Perot v. Link Staffing Services

• Decision Date: 23 June 1999
• Docket Number: No. 99-229.,99-229.
• Citation: 744 So.2d 80
• Parties: Paul PEROT, Jr., Plaintiff-Appellee, v. LINK STAFFING SERVICES, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

744 So.2d 80

Paul PEROT, Jr., Plaintiff-Appellee, v. LINK STAFFING SERVICES, Defendant-Appellant.

No. 99-229.

Court of Appeal of Louisiana, Third Circuit.

June 23, 1999.

Craig A. Davis, Lafayette, for Paul Perot Jr.

Kraig Thomas Strenge, Lafayette, for Link Staffing Services.

BEFORE: WOODARD, AMY, and SULLIVAN, Judges.

OODARD, Judge.

Mr. Paul Chester Perot, Jr., was injured on June 1, 1997, while in the course and scope of his employment with Link Staffing Services (LSS). AIG Claim Services (AIG), LSS' workers' compensation insurer, denied his request to consult a physician of his choice. Mr. Perot filed a petition (Perot I), and the workers' compensation judge granted his request in a decision signed on July 16, 1998. Claiming that LSS and AIG did not comply with Perot I, on August 25, 1998, Mr. Perot filed a rule for contempt (Perot II) also requesting penalties and attorney's fees. Finding that the rule for contempt should be more properly entitled Motion for Penalties and Attorney's Fees under La.R.S. 23:1201(G), the workers' compensation judge awarded Mr. Perot 53,000.00 in penalties and $1,500.00 in attorney's fees. LSS appeals suspensively. We affirm.

FACTS

Mr. Paul Chester Perot, Jr. was injured on June 1, 1997, while in the course and scope of his employment with LSS. An accident report specifies that he and a coworker were unloading a truck when a dolly, on which a crate was placed, swerved and sent the crate smashing his foot against a steel wall. He fell and was unable to "get up." He was immediately transported to the emergency room at the Lafayette General Medical Center (LGMC). Then, LSS requested that he consult with Dr. Ray C. Boyer, who referred him to Dr. Thomas J. Montgomery. Neither of the two doctors released him to return to work. Mr. Perot then requested to consult with a physician of his choice, which AIG denied. Then, AIG discontinued payment of his workers' compensation benefits.

On January 27, 1998, Mr. Perot filed a petition against LSS, requesting authorization to consult with a physician of his choice, penalties, and attorney's fees. A hearing was held on June 24, 1998. In a judgment signed on July 16, 1998, the workers' compensation judge granted his request to consult with a physician of his choice, but denied his claim for penalties and attorney's fees. The workers' compensation judge also granted LSS' request to have Mr. Perot evaluated by a physician selected by LSS for an Independent Medical Evaluation (IME), but denied its claim to have his benefits suspended or terminated.

On August 25, 1998, Mr. Perot filed a petition entitled "rule for contempt" alleging the following:

4.

In spite of this Court's ruling, as of August 24, 1998, claimant has yet to see a physician of his choice, and has been refused on numerous occasions to see a physician of his choice.

5.

Claimant shows that he has contacted Dr. Michael Heard's office on numerous occasions, in order to schedule his appointment, but each time has been told that AIG, the employer's insurer, has refused to approve of his appointment. Claimant has also called the AIG adjustor in New Orleans, as well as the Link Staffing office in Houston, and has been told by each of these that they refuse to allow him to see a physician of his choice.

WHEREFORE, PREMISES CONSIDERED, plaintiff prays that the employer and its insured be held in contempt of court, that penalties and attorney's fees be awarded due to their defiance of this Court's ruling and that he be allowed to see a physician of his choice immediately.

(Emphasis added.)

A hearing on the motion for contempt was originally set for September 18, 1998. Mr. Perot then filed a motion for continuance, which the workers' compensation judge granted, and the hearing date was re-fixed for October 2, 1998. On the workers' compensation judge's own motion, the matter was again reset and finally heard on October 23, 1998. The workers' compensation judge's decision, signed November 11, 1998, granted Mr. Perot $3,000.00 in penalties and $1,500.00 in attorney's fees. LSS appeals suspensively.

ASSIGNMENTS OF ERROR

LSS asserts that the trial court erred in: (1) converting Perot's rule for contempt into a motion for penalties and attorney's fees in denial of LSS' right to due process of law, and (2) finding that LSS had failed to pay a final appealable judgment within the meaning of La.R.S. 23:1201(G)

LAW

DENIAL OF DUE PROCESS

In this assignment of error, LSS contends that the workers' compensation judge's decision to convert Mr. Perot's rule for contempt into a motion for penalties and attorney's fees, under La.R.S. 23:1201(G), violated its right to due process of law set forth in La. Const. Art. I, § 2. Specifically, it asserts that it was not given adequate notice required by due process to present a defense on the motion. Instead, it alleges that "the only notice given to Link Staffing was that it was being ruled into court for the alleged contempt of an adjuster who had been contacted by a physician's office and without cause refused to authorize the second medical opinion examination" ordered by the workers' compensation judge.

Based on the precepts of the Fourteenth Amendment of the United States Constitution, La. Const. Art. I, § 2, provides that "[no] person shall be deprived of life, liberty, or property, except by due process of law." The right to due process "is rooted in the canons of decency and fairness." Maumus v. Department of Police, New Orleans, 457 So.2d 37, 48 (La.App. 4 Cir.1984); writ denied, 461 So.2d 1054 (La.1985). In effect, it only requires that notice and an opportunity to be heard in some type of hearing, be afforded prior to the taking of life, liberty, or property. See Wilson v. City of New Orleans, 479 So.2d 891 (La.1985). In Klein v. Klein, 487 So.2d 775, 776 (La.App. 3 Cir.1986) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)), we stated:

A basic requirement of due process is notice reasonably calculated under all circumstances to apprise interested parties of the pendancy of the action and afford them an opportunity to present objections.

(Emphasis added). See also Louisiana State Bar Ass'n v. Levy, 292 So.2d 492 (La.1974). The requirements of due process apply to agencies and government hearing officers as well as judges. Wilson, 479 So.2d 891.

Nevertheless, due process is not a technical principle with a fixed content, but rather, it is a flexible concept which may be adapted to the specific demands of a particular situation. Id. Thus, to determine what constitutes adequate notice, for the purpose of due process, we must look at the circumstances of the particular case. Choates v. Choates, 329 So.2d 219 (La.App. 3 Cir.1976).

In the case sub judice, the issue of due process arises in the context of a workers' compensation litigation. In such a case, the fundamental principles of procedure, such as reasonable notice, are applicable. Howard v. A & M Const. Co., 93-1013 (La.App. 1 Cir. 4/29/94); 637 So.2d 575. Nonetheless, we also consider the particularities of workers' compensation law stated in La.R.S. 23:1317, as follows:

The workers' compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence. . . . The workers' compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

(Emphasis added). In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir. 5/4/94); 640 So.2d 585, 587, writ denied, 96-152 (La.3/15/96); 669 So.2d 429, we stated that La.R.S. 23:1317 "reflects the legislature's intent, in compensation cases, to materially relax evidentiary and procedural rules and subordinate procedural considerations to the discovery of the truth and the protection of substantive rights." When a claimant's petition is unartfully drafted, it must be construed liberally. Bassemier v. W.S. Young Const. Co., 110 So.2d 766 (La.App. 1 Cir.1959). All doubts arising out of the inadequacies contained in a petition must be resolved in favor of the claimant when defendant-employer is adequately apprized by the petition of a legal claim against him. Id.

In the instant case, although the petition was entitled "rule for contempt," it did not only give notice to LSS that it was being brought into court for an alleged contempt, but it also specified, in its prayer for relief, that Mr. Perot should be awarded penalties and attorney's fees due to the defendant's defiance of the workers' compensation judge's ruling. Therefore, Mr. Perot's rule for contempt was sufficient under the circumstances to apprize LSS of the pendency of the action and to afford it an opportunity to present a defense on the issue of La.R.S. 23:1201(G) penalties and attorney's fees during the October 23 hearing.

PENALTIES AND ATTORNEY'S FEES

The workers' compensation judge awarded Mr. Perot penalties and attorney's fees on the basis of La.R.S. 23:1201(G). The statute provides, in pertinent part:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control.

(Emphasis added). In the context of workers' compensation, whether a judgment is nonappealable is defined in La. R.S. 23:1310.5, as follows:

The decision of the workers' compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal. An appeal which suspends the effect or execution of an appealable judgment or order...