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Hurt v. Western American Trucking Co.
Citations: 655 So. 2d 558; 1995 La. App. LEXIS 1158; 1995 WL 271519Docket: 26918-CA
Court: Louisiana Court of Appeal; May 10, 1995; Louisiana; State Appellate Court
Leland A. Hurt, a truck driver for Western American Trucking Company, sustained a back injury in December 1991 while securing a load. He received weekly benefits directly from Western American, but after the insurer, Presidential Fire and Casualty, was declared insolvent, the Louisiana Insurance Guaranty Association (LIGA) reimbursed Western American for these payments. Following LIGA's directive, Western American ceased benefit payments on September 1, 1993. Hurt subsequently filed a compensation claim, and in February 1994, the hearing officer awarded him temporary total disability benefits and ordered LIGA to cover any unpaid medical expenses. However, the officer reserved the decision regarding penalties and attorney fees against Western American. In March 1994, the hearing officer denied Hurt's motion for penalties and fees, concluding that Western American had valid reasons to stop payments based on the treating physician's report, Hurt's initial refusal of an MRI, and a lack of objective symptoms. Hurt appealed this decision, arguing that Western American's failure to investigate his condition warranted penalties and fees. Western American countered that it could not be liable for these costs as it was insured. The court's review focused on whether penalties and attorney fees should be awarded. Under La.R.S. 23:1201.2, attorney fees cannot be assessed against an insured employer, and penalties may only apply to the party at fault for the delay. Hurt's requests for $7,119.26 in attorney fees and a $2,000 penalty were dismissed because the statutory provisions barred such claims against Western American, which had insurance at the time of the incident. Hurt's entitlement to penalties under La.R.S. 23:1201 E is questioned due to his failure to secure the hearing transcript necessary for the appellate court's review. As the appellant, Hurt was responsible for providing a complete record of the proceedings, as established by La.C.C.P. arts. 2128-2130 and case law. The absence of the relevant transcript, which contained additional evidence on the penalties and attorney fees, prevents the appellate court from verifying any claims made by Hurt. Consequently, the court will assume the trial court's ruling was correct in the absence of counter-evidence. Therefore, the March 1994 judgment denying Hurt's request for penalties and attorney fees is affirmed, with costs assessed to Hurt in accordance with La.C.C.P. art. 5181 et seq.