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Lyons v. Bechtel Corp.12/27/2000
ceeding is a question of fact, and a WCJ's findings shall not be disturbed on appeal absent manifest error. See Wiltz, 99-930; 763 So.2d 111.
Since the Appellees did initially provide Appellant with weekly indemnity benefits, the applicable statute is La.R.S. 23:1201.2. See Brown v. Texas-La Cartage, Inc.,98-1063 (La. 12/1/98); 721 So.2d 885. The pertinent part of La.R.S. 23:1201.2 provides: 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.
Only attorney fees are recoverable if an employer or an insurer arbitrarily discontinues payment of workers' compensation benefits due. Williams v. Rush Masonry, Inc. 98-2271 (La. 6/29/99); 737 So.2d 41. "Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation." Brown, 98-1063, p. 8- 9; 721 So.2d 885, 890. Whether termination of workers' compensation benefits is arbitrary, capricious, or without probable cause depends primarily on facts known to the employer or insurer at time of its action. Creel v. Concordia Elec. Coop., Inc. 95-914 (La.App. 3 Cir. 1/31/96); 670 So.2d 406, writ denied, 96-0577 (La.4/19/96); 671 So.2d 923.
Thus, we must consider the facts known to the Appellees at the time they terminated Appellant's weekly indemnity benefits. The Appellees argue they were justified in terminating Appellant's benefits because he lied during his deposition. In support of their argument, Appellees cite portions of the Appellant's deposition, taken on May 21, 1999. The Appellant made the following statements during questioning by the Appellees:
A: Are you working right now?
A: No, sir.
Q: Where's the last place you worked?
A: Bechtel, Mexico.
Q: Did you work at all after you got back?
A: No, sir.
Q: Have you applied for employment anywhere since the time of the accident?
A: No, sir.
Q: Why not?
A: I don't feel like I can hold my job as far as heavy equipment or tile, the trades that I know.
Q: You haven't looked for any other kind of employment, right?
A: No sir.
Q: And the conditions keep you from being able to operate heavy equipment as far as you are concerned, right?
A: Yes, sir.
Q: And that's why you haven't tried to operate any heavy equipment or get a job , right?
A: Yes, sir.
Q: What do you do all day?
A: Pretty much TV and just-I visit my son at school.
Q: The pains have been bad enough to keep you from operating any equipment since the time of your accident?
A: Yes, sir.
Q: You understand you are under oath here today just like you are going to be in court?
A: Yes, sir.
Q: And this is in connection with your comp claim, correct?
A: Yes, sir.
Q: And this agony in your neck is one of the things that keeps you from being able to operate any equipment, right?
A: Yes.
Q: What sources of income do you have at this time?
A: Just workmen's comp. The Appellant made the following statements under direct examination by his attorney:
Q: Since the accident where you fell in the ditch, or let me put it this way, since you returned to the United
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