Moore v. Roemer

• Decision Date: 10 April 1990
• Docket Number: No. 89,89
• Citation: 560 So.2d 927
• Parties: Charles R. MOORE, et al. v. Governor "Buddy" ROEMER, et al. CA 1496.
• Court: Court of Appeal of Louisiana — District of US

Page 927

560 So.2d 927

Charles R. MOORE, et al. v. Governor "Buddy" ROEMER, et al.

No. 89 CA 1496.

Court of Appeal of Louisiana,

First Circuit.

April 10, 1990.

Writ Denied May 18, 1990.

Philip G. Hunter, Alexandria, for plaintiffs-appellants Charles R. Moore, et al.

Oliver Williams, Baton Rouge, for Governor "Buddy" Roemer.

Roy Mongrue, Baton Rouge, for Attorney General William Guste.

Stephen Cavanaugh, Baton Rouge, for Office of Workers' Compensation.

Before COVINGTON, C.J., and WATKINS, SHORTESS, CRAIN and ALFORD, JJ.

WATKINS, Judge.

This suit challenges the constitutionality of the Louisiana Worker's Compensation Law, LSA-R.S. 23:1021, et seq. as revised by Act 938 of 1988.

Two worker's compensation claimants (Henry Rubin and Otis Burr) and a practicing attorney (Charles R. Moore), who represents compensation claimants, filed suit for declaratory and injunctive relief. The defendants are Charles "Buddy" Roemer, Governor of the State of Louisiana; the Office of Worker's Compensation Administration; the Director of the Office of Worker's Compensation Administration; Steve Cavanaugh, Assistant Secretary of Labor for the State of Louisiana; Phyllis Coleman Mouton, Secretary of Labor for the State of Louisiana; and the State of Louisiana. The plaintiffs alleged that Act 938 of 1988 violates several provisions of the Louisiana Constitution of 1974 and deprives them of rights protected by both the federal and the state constitutions. The act contains numerous changes to the Louisiana Worker's Compensation Law, but the challenges of the plaintiffs are directed to those provisions of the act which establish a new procedure for resolving disputed worker's compensation claims. Finding that the statutory provisions were constitutional, the district court dismissed the suit. This devolutive appeal followed.

We reverse the district court's judgment; we hold that Act 938 of 1988 violates Article V, Section 16 of the Louisiana Constitution providing for original jurisdiction in the district courts.

CLAIMING COMPENSATION--THEN AND NOW

From 1914 until 1984 a worker who could not reach agreement with his employer in regard to his claim for compensation benefits caused by a work-related accident filed a civil law suit at the district court level. In 1983 the Louisiana Legislature enacted a broad revision of worker's compensation law in this state and established the Office of Worker's Compensation Administration (OWC). Act 938 of 1988 brought still more changes, not the least of which was the appointment of OWC hearing officers with exclusive original jurisdiction over all worker's compensation claims. The law in effect since 1984 was explained by Justice Dennis in Turner v. Maryland Casualty Co., 518 So.2d 1011, 1014-1015 (La.1988). A review of the Justice's explanation highlights the differences we encounter in the revised law.

STATUTORY PROVISIONS REGARDING ADMINISTRATION OF CLAIMS

Informal Dispute Resolution

Act 1 of the 1983 Extraordinary Session created the Office of Worker's Compensation Administration and established administrative procedures for the informal resolution of claims. Under the procedures, an employee, his dependent, the employer, or the insurer may file a claim regarding worker's compensation with the director when a dispute arises over compensation in connection with a worker's injury resulting in excess of seven days lost time or death. La.R.S. 23:1310. Within thirty days after receipt of the claim, the director shall issue a recommendation for resolution of the dispute to the parties. La.R.S. 23:1310.1. The recommendation is advisory only and, although admissible into evidence, shall not be accorded any presumption of correctness. Id. Each party is instructed by the recommendation to notify the director of his acceptance or rejection of the recommendation within thirty days of his receipt thereof. Id.; Rule LWC-19. A party who fails to notify the director timely of his rejection is conclusively presumed to have accepted the recommendation. La.R.S. 23:1310.1.

Trial of Civil Action

If any party rejects the recommendation of the director, the employee or his dependent may file a civil action in court on the claim within sixty days of the receipt of the recommendation or within the period established in La.R.S. 23:1209, whichever occurs last. La.R.S. 23:1311(A). A suit for compensation is premature if the claim has not been submitted to the director for informal resolution. La.R.S. 23:1314(A). However, this objection is waived by the defendant if the dilatory exception of prematurity is not timely filed. La.C.C.P. art. 926, 928; cf. Disotell v. Wadsworth Golf Construction, 500 So.2d 371, 373 (La.1987); Bailey v. Pacific Marine Insurance Co., 509 So.2d 508, 511-12 (La.App. 3rd Cir.1987), cert. den. 510 So.2d 377 (La.1987); Moody v. K & B Equipment Co., 508 So.2d 927, 928 (La.App. 4th Cir.1987); Brignac v. Liberty Mutual Insurance Co., 496 So.2d 1306, 1308 (La.App. 3d Cir.1986); Rich v. Geosource Wireline Services, Inc., 490 So.2d 1165, 1172 (La.App. 3d Cir.1986) (failure to obtain recommendation prior to bringing action to modify); Watson v. Amite Milling Co., Inc., 504 So.2d 1149, 1153 (La.App. 5th Cir.1987) (filing before 1331(C) period had elapsed); Dupre v. Travelers Insurance Co., 477 So.2d 1279, 1282 (La.App. 3d Cir.1985) (failure to follow pleading requirements of 23:1314).

Modification of an Agreed Award

If the parties have accepted the director's recommendation either expressly or tacitly, either party may apply for a recommended modification of the agreed award at any time after six months from the date of the acceptance. La.R.S. 23:1331(C). Disotell v. Wadsworth Golf Construction, supra, 500 So.2d at 373; Bailey v. Pacific Marine Insurance Co., supra, 509 So.2d at 511-12; Moody v. K & B Equipment Co., supra, 508 So.2d at 928; Brignac v. Liberty Mutual Insurance Co., supra, 496 So.2d at 1308; Rich v. Geosource Wireline Services, Inc., supra, 490 So.2d at 1172; Arthur v. Union Underwear Co., Inc., 492 So.2d 873, 876 (La.App. 3rd Cir.1986). See W. Malone & A. Johnson, Worker's Compensation Law & Practice Sec. 284 (2nd ed. 1980; Supp.1987). Thereupon, the director is required to review the application and issue a new recommendation. Id. The timely rejection of the new recommendation by any party permits the employee or his dependent to litigate the claim in court by filing a timely suit. La.R.S. 23:1311. (Footnote omitted.)

Turner v. Maryland Casualty Co., 518 So.2d at 1014-1015.

Under the law as amended by Act 938 of 1988 a claim is commenced by the filing of a notice of injury with the director of the OWC. LSA-R.S. 23:1310.3. The director oversees all matters pertaining to such injuries until such time as the director is notified, by the filing of a petition by a party, that there is a controverted issue which cannot be resolved by the parties. Upon receipt of the petition, the director assigns the matter to one of the nine hearing officers whose positions were created by Act 938. LSA-R.S. 23:1310.3. See also LSA-R.S. 23:1310.1. A defendant's answer is due within 15 days from receipt of the petition; this period may be extended by 10 days. LSA-R.S. 23:1310.3A(2). The hearing officers are vested with original exclusive jurisdiction over all claims filed pursuant to the Worker's Compensation Law. LSA-R.S. 23:1310.3A(4). The hearing officer conducts a hearing at which each party is permitted to present evidence. The hearing officer is not bound by technical rules of evidence or procedure, but all findings of fact must be based upon competent evidence. LSA-R.S. 23:1317A. Upon completion of such hearing or hearings, the hearing officer shall make such order, decision, or award as is proper, just, and equitable. LSA-R.S. 23:1310.5A. Any order, decision, or award made by the hearing officer shall be considered as final, unless appealed to an appeals panel within 10 days of receipt by certified mail of the order, decision, or award of the hearing officer. LSA-R.S. 23:1310.5A and B. The appeals panel consists of three other hearing officers assigned by the director; the panel may modify the decision of the hearing officer only if it determines that such decision was against the clear weight of the evidence or contrary to law. LSA-R.S. 23:1310.5A. The order, decision, or award of the appeals panel ¹ shall be final and conclusive upon all questions within its jurisdiction between the parties, unless a timely appeal is taken to the circuit court of appeal for the judicial district in which the petition was filed. LSA-R.S. 23:1310.5B. The entire process bypasses the district court, except for the enforcement of the orders of the hearing officers. LSA-R.S. 23:1310.7. ²

To summarize, the 1988 legislation excludes the district court from the worker's compensation adjudication system. It vests the first and only "adjudication" of a worker's claim with an OWC hearing officer. Thereafter, the claimant or the employer has a right to appeal to the circuit court of appeal.

JUDICIAL REVIEW OF STATUTE

On appeal plaintiffs argue that Act 938 violates a number of Louisiana constitutional provisions, requiring this court to declare Act 938 unconstitutional. The alleged violations are as follows:

1. The act divests the district courts of original jurisdiction of worker's compensation cases in violation of Article V, Section 16.

2. The act divests the district court of exclusive jurisdiction over cases involving the state and its political subdivisions as defendant in violation of Article V, Section 16.

3. The act confers original jurisdiction on the courts of appeal in violation of Article V, Section 10.

4. The act violates the separation of powers mandate of Article V, Sections 1 and 2, by vesting judicial power in executive branch employees.

5. The act provides for executive appointment of judges called "hearing officers" in violation of Article V, Section 22.

6. The act violates the equal...