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SUPREME COURT OF LOUISIANA
No. 98-C-1063

RICHARD L. BROWN v. TEXAS-LA CARTAGE, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT #2

KIMBALL, Justice*

We granted plaintiff's writ to consider the proper standard to be applied in determining whether a workers' compensation claimant is entitled to penalties and attorney fees pursuant to La. R.S. 23:1201. After examining the unambiguous language of the statute, we note the arbitrary and capricious standard no longer applies to actions brought under this statute and hold that statutory penalties and attorney fees shall be awarded if the employer or insurer fails to timely pay benefits due claimant pursuant to La. R.S. 23:1201 unless: (1) the claim is reasonably controverted or (2) such nonpayment results from conditions over which the employer or insurer had no control. Furthermore, we hold plaintiff is entitled to an award of penalties and attorney fees for defendants' failure to timely and adequately compensate him since his claim was not

*

CALOGERO, C.J., not on panel. See Rule IV, Part 2, Section 3.

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reasonably controverted and the nonpayment did not result from conditions over which the employer or insurer had no control.

Facts and Procedural History Plaintiff, Richard Brown, was injured in the course and scope of his employment for the defendant, Texas-LA Cartage, Inc., on May 21, 1996. Brown, however, continued to work until his physician found him temporarily unable to work on July 9, 1996. Following this restriction from work, defendant began paying workers' compensation benefits. Compensation for Brown's first week of injury was suspended pursuant to La. R.S. 23:1224.1 On July 24, 1996, defendant issued a check in the amount of $239.62 covering benefits from July 16 to July 20. This first check was a partial payment because defendant's workers' compensation insurer pays from Sunday through Saturday of each week and issues checks only on Wednesday for the prior pay period. After this partial pay period, Brown was paid at a weekly rate of $299.53. The claims adjuster testified that to calculate this weekly rate, she called TexasLA Cartage and requested Brown's gross wages for the four weeks prior to his injury. She further testified that the payroll information she was given revealed that Brown's average weekly wage for those four weeks was $449.30 which allowed her to conclude Brown was entitled to temporary total disability benefits at a rate of $299.53. After receiving benefits for several weeks, Brown contacted an attorney who then advised the claims adjuster by letter dated August 30, 1996, that Brown was a full-time employee and therefore entitled to increased benefits. The claims adjuster contacted Texas-LA Cartage and was told that although Brown worked less than forty hours a week in the four weeks preceding his injury due to a business slow down, he was hired as a full-time employee. The claims adjuster then recalculated the rate and increased Brown's benefits to $322.68 per week. On September

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La. R.S. 23:1224 provides:

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