Edward Montgomery v. Lafayette Parish School Board

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT P.O. Box 16577

Lake Charles LA 70616

(337) 433-9403

Larry Lane Roy Preis & Roy P. O. Drawer 94-C Lafayette LA 70509

REHEARING ACTION: April 7, 2010

Docket Number: 09 00643-WCA

EDWARD MONTGOMERY VERSUS LAFAYETTE PARISH SCHOOL BOARD

Appealed from Office of Workers' Compensation - # 4 Case No. 06-05862

BEFORE JUDGES:

Hon. Ulysses Gene Thibodeaux Hon. Sylvia R. Cooks Hon. John D. Saunders

As counsel of record in the captioned case, you are hereby notified that the application for rehearing filed by Lafayette Parish School Board has this day been

DENIED.

Cooks, J., dissents and assigns written reasons.

cc: Janice Hebert Barber, Counsel for the Appellee

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

09-643

EDWARD MONTGOMERY VERSUS LAFAYETTE PARISH SCHOOL BOARD

**********

APPEAL FROM THE

OFFICE OF WORKERS’ COMPENSATION, DISTRICT 04 PARISH OF LAFAYETTE, NO. 06-05862 HONORABLE SHARON MORROW, PRESIDING **********

SYLVIA R. COOKS

JUDGE

**********

Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.

AFFIRMED, AS AMENDED.

Janice H. Barber Janice H. Barber Law Corporation P.O. Box 1909 Sulphur, LA 70664-1909 (337) 625-4443 COUNSEL FOR PLAINTIFF/APPELLEE:

Edward Montgomery

L. Lane Roy Preis & Roy P.O. Drawer 94-C Lafayette, LA 70509 (337) 237-6062 COUNSEL FOR DEFENDANT-APPELLANT:

Lafayette Parish School Board

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

09-643

EDWARD MONTGOMERY VERSUS LAFAYETTE PARISH SCHOOL BOARD

COOKS, J., dissenting.

ON REHEARING

The School Board filed an application for rehearing, asserting our original opinion failed to address its assignment of error that the trial court erred in finding it arbitrary and capricious in terminating Mr. Montgomery’s benefits. I would vote to grant rehearing solely for the limited purpose of clarifying our original opinion, wherein we specifically noted the School Board’s arbitrary and capricious acts in wrongfully terminating benefits. We noted, among other things, that Ms. Herron, Mr. Montgomery’s vocational rehabilitation counselor, failed to contact the two security jobs in question to verify availability. We also stated it was unreasonable for Ms. Herron not to further investigate exactly what physical requirements the State mandated training courses required. Further, Ms. Herron acknowledged she failed to discuss transportation issues with Mr. Montgomery, which the workers’ compensation judge expressly believed was an issue of concern. For these reasons, we found the judgment of the Office of Workers’ Compensation was correct in all aspects, including the awards of penalties and attorney fees. I would decline to award counsel for Mr. Montgomery’s request for additional attorney fees for having to respond to this Rehearing Application.