Appealed from the Office of Workers' Compensation,
District 1-E Parish of Ouachita, Louisiana Trial Court No.
16-06248 Brenza Irving-Jones Workers' Compensation Judge
HUDSON, POTTS & BERNSTEIN, L.L.P. By: Johnny R. Huckabay,
II L. Casey Auttonberry Counsel for Appellant
OFFICES OF STREET & STREET By: C. Daniel Street Counsel
WILLIAMS, PITMAN, and McCALLUM, JJ.
City of Bastrop ("the City") appeals the judgment
of the Office of Workers' Compensation ("OWC")
judge, which accelerated payment of an award of supplemental
earnings benefits ("SEBs") in favor of Plaintiff
Richard McDonald. For the following reasons, we reverse.
court rendered a judgment in McDonald v. City of
Bastrop, 52, 366 (La.App. 2 Cir. 9/26/18), 254 So.3d
1285, upholding the OWC's decision awarding Plaintiff
SEBs. The facts, as stated in the opinion, are that Plaintiff
was employed by the City as a fire captain. He was injured in
an accident on April 21, 2013, at a house fire in Bastrop,
Louisiana, when a fire hose he was pulling over his shoulder
got caught and jerked him, injuring his neck and shoulder. He
consulted a neurosurgeon and had surgery on his neck. He was
released to work, but with weight-lifting restrictions. He
had indicated that he wanted to take part in the Deferred
Retirement Option Program and intended to continue working in
whatever capacity he could. He began receiving workers'
compensation benefits in September 2013; but in September
2016, he filed a disputed claim for compensation, Form 1008,
against the City and claimed his SEBs had been wrongfully
discontinued based on a false claim of retirement or
voluntary withdrawal from the workforce.
complaint was heard by the OWC judge, who ruled in his favor
and ordered the City to pay him $1, 303.76 per month
beginning August 11, 2016, and to continue paying in
accordance with the law. The City appealed to this court,
which, in the appeal mentioned above, affirmed the judgment
of the OWC. No review of the decision was sought with the
Louisiana Supreme Court, and the judgment became final on
October 26, 2018.
City failed to pay the judgment due to Plaintiff; and because
more than 30 days had elapsed since the judgment became final
on October 26, 2018, Plaintiff filed a pleading entitled
"Motion for Penalties and Attorney Fees and for
Acceleration of Judgment, " alleging that under the
provisions of La. R.S. 23:1201(G) he was entitled to recover
a penalty of 24 percent of the amount due under the judgment,
together with attorney fees to be fixed by the court. He also
alleged that because more than six successive weekly payments
had not been paid, he was entitled to have the judgment
accelerated under La. R.S. 23:1333. He further alleged that
he was entitled to recover the judgment amount through
December 29, 2018, or 124 weeks at $300.87 per week, which
equaled $37, 907.88, with legal interest from the due date of
each payment until paid, plus a penalty of 24 percent of that
amount. He further alleged that after calculation of the
judgment through December 2018, the amount of SEBs remaining
of the ten years of payments was $67, 394.88, which
represents 224 weeks at $300.87 per week.
the motion was filed, the City issued a check on January 16,
2019, for $50, 791.20, which was the amount of the judgment
with interest, plus the 24 percent penalty and attorney fees
covering the period between August 12, 2016, and January 16,
2019. The monthly SEBs were resumed. The hearing on the
motion to accelerate was held on February 11, 2019.
Plaintiff's attorney proved that he had made two written
reminders to the City's attorney, prior to the filing of
the motion, of the need to pay the SEBs. The City argued that
acceleration was improper since the oversight in payment was
not willful and, therefore, was not an appropriate remedy
under the statute and jurisprudence. The City further argued
that the failure to pay was caused by miscommunication
between its attorney and the City after this court's
judgment was rendered and while the attorney awaited
instructions regarding seeking writs to the Louisiana Supreme
Court on the appellate decision. They termed this
miscommunication an "administrative error, " and
alleged that during this time period "several key
personnel for the client [were] out of the office and it
slipped through the cracks." As soon as Plaintiff's
motion was filed, the City immediately paid the judgment due
at that time, with interest and penalties, and resumed the
payment of the SEBs. For these reasons the City claimed the
failure to pay was not willful.
hearing on the motion, the OWC judge stated that she had
considered the legal definition of "willful" and
found several, including "preceding [sic] from
a conscious motion of the will, intending the result which
comes to pass, or with the specific intent to fail to do
something." Another definition of "willful"
was "[I]ndifferent to the natural consequences."
The OWC judge found there was specific intent based upon the
failure to pay itself and also found that the person who
failed to authorize payment of the judgment was indifferent
to the natural consequences and effects of La. R.S. 23:1333
and the Workers' Compensation Act. For these reasons, the
motion to accelerate was granted, but the City was given
credit for the payment it had already made. The judgment
stated that there was judgment in favor of Plaintiff and
against the City granting Plaintiff's motion for
acceleration and awarding him $67, 394.88, representing 224
weeks of SEBs.
City appeals this judgment granting the motion to accelerate
the payments for its ...