We think LSA-R.S. 23:1223 and the majority of cases on this point clearly mean that credit for compensation previously paid is on a dollar for dollar basis; in other words, the amount paid and not the number of weeks. Ball v. American Marine Corporation, 150 So.2d 865 (La.App. 4th Cir. 1963); Anderson v. Continental Can Company, 141 So.2d 48 (La.App. 2d Cir. 1962); Miller v. General Chemical Division, 128 So.2d 39 (La.App. 1st Cir. 1961); Flanagan v. Welch, 93 So.2d 36 (La. App. Orleans 1956); Jackson v. Steel Fabricators, 90 So.2d 397 (La.App. Orleans 1956); Dronet v. American Mutual Liability Ins. Co., 69 So.2d 114 (La.App. 1st Cir. 1953); Goins v. Shreveport Yellow Cabs, 200 So. 481 (La.App. 2d Cir. 1941). We are in thorough accord with the views expressed by Judge Hardy in his concurring opinion in Anderson v. Continental Can Company, supra, wherein he ably points out the injustice which often results to an injured employee by the application of LSA-R.S. 23:1223 and the need of legislative reexamination of the subject.
McGruder v. Service Drayage Co., Inc., 183 La. 75, 162 So. 806 (1935); Miller v. General Chemical Division (La. App. 1 Cir., 1961) 128 So.2d 39; Henry v. Ware Cotton Batting Plant, etc., (Orl.App. 1960) 117 So.2d 270; Francois v. Circle Drilling Co. (La.App. 1 Cir., 1959) 112 So.2d 771; Flanagan v. Welch (Orl.App. 1956) 93 So.2d 36; Jackson v. Steel Fabricators, Inc., (Orl.App. 1956) 90 So.2d 397; O'Connor v. American Mutual Liability Ins. Co., supra; Storm v. Johnson, supra. For the reasons assigned, the judgment of the lower court is hereby amended and recast so as to read as follows:
"Even assuming that the employer resisted payment of compensation at the correct rate upon advice of counsel received subsequent to suit, we do not think that such circumstances could exempt from penalty an employer's refusal to tender his undoubted compensation liability when there is no legal basis whatsoever to support such refusal. The cases upon which able counsel for defendant relies (Moore v. Great American Indemnity Company, La. App. 2 Cir., 106 So.2d 771, and Flanagan v. Welch, La. App.Orl., 93 So.2d 36), insofar as not distinguishable from the present situation, we regard to be against the weight of the better authority, which holds that a failure to pay or to tender an amount for which the employer is undoubtedly liable under the compensation act is arbitrary or unreasonable so as to require the imposition of statutory penalties whenever such failure is without legal basis and there is no serious question upon the merits that the disabled employee is entitled to payment of such compensation benefits. Humphreys v. Marquette Cas. Co., 235 La. 355, 103 So.2d 895; Fruge v. Pacific Employers Ins. Co., 226 La. 530, 76 So.2d 719; Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695; Hale v. Republic Drilling Co., La. App. 1 Cir., 109 So.2d 268; Cain v. Employers Cas. Co., La. App. 2 Cir., 96 So.2d 527, affirmed, 236 La. 1085, 110 So.2d 108; Patterson v. Cargo Services, Inc., La. App.Orl., 95 So.2d 49.
On several occasions this court has also allowed a specific sum. Broussard v. Dumas Chevrolet Co., 120 So.2d 863 (certiorari denied); Flanagan v. Welch, 93 So.2d 36 (certiorari denied); Greschner v. Claiborne Towers, Inc., 73 So.2d 32 (certiorari denied). In the instant case we fixed the attorney's fee on a percentage of the past due compensation and penalty, which occurs to us to be as good a method of computing the fee as any other, and the Supreme Court evidently approved thereof when it denied certiorari on June 1, 1960.
Moreover, the jurisprudence of this state is established to the effect that when compensation has been paid for temporary total disability prior to allowance for a specific loss there must be deducted therefrom (on a dollar for dollar basis rather than a week for week basis) all compensation previously paid as well as such credit as the employer may be entitled to for wages paid in lieu of compensation. Henry v. Ware Cotton Batting Plant, etc., La. App., 117 So.2d 270; Flanagan v. Welch, La. App., 93 So.2d 36; Francois v. Circle Drilling Co., La. App., 112 So.2d 771. Learned counsel for plaintiff has cited Kennedy v. Bayou Rapides Lumber Co., 25 So.2d 16, decided in 1946 by our brothers of the Court of Appeal, Second Circuit, as authority for the proposition that an injured employee may recover compensation for a specific loss in addition to compensation for disability.
We interpret this to mean that the defendants were credited not for the total amount of wages paid, but for the number of weeks during which the plaintiff continued to work for the employer; in other words, the credit was to be on a per week and not on a dollar basis. In Flanagan v. Welch, 93 So.2d 36, 43, we said: "Counsel for plaintiff contend that, even on the basis sought by the insurer, the credit for total disability to which the insurer would be entitled would not be for the amount paid, but only for the number of weeks during which maximum compensation had been paid and that since, according to counsel, the period during which compensation, on the basis of the partial loss of the use of the leg the number of weeks for which compensation would be paid, exceeded the number of weeks, 33, during which full compensation was paid, obviously there remained a number of weeks for which compensation should have been paid.
Even assuming that the employer resisted payment of compensation at the correct rate upon advice of counsel received subsequent to suit, we do not think that such circumstance could exempt from penalty an employer's refusal to tender his undoubted compensation liability when there is no legal basis whatsoever to support such refusal. The cases upon which able counsel for defendant relies (Moore v. Great American Indemnity Company, La.App. 2 Cir., 106 So.2d 771, and Flanagan v. Welch, La.App. Orl., 93 So.2d 36), insofar as not distinguishable from the present situation, we regard to be against the weight of the better authority, which holds that a failure to pay or to tender an amount for which the employer is undoubtedly liable under the compensation act is arbitrary or unreasonable so as to require the imposition of statutory penalties whenever such failure is without legal basis and there is no serious question upon the merits that the disabled employee is entitled to payment of such compensation benefits. Humphreys v. Marquette Cas. Co., 235 La. 355, 103 So.2d 895; Fruge v. Pacific Employers Ins. Co., 226 La. 530, 76 So.2d 719; Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695; Hale v. Republic Drilling Co., La.App. 1 Cir., 109 So.2d 268; Cain v. Employers Cas. Co., La.App. 2 Cir., 96 So.2d 527, affirmed, 236 La. 1085, 110 So.2d 108; Patterson v. Cargo Services, Inc., La.App. Orl., 95 So.2d 49.
LSA-R.S. 23:1223 provides that where compensation has been paid under the disability provisions the amount of such payments shall be deducted from any compensation allowed for a specific loss, * * *." [ 233 La. 821, 98 So.2d 205.] Also, see Flanagan v. Welch, La.App., 93 So.2d 36. For a 15% loss of the use of his thumb, Henry would be entitled to 15% of 65 per centum of wages during 50 weeks under subdivision 4(a) and (o), and whereas the benefits so due would be less than $10 per week, he would be entitled to the minimum compensation of $10 per week as provided by LSA-R.S. 23:1202, as amended by Act 411 of 1956.
Dixon v. Pacific Mutual Life Ins. Co., 268 F.2d 812, 815 (2d Cir.), cert. denied, 361 U.S. 948 (1959). To the same effect was Flanagan v. Welch, 93 So.2d 36, 39 (La.App. 1956). In Mutual Benefit Health Accident Assn. v. Bird, 185 Ark. 445 (1932), the policy read, in a clause practically the same as that in issue here: "If such injuries as described in the insuring clause shall wholly and continuously disable the insured for one day or more, and so long as the insured lives and suffers said total loss of time, the association will pay . . . .