Priscilla Brown VS State of Louisiana through the Department of Health and Hospitals - Earl K. Long Medical Center
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1653 PRISCILLA BROWN VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS EARL K LONG MEDICAL CENTER Judgment Rendered MAY 2 8 Z 13 On Appeal from the The Office of Workers Compensation District Office OS State of Louisiana Docket Number 10 04583 The Honorable Pamela Moses Laramore Workers Compensation Judge Presiding Ted Williams Attorney for Plaintiff Appellant Baton Priscilla Brown Rouge Louisiana James D Buddy Caldwell Attorney General Richard R Ray Assistant Aftorney General Baton Rouge Louisiana Attomeys for Defendant Appellee State of Louisiana through the Department of Health and Hospitals Earl K Long Medical Center BEFORE PARRO WELCH AND KLINE JJ Hon William F Kline 7r retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court I KLINE J Priscilla Brown appeals a final judgment of the Office of Warkers Compensation OWC regarding the calculation of her temporary total disabiliry benefits and the denial of her claim for penalties and attomey fees For the following reasons we affirm FACTS AND PROCEDiJRAL HISTORY In 2010 Priscilla Brown was employed by the State of Louisiana through the Department of Health and Hospitals DHH at Earl K Long Medical Center BKL Ms Brown was a full employee who worked 40 hours per week time Ms Brown earned an hourly wage of 10 plus time and a half for any hours 48 she worked over 40 hours per week Claimant avers she warked an average of 43 hours per week in the four period before she suffered an injury by accident week on April 17 2010 while in the course and scope of her employment with DHH Claimant has received workers compensation temporary total disability TTD benefits since the April 17 2010 accident at a rate of 296 per week based on 95 an a weekly wage of 445 Ms Brown contends DHH miscalculated her erage 42 average weekly wage and she is therefore entitled to penalties and attorney fees Ms Brown believes benefits are payable to her in the amount of 310 per week 91 based on an average weekly wage rate of 46636 The trial of the claim was conducted on May 31 2012 The disputed issues were limited to the calculation of the average weekly wage amount upon which Ms Brown s TTD benefits were based The warkers compensation judge WCJ held that DHH calculation of Ms Brown TTD benefits at a weekly s s rate of 296 based on an average weekly wage of 445 was correct The 95 42 WCJ denied Ms Brown claim for s penalties and attorney fees judgment signed on June 15 2012 Ms Brown has instituted this appeal 2 From that STANDARD OF REVIEW In a workers compensation case the appellate court review of fact is s governed by the manifest error clearly or wrong standard Freeman v Weed Poulan Eater 93 La 1 630 So 2d 733 737 Where there is a 1530 94 14 conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonable Harrison v Auto King 03 La App 1 Cir 5879 So 2d 796 799 1620 04 14 LAW AND DISCUSSION Calculation of Avera eWeeklv Wage Claimant assigns error on the part of the WCJ for finding that the DHH calculation of her average weekly wage at 445 with a corresponding weekly 42 TTD rate of 296 was correct Ms Brown asserts that her average weekly 95 wage was 466 rather than 445 a difference of 13 Ms Brown 36 42 96 alleges that her average weekly wage should be calculated based on the average hours she actually worked in the four full weeks preceding her accident multiplied by her hourly wage rate At the time of her accident Ms Brown was paid an hourly wage of 10 For any hours worked over 40 she was paid time and a 48 half and these overtime hours were paid to her in the form of compensatory K time At the trial of this matter Ms Brown testified that her overtime hours were hours she actuallv worked but were not reflected in her paycheck The recard indicates that Ms Brown was a full employee who worked time 40 hours per week The calculation of Ms Brown average weekly wage is s governed by Louisiana Revised Statutes 23 which provides i a 12 1021 12 Wages means average weekly wage at the time of the accident The average weekly wage shall be determined as follows 3 a Hourly wages iIf 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 saccident occurred Claimant on April 17 2010 The four full weeks preceding the date of her accident were the weeks ending March 21 March 28 Apri14 and April 11 2010 Ms Brown testified at trial that she worked a total of 40 hours far the weeks ending March 21 March 28 and April 11 2010 She further testified that she warked 52 hours far the week ending April 4 2010 Claimant testified that she earned compensatory K for the 12 overtime time hours she worked that week Thus Ms Brown contends that in the four full weeks preceding her accident she averaged 43 hours per week The record indicates that Ms Brown used annual leave sick leave and compensatory leave during the four full weeks preceding her injury such that she did not actually work 40 hours per week during that period In the four weeks priar to her accident the record indicates that Ms Brown actually worked 31 1 hours 12 hours 36 hours and 32 hours respectively However because Ms 2 Brown is a full employee she is entitled to the presumption of having worked time at least 40 hours under Section 1021 i a 12 Ms Brown contends the WCJ erred in calculating her average weekly wage by failing to include her compensatory K far the extra 12 hours she worked time during the week ending April 4 2010 Louisiana Revised Statutes 23 12 1021 provides f Income tax In the determination of wages and the average weekly wage at the time of the accident no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes however any amount withheld by the employer to fund any nontaxable ar tax defened benefit provided by the employer and which was elected by the employee in lieu of taxable earnings sha11 be included in the calculation of the employee wage and average weekly wage s 4 including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee wage and average s weekly wage The Louisiana Supreme Court has stated that the word taxable was intended by the Legislature to be expanded to include potentially taxable fringe benefits that had not yet been received or used by an employee but would be received only at some uncertain point in the future Hargrave v State ex rel Dept of Ti ansp Dev 10 pp 9 La 1 54 So 3d 1102 ll07 The WCJ based the 1044 10 ll 19 calculation of Ms Brown average weekly wage on the actual earnings reflected s in her payroll records far the four weeks preceding her accident The WCJ did not credit Ms Brown with 52 hours for the week ending Apri14 2010 and calculated the wages based on a 40 work week The calculation of 445 as Ms hour 42 s Brown average weekly wage represents the averaged actual earnings received by her and taxed in the four full weeks prior to her injury The trial court held that Ms Brown was not entitled to include compensatory K which was time accrued but not used in the calculation of her average weekly wage rate Accordingly the WCJ correctly based Ms Brown average weekly wage upon s wages and benefits actually taxed during the four full weeks priar to her injury After a thorough review of the record and the jurisprudence we cannot say that the WCJ committed manifest error ar was clearly wrong in calculating Ms saverage weekly wage rate Brown Penalties and Attornev Fees Ms Brown assigns error on the part of the WCJ far denying her claim for penalties and attorney fees Pursuant to Louisiana Revised Statutes 23 F 1201 failure to provide benefits will result in a penalty and attorney fees unless the claim is reasonably controverted Attorney fees as well as penalties awarded for failing to reasonably controvert the claim are statutory fees assessed against the employer 5 McCaNroll v Airport Shuttle Inc 00 p 5 11 773 So 2d 694 1123 La 28 00 698 In the present case the WCJ did not err in holding that DHH did not miscalculate Ms Brown s average weekly wage Thus no penalties or attorney fees are due DECREE Therefore far the foregoing reasons the June 15 2012 judgment of the Office of Workers Compensation Administration District 5 is affirmed Costs are assessed against Ms Brown AFFIRMED 6
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