George Barrios VS Lambar, Inc. and Ohio Casualty Group
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1052 GEORGE S BARRIOS Xv VERSUS LAMBAR INC AND OHIO CASUALTY GROUP Judgment Rendered December 23 2009 Appealed from the Office of Workers Compensation District 6 Parish of St Tammany State of Louisiana Docket Number 04 05281 The Honorable Robert W Varnado Jr Judge Presiding Pete Lewis Counsel for Plaintiff Appellee New Orleans LA George Jacques Soileau Counsel for Defendant Eric J Waltner Lambar Inc and Lafayette Barrios Appellant Ohio Casualty LA E Scott Counsel for DefendantAppellee Baton Lambert Construction Hackenberg Rouge LA Maintenance Inc and LIPCA Inc BEFORE W WHIPPLE HUGHES AND WELCH JJ WHIPPLE J This before on defendants appeal by judge failed OWC Construction Lambert and remand merit Finding and instructions vacate the calculate and order due to the by co Lambert Inc this despite LIPCA judgment to Maintenance and its insurer LIPCA Inc Construction after the court to be payment of penalties previously determined by this defendants Lambar Inc Casualty Ohio Compensation Office of Workers us Casualty Group and its insurer Ohio Lambar the again is matter court appeal s we prior again judgment of the OWC and remand on BACKGROUND FACTS AND PROCEDURAL HISTORY In Barrios 464 this 469 2007 2070 La Lambar Inc v court held that the OWC App 1st Cir 2 5 08 failing had erred in judge 991 So 2d to award statutorily mandated penalties owed by Lambert Construction and LIPCA for their failure appeal the as various benefits awarded identified and matter dollar to pay was amount set LIPCA of the benefits on to pay penalties due 2005 at For a full in penalties fixed as appreciation 2007 2070 La App 1 sl of the May 2 2008 opinion Thus hearing rate to calculate the precise of 24 Emphasis of the amounts added Despite these 46 397 71 for their failure to pay their half of i e 193 323 80 within on the penalty protracted procedural history App 1st on only ordered Lambert Construction and judgment plus legal interest 2006 0324 La a our the statutory judgment paid by Lambar through trial Lambar Inc court remand the OWC judge October 25 2005 Inc by this remanded to the OWC judge for awarded in the October 25 instructions forth by the OWC judge and affirmed Cir 12 28 06 Cir 512 08 sum ofthis case from see 951 So 2d 323 and Barrios 991 So 2d 464 2 thirty days of the May 2 Barrios v v Lambar paid 2007 until 2 Amended From this Lambar and Ohio 2008 legal in error published opinion 25 2005 calculate and render judgment for the full to penalties pursuant of i judgment May 2 2008 Lambert e s to on LSA R S 23 1201 G the 2005 judgment and share of the on amount and this parties obligations 144 639 11 continuing thereafter award judicial interest owed June 5 the untimely 3 2 court paid as of the October to calculate and failing s one half of the 2005 parties continuing obligations for indemnity and medical benefits amounting and 3 11 639 to failing award judicial interest untimely paid portion of the October the 25 2005 on the 24 penalty judgment representing one 11 639 entitled to Lambar and Ohio Additionally additional attorney s half of Casualty contend that they fees in connection with their work on to for the continuing obligations for indemnity and medical benefits amounting 144 s for accrued paid portion of the October 25 judgment for Lambert Constructiion and LIPCA 144 of untimely paid portion of the October indemnity and medical benefits amounting to 24 on that the OWC committed Casualty appeal contending l failing awarded previously by the OWC judge rendered Judgment appeal to are We agree 2In the 2 2007 May Lambert and UPCA October 25 2005 interest owed as 3Lambar were OWC upon which the last appeal was based legal interest on all amounts awarded in the judgment of the also deemed liable for On remand the OWC calculated and fixed the amount of judgment 21 752 90 based on the 193 323 80 sum and Ohio to Lambert and UPCA Casualty contend that detailed payment histories on January 15 2007 which showed that a total benefits in the amount of 289 64 7 11 had been indemnity 2005 judgment 25 UPCA owed one Accordingly half of this Lambert and UPCA before ofthe us in this obligation May about paid appeal if Lambert obligation they on or may do Lambar and Ohio so i 11 2007 paid Casualty 3 of medical and contend that Lambert and which they further contend While the amount ofthis award is not and UPCA do in fact before the OWC forwarded to Barrios since the October 144 639 11 e were judge on challenge remand the amount of their half DISCUSSION As noted in OWC judgment4 following to at So 2d to Casualty l 2 193 323 80 past due weekly benefits the rate at 468 award 469 we half of benefits one 2005 to paid through the indemnity and medical benefits half of future one with interest per week 15 32 date they became due and continued indemnity benefits as As noted above in Barrios 320 16 per week of 2008 the October 25 2 May issue ordered therein that Lambert and LIPCA pay the at judgment for all underpayments and 3 of previous opinion Lambar and Ohio date of trial on our specifically Lambar Inc v determined that the owe judge erred in 991 failing mandatory statutory penalties for these specifically identified delinquent payments due as on Lambar and Ohio going obligations Thus Casualty penalties on we amended the judgment the amounts awarded at to award the statutory rate of 2400 for the failure of Lambert and LIPCA to timely pay the amounts awarded in the October 25 2005 with instructions conduct the penalties to due at the October 25 2005 and remanded the judgment a hearing calculate the to the OWC matter to precise dollar judge amount of statutory rate of 2400 of the amounts awarded in the Barrios judgment v Lambar Inc 991 So 2d at 468 469 Emphasis added On remand the OWC penalties interest the on judgment failed 193 323 80 on or As 46 397 71 s penalty amount amount note to calculate 46 397 71 of set despite as forth in the our and fix the judgment granted into evidence deposition incorporated all of the terms of allowing the well original OWC instructions the OWC amount of legal as judge penalties due on ongoing liability for 50 percent of any further future October 25 2005 a as appellants correctly Lambert and LIPCA and fixed refused however 4The judge awarded Lambar and Ohio Casualty 24 a motion for new trial for the sole purpose judgment reinstated Otherwise the October 25 2005 of a previous Final 4 Judgment rendered July 28 2005 indemnity and or medical benefits due under this awarded in the October 25 2005 judgment and affirmed At the May 23 2008 hearing that in addition acknowledged judgment condemned them Casualty to added Emphasis t here that was a that the period matter know what that not there on was no as However counsel upon stipulation by the parties refusal are of no to pay the OWC s as appeal to v was that justification amount at 468 469 when t hey judgment about are completely October 2005 the OWC respect to the 5 hearing on on attorney remand original s agreed absence of a for his clients continued remand and calculate penalties Further counsel for t here s this nothing amounts remand counsel for Lambar and Ohio They additionally filed Although from the final was order that accrued offered and introduced the entire record of these 5 w e court s prior in the First 193 323 80 subsequent to the judgment Contrariwise hearing argued was never any other funds other than the award of silent with if any paid decision judge clearly misread stating during the plain directions and s on s 991 So 2d at 469 Lambar Inc in s counsel regarding the explanation given this court well Circuit or amount hat amount t and arguments as particular and amount Lambert and LIPCA opinion Ohio paid by had accrued when the First Circuit statements as amount an acknowledged obligation this moment See Barrios 193 323 80 the October 25 2005 Without disclosing the judge fix and determine this accordingly court half of all future benefits and that amount stipulation also Counsel for Lambert and LIPCA further conceded was on by Lambert and LIPCA did to pay by this was remand counsel for Lambert and LIPCA the award of amount past on which chapter the OWC judge proceedings in the record their into evidence proposed calculations did not allow the introduction of counsel for Lambar and Ohio trial and the record from the fees 5 Casualty properly new at the of the evidence at the Casualty offered into evidence the record hearing on the motion for penalties and penalties and attorney awarded in the court on proposed s fees owed calculations amounts precise we interest again on as ordered judge find the OWC we obligations as previously rate of 2400 statutory October 25 2005 judgment i Lambert Construction and LIPCA s one the calculate and to failing ongoing liability indemnity judge of the penalties e remand in instructed remand this matter to the OWC amount due at the declined remand on on half of future one that award on erred of penalties due amount Construction and LIPCA for as the on judgment and affirmed by this 2005 OWC judge erroneously the OWC render judgment for these well Lambert and LIPCA Despite their introduction of the record and submission of appeal and fix the 25 original October As such by court 6 calculate the remaining of Lambert and medical benefits by this to to calculate amounts as Accordingly precise dollar awarded in the and interest on the awards half of the continuing obligations for fees in representing and medical benefits indemnity With reference to Lambar and Ohio connection with their work and award the sum on the appeal s request for attorney of this matter we s likewise find merit of 5 000 00 for additional work necessitated on appeal CONCLUSION For the above and judgment at issue penalties in the failure to pay plus legal on foregoing appeal amount of herein on the the penalty 6Further opinion in workers date ofjudicial demand Cir 11 9 95 Inc awarding Lambar thirty days of the October sum from May 2 2007 This matter is remanded to the OWC judge to conduct the date that this the June 5 portion of and Ohio 2008 Casualty 46 397 71 for Lambert Construction and LIPCA 193 323 80 within interest reasons a 25 until hearing 2005 paid judgment is affirmed within 14 becomes final to calculate and determine the compensation Henderson v cases interest on penalties New Medico Associates Inc 667 So 2d 1094 1100 writ denied 96 0505 6 La 4 8 96 s days of precise is allowed from the 95 0488 La App 671 So 2d 338 1 st amount due penalties pursuant as portions of the October obligations by this for court 25 2005 LSA R S 23 1201 G to in our prior opinion as well as as all untimely paid half of the continuing further affirmed and recognized judgment representing indemnity and medical benefits on judicial one interest and penalties on that award Judgment is further rendered herein in favor of Lambar Inc Casualty and against Inc Lambert Construction and Maintenance in the amount of assessed 5 000 00 as additional attorney s Inc fees and Ohio and LIPCA All against the appellees Lambert Construction and Maintenance costs are Inc and LIPCA Inc RENDERED IN PART AFFIRMED IN PART FOR FURTHER PROCEEDINGS 7 AND REMANDED
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