Insurer attempts to evade paying benefits by labeling fiancé as 'concubine'
Despite the insurer's efforts, a court ruled that a woman and her newborn are entitled to survivor benefits in a WC claim.
A court of appeal in Louisiana has decided that a woman and her newborn are entitled to survivor benefits after her fiancé and the baby’s father died in a tragic workplace accident, but the employer does not have to pay penalties in an alleged mishandling of the workers’ compensation claim.
The workers’ comp claim dispute
Travis Chiokai passed away in November 2017 after falling 100 feet while working on electrical lines for his employer Irby Construction Co. (Irby). His fiancé, Latashia Perez, individually and on behalf of their unborn child, filed a disputed claim for compensation against Irby and Republic Insurance Company, seeking death benefits as a result of the work-related accident, plus penalties and attorney fees due to the handling of the claim. Irby and Republic, collectively referred to as Irby Construction, disputed the claim and argued that the claim on behalf of the unborn child was premature.
The baby was born a month after her father died. Paternity was confirmed, and Irby Construction began paying death benefits of $624 per week. The next month, Irby Construction filed peremptory exceptions of no cause and no right of action, asserting that Perez was Chiokai’s concubine; thus, not entitled to death benefits through La.R.S. 23:1253.
A workers’ compensation judge found that although the couple was engaged in concubinage, no evidence was presented that proved that Perez occupied the position of a concubine and denied the exceptions. He also found that Perez was dependent on Chiokai for support at the time of his death and added penalties of $2000 and attorney fees of $3000 because the company was “arbitrary and capricious in its handling” of the compensation claim.
On appeal, Irby Construction claimed the workers’ compensation judge erred in six counts, including the payment due that were not immediately paid following Chiokai’s death. The appeals court cited case law and amended laws that put Perez fully within the parameters of a dependent and granted payment back to the time of Chiokai’s death. The court reversed, in part, on the additional fees and penalties, stating that the additional reward was erroneous, and the judge that awarded them gave no reason to do so.
The case is Perez v. Irby Constr. Co., 2020 La. App. LEXIS 153.
Editor’s Note: La.R.S. 23:1253 states, in part, “[r]egardless of dependency, no payments shall be made to the concubine of the deceased employee nor the concubine’s children unless those children are related to the deceased employee by blood or adoption.” In this case, the court determined that Irmy Construction did not present the evidence necessary to prove that Perez was a concubine. In fact, it fact found that she was more than a concubine at the time of her fiancé’s death.
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