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SERVPRO OF METAIRIE NO. 03-CA-825
VERSUS FIFTH CIRCUIT
PETER J. CANNATA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE WORKER'S COMPENSATION COURT
DISTRICT 07, STATE OF LOUISIANA
NO. 01-09161
HONORABLE SYLVIA T. STEIB, JUDGE PRESIDING

NOVEMBER 25, 2003

WALTER J. ROTHSCHILD
JUDGE

Panel composed of Judges Thomas F. Daley, Susan M. Chehardy
And Walter J. Rothschild

WADE A. LANGLOIS, III 401 Whitney Avenue, Suite 500
P.O. Box 1910 Gretna, Louisiana 70054-1910 COUNSEL FOR SERVPRO OF METAIRIE, PLAINTIFF-APPELLANT
WAYNE W. YUSPEH 3000 W. Esplanade Avenue, Suite 301 Metairie, Louisiana 70002 COUNSEL FOR PETER J. CANNATA, DEFENDANT-APPELLEE
REVERSED.
This worker's compensation case arises from a motor vehicle accident that occurred on April 1, 1999. The claimant, Peter Cannata, was a passenger in a company vehicle when it was struck two times from the rear by another vehicle. Mr. Cannata suffered injuries in the accident, primarily to his lower back. He was in the course and scope of his employment with Servpro of Metairie at the time of the accident.
Mr. Cannata has not worked since the date of the accident. He was paid temporary total disability benefits from the date of the accident until February 2001, when Servpro began paying him Supplemental Earnings Benefits (SEB). He was paid full SEB until November 2001 when they were reduced by Servpro.
On December 14, 2001, Mr. Cannata filed a disputed claim for compensation, seeking full benefits, as well as penalties and attorney fees, from Servpro for arbitrarily reducing his benefits. Trial of this matter was held on November 14, 2002. Mr. Cannata and his wife testified at trial, and the remainder of the case was submitted via exhibits. On March 7, 2003, the worker's compensationjudgerendered ajudgmentfindingthatMr. Cannatawasentitledto SEB at the full compensation rate of $193.35 per week and finding the employer, Servpro, to be arbitrary and capricious in its refusal to pay worker's compensation
benefits at the correct rate. The worker's compensation judge further assessed a
$2,000.00 penalty and $2,000.00 in attomey fees against Servpro.' It is from this judgment that Servpro appeals. DISCUSSION
On appeal, Servpro assigns the following two errors:
1)  The worker's compensation judge was legally incorrect and  
manifestly erroneous in awarding Supplemental Eamings  
Benefits to the claimant, because the claimant did not prove  
entitlement to such benefits since he did not make any effort to  
attempt to retum to work.  
2)  The worker's compensation judge was legally incorrect and  
manifestly erroneous in finding that Servpro was arbitrary and  
capricious and awarding penalties and attomey fees, because  
Servpro had a reasonable legal and factual basis for all actions  

taken in this case.
Servpro does not dispute that Mr. Cannata suffered lower back injuries in the accident and that he still has pain resulting from the accident. However, it asserts that he is able to retum to work with light duty restrictions. Mr. Cannata argues that he cannot retum to any employment due to his pain and therefore, he is entitled to SEB benefits at the full compensation rate.
LSA-R.S. 23:1221(3) sets forth the law pertaining to a claim for SEB, and it provides in pertinent part as follows:
(a) For injury resulting in the employee's inability to eam wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages eamed or average monthly wages the
The judgment also awarded medical expenses. However, Servpro filed a Motion for New Trial, asserting that medical expenses were not an issue at trial and that it had already paid the claimant's medical bills. A hearing on the Motion for New Trial was held on April 25, 2003. On May 7, 2003, the worker's compensation judge signed an
amended judgment, deleting the paragraph from the original judgment that awarded medical expenses and inserting a paragraph reserving the claimant's right to seek payment of medical expenses.
employee is able to eam in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve.
(b)For purpose of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages employee is able to eam in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, eamings from odd-lot employment, sheltered employment, and employment while working in any pain.
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self

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