affirm the judgment below.

         FACTS

         Hunter was employed by the Town as chief of police. On August 4, 2014, he was injured in an auto accident while driving his police car. As a result of the accident, Hunter filed both a workers' compensation claim against the Town and a tort suit against the other driver.

         Hunter prevailed in the workers' compensation matter. On December 14, 2016, a judgment awarding him temporary total disability indemnity benefits was signed. This judgment also granted him $300 for reimbursement for emergency room treatment, $123.65 for prescription reimbursement, $2, 000 in penalties, $2, 750 in attorney fees, $1, 000 for cost of a deposition, and $164.75 for court costs.[1] In payment of this judgment, the Louisiana Municipal Risk Management Agency issued to Hunter and his attorney a check for $6, 377.77, dated January 30, 2017. The check stub recited the following: "Payment Type: Temporary Total Disability. Comments: Pursuant to OWC [Office of Workers' Compensation] Judgment."

         Payment of this check was entered into the extensive payment history of Hunter's claims kept by the adjuster. That one-line entry - which is the centerpiece of the instant appeal - had the following information set forth in eight columns: serial number ("582175"), payment type ("Temporary Total Disability"), paid to ("Euckle Hunter and his attorney, C. Daniel Street"), service date ("8/4/2014-8/4/2014"), billed ("$6, 377.77"), paid ("$6, 377.77"), "Aprvd" ("Yes"), and status ("1/30/2017, Ck #365970").

         Hunter's tort suit against the other driver was filed on August 7, 2015. On September 11, 2015, the Town filed an intervention in the tort suit, seeking to recover sums it paid and continued to pay on Hunter's workers' compensation claim, pursuant to La. R.S. 23:1102. During the course of discovery, counsel for Hunter and the Town exchanged letters and emails. In January 2017, Hunter's counsel requested that the Town provide him with "a print-out of medical [and] indemnity paid" to provide to the tort defendants to see if they wanted to settle. On March 1, 2017, Hunter's counsel wrote again, enclosing a request for production of a "[c]omputer printout or other documentation of all workers' compensation indemnity and medical payments" made in conjunction with the accident and "[i]f different from the amount shown in the documents requested in Request for Production No. 1 above, provide any other documents which reveal the amount of your intervention herein."

         On March 2, 2017, the Town's attorney emailed Hunter's personnel file from the Town and some of his workers' compensation records.[2] The email noted that more workers' compensation records would be forthcoming from Baton Rouge. In April 2017, the Town's counsel sent Hunter's counsel a CD with the entire workers' compensation file, which was voluminous.

         On May 23, 2017, Hunter's counsel wrote the Town's counsel, informing him of a $450, 000 offer from the tort defendant to settle all claims and offering the Town $50, 000. On June 1, 2017, the Town's counsel mailed and faxed Hunter's counsel a letter rejecting the $50, 000 settlement offer. On June 2, 2017, Hunter's counsel sent the Town's counsel a letter containing, in pertinent part, the following:

As usual, your client is off to a great start on trying to resolve this matter. On the very first page of your record of payments, which you apparently included in the gross amount paid, is an entry for a payment of temporary, total disability in the amount of $6, 377.77. That was not for temporary, total disability but was for penalties and attorney fees. The mislabeling of that payment violates La. R.S. 23:1201F(5). Furthermore, that mislabeling is arguable [sic] workers' comp fraud because it is designed to facilitate recovery of that amount as compensation when it is not recoverable compensation. In view of this deception, I will now have to closely examine all entries to try to discover anymore [sic] such misconduct. Of course, such mislabeling makes that a challenge.
On June 16, 2017, the Town's counsel responded, in relevant part:
My previous letter of June 1, 2017, respectfully declining your offer to settle this matter for $50, 000, sets forth that my client [is] in this for a total of $157, 521.62. Nowhere in my letter does it state that my client should or could be reimbursed for that amount and there was no counter offer made. There was merely a note as to how much money my client has invested in this matter and a respectful declination of your offer.
La. Stat. Ann. § 23:1201(5) sets forth: No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. No formula was utilized to claim an amount for reimbursement. Thus, there is no fraud and no mislabeling of payments. [Emphasis theirs.]
As you probably know all of the above, and in order to clarify, you sent another letter dated June 14, 2017, inquiring as to how much my client claims is reimbursable in this matter. In that respect, my client has gone through the numbers and tentatively shows as follows:
The $6, 377.77 judgment payment is payable under indemnity because there is NO category for payments other than: indemnity, ...

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