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Wyble v. Tunica Biloxi Gaming Economic Development11/2/2000
AFFIRMED AS AMENDED.
PICKETT, Judge.
Kenneth J. Wyble was formerly employed by the defendant -appellant, Tunica Biloxi Gaming Economic Development at the Grand Casino - Avoyelles as a blackjack dealer. During the course and scope of his employment, he developed carpal tunnel syndrome. He did not return to work after being diagnosed.
Mr. Wyble filed a compensation claim against the defendant and its insurer, Louisiana Workers' Compensation Corporation. March 29, 1996, the parties entered into a consent judgment stipulating that the plaintiff had contracted an occupational disease during the course and scope of his employment, that his average weekly wage at the time of his disability was $408.60, and that he was entitled to supplemental earnings benefits payable "to claimant at the full rate of $272.41 per week until such time as reduction of this amount or termination of said payments is allowed by the provisions of the Louisiana Workers' Compensation Act." This judgment was not appealed and is a final judgment.
Subsequently, the plaintiff began working for Hollier Implement Company and, as a result, his weekly SEBs were reduced accordingly, taking into account his earnings at Hollier.
April 2, 1998, Mr. Wyble sustained a lower-back injury while working for Hollier. This injury resulted in a disability which precluded him from working. As a result he began receiving weekly workers' compensation benefits from Hollier. These benefits were, as one would expect, less than the amount he had been receiving in wages while he was working at Hollier and receiving SEBs from the defendant.
This back injury was reported to the defendant who continued paying Mr. Wyble weekly SEBs until July 31, 1998. At that time, the defendant terminated payment of any benefits.
November 23, 1998, the plaintiff filed a petition against the defendant seeking an acceleration of benefits under the consent judgment, penalties, and attorney fees.
January 26, 1998, the defendant paid Mr. Wyble a lump sum which brought current all SEBs due and owing from August 1, 1998, through December 31, 1998.
August 3, 1999, Mr. Wyble filed a Supplemental and Amending Petition seeking authorization for diagnostic testing ordered by Mr. Wyble's original treating physician, Dr. Hugh Larriviere, along with penalties and attorney fees. Trial was held August 12, 1999.
By judgment dated October 22, 1999, Judge Stacy Auzerne, awarded the following: 1) acceleration of the remaining SEBs due under the March 29, 1996 consent judgment, totaling $38,062.71; 2) penalties in the amount of $2,000.00 for the improper termination of SEBs; 3) the diagnostic testing recommended by Dr. Larriviere, to be authorized and paid for by the defendant; 4) penalties in the amount of $2,000.00 for the defendant's failure to authorize this testing; and 5) attorney fees of $5,000.00.
From this judgment the defendant has appealed. Plaintiff has answered the appeal, seeking an increase in penalties and attorney fees, as well as legal interest on the amounts awarded in the judgment.
DISCUSSION
The defendant argues the worker's compensation judge was clearly wrong in determining the plaintiff is entitled to acceleration of his benefits, is entitled to penalties and attorney fees for termination of his benefits, and is entitled to attorney fees and penalties for its refusal to authorize treatment recommended by Dr. Larriviere. They further argue that if it is determined the plaintiff is entitled to the acceleration of benefits, the judge miscalculated the amount owed.
La.R.S. 23:1333 allows for the accele
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