 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Stroud v. Morrison Nursery12/28/2001
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
FACTS
On December 13, 1995, Imogene Stroud sustained a back injury when the vehicle she was operating was rear-ended while she was in the course and scope of her employment with Morrison Nursery. In January of 1996, she began receiving temporary total disability benefits in the amount of $177.50 per week pursuant to a judgment of the Office of Workers' Compensation (hereinafter "OWC"). Subsequently, her Employer filed a petition with OWC to terminate her benefits under La.R.S. 23:1221(3)(d)(iii) on the grounds that Ms. Stroud was receiving social security old age retirement benefits. Ms. Stroud had been receiving social security benefits since 1992 when she reached the age of 70; at the time of the accident she was receiving $354.30. A hearing was held to determine whether or not her benefits should be terminated since Ms. Stroud was receiving social security retirement benefits prior to the accident.
La.R.S. 23:1221(3)(a) of the Louisiana Workers' Compensation Act provides for the payment of supplemental earnings benefits for injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at the time of injury. La.R.S. 23:1221(3)(d) provides, in pertinent part, that the right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(iii) When the employee retires or begins to receive old age insurance benefits under Title II of the Social Security Act, whichever comes first; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.
Although the workers' compensation judge found that the employee was entitled to supplemental earnings benefits, she granted the Employer's petition to terminate because claimant had received benefits in excess of 104 weeks under the statute. The workers' compensation judge also found that Ms. Stroud could not be labeled as temporarily totally disabled nor permanently totally disabled under Section 1221 of the Workers' Compensation Act. Ms. Stroud appealed the workers' compensation judge's decision. The appellate court affirmed, and the claimant took writs to the Louisiana Supreme Court, which were denied on October 1, 1999.
In the interim, the Plaintiff filed a Petition for Declaratory Relief in district court against Morrison Nursery and the Attorney General seeking to have La.R.S. 23:1221(3)(d)(iii) declared unconstitutional. However, the Petition for Declaratory Relief was stayed by the workers' compensation judge at the request of the Attorney General pending a decision in the case Pierce v. Lafourche Parish Council, 98-1758 (La.App. 1 Cir. 6/25/99); 739 So.2d 297, writ granted, 99-2854 (La. 12/10/99); 751 So.2d 242. On May 16, 2000, the Louisiana Supreme Court ruled that La.R.S. 23:1221(3)(d)(iii) was unconstitutional. Pierce v. Lafourche Parish Council, 99-2854 (La. 5/16/00); 762 So.2d 608.
Plaintiff, through counsel, made written demands for reinstatement of benefits. The Employer did not comply with these demands. Therefore, Plaintiff filed suit for the reinstatement of her benefits. In response, the Employer filed an Exception of Res Judicata. A trial was held on April 11, 2001. The workers' compensation judge denied the Employer's exception and ruled that Ms. Stroud was entitled to have the benefits reinstated retroactive to the date of termination. However, the court ruled that the failure to reinstate benefits after the Pierce decision was not "arbitrary and capricious," and denied Plaintiff's claim for penalties and attorney fees. On May 4,
Page 1 2 3 4 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|