
    Lou Anna DOUCET v. JANTZEN, INC.
    No. 00-1318.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2001.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, Counsel for Defendant/Appellant/Appellee: Jantzen, Inc.
    John Henri Pucheu, Pucheu, Pucheu & Robinson, Eunice, LA, Counsel for Plaintiff/Appellee/Appellant: Lou Anna Doucet.
    Court composed of DOUCET, C.J., THIBODEAUX, and WOODARD, Judges.
   I,WOODARD, Judge.

In this workers’ compensation litigation, the main issue we address is whether the workers’ compensation judge (WCJ) erred when granting an employer the right to an offset under La.R.S. 23:1225(C), after adjudicating an employee to be permanently totally disabled. Finding, instead, La.R.S. 23:1225(A) to be applicable in such circumstance, we reverse the WCJ’s decision on this issue. We affirm in part, reverse in part, and remand.

⅝ ⅜ ⅜ ⅝ ⅝

This litigation arose from the injury, which Ms. Lou Anna Doucet sustained while in the course and scope of her employment with Jantzen, Inc. (Jantzen). She underwent two failed fusion surgeries and asserts that she is permanently, totally disabled. After a hearing held on September 16, 1999, the WCJ found her to be entitled to $139.57 weekly permanent total disability benefits (PTDs), but granted Jantzen a $169.80 monthly, La.R.S. 23:1225(0 offset, retroactive to March 20, 1997. Jantzen appeals, and Ms. Doucet answers the appeal.

Permanent Total Disability Benefits and Penalties & Attorney’s Fees

After thoroughly reviewing the record, we find no legal or manifest error in the WCJ decision, finding Ms. Lou Anna Dou-cet permanently and totally disabled, and awarding her penalties and attorney’s fees. Accordingly, we affirm this part of the WCJ’s decision.

Offset

Ms. Doucet asserts that the trial court erred when it granted Jantzen an offset retroactive to 1997. She claims that the court should, instead, have made the offset retroactive to Jantzen’s June 10, 1999 judicial demand.

| ¡.Statutory Basis

Before we can address Ms. Doucet’s assignment of error, we must determine whether the WCJ granted Jantzen’s offset under the appropriate statutory provision; namely, La.R.S. 23:1225(C).

The employers’ right to an offset is found in La.R.S. 23:1225, which our Louisiana legislature enacted in an effort to avoid an overlap between state workers’ compensation benefits and federal social security benefits. In the mid-sixties, the federal government amended its social security act, set forth in 42 U.S.C. § 424a, to allow the social security administration to decrease an employee’s social security benefits when such benefits, combined with that provided by the state’s workers’ compensation benefits, exceed eighty percent of the employee’s average weekly wage. Congress, thereby, reduced duplication risks inherent to the states’ and federal programs while supplementing inadequate states’ workers’ compensation schemes.

Nevertheless, 42 U.S.C. § 424a(d) offered to the states’ legislatures the opportunity to take a reverse offset if they implemented it into the states’ laws within a certain period of time. The Louisiana legislature adopted such a reverse offset provision and enacted La.R.S. 23:1225, now La.R.S. 23:1225(A). However, for some reason, it chose to make the reverse offset applicable to PTD cases, but took no further action to extend it to other types of workers’ compensation benefits.

In 1983, the Louisiana legislature enacted La.R.S. 23:1225(C), revising our workers’ compensation laws. As revised, La. R.S. 23:1225 now provides, in relevant part:

A. The benefits provided for in this Subpart for injuries producing permanent total disability shall be reduced when the person receiving benefits under this Chapter is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and|sreceiving benefits under 42 U.S.C. § 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workers’ compensation benefits would otherwise cause or result in a reduction of the benefits payable under the Federal Old Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. § 424a, and in no event will the benefits provided in this Subpart, together with those provided under the federal law, exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. § 424a. However, there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under the federal law after the date of the employee’s injury.
C. (1) If an employee receives remuneration from:
(a) Benefits under the Louisiana Workers’ Compensation Law.
(b) Old-age insurance benefits received under Title II of the Social Security Act to the extent not funded by the employee.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers’ compensation benefits,
then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.
(2) Notwithstanding the provisions of Paragraph (1) of this Subsection, benefits payable for injury to an employee under this Chapter shall not be reduced by the receipt of benefits under this Chapter or any other laws for injury or death sustained by another person.
(3) If an employee is receiving both workers’ compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers’ compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.
14(4) If a conflict arises between the application of the provisions of this Section and those of any other Louisiana law or contract of insurance, the provisions of this Section shall control.

(Emphasis added.)

Clearly, La.R.S. 23:1225(A) still sets forth the appropriate remedy available to an employer, seeking a reverse offset for workers’ compensation benefits awarded to an employee adjudicated permanently and totally disabled. However, in 1995, Garrett v. Seventh Ward General Hosp., the Louisiana Supreme Court interpreted La. R.S. 23:1225(C)(1)(c), specifically the term “[bjenefits under disability benefit plans,” to include an employee’s receipt of social security benefits. Thereafter, the Garrett court and its progenies allowed employers the benefit of a La.R.S. 23:1225(C) offset to employees’ total temporary disability benefits.

Nevertheless, on May 19,1999, the Louisiana Supreme Court in Al Johnson Const. Co. v. Pitre, decided to depart from its Garrett decision, holding that “the term ‘[bjenefits under disability benefit plans’ in [La.R.S.] 23:1225(C)(1)(e) does not include Social Security Disability benefits.” When it decided to overrule Garrett, the Pitre court stated:

When the employee is permanently totally disabled, however, the employer receives under Section 1225 A the advantage in the reduction of total benefits to the federal ceiling. When the employee is temporarily totally disabled, however, the federal authorities take the reduction of total benefits to the federal ceiling, and this court’s decision in Garrett apparently had the effect of allowing state employers to reduce their compensation obligation (in addition to the reduction already taken by the federal authorities) from eighty percent of the employee’s average current earnings to sixty-six and two-thirds percent of average weekly wage.

(Emphasis added.)

| ñIn the case sub judice, after finding Ms. Doucet to be entitled to PTDs, the WCJ found that Jantzen is entitled to a La.R.S. 23:1225(0) offset, stating:

I think that’s correct. I think the 1225(a) offset — -and I’m again going out on a limb on this one. I don’t think the 1225(a) offset applies in this case, that’s my appreciation of it. Again, gentlemen, I know this one is going up, so maybe the court of appeal can straighten it out.

We disagree with the WCJ’s decision to apply a La.R.S. 23:1225(C) offset in a case where it adjudicated the employee to be permanently and totally disabled. Plainly, whether based on the clear and unambiguous wording of the statute, or on our jurisprudence, either pre- or post -Pitre, the proper statutory remedy available to an employer exercising its right to an offset, when the employee is permanently, totally disabled, is under the La.R.S. 23:1225 reverse offset provision.

Offset’s Retroactivity

Having determined Ms. Doucet’s entitlement to PTDs and Jantzen’s right to receive the benefit of a reverse offset, we must last ascertain the triggering date for Jantzen’s right to a reverse offset under La.R.S. 23:1225(A).

It is well established that an employer, who is entitled to the benefit of a reverse offset, may assert such a credit from the time it perfected judicial demand. Ms. Doucet claims that Jantzen did not perfect judicial demand until June 10, 1999. We disagree.

Conducting a de novo review of the record on this issue, we find that she sustained her disabling injury on January 21, 1987. Thereafter, Jantzen and Liberty Mutual Insurance Company, Jantzen’s workers’ compensation insurer, asserted their right to an offset. After a hearing was held on January 8, 1998, the WCJ found that Jantzen is entitled to a Garrett offset under La.R.S. 23:1225(C)(1)(c), in a judgment entered on May 15, 1998. However, in its judgment, the WCJ reserved, for Ms. Doucet, the right “to assert that the offset against her worker’s compensation benefits based on her receipt of Social Security benefits should be made pursuant to R.S. |fi23:1225.A instead of R.S. 23:1225.-C(1)(e).” She exercised that option when she filed “LDOL WC 1008’’ on May 1, 1998.

The WCJ acknowledged that she had done so in its written reasons for judgment, filed on September 2, 1998, determining the merits of an exception of prematurity, which Jantzen had filed on June 9, 1998. These details are not pertinent to the instant suit. The litigation sub judice ensued, with Jantzen contesting Ms. Dou-cet’s claim of being permanently, totally disabled. It perfected a formal demand for a La.R.S. 23:1225(A) reverse offset on June 9,1999.

Based upon this convoluted set of facts and procedure, we find that Jantzen is entitled to a La.R.S. 23:1225(A) reverse offset, retroactive to May 1, 1998. We note that, at that time, Ms. Doucet opted to submit herself to the offset provided under the May 15,1998 judgment. Nevertheless, the record does not allow us to clearly determine the parties’ status regarding the amount of benefits which Jant-zen paid Ms. Doucet to date, nor the offset amount which Jantzen may have retained. Accordingly, we remand the case to the WCJ to have it specify the parties’ exact status on these issues in light of this opinion.

CONCLUSION

We affirm the WCJ’s opinion, finding Ms. Doucet to be permanently and totally disabled and entitled to penalties and attorney’s fees. However, finding La.R.S. 23:1225(A) applicable to Jantzen’s claim for an offset, we reverse the WCJ’s decision on this issue. We remand the case to the WCJ to have him determine the parties’ exact status in light of this opinion. We cast Jantzen with costs.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

DOUCET, C.J., concurs.

hDOUCET, C.J.,

concurring.

[Editor’s Note: Concurring opinion of Doucet, C.J. was withdrawn prior to publication.]

I WOODARD, J.,

concurring.

Footnoting court opinions — an odd topic to trigger a concurring opinion, particularly since it was not an issue which the parties or the opinion addressed. Notwithstanding, since Chief Judge Doucet has found it fit to place, what amounts to, his stylistic preference for legal opinion writing at issue in this public forum, fairness dictates that his comments be addressed in a similar fashion.

Specifically, rather than focusing on the merits of the opinion, Chief Judge Dou-cet’s sole reason for concurring lies in his objection to the use of citational footnotes in the instant opinion. Surprisingly, albeit having used citational footnotes in his own legal opinions, Chief Judge Doucet advances that this circuit’s rules, as [¿well as The Bluebook’s, prohibit their use and that citations must appear, solely, in the body of the opinion.

Contrary to Chief Judge Doucet’s assurances, there is no legal proscription against using citational footnotes. As his authority, he refers to “this court’s officially adopted citation rules,” known as “Citation Manual,” and The Bluebook: A UniFORM System of Citation, Rule 1.1 and PRACTITIONER’S Note 2 (16th Ed.1996). This court’s current citation manual simply refers judges to The Bluebook concerning this issue. Bluebook Rule 1.1 does not address location of citations in legal opinions. Nevertheless, when taken out of context, one might conclude that Practitioner’s Note 2, impliedly, supports Chief Judge Doucet’s proposition. However, to discern their true meaning, The Bluebook provisions, in question, should be interpreted in the proper context; namely, The Bluebook’s Introductory Note, 1.3, which provides that “[i]n court documents and legal memoranda, citations generally appear within the text of the document, as full sentences or as clauses within sentences, directly after the propositions that they support.” (Emphasis added.) Thus, it is evident that The Bluebook does not dictate the location of citations but simply relates a common practice. And, it does not prohibit placing a citation in a footnote, which is appended to, and immediately follows, its proposition. Furthermore, PRActitioneR’s Note 2 is not intended to be a mandatory rule but a mere example.

“The basic purpose of a legal citation is to allow the reader to locate a cited source accurately and efficiently.” Whether the citation is in the body of the opinion or in a footnote, on the same page, is of no moment because both accomplish the same purpose. The major difference is that placing it in a footnote provides an added advantage to the reader — an uncluttered, easy-to-read opinion.

Moreover, both, the United States and the Louisiana Constitutions and statutes are silent concerning the specific content and form of judicial opinions. And finally, our UnifoRM Rules Courts of Appeal Rule 2-16(A), pertaining to an opinion, Ronly provide that “[t]he decisions of a Court of Appeal may be expressed in ... a full opinion which gives the judgment of the court and a full statement of the reasons supporting the judgment[.]”

Furthermore, while legal scholars and opinion writers on this topic do oppose the use of substantive footnotes in judicial opinions; generally, they commend the use of citational footnotes. They sharply distinguish between the two: Citational footnotes are those which state the legal authority for a proposition by merely providing authority references to other legal sources; a footnote that serves any purpose, other than a simple citation to authority, is a substantive footnote.

Some of the highly respected jurists in Louisiana, who have used citational footnotes in their opinions, include United States Fifth Circuit Court of Appeal Judges Alvin Rubin and John Minor Wisdom, who began the practice in 1983, and recently retired Judge Melvin Shortess of the Louisiana First Circuit Court of Appeal.

Advanced legal writing scholars, such as Bryan A. Garner, recommend citational footnotes as the preferred legal opinion writing style. And, Garner notes that such a practice is the nationwide trend in, both, federal and state courts. For example, four of the five judges on the Delaware Supreme Court and two justices of the Texas Supreme Court use citational footnotes, as do all judges in Alaska and all appellate judges in California.

On the contrary, there is much rancor in the legal community concerning the use of substantive footnotes in legal opinions. For example, one law professor wrote that “[a]ccording to the ‘devil theory of footnoting,’ any note other than a ‘pure’ citation is excrement in the 14corridors of academe.” (Emphasis added.) Similarly, Noel Coward is quoted in The Art of Footnote as having stated: “Encountering [a footnote] is like going downstairs to answer the doorbell while making love.” And Judge Mikva, one of their fiercest opponents, described footnotes as “phony excrescences” and “an abomination.” He explained that “[i]n the pure application, a footnote that merely cites a case or other writing is the easiest to defend — and the least troublesome])]” “If I thought I was fully cured and that my crusade [to eliminate substantive footnotes] was catching on, I would use footnotes just for authority citations. If footnotes were confined to that use solely, readers could make up their own minds whether they were reading for profit or pleasure. A reader who just wanted to know what a judge was saying about the case being decided could ignore the footnotes altogether. The reader who wanted to wade in more deeply — check the authority, or distinguish it for future cases — could turn to the footnotes. As it is, because I am still full of footnote toxin, I put my authority citations riyht in the text. The result is hardly conducive to a flow-iny style of writiny.” (Emphasis added.)

To say the least, this debate has generated some passion. However, none of these contemptuous denunciations were aimed at citational footnotes, which Chief Judge Doucet criticizes and uses, but rather at substantive footnotes, which Chief Judge Doucet, also, uses in his opinions.

IsOriginally, judges did place citations in the body of the text, as opposed to in footnotes, not for any profound legal reason, but because of the mechanical limitations of typewriters, which were the tools available at that time. However, with subsequent technology, that limitation and, therefore, the real reason for putting citations in the text no longer existed. From that point on, presumably, judges were left with the option of placing citations in footnotes or in the body of their opinions. Indeed, Judge Mikva pointed out that using citational footnotes is a matter of individual, opinion, writing style.

In his concurrence, Chief Judge Doucet presented no authority to the contrary. His concurring opinion is disconcerting because it transcends the mere issue of the “correctness” of using citational footnotes in our opinions. He seems to suggest that all judges must adopt the same writing style — under the auspices of uniformity. Although I understand the importance for using a uniform citation form as a way to facilitate legal research for our profession, commanding uniform writing styles serves no endorsed, beneficial purpose. Instead, it thwarts a coveted safeguard in our judicial system — judicial independence. And, using a particular style in judicial opinions, including citational footnotes, is strictly within the realm of each judge’s independence.

United States District Judge Leonie M. Brinkema summed it up when she said that, “efforts to homogenize the federal courts of this nation are shortsighted. Diversity among our federal courts encourages experimentation and progress and is one of the reasons the federal judiciary has remained so dynamic ... no federal judge is required to follow any particular form for his or her opinions. Some judges value brevity; some use literary flourishes; some include many footnotes, others use few; some follow Blue Book format, others do not; some only cite to the official source, and others include parallel cites. To mandate that judicial opinions conform | (Jo a specific format ... seriously invades judicial independence.” (Emphasis added).

I fully support Judge Brinkema’s appreciation of judicial independence and its relevance to opinion writing. Her understanding is consistent with Cannon 1 of the Code of Judicial Conduct, which mandates that judges have a. duty to protect, not subvert, their peers “in the exercise of judicial independence.”

In exercising that independence, my objective for using citational footnotes, as opposed to placing a string of citations in the middle of a sentence, is to write my opinions in an uncluttered, flowing, writing style in order to make them accessible and understandable, not only, to lawyers and judges, but also, to litigants and to the people whom I was elected to serve, without depriving the legal community of necessary references.

I disagree with Chief Judge Doucet’s assertion that it is a requirement that legal citations be placed in the body of the opinion. Furthermore, given the current, nationwide trend, legal experts’ recommendations, and the fact that using citational footnotes yields stronger, clearer opinions, I suggest that the other judges, in this state, and their readers would benefit by adopting this style. 
      
      . LeBlanc v. Lake Charles Dodge, Inc., 98-88 (La.11/21/98); 725 So.2d 19, writ denied, 99-420 (La.5/14/99); 741 So.2d 660.
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . Al Johnson Const. Co. v. Pitre, 98-2564 (La.5/18/99); 734 So.2d 623.
     
      
      . 95-17 (La.9/22/95), 660 So.2d 841.
     
      
      . Id.
      
     
      
      . 734 So.2d 623.
     
      
      . Id. at 628.
     
      
      . Id.
      
     
      
      . Daigle v. Employers Nat'l Ins. Co., 94-126 (La.App. 3 Cir.12/1/99); 747 So.2d 696.
     
      
      . See State v. Crawford, 95-1352 (La.App. 3 Cir. 4/3/96); 672 So.2d 197; Haynes v. Calcasieu Medical Transp., Inc., 97-300 (La.App. 3 Cir. 10/29/97); 702 So.2d 1024; Guinn v. Rapides Parish Police Jury, 97-1519 (La.App. 3 Cir. 4/1/98); 708 So.2d 835; Picard v. Picard, 97-1258 (La.App. 3 Cir. 4/1/98); 708 So.2d 1292; Thomas v. Evangeline Parish Sch. Bd., 98-1458 (La.App. 3 Cir. 3/24/99); 733 So.2d 102; Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1937 (La.App. 3 Cir. 5/10/00); 763 So.2d 40.
     
      
      . Telephone interview between Van M. Davidson and Bryan A. Garner, President, Law Prose, Inc., Dallas, Texas. (March 27, 2001).
     
      
      . The Harvard Law Review Association, The Bluebook: A Uniform System of Citation 4 (1996).
     
      
      . Abner J. Mikva, Goodbye to Footnotes, 56 U.Colo.L.Rev. 647 (1985).
     
      
      . Bryan A. Garner, The Citational Footnote, 7 The Scribes Journal of Legal Writing 97 (2000).
     
      
      . Id. at 105-6.
     
      
      . Id. at 104.
     
      
      . Id.
      
     
      
      . Interview, supra, Note 2.
     
      
      . Arthur D. Austin, Footnotes as Product Differentiation, 40 Vanderbilt L.Rev. 1131, 1152 (1987).
     
      
      . Bowersock, The Art of Footnote, 53 Am.Scholar 54, 55 (1984).
     
      
      . Mikva, supra, Note 4.
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . See State v. Davis, 97-331 (La.App. 3 Cir. 10/29/97); 702 So.2d 1014; State v. Winston, 97-1183 (La.App. 3 Cir. 12/9/98, 723 So.2d 506); State v. Montgomery, 98-775 (La.App. 3 Cir. 1/27/99); 734 So.2d 650; Willis v. Duck, 98-1898 (La.App. 3 Cir. 5/5/99); 733 So.2d 707; Lavergne v. Thomas, 99-1186 (La.App. 3 Cir. 12/8/99); 758 So.2d 197; Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1444 (La.App. 3 Cir. 5/24/00); 770 So.2d 786.
     
      
      . Garner, supra, Note 5 at 98.
     
      
      . Interview, supra, Note 2; Mikva, supra, Note 4.
     
      
      . Interview, supra, Note 2.
     
      
      . Letter from Judge Leonie M. Brinkema, United States District Judge for the Eastern District of Virginia to Administrative Office of the U.S. Courts, Appellate Court and Circuit Administrative Division (March 5, 1997) (on file with the Office of the U.S. Courts).
     