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Johnson v. City of Lake Charles9/29/2004
AFFIRMED.
The City of Lake Charles appeals the judgment of the workers' compensation judge awarding Rena Sonnier Johnson, the widow of Willard Johnson, weekly benefits in the amount of $82.70, beginning on the date of Mr. Johnson's death, October 19, 2002. Mrs. Johnson has answered the appeal, seeking a reversal of the workers' compensation judge's denial of an award of attorney fees and seeking an award of attorney fees for the work performed on appeal. For the following reasons, we affirm the judgment of workers' compensation judge and reject Mrs. Johnson's request for attorney fees.
The facts giving rise to this litigation are not in dispute. Willard Johnson and Rena Sonnier Johnson were married on January 10, 1947. They lived together without separation until Mr. Johnson's death. Mr. Johnson worked for the Lake Charles Fire Department for approximately twenty-six years and retired in 1977. At the time of his retirement, Mr. Johnson's average weekly wage was $254.46. In July of 2002, or almost twenty-five years after his retirement, Mr. Johnson was diagnosed with lung cancer. He died of that disease on October 19, 2002.
At the time of his death, Mr. Johnson's income was comprised of his retirement pension from the City of Lake Charles and social security benefits. Mrs. Johnson also drew a small social security check. After Mr. Johnson's death, Mrs. Johnson began receiving survivor's benefits from the retirement pension, which amounted to less than one-half the amount previously paid to her husband. Additionally, her social security check was stopped, and she began receiving an amount from her husband's social security benefits, again in an amount less than that previously paid to her husband.
On December 30, 2002, and after her demand for death benefits pursuant to La.R.S. 23:1231 was rejected by the City of Lake Charles, Mrs. Johnson filed a disputed claim for compensation. The matter ultimately went to trial on January 8, 2004. After completion of the evidence, the workers' compensation judge stated the following oral reasons in rendering judgment:
The court finds the causation is proven here. This is clearly a heart and lung case. Mr. Johnson clearly died of lung cancer, and he had been a firefighter for a number of years with the Lake Charles Fire Department. And under Revised Statute 23:1251, a surviving spouse is conclusively presumed to be wholly and actually dependent upon the deceased employee with whom he or she is living at the time of the accident or death. But what we have got here is not enough to overcome the conclusive presumption, so Mrs. Johnson is entitled to recover benefits. No penalties and attorney's fees are owed in this matter as the court finds that the matter has been reasonably controverted.
The parties had stipulated that the weekly death benefit based on Mr. Johnson's average weekly wage would be $82.70. The workers' compensation judge signed a judgment on January 15, 2004, awarding Mrs. Johnson weekly death benefits in that amount, beginning on the date of Mr. Johnson's death. In the judgment, the workers' compensation judge also rejected Mrs. Johnson's request for attorney fees. This appeal followed the signing of that judgment.
OPINION
Appeal of the City of Lake Charles The City of Lake Charles does not dispute that Mr. Johnson died of lung cancer and that the litigation is governed by the provisions of La.R.S. 33:2581, the Firefighter's Heart and Lung Statute. That statute provides as follows:
Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classifie
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