TYLER ORY v. HKA ENTERPRISES INDUSTRIAL SOLUTIONS LLC INDEMNITY INS CO OF AMERICA (2026)

The Office of Workers’ Compensation, District 5, rendered a judgment determining (1) Defendants are entitled to a dollar-for-dollar credit for the wages paid to Plaintiff in lieu of workers’ compensation, resulting in an overpayment, and (2) Plaintiff is not entitled to an award of penalties and attorney's fees related to the calculation of his average weekly wage. Plaintiff appealed. For the following reasons, we amend the judgment, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Tyler Ory, worked as a millwright for HKA Enterprises Industrial Solutions, LLC (“HKA”) at its Rubicon factory in Geismar, Louisiana. In his position as a millwright, Ory received compensation from HKA in the amount of $37.99 per hour and $56.99 per hour for overtime. On January 15, 2022, Ory sustained second and third degree burns on his hands and legs in a workplace accident while in the course and scope of his employment. Ory was “off duty” following his accident, and during that time, HKA paid him a total of $46,654.40 in wages in lieu of compensation over 19 weeks.

Upon his return to work on May 30, 2022, Ory was unable to perform his pre-accident duties as a millwright due to medical restrictions. As a result, he was assigned to work in an office for a 40-hour work week with minimal overtime opportunities. This “light duty” work resulted in a wage loss. However, HKA's insurer, Indemnity Insurance Company of North America (“Indemnity”), refused to pay supplemental earnings benefits (“SEB”) based on its assertion that it was entitled to a dollar-for-dollar credit for the wages HKA paid in lieu of workers’ compensation, resulting in an alleged overpayment to Ory in the amount of $46,186.40.

Ory filed a disputed claim for compensation before the Office of Workers’ Compensation on October 13, 2022. Therein, Ory asserted that he is entitled to SEB as well as penalties and attorney's fees for Indemnity's failure to timely pay SEB. Ory also disputed the calculation of his average weekly wage on the basis that the four full weeks immediately preceding the accident do not accurately represent his normal average weekly wage. According to Ory, two of the four weeks immediately prior to his accident included significant vacation and holiday time and therefore should be excluded from his average weekly wage calculation and replaced with weeks in which he did perform work.

HKA and Indemnity (collectively “Defendants”) filed an answer to Ory's disputed claim for compensation on October 19, 2022, wherein Defendants explicitly denied that Ory is entitled to SEB or that Ory's average weekly wage calculation is incorrect. Defendants also claimed they are entitled to a credit or offset for benefits or expenses already paid by HKA to Ory.

The matter proceeded to trial on October 7, 2024.¹ After the presentation of evidence, the workers’ compensation judge (“WCJ”) took the matter under advisement. The WCJ later rendered a judgment and written reasons for judgment on October 29, 2024. Therein, the WCJ decreed Defendants were entitled to a dollar-for-dollar credit in the amount of $46,186.40 for wages HKA voluntarily paid in lieu of workers’ compensation benefits and denied Ory's claim for penalties and attorney's fees related to the calculation of his average weekly wage. However, the WCJ awarded a penalty of $2,000.00 and attorney's fees in the amount of $2,000.00 for Defendants’ failure to pay the February 2024 SEB installment timely. Ory appealed, assigning the following errors to the WCJ's ruling:

1. The [WCJ] erred in finding that La. R.S. 23:1206 provides for a dollar-for-dollar credit as opposed to a week-to-week credit when the employer voluntarily pays an injured worker wages in lieu of workers’ compensation payments.

2. The [WCJ] erred in the calculation of the credit owed to [Defendants] if her ruling allowing a dollar-for-dollar credit is correct.

3. The [WCJ] erred by allowing a week of vacation where [Ory] did not work and a week with a holiday that [he] did not work a full week into the average weekly wage calculation when the statute requires the calculation to be based on the average actual hours worked in the four full weeks preceding the date of the accident.

STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Clifford v. OLOL Regional Medical Center, 2018-1483 (La. App. 1 Cir. 5/31/19), 277 So.3d 1210, 1213. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Thus, if the factfinder's conclusions are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Clifford, 277 So.3d at 1213. However, statutory interpretation is a question of law subject to de novo review. Havard v. Jeanlouis, 2021-00810 (La. 6/29/22), 345 So.3d 1005, 1007.

EMPLOYER CREDIT FOR WAGES IN LIEU OF COMPENSATION

Ory's first two assignments of error concern the credit the WCJ awarded to Defendants for overpayment of benefits. In his first assignment of error, Ory specifically contests the WCJ's determination that Defendants are entitled to a dollar-for-dollar credit for the overpayments and instead contends the credit should be on a week-to-week basis.

The governing statute for credits is La. R.S. 23:1206, which states, “Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.” In other words, an employer may be entitled to a credit for previous overpayments from future compensation that may be due. Hebert v. Terrebonne Parish School Bd., 2003-1444 (La. App. 1 Cir. 5/14/04), 879 So.2d 222, 226. However, La. R.S. 23:1206 is silent regarding how that credit is to be applied. Defendants argued, and the WCJ agreed, that Defendants are entitled to a dollar-for-dollar credit for the payments HKA made to Ory in lieu of compensation while he was out due to his injury. Ory, on the other hand, contends the wages HKA paid in lieu of workers’ compensation were gratuitous payments, which are not subject to a dollar-for-dollar credit but rather a week-to-week credit, i.e., a deduction from the total number of weeks for which compensation is due.

Absent an express legislative pronouncement as to the correct method of crediting Defendants, we turn to the legislative history of La. R.S. 23:1206 to guide us. See Adler v. Williams, 2016-0103 (La. App. 1 Cir. 9/16/16), 203 So.3d 504, 511 (“One particularly helpful guide in ascertaining the intent of the legislature is the legislative history of the statute in question and related legislation.”). The current version of La. R.S. 23:1206 went into effect on July 1, 1983. Prior to that date, the statute stated voluntary payments made by the employer that were not due and payable when made may, “subject to the approval of the court, be deducted from the payments to be made as compensation; provided that in case of disability, such deduction shall be made by shortening the period during which the compensation shall be paid, and not by reducing the amount of the periodical payments.” See Futrell v. Hartford Acc. & Indem. Co., 276 So.2d 271, 275 (La. 1973). That version of La. R.S . 23:1206 expressly provided that the credit should be a week-to-week credit and not a dollar-for-dollar credit. See H. Alston Johnson III, Workers’ Compensation Law and Practice, in 13 La. Civ. L. Treatise § 279 (5th ed.).

When the statute was amended in 1983, however, the express prohibition against dollar-for-dollar credits for unearned wages paid to the claimant was removed from the statute. See 13 La. Civ. L. Treatise § 279. This court, in Ringo v. Hawco Mfg., 582 So.2d 987, 988 (La. App. 1 Cir. 1991), determined the amended version of La. R.S. 23:1206 “no longer prohibits dollar-for-dollar credit to the employer or insurer for overpayments.” Several other courts have also concluded that La. R.S. 23:1206 no longer prohibits dollar-for-dollar credit for overpayments. See, e.g., Breaux v. Petro Drive, Inc., 534 So.2d 48 (La. App. 3 Cir. 1988); Jim Walter Homes v. Lewis, 544 So.2d 485 (La. App. 2 Cir. 1989), on reh'g (per curiam); Monceaux v. R & R Const., Inc., 2005-533 (La. App. 3 Cir. 12/30/05), 919 So.2d 795, 802, writs denied, 2006-0636, 2006-0585 (La. 5/5/06), 927 So.2d 317, 325.²

Those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, and with knowledge of the effect of their acts and a purpose in view. Sebble on Behalf of Estate of Brown v. St. Luke's #2, LLC, 2023-00483 (La. 10/20/23), 379 So.3d 615, 623. Additionally, when the legislature alters the wording of a statute, that alteration reflects a legislative intent to substantively change the law. See Tin, Inc. v. Washington Parish Sheriff's Office, 2012-2056 (La. 3/19/13), 112 So.3d 197, 207. Considering the foregoing cases and the rules of statutory construction recited above, it follows that the change in wording of La. R.S. 23:1206 reflects the legislature's intention to eliminate the requirement of a week-to-week credit.

While we acknowledge the important equitable concerns cited by Ory in his appellant brief, we can find nothing in the law or jurisprudence prohibiting the application of a dollar-for-dollar credit.³ As such, we find no error in the portion of the WCJ's judgment that ordered Defendants are entitled to a dollar-for-dollar credit for the voluntary overpayment to Ory. See Monceaux, 919 So.2d at 802.

Having determined the WCJ did not err in awarding Defendants a dollar-for-dollar credit, we now address Ory's second assignment of error: whether the WCJ erred in the calculation of the amount of credit owed to Defendants. In this case, the parties stipulated that (1) Ory was paid $46,654.40 in lieu of compensation over a 19-week pay period; and (2) the maximum workers’ compensation rate at the time of Ory's accident was $743.00 a week.⁴ This results in an overpayment of $32,537.40. Ory argues that the WCJ's judgment is incorrect because it awarded a credit for the overpayment of benefits in the amount of $46,186.40, rather than $32,537.40.

First, we note that the judgment set forth the incorrect amount of credit to which Defendants are entitled. The parties specifically stipulated at the beginning of trial that HKA paid Ory $46,654.40 over the course of 19 weeks as wages in lieu of compensation. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Moore v. Murphy Oil USA, Inc., 2015-0096 (La. App. 1 Cir. 12/23/15), 186 So.3d 13 5, 151, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066. Therefore, we will amend the judgment to correct this error. See Benoit v. Benoit, 2021-0864 (La. App. 1 Cir. 4/4/22), 341 So.3d 719, 736 n.10 (citing La. C.C. P. art. 2164) & 737.

Nevertheless, the WCJ is correct that Defendants are entitled to a credit for the wages paid to Ory in lieu of compensation. However, that credit is offset by the amount of indemnity benefits to which Ory would have been entitled during that time, which the parties stipulated was $743.00 a week. Accordingly, the amount of indemnity Defendants would have paid to Ory over the course of the 19 weeks he was “off duty” ($14,117.00) is subtracted from the total credit Defendants received ($46,654.40) to determine the total overpayment, which, as the parties astutely point out, equals $32,537.40.

AVERAGE WEEKLY WAGE CALCULATION

Ory's final assignment of error relates to the average weekly wage calculation. Louisiana Revised Statutes 23:1221(3) sets forth the manner of determining the amount of SEB to which an employee is entitled. When an employee suffers an injury that results in the employee's inability to earn wages equal to at least 90% of the wages that the employee earned at the time of the injury, the employee is entitled to SEB in an amount equal to 66 2/3% of the difference between the average monthly wage that the employee was earning at the time of the injury and the average monthly wage the employee is able to earn after the injury. La. R.S. 23:1221(3)(a)(i).

To obtain SEB, the employee must prove by a preponderance of the evidence that an injury covered by the Louisiana Workers’ Compensation Law resulted in the employee's inability to earn at least 90% of the amount of the employee's wages prior to the injury. See Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 2011-1797 (La. 5/8/12), 93 So.3d 536, 539. In the instant case, the parties agree that Ory was not able to earn at least 90% of his prior earnings. Therefore, the only contested issue regarding SEB is the amount of benefits. More specifically, Ory only contests the calculation of his average weekly wage, which in turn affects the calculation of the total amount of SEB to which he is entitled.

Average monthly wages, for purposes of SEB, are computed by multiplying the employee's “wages” by 52 and then dividing the product by 12. La. R.S. 23:1221(3)(a)(i). Louisiana Revised Statutes 23:1021(13) defines “wages” as “average weekly wage at the time of the accident.” According to La. R.S. 23:1021(13)(a)(i), if an employee is paid on an hourly basis and the employee is employed for forty hours or more, his average weekly wage is determined by multiplying his hourly wage rate by the average actual hours worked in the four full weeks preceding the date of accident or forty hours, whichever is greater. The calculation of a claimant's average weekly wage is a factual finding subject to the manifest error-clearly wrong standard of review. Nitcher v. Northshore Regional Medical Center, 2011-1761 (La. App. 1 Cir. 5/2/12), 92 So.3d 1001, 1013, writ denied, 2012-1230 (La. 9/21/12), 98 So.3d 342.

Ory was an hourly employee. Prior to his accident, Ory was paid $37.99 per hour for regular time and $56.99 per hour for any overtime, and he testified at trial that it was normal for him to work overtime. Since Ory's accident occurred on January 15, 2022, La. R.S. 23:1021(13)(a)(i) requires us to compute Ory's average weekly wage by considering his average weekly wages in the four full weeks prior to that date. The evidence presented at trial established the following earnings for Ory during those four weeks: (1) for the pay period of January 3, 2022 through January 9, 2022 (“week 1”), Ory earned $1,519.60, representing 32 hours of vacation pay and 8 hours of holiday pay; (2) for the pay period of December 27, 2021 through January 2, 2022 (“week 2”), Ory earned $2,317.46, representing 40 hours of regular pay and 14 hours of overtime pay; (3) for the pay period of December 20, 2021 through December 26, 2021 (“week 3”), Ory earned $1,861.54, representing 24 hours of regular pay, 16 hours of holiday pay, and six hours of overtime pay; and (4) for the pay period of December 13, 2021 through December 19, 2021 (“week 4”), Ory earned $3,314.79, representing 40 hours of regular pay and 31.5 hours of overtime pay. Using these figures, Defendants calculated that Ory's average weekly wage was $2,253.35 for the four full weeks prior to the accident.

Ory contests the use of week 1 and week 3 in his average weekly wage calculation. Specifically, Ory points out that week 1 and week 3 both include vacation and/or holiday pay and that Ory did not perform “actual work” during this time. As such, Ory contends the inclusion of week 1 and week 3 in his average weekly wage calculation “is not an accurate reflection of what he typically earned if he had worked.”

It is well settled that overtime is to be considered in the calculation of a claimant's average weekly wage. Jones v. Craft Resource Solution, 2024-554 (La. App. 3 Cir. 4/9/25), 409 So.3d 459, 465; see also Dupree v. International House of Pancakes, 2005-1021 (La. App. 1 Cir. 5/5/06), 934 So.2d 183, 186. However, the courts differ in determining how to apply La. R.S. 23:1021(13)(a) when the employee worked less than four full weeks prior to the accident. Jones, 409 So.3d at 465. For example, in Doucet v. Crowley Mfg., 96-1638 (La. App. 3 Cir. 4/30/97), 693 So.2d 328, writ granted in part on other grounds, 97-1438 (La. 9/19/97), 701 So.2d 143—one of the cases Ory relies on—the claimant, who was injured in late January, appealed a ruling on the basis that his average weekly wage was miscalculated. The claimant argued that because one of the four weeks immediately before his accident was a vacation week, it should not have been included in the calculation of his average weekly wage. Doucet, 693 So.2d at 328-29. Relying on Breuhl v. Hercules Concrete Pumping, Inc., 94-2311 (La. App. 4 Cir. 5/16/95), 656 So.2d 1055, the Doucet court determined that the average weekly wage calculation should not have included the vacation week taken while the factory was closed or another week during which the factory was closed and the claimant worked a light schedule. Doucet, 693 So.2d at 329; see also Breuhl, 656 So.2d at 1059 (finding where two of the four weeks contained vacation and one week in which the plaintiff worked less than six hours, it could not find the evidence showed “the four full weeks” the plaintiff worked prior to the accident). As a result, the Doucet court considered the last full week the claimant worked (prior to the two-week factory closure) in calculating the claimant's average weekly wage. Doucet, 693 So.2d at 329-30.

However, all cases decided prior to 2012, including Doucet and Breuhl, relied on the jurisprudential rule of liberal construction in favor of the injured worker. See Jones, 409 So.3d at 467. This jurisprudential rule was legislatively overruled in 2012 by the enactment of La. R.S. 23:1020.1(D)(2), which states, in part, that “the laws pertaining to workers’ compensation shall be construed in accordance with the basic principles of statutory construction and not in favor of either employer or employee.” See Jones, 409 So.3d at 466-67; Juarez v. AJ Lazo Construction, LLC, 2022-575 (La. App. 5 Cir. 9/20/23), 370 So.3d 1280, 1287.

In applying the basic principles of statutory construction,⁵ it follows that since Ory did not work “full weeks” in week 1 and week 3 prior to his accident, i.e., he worked less than 40 hours during those two weeks, 40 hours is the greater of the two figures. Therefore, the 40-hour presumption applies to week 1 and week 3 for purposes of calculating Ory's average weekly wage.⁶ Here, the WCJ did just that in calculating Ory's average weekly wage. Accordingly, we find no legal or manifest error, and we affirm the WCJ's finding as to Ory's average weekly wage.⁷

DECREE

For all of the above and foregoing reasons, we amend the WCJ's October 29, 2024 judgment to reflect Defendants are entitled to a credit in the amount of $46,654.40 for wages paid to Plaintiff, Tyler Ory, in lieu of compensation. As amended, the October 29, 2024 judgment is affirmed. All costs of this appeal are assessed to Plaintiff, Tyler Ory.

AFFIRMED AS AMENDED.

I agree with the majority's opinion finding that the workers’ compensation judge did not err in its determination that Defendants are entitled to a dollar-for-dollar credit. I further agree with the majority's opinion amending the workers’ compensation judge's judgment to correct the amount of credit to which Defendants are entitled and finding that the total overpayment equals $32,537.40. However, I respectfully concur with the majority's opinion affirming the calculation of Mr. Ory's average weekly wage. I agree with Judge Fields's analysis and calculation of Mr. Ory's average weekly wage and find that it comports with the statutory and jurisprudential authority. In my view, this calculation more accurately reflects Mr. Ory's typical earnings than the calculation accepted by the majority. Nevertheless, I believe that the workers’ compensation judge's determination was reasonable, so the applicable standard of review prevents us from adjusting the calculation. I write to emphasize that a straightforward reading of the law does not lead to only one mathematically certain outcome.

I respectfully dissent from the majority's opinion affirming the claimant's, Mr. Ory, average weekly wage calculation. According to La. R.S. 23:1021(13)(a)(i), an employee's average weekly wage is determined by multiplying his hourly wage rate by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater. Mr. Ory did not work any hours in the week prior to his accident, January 3, 2022 through January 9, 2022, which the majority refers to as “week 1”; rather his compensation was made up completely of vacation and holiday pay. Under such a circumstance week 1 cannot be counted. See Breuhl v. Hercules Concrete Pumping, Inc., 94-2311 (La. App. 4th Cir. 5/16/95), 656 So.2d 1055, 1059. I agree that the weeks of December 27, 2021 through January 2, 2022, “week 2”; December 20, 2021 through December 26, 2021, “week 3”; and December 13, 2021 through December 24, 2021, “week 4”, should all be included in Mr. Ory's average weekly wage calculation because Mr. Ory actually worked during these three weeks. In order to reach four full weeks, the week prior to “week 4”, the week of December 6, 2021 through December 12, 2021, should be counted as well. See Breuhl, 656 So.2d at 1059; Doucet v. Crowley Mfg., 96-1638 (La. App. 3rd Cir. 4/30/97), 693 So.2d 328, 329-330, writ granted in part on other grounds, 97-143 8 (La. 9/19/97), 701 So.2d 143; Davis v. Boise Cascade Co., 2014-156 (La. App. 3rd Cir. 10/1/14), 149 So.3d 331, 336-337. Mr. Ory earned $3,884.69 during this week, comprised of forty hours of regular work and forty-one hours of overtime. Using this week, his average weekly wage is $2,844.62. For those reasons, I believe it was error for the workers’ compensation judge to accept the average weekly wage calculation provided by defendants, and award accordingly.

FOOTNOTES

1.   Defendants filed a motion for summary judgment prior to trial, which the WCJ denied. Defendants filed a writ application with this court in early 2024, and this court declined to exercise its supervisory jurisdiction. See Ory v. HKA Enterprises Industrial Solutions, LLC, 2024-0020 (La. App. 1 Cir. 2/16/24), 2024 WL 660330 (unpublished).

2.   Ory relies on one outlier case, Carter v. Continental Assurance Co., 554 So.2d 688 (La. App. 3 Cir. 1989). In Carter, the Third Circuit held that the credit due the employer for gratuitous payment in lieu of compensation was to be given on a week-to-week, rather than dollar-for-dollar, basis. See Carter, 554 So.2d at 690. The Carter court reasoned that if the 1983 amendment was made with the intent to change the law, it would have expressly done so. Carter, 554 So.2d at 691. However, this reasoning is inconsistent with a basic canon of statutory interpretation—that when the legislature alters the wording of a statute, that alteration reflects a legislative intent to substantively change the law. See Tin, Inc. v. Washington Parish Sheriff's Office, 2012-2056 (La. 3/19/13), 112 So.3d 197, 207. Additionally, we are not bound by the legal determinations of other circuits. See Succession of Willoz, 2022-1026 (La. App. 1 Cir. 7/5/23), 2023 WL 4347961, *4 n.5 (unpublished). For these reasons, we find Carter unpersuasive.

3.   Ory argues all the cases providing a dollar-for-dollar credit involve overpayments by mistake or miscalculation. This is inaccurate. Neither Ringo nor Monceaux presented an issue of mistaken overpayments to the workers’ compensation claimant, yet both this court and the Third Circuit applied a dollar-for-dollar credit.

4.   This totals $14,117.00 for those 19 weeks.

5.   In examining a law, words and phrases shall be read in their context and be given their generally prevailing meaning. See La. C.C. art. 11; La. R.S. 1:3. Further, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9.

6.   But see Davis v. Boise Cascade Co., 2014-156 (La. App. 3 Cir. 10/1/14), 149 So.3d 331, 336. We decline to follow Davis in light of La. R.S. 23:1020.1(D)(3), also enacted in 2012, which states, “If the workers’ compensation statutes are to be liberalized, broadened, or narrowed, such actions shall be the exclusive purview of the legislature.”

7.   We note this result is consistent with the purpose of the Louisiana Workers’ Compensation Law, i.e., to ensure a basic minimum subsistence to persons now wholly or partially unable to earn their prior wage due to work-related injuries. The legislative objective is not a wage-replacement plan but to guarantee basic subsistence levels thought to be reasonable and economically feasible. See 13 La. Civ. L. Treatise § 277.

EDWARDS, J.

Miller, J. concurs in part with reasons. Fields, J. dissents in part with reasons.