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Wyble v. Tunica Biloxi Gaming Economic Development11/2/2000
ration of payment of workers' compensation benefits under certain conditions. This has been fully discussed by the Supreme Court in Duncan v. State of Louisiana , Department of Transportation and Development, 615 So.2d. 305 (La.1993). According to Duncan, in order to accelerate benefits based on a failure to pay six consecutive installments when due, the court must find the following: 1) an award awarding compensation; 2) the employer has failed to pay six successive installments as they become due and the failure resulted from a willful refusal; 3) there is entitlement to instalments not yet payable under the award. Once the employee proves these elements, the burden shifts to the employer to show that the employee is not entitled to the maximum number of payments under the award by showing either that the employee's entitlement to benefits has terminated or will terminate within a determinable number of payments less than the maximum number of payments awarded.
The first element is clearly satisfied. Both the existence and substance of the consent judgment has been stipulated by the parties.
The second element actually requires a two-part inquiry. It must first be determined whether the employer failed to pay six successive installments as they became due. If so, it must be shown this resulted from a willful refusal on their part.
The defendant argues that the term "six successive installments" refers to monthly payments, pointing out the plaintiff at all times received his SEBs on a monthly basis. We are unpersuaded by this argument. The consent judgment under which Mr. Wyble receives his benefits clearly sets forth an award of weekly SEBs at the rate of $272.40 per week. Further, in Duncan, the Supreme Court found the plaintiff had carried his burden of showing a failure to pay six successive installments by showing a failure to pay when the defendants failed to pay for a period of eight weeks. La.R.S. 23:1221(3)(a) allows for the recalculation of SEBs on a monthly basis. This does not alter the fact that SEBs are weekly in nature both under the law and the terms of the consent judgment. The workers' compensation judge correctly determined the employer failed to pay six successive installments as they came due.
The workers' compensation judge found the failure to pay six consecutive installments as they came due a "willful refusal." We agree. The defendant argues at the time benefits were terminated, the plaintiff 1) had returned to work at more than 90% of his pre-injury wage and 2) was no longer disabled; therefore, he was not entitled to SEBs. This argument appears, after a review of the record, to be an afterthought argument not made at the trial level and unsupported by the record.
The claims adjustor stopped Mr. Wyble's SEBs because she was not sure if he could receive workers' compensation benefits from two employers at the same time. She wanted to get an opinion as to whether he should still be receiving SEBs. This was the sole reason for terminating his benefits. Although the defendant argues they also had medical reports indicating he was released to go back to work, this is not supported by the record. In fact, the claims adjustor testified that she began making efforts to obtain a medical report in late July 1998, at which time his benefits terminated, and did not receive them until January 29, 1999, three days after his benefits were reinstated. It is not, therefore, possible for there to be medical considerations which affected this decision. Clearly there was a willful refusal to pay benefits.
At the time Mr. Wyble's benefits were terminated he had received 177 weeks of workers' compensation benefits, leaving 343 more weeks
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