Church Mutual Insurance Co. v. Dardar

119 So. 3d 967, 2013 WL 3214879
CourtLouisiana Court of Appeal
DecidedJune 26, 2013
DocketNos. 2012-CA-0659, 2013-C-0037
StatusPublished
Cited by6 cases

This text of 119 So. 3d 967 (Church Mutual Insurance Co. v. Dardar) 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
Church Mutual Insurance Co. v. Dardar, 119 So. 3d 967, 2013 WL 3214879 (La. Ct. App. 2013).

Opinion

TERRI F. LOVE, Judge.

|, This appeal arises from a dispute as to whether a recipient of workers’ compensation benefits failed to comply with submitting to a second medical opinion and sanctions related thereto. The workers’ compensation judge found that the employee failed to submit to a second medical opinion. The workers’ compensation judge then ordered the employee to present at the doctor’s office for another appointment, to complete all of the medical forms required by the doctor, and suspended the employee’s medical benefits [970]*970retroactively, from the date of the first appointment to the second appointment. The workers’ compensation judge conducted a second hearing wherein she sanctioned the employee’s attorney pursuant to La. C.C.P. art. 863. We convert the appeal regarding the motion to compel into an application for supervisory review and deny the writ, as that issue is moot. We further find that the trial court erred in granting the motion for sanctions against employee’s counsel because counsel was attempting to assert a legal right, which does not present an exceptional circumstance warranting the award of sanctions.

This Court consolidated a separate application for supervisory review filed by the employee seeking review of the workers’ compensation judge’s decision to Rapply La. R.S. 23:1203.1 retroactively. We find that the workers’ compensation judge erred in retroactively applying a substantive statute, grant the writ, and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Thelma Dardar originally injured her back in a work-related accident on October 21,1999. The Office of Workers’ Compensation approved an indemnity settlement on January 30, 2008. Ms. Dardar’s rights to medical treatment remained ongoing after the settlement. Ms. Dardar received a letter from her employer regarding the scheduling of an appointment for a second medical opinion (“SMO”) with Dr. Alan Joseph in reference to her ongoing receipt of workers’ compensation medical benefits. Forms for authorization and release of confidential information (“Forms”) were also included with the letter. Following receipt of the letter, Ms. Dardar contacted Attorney C. Ray Murry, her previous counsel, who handled the settlement, to provide legal counsel regarding the new demand for an SMO.

Attorney Murry reviewed the Forms and redacted certain portions. He then instructed Ms. Dardar to execute the Forms and initial by the redactions. Once completed, Attorney Murry faxed the Forms to Dr. Joseph’s office prior to Ms. Dardar’s scheduled appointment. Ms. Dardar presented for her scheduled appointment with Dr. Joseph. However, due to the redactions in the Forms signed by Ms. Dardar, Dr. Joseph refused to see Ms. Dardar.

After Dr. Joseph refused to see Ms. Dardar, Trinity United Methodist Preschool (“Trinity”), Ms. Dardar’s employer, and Church Mutual Insurance Company (“Church”), the insurer of Trinity (collectively “Plaintiffs”), filed a Disputed Claim for Compensation, an LDOL-WC-1008, alleging that:

|s[c]laimant failed to execute requested documents from insurer’s choice of physician, Dr. Alan Joseph, as provided by his office. Due to this failure, claimant was not seen by Church Mutual’s choice of physician. Church requests the claimant be compelled to attend this examination, her benefits be suspended during any period of refusal and Church Mutual be reimbursed the cost of this appointment.

A motion to compel was also attached, in which Ms. Dardar’s redacted Forms were labeled as “tantamount to refusal.”

Ms. Dardar then filed a dilatory exception of prematurity, pursuant to La. R.S. 23:1314, as well as peremptory exceptions of no cause of action and no right of action. Ms. Dardar also filed a motion to dismiss the disputed claim and a motion for sanctions in the form of attorney’s fees.

Following a hearing, the workers’ compensation judge issued an interlocutory [971]*971judgment granting the motion to compel and ordered that Ms. Dardar submit to an exam with Dr. Joseph1 and complete his Forms on January 20, 2012. The workers’ compensation judge also suspended Ms. Dardar’s medical workers’ compensation benefits retroactively from the date of the first scheduled appointment. Ms. Dar-dar’s motions to dismiss Church’s Motion to Compel and for sanctions, which sought reasonable expenses and attorney’s fees, were denied. Additionally, the workers’ compensation judge overruled Ms. Dar-dar’s exceptions of prematurity, no right of action, and no cause of action. Lastly, the workers’ compensation judge granted Trinity’s oral motion for sanctions and set the matter for a hearing. Ms. Dardar then filed a notice of appeal, on January 25, 2012, and a notice of intent to apply for supervisory writs, on January 27, 2012. The workers’ compensation judge denied Ms. Dardar’s motion for a stay.

|4The workers’ compensation judge conducted a hearing on Trinity’s oral motion for sanctions, pursuant to La. C.C.P. art. 863. On February 10, 2012, the motion was granted and the workers’ compensation judge ordered Attorney Murry to pay $3,300 in attorney’s fees and $250 in travel expenses. The workers’ compensation judge then stated that the judgment was final and appealable. Ms. Dardar and Attorney Murry filed a motion for a suspen-sive appeal from both the interlocutory judgment previously rendered and the judgment regarding the motion for sanctions on February 15, 2012.

STANDARD OF REVIEW

Legal questions are reviewed by appellate courts with the de novo standard of review. O’Dwyer v. Edwards, 08-1492, p. 3 (La.App. 4 Cir. 6/10/09), 15 So.3d 308, 310.

MOTION TO COMPEL/PREMATURI-TYINO CAUSE OF ACTION/NO RIGHT OF ACTION/MOTION TO DISMISS AND FOR SANCTIONS

Ms. Dardar asserts that the workers’ compensation judge erred in overruling her dilatory exception of prematurity, exception of no right of action, exception of no cause of action, and in granting Church’s Motion to Compel because the Disputed Claim for Compensation did not contain one of the enumerated reasons contained in La. R.S. 23:1314.

Procedural Posture

First, we must address the procedural posture of Ms. Dardar’s contention regarding the exceptions before this Court. The denial of an exception of prematurity, no right of action, no cause of action, and the granting of a motion to 15compel are all interlocutory judgments that are not subject to appeal. See Ganier v. Inglewood Homes, Inc., 06-0642, p. 2 (La.App. 4 Cir. 11/8/06), 944 So.2d 753, 755-56; Box v. French Mkt. Corp., 593 So.2d 836, 837 (La.App. 4th Cir.1992); Price v. Price, 03-272, p. 2 (La.App. 5 Cir. 6/19/03), 850 So.2d 860, 861. “The proper procedural vehicle to contest an interlocutory judgment that is not immediately appealable is an application for supervisory writ.” Ganier, 06-0642, p. 2, 944 So.2d at 755-56. “However, we have the authority to exercise our supervisory jurisdiction and, in the interest of justice, treat the appeal of this interlocutory judgment as an application for supervisory writ.” Ganier, 06-0642, p. 2, 944 So.2d at 756.

Ms. Dardar filed her notice of appeal and notice of intent to apply for superviso[972]*972ry writs within thirty days of the judgment. See Rule 4-3, Uniform Rules— Court of Appeal. Therefore, we will consider the merits of Ms.

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Bluebook (online)
119 So. 3d 967, 2013 WL 3214879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/church-mutual-insurance-co-v-dardar-lactapp-2013.