Clark v. Sedgwick CMS

• Decision Date: 30 May 2018
• Docket Number: 17–1063
• Citation: 247 So.3d 850
• Parties: Kenneth CLARK v. SEDGWICK CMS, et al.
• Court: Court of Appeal of Louisiana — District of US

247 So.3d 850

Kenneth CLARK

v.SEDGWICK CMS, et al.

17–1063

Court of Appeal of Louisiana, Third Circuit.

May 30, 2018

Matthew D. Fontenot, Hurlburt, Monrose & Ernest, P.O. Drawer 4407, Lafayette, LA 70502–4407, (337) 237–0261, COUNSEL FOR DEFENDANTS/APPELLANTS: Walgreen Company, Sedwick CMS

Kevin L. Camel, Cox Cox Filo Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436–6611, COUNSEL FOR PLAINTIFF/APPELLEE: Kenneth Clark, Hill City

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.

KYZAR, Judge.

The employer, Walgreen Company (Walgreens), appeals from a judgment amending an order of approval for a settlement of its former employee's claim. For the following reasons, we affirm and render judgment in favor of the employee.

DISCUSSION OF THE RECORD

The facts which led to the instant appeal are partially set forth in our previous opinion, Clark v. Sedgwick CMS , 15-277 (La.App. 3 Cir. 11/25/15), 179 So.3d 943, wherein we reversed in part a decision of the workers' compensation judge (WCJ) in favor of the employee, Kenneth Clark, awarding him supplemental earnings benefits and reinstating his right to further vocational rehabilitation. Ultimately, the parties reached a settlement and submitted their request for approval of the compromise settlement, which the WCJ approved and additionally rendered a judgment of dismissal on October 3, 2016.

Thereafter, Mr. Clark petitioned the WCJ to amend the order of approval to include language that reflected a division of the indemnity portion of the settlement over Mr. Clark's total lifetime, without altering the amount of the settlement agreed upon by the parties. His request was for the purpose of allowing the Social Security Administration (SSA) to pro-rate his settlement so that it could calculate any disability offset required as a result of the settlement. Walgreens objected to the amendment of the order and filed an exception of res judicata and a motion for sanctions. Following a March 27, 2017 hearing, the WCJ rendered an amended order of approval on June 2, 2017, to include language reflecting the indemnity aspect of the settlement over the total lifetime of the claimant and finding the "functionally limiting effects of the injuries or medical conditions upon which this settlement is based shall exist for the remainder of the employee's life expectancy." The amended order of approval further set forth a computation of monthly indemnity benefits based on the overall net settlement to Mr. Clark, which was referred to as "a stipulated monthly amount of $373.33." The court minutes from the hearing also indicate that both the exception of res judicata and the motion for sanctions were denied.

Walgreens appealed from the amended order on July 28, 2017; however, the record indicates that its motion for appeal was denied based on the lack of a final judgment in the matter. Subsequently, the WCJ rendered a judgment on August 21, 2017, which stated that it "replaces and supersedes the Amended Order signed on the 2^nd day of June, 2017 and is in conformity with my ruling in open court." Notice of the signing of this judgment was forwarded to all counsel on August 22, 2017. Among other issues addressed in this judgment was the formal denial of Walgreens' exception of res judicata and motion for sanctions. Walgreens appeals both the June 2, 2017 amending order and the August 21, 2017 judgment, asserting three assignments of error:

1. The trial court was legally erroneous in amending the Original Order of Approval.

2. The trial court was without jurisdiction to amend or in any way change the Order from June 2, 2017, since it was divested of jurisdiction to do so.

3. The trial court was legally erroneous in denying the Exception of Res Judicata and Motion for Sanctions.

Mr. Clark answered Walgreens' appeal, seeking attorney fees and costs as a result of Walgreens' frivolous appeal.

We review the WCJ's ruling on issues of law de novo to determine whether its decision was legally correct. Magbee v. Fed. Express , 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048.

SECOND ASSIGNMENT OF ERROR

We consider Walgreens second assignment of error first. Walgreens argues that its July 28, 2017 motion appealing the June 2, 2017 amended order, which was signed by the WCJ on July 31, 2017, divested the WCJ of jurisdiction to render its August 21, 2017 judgment. However, the record reflects that the order for appeal was, in fact, denied, as it contains a strike-through of the order and the WCJ's signature. It further contains marginal notations reflecting that it was denied. In conjunction with the August 21, 2017 judgment, the WCJ notified counsel for both parties that "[t]his Judgment was redone so the employer could have an appealable judgment and to be in conformity with my ruling on March 27, 2017." Accordingly, we find no merit in Walgreens' argument that the WCJ was divested of jurisdiction based on its original motion for appeal, as the record reflects that this motion was denied by the WCJ.

FIRST ASSIGNMENT OF ERROR

In its first assignment of error, Walgreens asserts that the WCJ committed legal error by amending the October 3, 2016 order approving the settlement, first, by the amended order on June 2, 2017, and, second, by the judgment rendered on August 21, 2017.

In McCarroll v. Livingston Parish Council , 13-2120, pp. 4-6 (La.App. 1 Cir. 10/27/14), 156 So.3d 1173, 1176–77, writ denied , 14-2498 (La. 2/27/15), 159 So.3d 1068 (footnote omitted), the court examined the law pertaining to settlements in the realm of workers' compensation:

Workers' compensation rests on the sound economic principle that those persons who enjoy the goods or services of a business or other systematic purposeful activity should ultimately bear the cost of the injuries or deaths of its employees that are incident to the production and distribution of its goods and services. Roberts v. Sewerage and Water Bd. of New Orleans , 92-2048 (La. 3/21/94), 634 So.2d 341, 343. Consequently, workers' compensation law is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Nelson v. Motiva , 04-2436 (La.App. 1 Cir. 12/22/05), 928 So.2d 34, 36 ; Morris v. East Baton Rouge Parish School Bd. , 93-2396 (La.App. 1 Cir. 3/3/95), 653 So.2d 4, 6, writ denied , 95-0852 (La. 5/5/95), 654 So.2d 335.

Louisiana workers' compensation law allows, but does not favor, the compromise or settlement of workers' compensation claims. LSA–R.S. 23:1271 ; Guidry v. One Source Facility Services , 04-2007 (La.App. 4 Cir. 4/27/05), 901 So.2d 626, 628. Further, the law contains specific provisions that govern the compromise of claims. Louisiana Revised Statutes 23:1272 provides, in pertinent part:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers' compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.

B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers' compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers' compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

This statute was designed to provide numerous safeguards to prevent an employee from being coerced, to prevent a hasty and possibly ill-advised resolution of the employee's claim, and to protect the parties from unwise actions which may cause them serious detriment. Morris , 653 So.2d at 6.

There can be no settlement of a workers' compensation claim in the absence of compliance with the procedure prescribed by LSA–R.S. 23:1272. Smith v. Isle of Capri Casino & Hotel , 10-0161 (La.App. 1 Cir. 9/10/10), 47 So.3d 642, 644. However, once the procedural requirements of the workers' compensation law have been complied with and an order approving a compromise settlement has been entered by the OWC, the judgment is conclusive, and it cannot be set aside except for fraud, misrepresentation, or ill practices. Id. See alsoSmith v. Cajun Insulation, Inc. , 392 So.2d 398, 401–02 (La.1980).

In the matter sub judice , the WCJ rendered the following order, on October 3, 2016, approving the parties' joint petition for a compromise settlement:

This matter having been presented to the Workers' Compensation Judge on the Joint Petition and agreement of KENNETH CLARK, WALGREEN COMPANY, AND ZURICH NORTH AMERICA, and the Workers' Compensation Judge having been fully informed in the premises and it appearing that the said KENNETH CLARK has been advised of his rights under the laws of the State of Louisiana, particularly the Louisiana workers' compensation laws, and the Workers' Compensation Judge being of the opinion that there are one or more serious bona fide disputes existing between the parties, and that the compromise is fair, equitable and consistent with the workers' compensation laws of the State of Louisiana and provides substantial justice to all parties;

IT IS ORDERED that the Joint Petition and compromise settlement agreement presented in this matter be and the same is hereby approved.

IT IS FURTHER ORDERED that upon the payment of ONE HUNDRED FORTY–EIGHT THOUSAND FIVE HUNDRED SEVENTY–FOUR AND NO/100 ($148,574.00) DOLLARS (EIGHT THOUSAND FIVE HUNDRED SEVENTY–FOUR AND NO/100 ($8,574.00) DOLLARS of the total

...