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Marshall v. Town of Winnsboro

Court of Appeals of Louisiana, Second Circuit

July 10, 2019

JAY MARSHALL Plaintiff-Appellee
v.
TOWN OF WINNSBORO Defendant-Appellant

          Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Trial Court No. 16-07136 Brenza Irving Jones Workers' Compensation Judge

          HUDSON, POTTS & BERNSTEIN, LLP By: Lance C. Auttonberry Robert M. Baldwin Counsel for Appellant

          STREET & STREET By: C. Daniel Street Counsel for Appellee

          Before WILLIAMS, McCALLUM, and THOMPSON, JJ.

          THOMPSON, J., concurs in part and dissents in part with written reasons.

          WILLIAMS, C.J.

         The defendant, Town of Winnsboro, appeals a judgment in favor of the claimant, Jay Marshall. The workers' compensation judge (WCJ) awarded claimant $4, 000 in penalties and $5, 000 in attorney fees for defendant's failure to timely reimburse claimant for medical visits and mileage expenses. The WCJ also dismissed defendant's reconventional demand seeking termination of supplemental earnings benefits. For the following reasons, we affirm.

         FACTS

         In November 2012, Jay Marshall injured his back while working as a water department supervisor for the Town of Winnsboro. The town refused to pay for medical treatment related to his injury and the claimant, Marshall, filed a disputed claim for compensation. After a trial, the WCJ awarded claimant medical and indemnity benefits, penalties and attorney fees. On appeal, this court affirmed the award of benefits and penalties. See Marshall v. Town of Winnsboro, 50, 255 (La.App. 2 Cir. 11/25/15), 184 So.3d 796. The town has paid claimant supplemental earnings benefits ("SEB") of $2, 388.55 per month for the period of November 1, 2013 through the current date.

         After the accident, claimant was treated by Dr. Bernie McHugh, a neurosurgeon. Claimant has also continued to be treated by his family physician, Dr. Roland Ponarski, who prescribed the medication for claimant's work-related injury. The town paid mileage for claimant to see Dr. Ponarski until May 2017. On the dates of May 31, June 26 and July 17, 2017, claimant's attorney sent written requests seeking reimbursement for mileage and later also sought reimbursement for claimant's payments of $75 for each of his ten visits to the doctor. The town's insurer, Risk Management, Inc., sought medical reports from Dr. Ponarski to confirm the visits before paying the reimbursement and did not make payment within 60 days of the demand. Claimant filed a disputed claim for compensation seeking reimbursement for mileage and for $750 that he paid for doctor visits. Claimant also sought penalties and attorney fees alleging that the town failed to timely reimburse him for mileage and for the office visits. The town filed a reconventional demand alleging that the award of SEB should be terminated because claimant had retired from the workforce. The mileage reimbursement was eventually paid on October 30, 2017, after the adjuster received the medical records from Dr. Ponarski's office in response to a written request.

         After a trial, the WCJ found that the mileage and doctor visits were related to claimant's work injury and that the town had failed to reasonably controvert his entitlement to these benefits. The WCJ further found that the evidence shows that claimant had not returned to work because of his disability. The WCJ rendered judgment awarding claimant $4, 000 in penalties and $5, 000 in attorney fees and dismissing the town's reconventional demand. The town appeals the judgment.

         DISCUSSION

         The town contends the WCJ erred in finding that claimant has not voluntarily withdrawn from the workforce. The town argues that claimant is not entitled to additional SEB because he has retired as shown by his failure to attempt to return to work.

         The right to receive SEB is subject to a maximum of 520 weeks, but shall terminate when the employee retires. La. R.S. 23:1221(3)(d)(iii). A worker retires when he withdraws from the workforce or begins receiving social security benefits. Allen v. City of Shreveport, 637 So.2d 123 (La. 1994). The retirement which restricts SEB payments is that based on age or years of service, resulting in some type of pension, and does not refer to unemployment resulting ...


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