Hughes v. Albertson's, Inc.

• Decision Date: 28 December 2001
• Docket Number: No. 2000 CA 2542.,2000 CA 2542.
• Parties: Tabatha A. HUGHES v. ALBERTSON'S, INC.
• Court: Court of Appeal of Louisiana — District of US

803 So.2d 1150

Tabatha A. HUGHES v. ALBERTSON'S, INC.

No. 2000 CA 2542.

Court of Appeal of Louisiana, First Circuit.

December 28, 2001.

Paul R. Matzen, Baton Rouge, LA, for plaintiff-appellant, Tabatha A. Hughes.

Shelly D. Dick, Amanda G. Clark, Baton Rouge, LA, for defendant-appellee, Albertson's, Inc.

BEFORE: CARTER, C.J., PARRO, J., and CLAIBORNE, J. Pro Tem.¹

IAN W. CLAIBORNE, J. Pro Tern.

Claimant, Tabatha A. Hughes, appeals a judgment of an Office of Workers' Compensation Administration (OWC) judge's (OWC District 5; Hon. Anthony P. Palermo, presiding judge) ruling on a show cause motion denying her request to change her treating physician, denying penalties and attorney's fees, and awarding $250 attorney's fees for her employer's, Albertson's, Inc. (Albertson's), failure to provide wage records in a timely fashion.² For the following reasons, we dismiss the appeal and remand the case to the OWC for further proceedings.

FACTS AND PROCEDURAL HISTORY

Claimant suffered a repetitive motion type injury (carpal tunnel syndrome) while working as a deli clerk at an Albertson's grocery store. She reported the injury to Albertson's on November 30, 1998, began treatment with an orthopedic surgeon, Dr. Randall Lea, and eventually underwent surgery on June 30, 1999. Albertson's paid claimant workers' compensation benefits based on an average weekly wage of $201.25; however, Albertson's stopped paying benefits after a September 1999 functional capacity evaluation (FCE) revealed claimant could function at light-level duty. Albertson's offered claimant a modified, light-duty job within her physical restrictions. Shortly thereafter, claimant stopped working because of continued pain in her right wrist and hand. Claimant filed a disputed claim for compensation benefits on November 17, 1999. A mediation conference was held on February 15, 2000, at which Albertson's purportedly agreed to provide certain documents to claimant's attorney.³ Meanwhile, claimant requested a change in her treating physician. Albertson's declined to pay for any treatment by a new physician within the same medical specialty and formally denied claimant's disputed claim for compensation.

On April 4, 2000, claimant filed a rule to show cause requesting that the OWC judge allow claimant to change her treating physician and order Albertson's to pay attorney's fees and penalties for refusing to allow claimant to change her physician. Claimant also requested that Albertson's be made to pay for claimant's medical expenses for aggravation of her condition and penalties and attorney's fees for failure to provide certain documents stipulated to in the mediation conference report as well as penalties and attorney's fees for Albertson's failure to timely pay indemnity benefits. The rule to show cause was heard by the OWC judge on April 28, 2000, after which the judge issued an oral ruling and then signed a judgment on May 5, 2000. The judge's ruling denied all of claimant's requests except to order Albertson's to pay $250 in attorney's fees for its failure to timely produce wage records pursuant to the parties' stipulation in the mediation conference report. It is from this ruling that claimant appeals, seeking reversal of the judgment and an increase in the award of attorney's fees. Albertson's answered the appeal and seeks reversal of the $250 award for attorney's fees.

LAW AND ANALYSIS

Before we proceed with the merits of this appeal, we must determine whether the judgment issued by the OWC judge is appealable. At the outset, we note that neither party briefed this issue. Nevertheless, we may raise the issue sua sponte, based on La.Code Civ.P. art. 2162. See Peloquin v. Eunice News, 98-1524, p. 6 (La.App. 3d Cir.4/28/99), 737 So.2d 132, 137, writ denied, 99-1573 (La.9/17/99), 747 So.2d 563; Plauche v. Plauche, 95-979, p. 3 (La.App. 5th Cir. 3/13/96), 673 So.2d 1053, 1054.

A judgment is the determination of the rights of parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. La.Code Civ.P. art. 1841. A final judgment is one that determines the merits in whole or in part. La.Code Civ.P. art. 1841. La.Code Civ.P. art.1915 provides for partial final judgments in certain situations and for designation of partial judgments as "final" for purposes of immediate appeal.⁴ A judgment that does not determine the merits, but only preliminary matters in the course of the action, is an interlocutory judgment. La.Code Civ.P. art. 1841. La.Code Civ.P. art.2083 provides that appeals may be taken from final judgments and from interlocutory judgments that cause irreparable injury.

In the instant case, when the OWC judge enunciated oral reasons for his ruling, he stated: "[w]hether attorney fees and penalties are owed for failure to pay indemnity benefits or failure to timely pay indemnity benefits, I don't feel is appropriate for the hearing this morning on rule to show cause. I think those issues are more appropriate for a full trial when it can be established whether indemnity benefits are, in fact, owed or not owed." Thus, clearly the OWC judge was not rendering a final judgment on the merits of claimant's action for indemnity benefits.

Additionally, the language of the May 5, 2000 judgment does not expressly determine or designate the judgment as being a partial final judgment for an immediate appeal as required by La.Code Civ.P. art. 1915(B). Furthermore, the judgment does not fall under any of the specific instances outlined in La.Code Civ.P. art. 1915(A) which would automatically make it a final appealable judgment. Accordingly, the judgment is not final; it is interlocutory and therefore appealable only if it causes irreparable injury. No showing of irreparable injury has been made in this case.

We also rely upon Smith v. UNR Home Products, 614 So.2d 54, 54-55 (La. 1993), wherein the Louisiana Supreme Court explained:

Neither the Code of Civil Procedure nor the Worker's Compensation Act contemplate appeals from limited findings of hearing officers such as involved in this case. Ordinarily appeals are from final judgments ....

LSA-R.S. 23:1310.5 contemplates an appeal from a final decision by the hearing officer upon completion of the required evidentiary hearing or hearings. Piecemeal appeals go counter to the new worker's compensation procedures which are designed to allow the hearing officer to "decide the merits of the controversy as equitably, summarily and simply as may be." LSA-R.S. 23:1317(A). The new procedures are designed to speed up the adjudicative process, not to prolong and complicate it by partial judgments and multiple appeals.

The law is clear that under the Workers' Compensation Act only final judgments which adjudicate the entire claim are appealable. Beaumont v. Exxon Corp., 98-1239, p. 2 (La.App. 5th Cir. 4/2W99), 734 So.2d 155, 156. See also, Winkler v. Wadleigh Offshore, Inc., 2000-0151, p. 1 (La. App.4th Cir. 1/24/01), 781 So.2d 588, 588-589; Volion v. Baker Heritage, Inc., 97-92, p. 3 (La.App. 5th Cir. 5/28/97), 695 So.2d 1038.

In the present case, the judgment is not final in that the essential issues of the case (whether claimant is entitled to compensation and in what amount) remain undecided....