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Benjamin v. Wal-Mart #7512/12/2001
t did not reasonably controvert Ms. Benjamin's need for chiropractic treatment of her back problems, and award the amount of $2,000 as a penalty for Wal-Mart's failure to authorize medical treatment.
Amount of Attorney Fees
Ms. Benjamin, in her answer to Wal-Mart's appeal, suggests that the workers' compensation judge erred in awarding only $11,000 in attorney fees and requests that we assess additional attorney fees for services rendered in association with this appeal. According to Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981), factors used in determining attorney's fees in workers' compensation cases are the degree of skill and ability exercised, the amount of the claim and the amount of time devoted to the case. Considering the efforts of Ms. Benjamin's attorney, we find no error in the workers' compensation judge's $11,000 award for attorney fees. It is clear from the record that the attorney spent a considerable amount of time pursuing his client's case and vigorously enforcing her rights against Wal-Mart's unreasonable claims of fraud at the trial level. On appeal, even though Wal-Mart did not appeal the workers' compensation judge's finding that Ms. Benjamin was disabled and entitled to workers' compensation benefits, Ms. Benjamin's attorney had to address each and every allegation of fraud by brief and oral argument. Thus, we find that Ms. Benjamin is entitled to additional attorney fees in connection with the thorough brief filed and oral argument made on appeal. Aguillard v. Industrial Const. Co., Inc., 542 So.2d 774 (La.App. 3 Cir.1989).
In Jones v. Universal Fabrications, 99-1370 pp. 10-11 (La.App. 3 Cir. 2/9/00); 758 So.2d 856, 862-63, writ denied, 00-0742 (La. 5/12/00); 762 So.2d 13 this court noted:
We emphasize that adequate attorney's fees in workers' compensation cases is the basis for an injured employee obtaining effective counsel. La.R.S. 23:1221, which authorizes attorney's fees, encourages the retention of effective counsel by an employee who is injured, unemployed and unable to pay for capable representation.
It is evident that an employee in workers' compensation cases by definition is placed in a disadvantageous position. The employee is injured, unemployed and often totally lacking in financial resources. In contrast, the employer has the financial means to obtain attorneys to prepare and argue its case. The primary purpose of workers' compensation is to protect injured employees from impoverishment. If an employee is arbitrarily deprived of benefits, the attorney who litigates on his behalf and is successful at showing arbitrary and capricious conduct on the part of the employer, has aided not only his client but also the administration of the workers' compensation system. This work is very important as it helps discourage others who might seek to further their own economic fortune at the expense of persons injured in their employ. Considering these goals of workers' compensation, we find that an increase in attorney's fees is warranted.
For the efforts by Ms. Benjamin's attorney, we award $4,000 for the work done on appeal.
IV. CONCLUSION
For the foregoing reasons, we affirm the Office of Workers' Compensation's award of disability benefits and chiropractic services. We amend the judgment to award a penalty in the amount of the statutory maximum of $2,000 for Walmart's failure to authorize the chiropractic care of Dr. Gramlich. We award attorney fees in the amount of $4,000 for work rendered in this appeal.
We assess all costs of this appeal to the defendant, Wal-Mart.
AMENDED AND, AS AMENDED, AFFIRMED.
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