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 By: C. Daniel Street Counsel for Appellee
WILLIAMS, McCALLUM, and THOMPSON, JJ.
THOMPSON, J., concurs in part and dissents in part with
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.
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.
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.
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
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
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 ...