Court: Louisiana Court of Appeal; May 14, 2004; Louisiana; State Appellate Court
Larry Harrison appeals a judgment favoring A.K. Warehouse Inc., which determined he was overpaid workers’ compensation benefits. The court found that A.K. Warehouse is entitled to a credit against future indemnity obligations and ruled that Mr. Harrison is not entitled to supplemental earnings benefits, penalties, or attorneys’ fees. Mr. Harrison was employed as a warehouseman at $5.50 per hour and sustained an injury in an automobile accident on March 8, 2000. A.K. Warehouse paid him $165.01 weekly, based on an average wage of $247.51. After multiple medical visits and evaluations, it was concluded that he could perform jobs paying 90% of his pre-accident wages. A.K. Warehouse's insurer notified him of the termination of benefits due to this job approval.
The company argued that Mr. Harrison was overpaid, asserting his actual wage should have been calculated at $220.00 weekly, resulting in an overpayment totaling $2,678.47. The workers’ compensation judge confirmed that Mr. Harrison’s average weekly wage was $220.00, granted A.K. Warehouse a credit of $2,996.35 for overpayments, and denied his claims for supplemental earnings benefits and penalties. Mr. Harrison's appeal challenges the wage determination and the denial of supplemental benefits.
In workers’ compensation cases, appellate courts apply the manifest error or clearly wrong standard when reviewing factual determinations. Testimony conflicts require deference to reasonable credibility evaluations and factual inferences made by lower courts.
In Assignment of Error No. 1, Mr. Harrison contends that his average weekly wage should be calculated as $356.13 instead of $220.00, claiming he was compensated at $5.50 per hour with expected overtime. He cites two paychecks: one for $99.00 covering 18 hours over two days and another for $356.13 covering 56.5 hours for a full week, which was his only complete week of work before his accident.
Louisiana Revised Statute 23:1021(10) defines "wages" and outlines how average weekly wage is determined based on hourly pay. The statute provides specific calculations for employees working 40 hours or more, those who work less than 40 hours by choice, and part-time employees. Since Mr. Harrison did not work four full weeks prior to his injury, the workers’ compensation judge had to interpret the statute to address his situation.
The judge acknowledged relevant case law but emphasized reliance on available records, which indicated limited work hours due to sickness, and only one full week of work with overtime. The judge determined that the statute allows for either a full-time 40-hour presumption or a calculation based on four full weeks of wages, whichever yields a greater benefit, ultimately concluding that Harrison's actual work records were insufficient to establish a complete wage calculation.
The claimant, Mr. Harrison, seeks to calculate his average weekly wage (AWW) for workers' compensation purposes following his accident. He argues for the inclusion of overtime from a week in which he worked 56.5 hours, earning $346.13. The court is tasked with balancing fairness to both the employee and employer when determining AWW. Due to the absence of four full weeks of work, the court decides to use a presumption of full-time work, resulting in an AWW of $220, calculated from a 40-hour work week at $5.50 per hour.
The court references the case of Fusilier v. Slick Construction Company, where the calculation of Supplemental Earnings Benefits (SEB) was contested due to incomplete weeks worked. In Fusilier, the court acknowledged the need to consider overtime when appropriate, but ultimately ruled in favor of a consistent calculation method since the claimant had not completed four full weeks.
Mr. Harrison claims discrimination because his accident occurred before he could work four full weeks, arguing that he should benefit from the overtime he could have earned. However, the court emphasizes that Mr. Harrison only has one full work-week history to rely on, and there is no legislative support for selecting arbitrary days to calculate his AWW. After reviewing the case, the court concludes that the workers’ compensation judge did not err in calculating Mr. Harrison’s AWW based on a standard 40-hour work week.
Mr. Harrison contends that the workers’ compensation judge incorrectly denied his claim for supplemental earnings benefits under Louisiana Revised Statute 23:1221. The statute stipulates that if an employee is not engaged in any employment or earns less than what they are capable of earning, their potential wages should not be assessed below what they could earn in available jobs within their community that align with their physical capabilities. To qualify for supplemental earnings benefits, a claimant must demonstrate an inability to earn at least 90% of their pre-accident wages. If this is established, the burden shifts to the employer to demonstrate that suitable work was available.
The judge determined that Mr. Harrison initially proved his inability to earn 90% of his pre-accident wages due to medical restrictions. However, the judge also found that A.K. Warehouse successfully showed that jobs within Mr. Harrison's restrictions, paying at least 90% of his pre-injury wage, were available. Mr. Harrison's treating physician confirmed that these jobs were consistent with his physical limitations. Although Mr. Harrison argued that certain jobs were unsuitable due to his felony record and pain medication use, it was noted that A.K. Warehouse previously employed him despite his record, and his physician acknowledged his medication use when approving the jobs. Records from Dr. Broussard indicated that Mr. Harrison had the ability to work within his restrictions, but there were concerns about inconsistencies in his efforts during evaluations.
Dr. Broussard’s notes from August 24, 2001, indicate that Larry Harrison was seen for a follow-up regarding his spinal complaints. Dr. Broussard noted that Harrison could work within the confines of a Functional Capacity Evaluation (F.C.E.) and had found a light-duty job at a drug center involving client check-ins, which complied with the F.C.E. guidelines. Dr. Broussard approved this job and advised Harrison to return only as needed. The workers’ compensation judge highlighted the importance of Mr. Harrison and his attorney attending meetings with the physician and vocational rehabilitation counselor to discuss job suitability, but they did not attend the meeting where concerns could have been addressed. Additionally, Mr. Harrison did not apply for jobs suggested by the vocational counselor or follow up on return-to-work assistance. The judge found no error in determining that A.K. Warehouse demonstrated the availability of suitable work for Mr. Harrison that paid at least 90% of his pre-injury wage, leading to the conclusion that he was not entitled to supplemental earnings benefits. As a result, the judge's decision was affirmed, with costs assessed against Mr. Harrison. A.K. Warehouse requested reimbursement but ultimately sought only a credit; despite seeking a credit of $2,678.47, it received a larger credit of $2,996.35, with payment records submitted as evidence for determining overpayment.
