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Crochet v. Calcasieu Parish Police Jury

Court of Appeals of Louisiana, Third Circuit

September 25, 2019

TODD CROCHET
v.
CALCASIEU PARISH POLICE JURY

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT NO. 3 PARISH OF CALCASIEU, NO. 14-03253 CHARLOTTE BUSHNELL, WORKERS' COMPENSATION JUDGE.

          Kevin L. Camel Cox, Cox, Filo, Camel & Wilson, LLC COUNSEL FOR PLAINTIFF/APPELLANT: Todd Crochet

          Jeffrey C. Napolitano Juge, Napolitano, Guilbeau, Ruli & Frieman COUNSEL FOR DEFENDANT/APPELLEE: Calcasieu Parish Police Jury

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett, Billy H. Ezell, Shannon J. Gremillion, Phyllis M. Keaty, John E. Conery, D. Kent Savoie, Van H. Kyzar, Candyce G. Perret, and Jonathan W. Perry, Judges.

          Gremillion, J., dissents for the reasons assigned by Judge Conery.

          Kyzar, J., dissents and joins in the reasons assigned by Judge Conery.

          Perry, J., dissents and joins in the reasons assigned by Judge Conery.

          CANDYCE G. PERRET, JUDGE.

         This case is before this court following the workers' compensation judge's ("the WCJ") April 2, 2018 judgment on remand in favor of Calcasieu Parish Police Jury ("the CPPJ"). Todd Crochet ("Mr. Crochet") appeals the judgment on remand which awards an offset against his weekly workers' compensation benefits in the amount of $98.06 per week, awards a credit in the amount of $42, 053.73, and entitles the CPPJ to suspend Mr. Crochet's weekly workers' compensation benefits until the overpayment has been satisfied. Because this case potentially conflicts with this court's opinion in Sandifer v. Calcasieu Parish Public Works, 17-343 (La.App. 3 Cir. 11/22/17), 234 So.3d 956, writ denied, 17-2148 (La. 3/9/18), 238 So.3d 449, it is decided en banc to reconsider the holding in Crochet v. Calcasieu Parish Police Jury, 16-954 (La.App. 3 Cir. 4/12/17), 217 So.3d 464, writ denied, 17-781 (La. 9/22/17), 228 So.3d 742 ("Crochet I"). For the following reasons, we reverse and remand.

         FACTS AND PROCEDURAL BACKGROUND:

         Mr. Crochet was injured in the course and scope of his employment with the CPPJ on March 2, 1998, leaving him totally disabled. At the time of his injury, Mr. Crochet participated in the Parochial Employees Retirement System ("PERS") Plan A, in which a single trust holds all contributions and investment income and in which all benefits are paid out of this trust fund. The trust receives its funds from four sources: employees, employers, ad valorem taxes, and the state general fund. All contributions are commingled.

         Following his injury, Mr. Crochet received weekly workers' compensation benefits of $348.58. Mr. Crochet concurrently received payments from PERS, but on July 1, 2006, PERS removed its offset for workers' compensation benefits and began paying Mr. Crochet his full disability benefit. Thereafter, on September 18, 2014, the CPPJ reduced Mr. Crochet's workers' compensation benefits to $251.72 per week, claiming it is entitled to an offset due to Mr. Crochet's receipt of PERS benefits, to which the CPPJ contributed. See La.R.S. 23:1225(C).

         On June 27, 2015, the CPPJ suspended Mr. Crochet's workers' compensation benefits claiming a credit for approximately $43, 232.19 in past benefits Mr. Crochet received from PERS, beginning on July 1, 2006, through September 18, 2014. Mr. Crochet opposed the reduction and suspension, and the matter proceeded to trial.

         At trial, the parties submitted the matter on stipulations, exhibits, and briefs. The exhibits included the affidavit of Ms. Dainna S. Tully, Administrative Director of PERS, with attached documents evidencing a history of payments by PERS to Mr. Crochet, and the deposition of Mr. Gary S. Curran of G.S. Curran & Co., Ltd., the expert actuary for PERS. The WCJ concluded:

The jurisprudence is clear that the state is entitled to a credit for disability benefits paid to claimants in proportion to the amount funded by it. Based on the jurisprudence and the facts of this case, the Parish has failed to prove the amount of the reduction or credit to which it is entitled. The employer is unable to differentiate its contributions. An estimate of contributions is not sufficient to carry the required burden of proof.

         The WCJ denied the CPPJ's claim for an offset and awarded Mr. Crochet penalties and attorney fees.

         The CPPJ appealed, and this court rendered an opinion on April 12, 2017, reversing the judgment and remanding the matter back to the WCJ to enter a judgment consistent with the third circuit's opinion. See Crochet I, 217 So.3d 464. Specifically, the panel held that "[a]fter a thorough review of the record, . . . we conclude that [the CPPJ] is entitled to its claimed offset. The judgment of the WCJ denying [the CPPJ's] past offset is reversed." Id. at 470. This court continued, "We have already noted, however, that there appears to be a discrepancy between the amount of offset claimed by [the CPPJ] and our calculation of the offset amount. Accordingly, we remand the matter to the WCJ with instructions to enter a judgment, consistent with our opinion, establishing with specificity the offset to which [the CPPJ] is entitled." Id.

         Subsequently, a hearing on remand was held before the WCJ, and the only new evidence submitted was a letter from PERS to Susan Barron at the CPPJ notifying the parish that Mr. Crochet would begin receiving benefits. Thereafter, the WCJ entered judgment in favor of the CPPJ as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant, Calcasieu Parish Police Jury's request for an offset pursuant to Revised Statutes 23:1225(c) be and is hereby granted.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the offset against workers' compensation benefits owed shall be in the amount of $98.06 per week, beginning July 1, 2006[, ] and continuing for as long as defendant, Calcasieu Parish Police Jury is paying to Todd Crochet workers' compensation benefits and disability retirement benefits under the PERS Plan concurrently.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, Calcasieu Parish Police Jury is entitled to a credit for its overpayment of workers' compensation benefits from July 1, 2006 through September 18, 2014 in the amount of $98.06 per week for a total credit of $42, 053.73.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, Calcasieu Parish Police Jury is entitled to suspend the amount of its overpayment of weekly indemnity benefits to Todd Crochet until such time as the credit for overpayment has been satisfied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim of Todd Crochet for penalties and attorney fees is hereby denied.

         Mr. Crochet appeals and asserts the following assignments of error: (1) the WCJ erred in granting an offset pursuant to La.R.S. 23:1225(C) because the CPPJ failed to carry its burden in proving the amount it contributed to PERS on behalf of Mr. Crochet; (2) alternatively, the WCJ erred in granting the CPPJ an offset retroactively to July 1, 2006, instead of prospectively from the date of judicial demand; and (3) alternatively, the WCJ abused its discretion in allowing the CPPJ to discontinue weekly benefits to recover the amount of any offset allowed under La.R.S. 23:1225(C).

         STANDARD OF REVIEW:

         On appeal, a workers' compensation court's factual findings are reviewed under the manifest error or clearly wrong standard of review. Smith v. La. Dep't of Corrs., 93-1305 (La. 2/28/94), 633 So.2d 129. Therefore, after reviewing the record in its entirety, we must determine whether the factfinder's conclusion was a reasonable one. If so, we should not reverse, "even if convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently." Romero v. Northrop-Grumman, 01-24, p. 6 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1153, writ denied, 01-1937 (La. 10/26/01), 799 So.2d 1144.

         DISCUSSION:

         According to Mr. Crochet, the CPPJ presented insufficient evidence to calculate the amount of its claimed offset. Mr. Crochet argues that under La.R.S. 23:1225(C) and Sandifer, 234 So.3d 956, the CPPJ must prove the amount of its contributions to PERS specifically on behalf of Mr. Crochet. Instead, Mr. Crochet argues, the only evidence in the record establishes the rate of the CPPJ's contributions by a percentage of the total payroll for all CPPJ employees. The CPPJ, on the other hand, asserts that this issue was already decided in Crochet I and, thus, not before the WCJ on remand.

         Louisiana Revised Statutes 23:1225(C)(1) governs the reduction of workers' compensation benefits and provides that when an employee receives remuneration from both workers' compensation and disability benefit plans in which his employer contributes, "then compensation benefits under this Chapter shall be reduced . . . so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage." Additionally, it is the employer's burden to prove not only its entitlement to an offset, but the amount of the offset. See Sandifer, 234 So.3d 956; Crochet I, 217 So.3d 464; City of Natchitoches v. Williams, 94-1411 (La.App. 3 Cir. 5/24/95), 657 So.2d 320. Thus, the employer's ...


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