Dressel v. Topeka Transfer & Storage

844 So. 2d 288, 2002 La.App. 1 Cir. 0779, 2003 La. App. LEXIS 761, 2003 WL 1701996
CourtLouisiana Court of Appeal
DecidedMarch 28, 2003
Docket2002 CA 0779
StatusPublished
Cited by2 cases

This text of 844 So. 2d 288 (Dressel v. Topeka Transfer & Storage) 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
Dressel v. Topeka Transfer & Storage, 844 So. 2d 288, 2002 La.App. 1 Cir. 0779, 2003 La. App. LEXIS 761, 2003 WL 1701996 (La. Ct. App. 2003).

Opinion

844 So.2d 288 (2003)

Jerry W. DRESSEL
v.
TOPEKA TRANSFER & STORAGE.

No. 2002 CA 0779.

Court of Appeal of Louisiana, First Circuit.

March 28, 2003.

*289 Gregory J. Miller, Baton Rouge, Counsel for Appellee Jerry W. Dressel.

Richard C. Ely, Jr., Donald E. McKay, Jr., New Orleans, Counsel for Appellant Topeka Transfer & Storage.

Before: FOIL, McCLENDON, and KLINE,[1] JJ.

KLINE, J.

This is an appeal from a judgment against Topeka Transfer & Storage ("Topeka"), awarding claimant, Jerry W. Dressel, temporary total disability benefits, medical expenses, penalties and attorney's fees. The judgment was rendered after Topeka failed to appear at trial. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 14, 2000, Jerry W. Dressel filed a claim for compensation with the Office of Workers' Compensation, alleging that he sustained work-related injuries to his ribs, back, neck and left leg.[2] He identified American Van and Storage ("AMerican") and Topeka as his employers at the time of the accident. On March 12, 2001, Topeka, through George Hersh, president of the company, acknowledged receipt of the claim, waived citation and accepted service. Topeka also filed an answer to the claim whereby it denied that Mr. Dressel was an employee and stated that it had no record of him working for Topeka. On April 16, 2001, American and its insurer, Vanliner Insurance Company ("Vanliner"), filed an answer. A scheduling conference was held by the workers' compensation judge ("WCJ") on May 22, 2001. Topeka was not present. At that time, a trial date was set for October 11, 2001. On June 25, 2001, American and Vanliner filed a motion for summary judgment requesting that the WCJ dismiss Mr. Dressel's claim against them. On July 13, 2001, the WCJ granted American's motion for summary judgment, dismissing Mr. Dressel's claim against American and Vanliner. Topeka was not present at the proceedings. A final judgment was signed on July 17, 2001. A notice of the judgment was sent to Mr. Dressel and counsel for American. On October 11, 2001, a trial on the merits was held. Topeka was not present for trial. The WCJ heard testimony from Mr. Dressel. The WCJ then ruled that Mr. Dressel *290 would provide additional documentation and a rule date would be set after he called. On November 16, 2001, the WCJ entered judgment in favor of Mr. Dressel and against Topeka, stating the following:

This cause came on for completion of the confirmation of default hearing on the 16th day of November 2001, in Baton Rouge, Louisiana.[3]

* * * *

It is Hereby Ordered, Adjudged and Decreed that:

1. The claimant was employed by the defendant and injured himself in the course and scope of his employment on June 9, 2000.
2. The claimant's average weekly wage on the date of accident was $300, providing a corresponding indemnity rate of $200 per week.
3. The defendant owes Workers' Compensation benefits to the claimant in the following respects:
4. The claimant is awarded Temporary Total Disability from June 9, 2000 to date at the rate of $200 per week, totaling $15,000 plus legal interest at the rate of 7.285% on each installment until paid.
5. The claimant's indemnity benefits are to continue to accrue weekly at the rate of $200 per week as provided under the Act.
6. The claimant is entitled to medical treatment for his continuing back problems with his treating physician, Dr. Charles Tessier and dental work with his treating dentist, Dr. Daly.
7. The claimant is awarded medical expenses in the amount of $8879.61 representing bills filed into evidence which are hereby declared reasonable and necessary medical treatment of his injuries, together with legal interest at the rate of 7.285% from the date of award until paid.
8. The claimant is awarded penalties in the amount of $2000 for failure to pay medical expenses and $2000 for failure to pay indemnity benefits without reasonably controverting the claim, together with legal interest at the rate of 7.285% from the date of award until paid.

Notice of the judgment was mailed to both Mr. Dressel and Topeka.

Topeka appeals the WCJ's judgment and asserts the following assignments of error:

1. The WCJ committed manifest error in finding an employer-employee relationship between Topeka and Dressel.
2. The WCJ erred as a matter of law in calculating Dressel's average weekly wage to be $300.
3. The WCJ committed manifest error in finding that an accident occurred.
4. The WCJ committed manifest error in finding that Dressel was and continued to be temporarily and totally disabled as a result of the accident.
5. The WCJ committed manifest error in finding that Dressel was entitled to medical treatment from Dr. Charles Tessier and dental treatment from Dr. Daly and entitled to medical expenses in the amount of $8,879.61.
6. The WCJ committed manifest error in finding that Dressel was entitled to penalties under the Act in the amount of $2,000 for failure to pay medical expenses and $2,000 for failure to pay indemnity benefits without reasonably controverting the claim.

*291 LAW AND DISCUSSION

In its written brief, Topeka initially makes mention that it was not aware that it was still a party to the instant case. It bases its conclusions upon conversations its attorney allegedly had with opposing counsel indicating that the case would be dropped and the fact that the notices it received regarding subsequent hearings and conferences only made mention of American as a defendant and did not state that Topeka was still a defendant at that time. Topeka does however concede that it received all notices, "including the Notice of Status Conference, Notice of Hearing on a Motion... Notice of Pre-Trial Conference, and Notice of Trial." As a result, Topeka was not present for any of the stated conferences, hearings, and the trial. Topeka does not assign error to the WCJ continuing with trial without Topeka being present. Topeka did receive notice that it was being sued, filed an answer into the record, and waived citation at that time. With that stated, we do not find that Topeka was prejudiced by any action of the WCJ regarding notice.

Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the factfinder, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the WCJ's finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a WCJ's factual finding only if, after reviewing the record in its entirety, it determines the WCJ's finding was clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

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844 So. 2d 288, 2002 La.App. 1 Cir. 0779, 2003 La. App. LEXIS 761, 2003 WL 1701996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dressel-v-topeka-transfer-storage-lactapp-2003.