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Wyble v. Tunica Biloxi Gaming Economic Development11/2/2000
eligibility to draw unless he is shown to be no longer disabled or entitled to some lesser amount than as being paid at the time of termination. Although, as outlined above, the defendant argues the plaintiff is no longer entitled to SEBs, this argument is not supported by the record. Indeed, the workers' compensation judge found the plaintiff continues to suffer from a medical condition, which arose while employed by Grand Casino, which prevents his return to work. The record supports her finding and it will not be set aside.
Mr. Wyble is entitled to accelerated SEBs. The defendant is correct, however, that the amount to which he is entitled has been miscalculated. The plaintiff was paid SEBs in the amount of $443.88. The judge divided this amount by 4 and determined he was due $110.97 weekly, then multiplied $110.97 by 343 to reach a total amount of $38,062.71. La. R.S. 23:1221(3)(a) requires the amount, however, to be divided by 4.3, resulting in a weekly benefit of $103.23. When multiplied by 343 this would result in a total figure of $35,407.89 due the plaintiff.
We uphold the judge's award of penalties and attorney fees. We agree with the defendant that statutory penalties are not allowed when a compensation claim has been reasonably controverted, and attorney fees are warranted only if the failure to pay benefits is arbitrary, capricious, or without probable cause. La. R.S. 23:1201 and 23:1201.2. For all the reasons discussed above, however, we find the record supports an award of penalties and attorney fees. The defendant cannot justify its actions in this matter. We amend the amount of the penalty award to $3,000.00, however, to comply with the mandatory language in La.R.S. 23:1201(G).
The defendant further contests the workers' compensation judge's imposition of penalties and attorney fees for its denial of treatment that was recommended by Dr. Larriviere. The judge determined the facts of this case show there was no justifiable reason to deny medical treatment and imposed penalties accordingly. Indeed, the defendant continues to try to justify its actions based on medical records it had not received at the time the decision was made. We will not disturb these awards.
The plaintiff argues he is entitled to judicial interest in accordance with La. R.S. 23:1201.3. We agree and amend the judgment to provide for legal interest from the date of judicial demand until paid.
We also award attorney fees to the plaintiff in the amount of $2,500.00 for work done on this appeal.
CONCLUSION
We hereby affirm the ruling of the workers' compensation judge as to the issue of acceleration of benefits, amending it, however, to correct the miscalculation. We further affirm the awards of penalties, as amended, and attorney fees for improperly terminating the plaintiff's SEBs. We affirm the judge's award of penalties and attorney fees for the denial of medical treatment. We grant additional attorney fees in the amount of $2,500.00 for work done on appeal. We grant legal interest from the date of judicial demand until paid.
AFFIRMED AS AMENDED.
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