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Sterling v. Asplundh Tree Expert Co.11/10/2004
AFFIRMED.
This case comes to us after rulings on two post-judgment motions. Claimant, Richard Sterling, appeals the decision of an office of workers' compensation judge (WCJ) in favor of Defendant, Asplundh Tree Expert Co. (Asplundh), dismissing Claimant's petition for additional post-judgment penalties and attorney's fees. Asplundh answered the appeal arguing that the WCJ erred in ruling that Claimant had not forfeited his right to benefits under La.R.S. 23:1208. We affirm the decision of the WCJ.
FACTUAL AND PROCEDURAL HISTORY
Claimant worked for Asplundh for six years before the accident of September 1999, which gave rise to this litigation. Following the accident, Asplundh paid Claimant's full wages until February 12, 2000. Thereafter, Claimant filed a claim for benefits, penalties and attorney's fees. The WCJ ruled in favor of Claimant on all issues, and Asplundh took a suspensive appeal to this court which fully affirmed the judgment of the WCJ. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La. 1/30/04), 865 So.2d 79.
On October 31, 2003, Asplundh applied for writs of certiorari to the supreme court seeking a reversal of one relatively minor aspect of this court's earlier ruling. In that writ application, Asplundh argued that Claimant's paid vacation and holidays should not have been included in calculating Claimant's weekly compensation benefits. If Asplundh's application for writs had been successful, it would have resulted in a reduction of weekly benefits payable to Claimant from $283.85 per week to $270.00 per week.
On January 20, 2004, Claimant filed a motion with the WCJ seeking penalties and attorney's fees because of Asplundh's alleged failure to timely pay that part of the earlier judgment which had not been the subject of Asplundh's writ application. Claimant contends that since only the $13.85 difference in the weekly compensation benefits remained a viable issue, the entire remainder of the judgment became final and was payable within thirty days from this court's earlier October 1, 2003 ruling. The WCJ denied Claimant's motion.
Asplundh's post-trial motion, which is also the subject of this appeal, was filed on February 11, 2004. In that motion, Asplundh complains that included in the medical bills sent to Asplundh by Claimant, pursuant to the earlier decision of this court, were bills pertaining to Claimant's unrelated hernia operation. Asplundh's motion contends that the submission of these unrelated medical bills for payment represented a willful, false statement and claim and thus Claimant's benefits should be forfeited pursuant to La.R.S. 23:1208. This motion was denied by the WCJ.
Claimant appeals the decision of the WCJ, and Asplundh has answered the appeal re-urging its motion.
DISCUSSION
We first address Claimant's motion wherein he contends that all facets of the earlier judgment, with the exception of the subject matter of Asplundh's writ application, were payable within thirty days from October 1, 2003, the date of the earlier decision by this court. Claimant contends that once this thirty-day period expired, Asplundh had no further recourse to challenge any aspect of the earlier decision other than the subject of the writ application; therefore, as to that portion of the judgment which was not the subject of the writ application, it became final and payable.
Asplundh contends that there is no provision in the law allowing portions of a judgment to become final on a piecemeal basis. According to Appellee, when an application for writs of certiorari to the supreme court is timely made, th
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