Ary v. Personal Care

68 So. 3d 1192, 2010 La.App. 1 Cir. 2291, 2011 La. App. LEXIS 744, 2011 WL 2976804
CourtLouisiana Court of Appeal
DecidedJune 10, 2011
DocketNo. 2010 CA 2291
StatusPublished
Cited by2 cases

This text of 68 So. 3d 1192 (Ary v. Personal Care) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ary v. Personal Care, 68 So. 3d 1192, 2010 La.App. 1 Cir. 2291, 2011 La. App. LEXIS 744, 2011 WL 2976804 (La. Ct. App. 2011).

Opinion

WHIPPLE, J.

| ¡/This matter is before us on appeal by defendant, Personal Care, from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Roshall L. Ary. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ary was employed by Personal Care as a security officer, personal care attendant, and medical technician. On July 2, 2009, Ary was involved in an automobile accident while allegedly returning a client he found walking on the side of the road to the facility, after Ary’s return from a personal errand. Personal Care refused to pay claimant benefits and on July 21, 2009, Ary filed a disputed claim for compensation.

In response, on August 13, 2009, an answer on behalf of Personal Care was filed by Margaret L. Chaney, whose stated [1194]*1194title was “President,” denying the claim set forth by Ary. However, thereafter, no representative from Personal Care appeared at the scheduling conference, pretrial mediation, or the trial of the disputed claim, despite the fact that Personal Care was served with a copy of the scheduling conference order, which reflected the dates set for pretrial mediation and trial.

On May 10, 2010, the matter was called for trial, but no one appeared on behalf of Personal Care. Before hearing the matter, the OWC noted on the record that service of the scheduling conference order had been made on Personal Care on January 12, 2010. At the conclusion of claimant’s case and testimony, the OWC rendered oral reasons for judgment, finding in favor of the claimant. Specifically, the OWC found that claimant suffered a work-related accident on July 2, 2009, which resulted in injuries and that the medical treatment rendered to Ary at Our Lady of the Lake Regional Medical Center, Baton Rouge Orthopaedic Clinic, and Spine Diagnostic & Treatment Center were related to his work | ¡¡accident. The OWC then awarded indemnity benefits, temporary total disability benefits, interest on indemnity benefits, medical benefits, penalties and attorney’s fees, with interest, finding that Personal Care had failed to reasonably controvert the claim.

However, on May 12, 2010, counsel retained by Personal Care filed a motion to enroll and continue as well as a motion for new trial. In support of its motion for new trial, Personal Care contended that on May 7, 2010, it had faxed to the OWC a copy of its motion to enroll and continue the May 10, 2010 trial, and that it would be in the “interest of fairness and due process” to grant a new trial.1 After a hearing, the OWC denied the motion for new trial on July 2, 2010. A written judgment conforming to the OWC’s prior reasons was signed on July 20, 2010.

In denying the motion for new trial, the OWC noted that Margaret Chaney had personally signed for the scheduling order in this case on January 12, 2010, five months before the trial date. The OWC further noted that it did not receive Personal Care’s motion to continue, which counsel elected to fax on Friday, May 7, 2010, until after the trial had concluded on Monday, May 10, 2010. The OWC concluded that granting such relief and having to “redo” the trial would be unjust to the claimant and his counsel, especially since neither of them were notified by Personal Care or its counsel of the motion to continue. Accordingly, a judgment denying the motion for new trial was signed by the OWC on July 20, 2010.

From this judgment Personal Care filed a suspensive appeal, contending that the OWC erred: (1) in granting the “default judgment” because the evidence presented does not establish a prima facie case for relief under the law; and (2) in failing to grant a new trial.

J^DISCUSSION

Assignment of Error Number One

At the outset, we note that Personal Care incorrectly characterizes the judgment on the merits rendered by the OWC as a “default judgment.” A judgment by default is that which is rendered against a defendant who fails to plead or otherwise answer within the time prescribed by law. LSA-C.C.P. art. 1843; see also LSA-[1195]*1195C.C.P. arts. 1701-1704. In the instant case, Personal Care filed an answer to claimant’s disputed form for compensation, thereby making an appearance in the underlying proceedings and joining issues for trial. Personal Care, however, simply failed to appear at trial despite receiving notice of the trial date. A trial of the merits was conducted and claimant presented his case in the defendant’s absence. Thus, Personal Care errs in its contention that the judgment rendered on the merits by the OWC constitutes and should be subjected to review as a “default judgment.”

Nonetheless, as appeals are favored in law, we will address Personal Care’s argument that the evidence presented at trial was insufficient to support the judgment rendered by the OWC herein.2 Specifically, Personal Care contends on appeal that the medical evidence failed to establish that the treatment received by claimant was causally related to the work injury alleged and that the accident took place within the course and scope of claimant’s employment.

The same standard of review applicable to factual findings of district courts, the “manifest error-clearly wrong” standard, is also applicable to factual findings of a workers’ compensation judge. Smith v. J.E. Merit Constructors, Inc., 2001-2824 (La.App. 1st Cir.11/8/02), 835 So.2d 749, 753. Accordingly, for an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the workers’ compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly -wrong or manifestly erroneous. See Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882.

At trial, Ary testified that on July 2, 2009, he began his shift at Personal Care [1196]*1196at 3:00 p.m. He further testified that at 4:00 p.m. when he left to get a Rpack of cigarettes at the store, he received a phone call advising that one of his employer’s clients had left the facility and was seen walking up the road.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cannata's Supermarket, Inc. v. Cannata
180 So. 3d 355 (Louisiana Court of Appeal, 2015)
Idusuyi v. Earl K. Long Medical Center
111 So. 3d 1062 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
68 So. 3d 1192, 2010 La.App. 1 Cir. 2291, 2011 La. App. LEXIS 744, 2011 WL 2976804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ary-v-personal-care-lactapp-2011.