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Mitchell v. Winnfield Holding Corp.12/17/2003
and the two porter jobs were full-time jobs. The college campus jobs were part-time with full-time potential. We find LWCC was justified in reducing Mr. Mitchell's benefits based on the job search performed by Mr. Darby. The medical evidence supports a finding Mr. Mitchell was able to perform light duty work and Mr. Darby testified such work was available to him. LWCC reduced Mr. Mitchell's benefits in January 2002 using the lowest paying job available at $5.15 per hour, forty hours per week. While LWCC was justified is reducing Mr. Mitchell's benefits, the workers' compensation judge went even further and terminated all SEB. We find this was error on the part of the workers' compensation judge.
The purpose of SEB is to compensate an injured employee for the loss of wage earning capacity. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). The amount of SEB is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity. Id. The evidence establishes Mr. Mitchell was earning approximately $2,100.00 a month prior to his accident performing primarily medium to heavy duty work. After the accident he was restricted to light duty work. He is entitled to SEB based upon the difference between his pre-injury average monthly wage and his post-injury earning capacity.
We reverse that decision of the workers' compensation judge terminating all SEB. We order reinstatement of SEB benefits based upon the difference between Mr. Mitchell's pre-injury wage, using both his full-time and part-time wages, and his post-injury earning capacity, which was determined to be light duty work. We also reverse the decision of the workers' compensation judge terminating all medical benefits and order a reinstatement of medical benefits.
Penalties and Attorney Fees
LWCC miscalculated Mr. Mitchell's wages using only his full-time employment. Ms. Robinson testified from her reading of the workers' compensation statute Mr. Mitchell was only entitled to wages up to forty hours per week. In Ben v. Holtrachem, Inc., 00-635 (La.App. 3 Cir. 11/2/00), 772 So.2d 326, this court held:
The rule is well-settled that a workers' compensation claimant is entitled to penalties and attorney fees if benefits are withheld. To avoid the imposition of penalties and attorney fees an employee's right to compensation has to be reasonably controverted. La.R.S. 23:1201(F)(2). . . . he proper method to calculate his AWW would be to give him credit for an eighty hour work week for the pay period ending May 16, 1993. Mr. Ben's wages were not reasonably controverted but withheld because of miscalculations and the failure of LWCC to acquire written payroll records from Cal Chlor at the time of the accident.
Id. at 329-30.
Likewise, we find LWCC could have inquired from their insured about Mr. Mitchell's part-time as well as full-time employment. Additionally, Ms. Robinson could have obtained the advice of counsel before interpreting the provisions of the workers' compensation act on her own. Under the circumstances, we find Mr. Mitchell is entitled to penalties and attorney fees for LWCC's failure to reasonably controvert his claim. Accordingly, we award a penalty of $2,000.00 and attorney fees of $5,000.00 for work at the trial level and $2,500.00 for work at the appellate level. Additionally, Mr. Mitchell asks for penalties for termination of vocational rehabilitation services. It does not appea
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