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Authement v. Wal-Mart9/26/2003
ured while in the course and scope of her employment with Wal-Mart. This assignment of error is without merit.
AWARD OF PENALTIES
In assignment of error number two, Wal-Mart contends the workers' compensation judge erred in finding it was arbitrary and capricious in its handling of Ms. Authement's claim and in the application of La. R.S. 23:1201.2 by awarding both penalties and attorney fees. Wal-Mart submits it had probable cause to discontinue Ms. Authement's benefits and, thus, was not arbitrary and capricious in the handling of this claim. Moreover, Wal-Mart asserts that if it was arbitrary and capricious in this case, only attorney fees are recoverable under La. R.S. 23:1201.2.
Two statutory provisions, La. R.S. 23:1201(F) and La. R.S. 23:1201.2, provide for the award of penalties and attorney fees in workers' compensation cases. Louisiana Revised Statutes 23:1201 provides, in pertinent part, as follows:
A. Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident .
...
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
Louisiana Revised Statutes 23:1201.2 provides as follows:
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.
The applicable statutory authority for assessing an insurer with penalties and attorney fees depends on whether the insurer failed to commence the payment of benefits in a timely fashion or discontinued benefits that had been timely paid. Russell v. Snelling Personnel, 2002-1347, p. 5 (La. App. 1 Cir. 5/9/03), 849 So.2d 558, 591. In Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So.2d 41, the Louisiana Supreme Court stated that La. R.S. 23:1201.2 applies only when an insurer or employer discontinues payment of benefits; it does not apply when there has been a failure to commence or pay benefits timely. Williams, 98-2271 at 7, 737 So.2d at 45. The distinction drawn in the Williams case is significant because both penalties and attorney fees are recoverable under
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