Marcel v. Craig Guidry Construction Co.Marcel v. Craig Guidry Construction Co.
- Reporters:
- ,
- Before:
- Foret, Knoll, Culpepper
1. That the trial court committed manifest error and/or legal error in finding that David Marcel‘s average monthly wage for thе purpose of calculation of supplemental earnings benefits was $960;
2. The trial court erred in failing to find that the employer was arbitrary and capricious in terminating worker‘s compensation benefits, and thus, having failed to award penalties and attorney‘s fees.
Defendants filed an answer to plaintiff‘s appeal on September 10, 1986, alleging that the trial court erred in its finding of permanent disability and loss of wage-earning capacity by the plaintiff. Plaintiff has filed a motion to dismiss the answer filed by the defendants. There is merit to plaintiff‘s motion to dismiss the answer filed by defendants. The record was lodged in this Court on July 20, 1986, and the parties were so notified on the same date. Under
In the case before us, testimony was transcribed and forwarded with the record. Accordingly, the forty-five-day period applies because the record was lodged in this Court on July 26, 1986, earlier than the forty-five-day period mentioned in
Therefore, the only issues before this Court are the two specifications of error assigned by plaintiff-appellant. There is nо dispute as to employment or the occurrence of the accident.
FACTS
On November 12, 1984, David P. Marcel was injured while working in the course and scope of his emрloyment with Craig Guidry Construction Company. Prior to that time, Marcel was employed by the construction company as a manual laborer and heavy equipment oрerator at a salary rate of $6.00 per hour for a forty-hour work week.
WHAT WAS PLAINTIFF‘S AVERAGE MONTHLY WAGE?
The applicable statute for supplemental earnings benefits is
“For injury resulting in the emplоyee‘s inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to seventy-four percent of the difference between ninety percent of the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as thаt in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was partiсularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed аs four and three-tenths times the wages as defined in R.S. 23:1021(10) .”
Having established his right to recover supplemental earnings benefits, plaintiff is entitled to benefits equal to 74% of the difference between 90% of the average monthly wages at the time of injury and the average monthly wages earned or average monthly wages he is able to earn as defined by
“If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; ...”
Accordingly, plaintiff‘s average monthly wage at the date of injury was $1,032.001 Nothing in the record before this Court establishes that plaintiff had an average monthly wage of $960.00 as determined by the trial court. This figure appears to represent the trial court‘s error in calculating the average monthly wage. Apparently the court found the average weekly wage to be $240.00 and then multiplied it by 4 instead of 4.3 as required by
PENALTIES AND ATTORNEY‘S FEES
Plaintiff contends that the trial court erred as a matter of law in failing to conclude that the defendant worker‘s compensation insurer‘s termination of benefits was arbitrary and capricious as it was based upon a restrictive release to return to employment duties other than those in which the рlaintiff was engaged at the time of the job accident and which plaintiff was not capable of doing. That determination depends primarily on the facts known to the employer at the time of its action and is a question of fact not to be disturbed in the absence of manifest error. Jackson v. Maloney Trucking & Storage, Inc., 424 So.2d 1037 (La.App. 4 Cir.1982), writ denied, 445 So.2d 441 (La.1984).
From November 12, 1984 until July 24, 1985, worker‘s compensation bеnefits were paid to plaintiff. The termination of compensation benefits by defendant was based upon the July 24, 1985 progress reports of plaintiff‘s treating physicians, Dr. Charles Olivier and Dr. Norman Anseman, Jr. In those reports, Dr. Olivier concluded that plaintiff could return to work with certain restrictions against operating heavy equipment. Dr. Anseman‘s rеport from the same period of time, which was relied upon by defendant, indicates that plaintiff should be released for full working activities. As a result, defendant terminated compensation benefits. The record reflects that although both doctors advised plaintiff to return as needed, he did not return to
Penalties and attоrney‘s fees are not available when the defendants have a legitimate basis for denying or terminating compensation benefits. Sharbono v. H & S Construction Co., 478 So.2d 779 (La. App. 3 Cir.1985). We agree with the trial court in concluding that defendant‘s decision to terminate the benefits was not arbitrary and capricious. The facts known to defendant at the time of its termination of benefits gavе it a legitimate basis for terminating benefits.
Accordingly, for the foregoing reasons, we amend the trial court‘s judgment to reflect an average monthly wage of $1032.00. The judgment of the trial court in regard to the award of compensation in the form of supplemental earnings benefits is affirmed. We also affirm the trial court‘s refusal to award penalties and attorney‘s fees.
Costs are assessed to defendants.
AMENDED IN PART, AFFIRMED IN PART, AND RENDERED.