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McDonald v. City of Bastrop

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

RICHARD McDONALD Plaintiff-Appellee
v.
CITY OF BASTROP Defendant-Appellant

          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

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

          Before WILLIAMS, PITMAN, and McCALLUM, JJ.

          PITMAN, J.

         The 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.

         FACTS

         This 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.

         His 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.

         The 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.

         After 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.

         At the 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.

         The City appeals this judgment granting the motion to accelerate the payments for its ...


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