WILSON SENEGAL v. KERRVILLE TOURS INC ET AL (2022)

The majority's reliance on past jurisprudence of this court and other circuits is well-founded. Although I am moved by Plaintiff's argument that it is the law at the time of his injury which should apply because to do otherwise would divest him of vested rights, I am constrained to agree with the majority. Our supreme court has clearly held that attorney fees and penalties are penal in nature and intended to deter an errant employer's bad behavior. Such provisions do not form part of a workers’ compensation claimant's right to compensation intended to make the claimant whole. That right unquestionably arises at the time of injury.

In Sharbono v. Steve Lang & Son Loggers, 97-0110 pps. 5-6, (La. 7/1/97), 696 So. 2d 1382, 1385–86, the supreme court held:

The “generally prevailing meaning” of the word “compensation,” as used in the statute, would not include attorney's fees and penalties. See Broussard v. U.S. Fire Ins. Co., 96–668 (La.Ct.App.3d Cir. 12/11/96), 685 So.2d 494 (“We do not find that a strict construction of the term ‘compensation’ encompasses penalties and attorney's fees.”). Further, attorney's fee awards and penalty awards are not intended to “compensate” a plaintiff and thereby make him whole, but rather to discourage certain behavior(s) on the part of the offending party. In this case, the discouraged behavior is employers’, and employers’ insurers’, indifference toward injured employees. Hood v. C.J. Rogers, Inc., 94–1162 (La.App.3d Cir. 3/8/95), 654 So.2d 371; Lutz v. Jefferson Parish Sch. Bd., 503 So.2d 106 (La.Ct.App. 5th Cir.1987).

It is clear that fees and penalties are not “compensation” within the meaning of the statute.

Again, in Fontenot v. Reddell Vidrine Water Dist., 02-439 (La. 1/14/03), 836 So. 2d 14, 25, the supreme court explained that the attorney fee and penalty provisions in La.R.S. 23:1201 “ ‘are not intended to make the worker ‘whole’ but rather to discourage specific conduct on the part of the employer.’ Haynes, 805 So.2d at 231(quoting Gay v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/12/99), 754 So.2d 1101); see also Sharbono, 696 So.2d at 1386.”

While I applaud Plaintiff's counsel's valiant effort, I am constrained to follow the settled law. Perhaps another try at the supreme court might prove successful, though the odds are high.

COOKS, Chief Judge, Concurs.