STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 14-1106
GAY LOWERY
VERSUS
JENA NURSING & REHAB CENTER
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - #1E PARISH OF CATAHOULA, NO. 14-03212 BRENZA IRVING-JONES, WORKERS’ COMPENSATION JUDGE
JIMMIE C. PETERS
JUDGE
Court composed of Jimmie C. Peters, James T. Genovese and John E. Conery, Judges.
RULE TO SHOW CAUSE RECALLED.
Curtis Daniel Street Street & Street 508 N. 31st St. Monroe, LA 71201 (318) 325-4418 COUNSEL FOR PLAINTIFF/APPELLANT: Gay Lowery Stephanie L. Cheralla Degan, Blanchard & Nash 400 Poydras St., Suite 2600 New Orleans, LA 70130 (504) 529-3333 COUNSEL FOR DEFENDANT/APPELLEE: Jena Nursing & Rehab Center PETERS, Judge.
This court, on its own motion, issued a rule for the appellants, Jena Nursing
and Rehabilitation Center and Technology Insurance Company, to show cause, by
brief only, why this appeal should not be dismissed as having been taken from a
non-appealable, partial judgment. The appellants have filed a brief in response to
this court’s rule to show cause. For the reasons given below, we recall the rule to
show cause and maintain the appeal.
The claimant, Gay Lowery, sustained a back injury in a work related
incident. Ms. Lowery’s physician, Dr. Michael Drerup, recommended surgery.
Since the parties disagreed as to whether this procedure was necessary for the
injuries sustained in the work related incident, this recommendation was presented
to the Medical Director for the Office of Workers’ Compensation seeking approval
pursuant to La.R.S. 23:1203.1. The Medical Director denied approval for the
surgery. Therefore, Ms. Lowery filed a Form 1008, Disputed Claim for
Compensation with the Office of Workers’ Compensation appealing the Medical
Director’s decision. Ms. Lowery also prayed for an award of penalties and
attorney fees, with interest and costs.
The employer and its compensation insurer, appellants herein, responded by
filing an exception of no cause of action directed only against the claim for
penalties and attorney fees. They also answered the petition and filed affirmative
defenses. Additionally, being of the opinion that the surgery should not be
authorized, the appellants filed a motion seeking to have the OWC judge enter an
order compelling Ms. Lowery to attend a functional capacity evaluation (FCE).
Appellants also sought an expedited hearing on Ms. Lowery’s appeal of the Medical Director’s decision, and the OWC judge set the matter for hearing on June
30, 2014.
Thus, at the start of the hearing held on June 30, the attorney for the
appellants began arguing the merits of their motion to compel the FCE. In
response to appellants’ counsel’s statements to the court, the attorney for Ms.
Lowery opined that the question of whether Ms. Lowery should be compelled to
undergo an FCE should, logically, be the last issue examined by the court. Instead,
Ms. Lowery’s counsel contended that the first issue should be the merits of the
appeal from the Medical Director’s decision to deny Ms. Lowery’s back surgery.
Specifically, Ms. Lowery’s counsel stated:
I think that [the FCE] would be the last one we would get to. We filed for this Court to review--we filed for an appeal of the medical director’s decision denying the surgery. It would appear to me that would be the first thing that would need to be address [sic], because if she’s entitled to surgery, she certainly doesn’t need to be having to undergo a functional capacity test until she’s had her surgery and gotten well, which is essentially the same situation we were in before. But in this case they have filed--let’s see if I can find it here. They filed an exception of no cause of action on the claim for penalties and attorney fees that we brought in this connection, which-- And as I understand it, they set our appeal for hearing today on an expedited basis. So we’re here--we’re here to try our case on whether she’s entitled to the surgery. And then-- And so, I don’t know what order the Court wants to take all that in. But as I understand it, all of that is at issue today.
The OWC judge agreed; therefore, Ms. Lowery’s counsel began presenting the
case against the Medical Director’s decision.
Not only did Ms. Lowery’s counsel express the opinion that all issues were
to be presented to the OWC court on June 30, appellants’ counsel commented at
the conclusion of her argument that, even if the OWC court determined that the
medical director’s decision should not be upheld, the award of penalties should not
be assessed against the appellants. And finally, near the completion of Ms.
2 Lowery’s counsel’s arguments to the OWC judge, he again argued that penalties
and attorney fees should be awarded to Ms. Lowery due to the appellants’ failure
to authorize and pay for her recommended back surgery.
At the conclusion of the hearing, after taking a break to review the case, the
OWC judge orally rendered the ruling finding that the Medical Director’s decision
should be reversed and ordered that Ms. Lowery is entitled to the back surgery.
The OWC judge then stated that the motion to compel the FCE was denied at this
time, reserving the appellants’ right to ask for an FCE at the appropriate time
following the surgery. However, the OWC judge did not enter any ruling with
regard to the issue of penalties or attorney fees nor did the OWC judge directly
address the appellants’ exception of no cause of action directed against these
claims. Counsel for Ms. Lowery stated on the record that he would prepare the
judgment for the OWC court to sign.
The OWC judge ultimately signed two separate judgments on the same day.
One judgment overturns the decision of the Medical Director denying Ms.
Lowery’s surgery, and then proceeds to authorize the surgery with the appellants
paying for it. The second judgment denied the appellants’ motion to compel the
FCE, reserving to them the right to urge this motion again when appropriate.
Neither judgment addressed the exception of no cause of action or the issue of Ms.
Lowery’s entitlement to penalties or attorney fees.
The appellants filed a motion seeking a suspensive appeal from the judgment
ordering them to pay for Ms. Lowery’s back surgery. Upon receipt of record, this
court issued the subject rule for the appellants to show cause why the appeal
should not be dismissed as having been taken from a partial judgment.
3 In response to this court’s rule to show cause, the appellants argue that a
judgment reversing the Medical Director’s decision denying the employee’s
request for approval of a medical procedure is appealable if the appealed judgment
is a complete adjudication of the claim. This court does not disagree with the
appellants on this point. However, this court recognizes that when elements of a
claim set forth by the petitioner include recovery of penalties and attorney fees,
there has not been a complete adjudication of the claim until the court has ruled on
all of the elements of the claim including penalties and attorney fees.
Thus, in Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir.
3/5/03), 840 So.2d 672, an appeal was taken from an award of attorney fees. The
trial court had previously rendered a final judgment on a motion for summary
judgment filed by the plaintiff finding that the defendants were liable for breach of
a lease agreement.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 14-1106
GAY LOWERY
VERSUS
JENA NURSING & REHAB CENTER
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - #1E PARISH OF CATAHOULA, NO. 14-03212 BRENZA IRVING-JONES, WORKERS’ COMPENSATION JUDGE
JIMMIE C. PETERS
JUDGE
Court composed of Jimmie C. Peters, James T. Genovese and John E. Conery, Judges.
RULE TO SHOW CAUSE RECALLED.
Curtis Daniel Street Street & Street 508 N. 31st St. Monroe, LA 71201 (318) 325-4418 COUNSEL FOR PLAINTIFF/APPELLANT: Gay Lowery Stephanie L. Cheralla Degan, Blanchard & Nash 400 Poydras St., Suite 2600 New Orleans, LA 70130 (504) 529-3333 COUNSEL FOR DEFENDANT/APPELLEE: Jena Nursing & Rehab Center PETERS, Judge.
This court, on its own motion, issued a rule for the appellants, Jena Nursing
and Rehabilitation Center and Technology Insurance Company, to show cause, by
brief only, why this appeal should not be dismissed as having been taken from a
non-appealable, partial judgment. The appellants have filed a brief in response to
this court’s rule to show cause. For the reasons given below, we recall the rule to
show cause and maintain the appeal.
The claimant, Gay Lowery, sustained a back injury in a work related
incident. Ms. Lowery’s physician, Dr. Michael Drerup, recommended surgery.
Since the parties disagreed as to whether this procedure was necessary for the
injuries sustained in the work related incident, this recommendation was presented
to the Medical Director for the Office of Workers’ Compensation seeking approval
pursuant to La.R.S. 23:1203.1. The Medical Director denied approval for the
surgery. Therefore, Ms. Lowery filed a Form 1008, Disputed Claim for
Compensation with the Office of Workers’ Compensation appealing the Medical
Director’s decision. Ms. Lowery also prayed for an award of penalties and
attorney fees, with interest and costs.
The employer and its compensation insurer, appellants herein, responded by
filing an exception of no cause of action directed only against the claim for
penalties and attorney fees. They also answered the petition and filed affirmative
defenses. Additionally, being of the opinion that the surgery should not be
authorized, the appellants filed a motion seeking to have the OWC judge enter an
order compelling Ms. Lowery to attend a functional capacity evaluation (FCE).
Appellants also sought an expedited hearing on Ms. Lowery’s appeal of the Medical Director’s decision, and the OWC judge set the matter for hearing on June
30, 2014.
Thus, at the start of the hearing held on June 30, the attorney for the
appellants began arguing the merits of their motion to compel the FCE. In
response to appellants’ counsel’s statements to the court, the attorney for Ms.
Lowery opined that the question of whether Ms. Lowery should be compelled to
undergo an FCE should, logically, be the last issue examined by the court. Instead,
Ms. Lowery’s counsel contended that the first issue should be the merits of the
appeal from the Medical Director’s decision to deny Ms. Lowery’s back surgery.
Specifically, Ms. Lowery’s counsel stated:
I think that [the FCE] would be the last one we would get to. We filed for this Court to review--we filed for an appeal of the medical director’s decision denying the surgery. It would appear to me that would be the first thing that would need to be address [sic], because if she’s entitled to surgery, she certainly doesn’t need to be having to undergo a functional capacity test until she’s had her surgery and gotten well, which is essentially the same situation we were in before. But in this case they have filed--let’s see if I can find it here. They filed an exception of no cause of action on the claim for penalties and attorney fees that we brought in this connection, which-- And as I understand it, they set our appeal for hearing today on an expedited basis. So we’re here--we’re here to try our case on whether she’s entitled to the surgery. And then-- And so, I don’t know what order the Court wants to take all that in. But as I understand it, all of that is at issue today.
The OWC judge agreed; therefore, Ms. Lowery’s counsel began presenting the
case against the Medical Director’s decision.
Not only did Ms. Lowery’s counsel express the opinion that all issues were
to be presented to the OWC court on June 30, appellants’ counsel commented at
the conclusion of her argument that, even if the OWC court determined that the
medical director’s decision should not be upheld, the award of penalties should not
be assessed against the appellants. And finally, near the completion of Ms.
2 Lowery’s counsel’s arguments to the OWC judge, he again argued that penalties
and attorney fees should be awarded to Ms. Lowery due to the appellants’ failure
to authorize and pay for her recommended back surgery.
At the conclusion of the hearing, after taking a break to review the case, the
OWC judge orally rendered the ruling finding that the Medical Director’s decision
should be reversed and ordered that Ms. Lowery is entitled to the back surgery.
The OWC judge then stated that the motion to compel the FCE was denied at this
time, reserving the appellants’ right to ask for an FCE at the appropriate time
following the surgery. However, the OWC judge did not enter any ruling with
regard to the issue of penalties or attorney fees nor did the OWC judge directly
address the appellants’ exception of no cause of action directed against these
claims. Counsel for Ms. Lowery stated on the record that he would prepare the
judgment for the OWC court to sign.
The OWC judge ultimately signed two separate judgments on the same day.
One judgment overturns the decision of the Medical Director denying Ms.
Lowery’s surgery, and then proceeds to authorize the surgery with the appellants
paying for it. The second judgment denied the appellants’ motion to compel the
FCE, reserving to them the right to urge this motion again when appropriate.
Neither judgment addressed the exception of no cause of action or the issue of Ms.
Lowery’s entitlement to penalties or attorney fees.
The appellants filed a motion seeking a suspensive appeal from the judgment
ordering them to pay for Ms. Lowery’s back surgery. Upon receipt of record, this
court issued the subject rule for the appellants to show cause why the appeal
should not be dismissed as having been taken from a partial judgment.
3 In response to this court’s rule to show cause, the appellants argue that a
judgment reversing the Medical Director’s decision denying the employee’s
request for approval of a medical procedure is appealable if the appealed judgment
is a complete adjudication of the claim. This court does not disagree with the
appellants on this point. However, this court recognizes that when elements of a
claim set forth by the petitioner include recovery of penalties and attorney fees,
there has not been a complete adjudication of the claim until the court has ruled on
all of the elements of the claim including penalties and attorney fees.
Thus, in Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir.
3/5/03), 840 So.2d 672, an appeal was taken from an award of attorney fees. The
trial court had previously rendered a final judgment on a motion for summary
judgment filed by the plaintiff finding that the defendants were liable for breach of
a lease agreement. The lease agreement had a provision entitling the plaintiff to an
award of attorney fees if the defendants were found to have breached the lease.
However, when the plaintiff filed the motion for summary judgment, the plaintiff
failed to raise the right to an attorney fee award in the motion. While the
defendants filed an appeal from the judgment finding they had breached the lease,
the plaintiff also failed to file an answer in the appellate court seeking an award of
attorney fees.
Instead, the plaintiff filed a motion in the trial court seeking the award of
attorney fees in accordance with the lease provision while the appeal was pending
in the appellate court from the judgment finding that the defendants had breached
the lease. The trial court awarded attorney fees for the plaintiff, and the defendants
appealed.
4 On appeal from the attorney fee award, the appellate court found that the
trial court had been without jurisdiction to decide the attorney fee issue since an
appeal had already been perfected from the judgment finding the breach of the
lease agreement. The defendants also argued that res judicata applied to the earlier
judgment and that this principle also barred litigation of the attorney fees issue. In
agreeing with the defendants’ position on this latter issue, the appellate court
remarked:
All issues related to the breach of the lease were extinguished and merged into the final judgment rendered by the district court. La.R.S. 13:4231(1). As previously stated, neither the record nor the previous judgment rendered indicate any reservation of the attorney fees issue for future adjudication. In this instance, we deem it appropriate to apply the principle that a demand not granted or reserved in the judgment must be considered as rejected. See Soniat v. Whitmer, 141 La. 235, 74 So. 916 (La.1917). The legal effect of the silence of a judgment on any part of a demand that might have been allowed under the pleadings is a rejection of such part of the demand, which tacit rejection has the force and effect of res judicata against subsequent suit for such part of the demand. Edenborn v. Blacksher, 148 La. 296, 86 So. 817 (1921).
840 So.2d at 675.
Turning to the instant case, it is clear from the transcript of the hearing that
the parties and the OWC court knew that the issue of whether Ms. Lowery was
entitled to penalties and attorney fees was being litigated during that hearing. Like
the court in Ken Lawler, 840 So.2d 672, concluded, we can only conclude that the
OWC court’s silence in the two written judgments resulting from that hearing
constituted a denial of the claim for penalties and attorney fees. Therefore, we find
that, since no issues remain to be litigated at this time before the OWC court, this
court’s rule to show cause why the appeal should not be dismissed as having been
taken from a partial judgment must be recalled, and the appeal is hereby
maintained.
5 RULE TO SHOW CAUSE RECALLED.