Emmett Worley VS Town of Brusly
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0572 EMMETT WORLEY VS TOWN OF BRUSL Y JUDGMENT RENDERED DEe 2 I Z007 ON APPEAL FROM THE DISTRICT 5 OFFICE OF WORKERS COMPENSATION ADMINISTRATION DOCKET NUMBER 05 00462 STATE OF LOUISIANA HONORABLE JASON OURSO JUDGE MARVIN GROS ATTORNEY FOR PLAINTIFF APPELLEE DONALDSONVILLE LA EMMETT WORLEY CHRISTOPHER MOODY ATTORNEY FOR DEFENDANT APPELLANT HAMMOND TOWN OF BRUSL Y LA BEFORE IIftrJ I GAIDRY MCDONALD AND MCCLENDON JJ M jf Aj Ie t7dtdF ju 7 ry2r MCDONALD J This case involves elected official an working purchased workers compensation for its elected officials work then filed for surgery and judge near the end of his found that his inability to work prescription salary amounted his workers on benefits indemnity to over two years in office term which he was He entitled compensation claim a injured later after at second a compensation statute by that town was The workers wages in lieu of to for compensation despite his interrupt to We affirm FACTS Mr Emmett disputed claim was injured for Worley compensation at work The Town of on August 1 Blusly filed after the accident Mr lost his Police Chief of the Town of campaign for on December 13 2002 while an to work election with his The Town of Brusly asserted that Mr was a term Worley s as filing cabinet that Chief of Police until he ending December 31 claim for indemnity 2004 benefits prescribed After the hearing a of exception prescription workers After compensation judge trial on the merits denied Brusly had claim had paid not Mr Worley amount The workers prescribed Town of Blusly pay Mr of wages in lieu of Worley temporary total disability 398 00 per week Town of and thus his compensation compensation judge the the workers compensation judge ruled in favor of Mr Worley finding that the the a asserting that he 2004 exception of prescription asserting Worley continued re moving filed Brusly ordered that the TTD benefits in commencing January 1 2005 and continuing until further order of the workers compensation judge attorneys fees in the amount of 10 000 00 ordered that the Town of Brusly penalties in the amount of pay all costs 2 2 000 00 and The Town of Brusly filed a motion for trial which new appealed the judgment 1 denied was and makes the The Town of Brusly suspensively following assignments of error The workers compensation judge erroneously held that the claimant s right to indemnity benefits had not prescribed where the claimant continued to earn his salary after the accident and therefore his wages lieu of compensation 2 The workers defendant are not considered wages in compensation judge improperly held that the employer benefits awarded disability benefits from the to a allowed not was to offset of TTD an plaintiff where plaintiff received disability benefit plan funded in part by the employer ASSIGNMENT OF ERROR NO 1 In this assigmnent of accident occurred indemnity August on earn cannot his salary as prescribed on Worley did 2004 its face Brusly Thus argues that the not file a claim for the Town of and that Mr Brusly Worley continued Chief of Police after the accident therefore his wages be considered wages in lieu of compensation The workers Mr 1 2002 and Mr benefits until December 13 contends the claim is to the Town of error compensation judge wages in lieu of Worley received which determination is subject Ortco Contractors Inc to 00 1460 made La factual determination that compensation manifest a a App error after his accident See Ortis review 1 Cir 9 28 01 v 809 So 2d 300 302 The La Const Art 6 official shall not be reduced La R S 33 404 1 The 12 provides that the compensation of a local during the tenn for which he is elected Further provides in pertinent part board of aldermen compensation of the and all other mayor municipal ordinance increase or shall by ordinance aldermen clerk fix chief of the police officers The board of aldermen may by decrease their compensation and the compensation of any nonelected municipal officer and may increase the compensation of other elected officials However 3 the board of aldermen shall elected official during the not term for which he is elected Louisiana Revised Statutes 23 1209 A In of case compensation of any reduce the provides personal injury including death resulting therefrom all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within been filed this in as Chapter Where such the limitation shall case one year after the accident a formal claim has provided in Subsection B of this Section and in one payments have been made in any not take year from the time of effect until the expiration of the last payment except that pursuant to R S 23 1221 3 this making of benefits payable limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R S cases 1 1221 23 result 2 3 4 or when the Also injury does not the time of or develop immediately after the accident the limitation shall not take effect until expiration of one year at from the time the claim for injury develops but in all such payment shall be have been proceedings begun within two years from the date of the accident forever barred of is immediately compensation benefits and 3 one manifest year from the time the develop immediately App Mr not year from the last one payment supplemental earnings benefits injury does but not result not Daisey v more at than two the time of or Time Warner 98 2199 761 So 2d 564 Worley claim benefits under the first prong because he did cannot He was 566 567 indemnity benefits within injured on on August 1 one 2002 year after the accident and made a claim for December 13 2004 Under the second prong for that have year from the accident 1 Cir 11 5 99 indemnity benefits to one injury develops after the accident file his claim for occurred 2 three years for years from the accident when the La the provides three prescriptive periods for the filing of compensation claims 1 injury unless Footnote omitted Louisiana Revised Statutes 23 1209 A when the the cases prescriptive period already received indemnity benefits 4 to The workers apply he had compensation judge found that he received wages in lieu of compensation after his injury detennining that he had received year of the last benefits and filed suit within indemnity payment of benefits thus his suit had Under Louisiana law prescriptive statutes are not prescribed to be strictly construed and in favor of the claim that is said to be against prescription a extinguished Ortis 809 So 2d at 302 In Cheatem Cir 1985 this comi The basic injury Morrison v found Inc La App 1 is whether the wages paid subsequent to the The mere fact that the duties actually earned test were lighter 1220 follows as before and after the accident or 469 So 2d 1219 were similar or dissimilar heavier is relevant but not detenninative of the issue And whether the wages were actually earned is determined by the facts and circumstances of each particular case Peck v Orleans Levee 353 So 2d writ denied Cir 1977 Board 355 So 2d 259 admitted that she although the performed her doctor same work as 424 This court La La 1978 App 4th Plaintiff her for light duty before and that she actually discharged worked for the receive wages 426 paycheck she received in lieu of compensation further found in Ortis 809 So 2d Therefore she did not at 301 Prescription is interrupted by the payment of wages in lieu of compensation when suit is filed within one year of final wage payment Lester v Rebel Crane and Service Company 393 So 2d 674 676 La 1981 Wages in lieu of compensation are deemed applicable when services rendered by a disabled employee after an accident are not commensurate with the wages paid and the employee does not actually earn all of his pay Cheatem Morrison Inc v 469 So 2d 1219 1220 La The underlying test is whether the wages App 1st Cir 1985 Id Peck v paid after the accident were actually earned Orleans Levee Board 353 So 2d 424 426 La App 4th Cir 1977 of proof Bledsoe 9 27 94 writ denied that prescription Country Club 643 So 2d 1302 employee La 1978 The burden has not tolled lies with the claimant Willowdale v In the Ortis salaried 355 So 2d 259 case as a the 94 234 La App 5 Cir 1304 plaintiff managing his pre accident and post accident was the sole salesman of Ortco owner This president court compared job performance finding his services 5 and as a salesman managmg that the workers determining of a workers with his his wages and plaintiff as performance This employee received an court wages reversed the decision of the compensation judge and found that the continuous receipt of the of wages sum prescriptive period In the reasons to compensation judge erred in her determination factual conclusion that the commensurate same patently disproportionate were Mr by until the present for judgment Ortis interrupted the the payments by Ortco ceased the workers case commencement of compensation judge found in his denying the exception of prescription as follows Claimant has proven a clear distinction as to the duties he performing before August 1 2002 and the duties that he relegated to after the accident Despite Mr Worley not was was being able to perform his full duties after August 1 2002 he exactly what the wages continued to receive his full pay That s in lieu of compensation interruption is all about that a distinction is trying elected official but Im to be drawn because this I understand man was an of any laws in the State of elected officials any lesser rights than a Louisiana that not aware give private employee In fact if you look at most statutes you going to find that most elected officials have additional rights I how the argument elected official who is required by law should can t not be see able can hold true to receive his that full re an salary advantage of the wages in lieu of compensation intenuption that is provided by law The court doesn t see that any type of specific agreement is required by employees or an employer to effectuate that kind of to take interruption The testimony of the claimant was uncontradicted and in corroborated by the Town Clerk of Brusly The court fact finds that proving clearly the claimant has the interruption based compensation and the exception Worley testified Mr surgeries in Q was met his burden of on in wages proof in lieu of is denied about his work following the accident and both pmi as follows Mr Worley let s talk about the date when the prior to August filing cabinet fell your injury is that correct A Yes sir 6 on 1 2002 That you and you had Q Let s talk about before that Chief prior That A How long were you Police a to that was my second year Q Tell the court if you will what Police Chief what did you do A My day started at 7 30 or 8 00 messages that I had from the the reports that those I would night were your daily functions as I would go in and take my before I would go over all written the night before and go through set up appointments to meet with people and then meet with them There was just various office work and dealing with the public as they came in Q Prior to August 1 2002 did you actually participate in the were arrest of individuals when A Q Prior to yes sir You actually did A Yes Q Did you need be A I 2 00 actually 3 00 in the Those streets work at night sometimes call 24 hours was on or investigations going out on the I was called out several times at morning Q your daily functions until the accident August 1 2002 A Right Q August 1 2002 happens You took off a few days after were on the incident correct A Yeah Q Eventually you had surgery in March of 2003 IS that correct A I m not sure Q May May took off a A Let 2003 March Let and went back duties after the incident with the filing cabinet days talk about from s August No sir Q was 1 when you Were you able to go back few to your full it s to work talk about what you could not do when you after August 1 2002 Did you go in at the every morning A No sir went back same time after that time Q What time did you go in then I normally went in about 10 00 or 10 30 Q How long did you end up staying at the office A A I would stay until noon and once my secretary had her lunch break I would go back home Q In comparison to what you did before what is the difference in hours A I averaged twelve hours a before the accident I would work eight ten or day Q And after the accident A After the accident I Q After the any physical A No sir Q Did atTests dA August arrests on or 2002 accident your three hours were a day you able to make own I would have to have you go out at after 1 averaged two August 1 somebody do it for me night and supervise any investigations 2002 No sir 7 or Q Why A I not t able to wasn Q Okay Basically you delegated this department is that correct A to your assistants in the Correct Q After you had your surgery in May 2003 stayed out close to three months you didn t you said that you go to the office at all A Right Actually it was predicted as six months of recovery but I think it was only four months Q What type of surgery did you have A Dr Thad Broussard had gone in and drug back two of the discs that had bulged because of the accident He trimmed them back and made small groove to place the nerve that was suppose to go there and was hoping to put the nerve into the groove and have it stay there Q You say you took off completely for approximately three months You didn t go in at all is that correct A That a correct s After three months Q tell the comi what activities you did after that A to it was we d Again see me like I said set an sign payroll appointment date If or somebody wanted time and that was about it basically Q You worked you did some work from your house is that correct A Yeah I had the police radio telephone way Q Your second surgery A Correct Did you Q was November 2004 is that correct get approval for that surgery right away how recommended long was and Orleans worse Dr Broussard sent me He took X rays and this SOli of and said it Was it it recommended after the first surgery that you have the second surgery A After the first surgery didn t work and worse and I had the two as it kept getting to Dr Pribil thing and in New came back going to have to be redone What happened was actually deteriorated they were no longer there Did you r condition get progressively worse after that Q A Definitely Q Did you r activities curtail a little bit more after that A Everything came to a standstill Q It was your testimony earlier that when the election was was the discs had when held was the election A September The qualifying was in August and the election was in September Q It s your testimony that you did not actually campaign at all in that A I race correct able to get out of bed Then in November of 2004 you had the surgery is never was Q Okay that correct A That s correct Q And you didn t go back to City Hall 8 at all A No Q You received normally got A every two weeks that you Yes sir The facts of this three regular check your four or days of work then returned limited basis for workday was show that after the accident Mr case two three hours or limited Mr Worley his able job working At that time day a was to Worley missed to on a although his duties and delegate more run his office Then after his first surgery in May of 2003 he did not return to work for approximately three months while he recovered did some time work from his house such period we However period find he he was went paid back signing payroll and did not return to City December 31 through to we surgery Thus find he was Hall at all paid checks and he underwent was not able finding that the as get During this time a second out of bed paychecks after the second period wages in lieu of compensation between the November 2004 surgery and December 31 end of his elected timely to He continued to receive his term Mr Worley received compensation and the workers compensation judge did in During this work after this three month recovery Afterward he 2004 stayed home and wages in lieu of compensation Thereafter his condition worsened surgery in November of 2004 the as He Mr claim for Worley was wages not compensation filed December being paid wages in lieu of in 2004 lieu of manifestly 13 2004 compensation err was at that time ASSIGNMENT OF ERROR NO 2 In this workers assignment of compensation judge error the Town of erred in not 9 giving Brusly an asserts that the offset of TTD benefits because Mr Worley received disability benefits from plan funded in part by the motion for Town of Brusly trial which the workers new This issue compensation judge found the fact that disability retirement benefits evidence which the Town of diligence before discretion by motion for new trial costs are was benefit raised in the Mr Worley was art We find 1972 2 compensation judge with no in the decision to The receiving regular retirement benefits Brusly could have discovered See La C C P the workers Thus the and the trial disability compensation judge denied workers rather than a was due abuse of deny the 1 of the workers judgment assessed against the Town compensation judge is affirmed ofBrusly AFFIRMED 1 While it is troubling that Mr retirement benefits rather than workers compensation judge could have with due diligence Worley disability stated at trial that he retirement benefits abused his discretion in finding discovered this fact prior to trial 10 was receiving regular still cannot say the that the Town of Brusly we
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