Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 52,898-WCA No. 52,899-WCA No. 52,900-WCA No. 52,901-WCA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
JAMES ARNESS THOMAS Plaintiff-Appellant
versus
MARSALA BEVERAGE Defendant-Appellees COMPANY AND LUBA CASUALTY INSURANCE COMPANY
Appealed from the Office of Workers’ Compensation, District 1-E Parish of Ouachita, Louisiana Trial Court No. 1800902
Brenza Irving-Jones Workers’ Compensation Judge
JOHNSON & PLACKE, L.L.P. Counsel for Appellant By: Don Hewitt Johnson
ANZELMO & CREIGHTON, L.L.C. Counsel for Appellees By: Donald J. Anzelmo
Before COX, STEPHENS, and McCALLUM, JJ. McCALLUM, J.
James Arness Thomas, who was injured in an accident at work caused
by a third party, obtained workers’ compensation benefits from his
employer’s workers’ compensation insurer, Louisiana United Business
Association Casualty Insurance Company (“LUBA”). After Thomas filed a
tort suit against the tortfeasor and the tortfeasor’s employer, LUBA
intervened in the tort suit to recover benefits it had paid to Thomas. The
judgment obtained in the tort suit awarded damages for past losses, but
denied damages for future medical expenses, future lost wages, and loss of
earning capacity. The denial of damages was affirmed on appeal. LUBA
subsequently terminated wage benefits and would not approve
recommended treatment, and when Thomas filed disputed claims for
compensation, raised the exception of res judicata in the workers’
compensation proceeding. The WCJ sustained the exception and dismissed
Thomas’s claims. Thomas appeals. For the following reasons, we reverse
the judgment and remand for further proceedings.
FACTS
James Thomas was employed as a forklift operator by Marsala
Beverage Company in Monroe. His job duties included loading and
unloading trucks, moving beer kegs and drink cases, and performing
janitorial tasks such as sweeping and mopping. Thomas was injured at work
on November 9, 2010, while unloading a truck with a forklift. Thomas was
operating the forklift when it rolled out of the back of the truck as the truck
pulled away from the loading dock. Thomas was 42 years old at the time. Thomas worked for several months following the accident performing
janitorial duties but stopped working in February of 2011 and sought
workers’ compensation benefits from Marsala and LUBA.
On June 17, 2011, Thomas and his wife filed a tort suit against Bryan
Boyd, who drove the truck away from the loading dock, and Werner
Enterprises, Inc., the owner of the truck. He contended that he was totally
and permanently disabled from the accident, physically incapable of ever
returning to any type of work, and needed pain management treatment for
the balance of his life. Boyd and Werner countered that Thomas’s injuries
were not as severe or permanent as he claimed, and that he could work but
refused to do so. LUBA filed a petition of intervention in the tort suit to
recover all benefits and medical expenses it paid to or on behalf of Thomas
as well as to obtain credit for any future benefits or medical expenses that it
may pay. The parties acknowledged LUBA’s statutory lien, and LUBA was
excused from appearing at the trial.
Dr. Vincent Forte, a pain management specialist who began treating
Thomas in January of 2014, administered lumbar medial branch blocks to
him. When Dr. Forte recommended an epidural steroid injection at L5-S1 in
February of 2014, LUBA denied coverage of the treatment. The denial was
appealed to the Office of Workers’ Compensation (“OWC”) Medical
Director, who declined to approve the injection on the basis that it was
diagnostic and not allowed under the OWC’s medical treatment guidelines.
The WCJ reversed that decision upon finding that the evidence was clear
and convincing that the Medical Director’s decision was not in accordance
with the guidelines. This court affirmed the WCJ in Thomas v. Marsala
Beverage Co., 50,062 (La. App. 2 Cir. 9/30/15), 179 So. 3d 620. 2 On August 11, 2015, the jury in the tort suit rendered a verdict finding
that although Thomas had been injured in the accident, he failed to mitigate
his damages by 55%. He was awarded $40,000 in general damages, $34,977
in past lost wages, and $40,000 in past medical expenses. The jury, rejecting
Thomas’s assertion that he was unable to work and entitled to medical
expenses for the rest of his life, awarded no damages for future medical
expenses, future lost wages, or loss of earning capacity. On appeal, this
Court concluded the jury erred in the amount awarded for past lost wages as
well in finding a failure to mitigate damages. In all other respects, the
judgment was affirmed. This Court acknowledged the vast amount of
evidence calling into question Thomas’s truthfulness, which proved
problematic for him as his claims were largely premised upon subjective
complaints of pain. Thomas v. Boyd, 51,621 (La. App. 2 Cir. 11/15/17), 245
So. 3d 308, writs denied, 2018-0232 (La. 4/16/18), 239 So. 3d 832, 2018-
00233 (La. 4/16/18), 240 So. 3d 923.
Thomas continued to be treated by Dr. Forte following the jury trial.
Dr. Forte saw him a week after the trial for a follow-up visit and as late as
September 12, 2018, when Dr. Forte’s diagnosis of Thomas’s condition
remained spondylosis in the cervical region and radiculopathy in the lumbar
region. Dr. Forte also performed several treatment procedures on Thomas.
Cervical medial branch nerve blocks were done on July 7 and on August 11
of 2016, and a cervical medial branch neurotomy was done on October 17.
Thomas received lumbar epidural steroid injections at L5-S1 twice in 2016,
and at L4-5 twice in 2017, with the latest on September 12.
LUBA ceased paying weekly wage benefits to Thomas on January
18, 2018. The following month, Thomas filed a disputed claim for 3 compensation in which he asserted that his wage benefits had been
terminated. Thomas subsequently filed three additional disputed claims for
compensation related to: (1) LUBA’s denial of lumbar epidural steroid
injections when LUBA’s adjuster determined that the injections were not
related to Thomas’s compensation claim; (2) LUBA’s failure to approve his
request for neuropsychological testing; and (3) LUBA’s denial of drug
testing conducted by Dr. Forte as part of Thomas’s treatment program when
LUBA’s adjuster determined it was unrelated to Thomas’s compensation
claim. Thomas contended in each disputed claim that he was disabled and
not employable. LUBA filed answers in which it denied that Thomas
remained disabled, was permanently disabled, had an injury resulting in a
loss of earning capacity, or was entitled to rehabilitation services. The WCJ
ordered the disputed claims consolidated.
Marsala and LUBA filed an exception of res judicata in which they
asserted that the doctrine of res judicata barred the consolidated claims.
They contended that the judgment in the tort suit was res judicata as to
Thomas’s compensation claims asserting that he was disabled, not
employable, and entitled to continuing medical treatment.
At the hearing on the exception, the WCJ admitted into evidence a
sextet of exhibits submitted by Thomas in opposition to the exception.
Included among the exhibits were Dr. Forte’s 2018 deposition, a 2019
deposition from Dr. Navneet Sharma, Dr. Forte’s medical records, and a
2018 report from a rehabilitation consultant.
Dr. Sharma, who specializes in physical medicine and rehabilitation,
was retained by LUBA in November of 2017 to provide a second medical
opinion, which he rendered on December 6, 2017. In his report, which was 4 attached to his deposition, Dr. Sharma wrote: (1) his diagnosis was cervical
and lumbar spine strain; (2) Thomas’s current complaints did not correlate
with his physical exam findings; (3) his recommendations were
neuropsychological testing and vocational rehabilitation, although he
doubted that Thomas would give a good effort; (4) Thomas’s current
medication regimen was appropriate; (5) Thomas reached maximum medical
improvement between May of 2013 and December of 2014; (6) it was his
opinion that Thomas was capable of doing light duty work on a full-time
basis; and (7) he believed that Thomas could return to light-duty work
immediately with work restrictions similar to what had been recommended
in a functional capacity evaluation. Dr. Sharma testified in his deposition
that there was no reliable evidence that Thomas had a disability related to
the accident. He explained that one of the reasons that he recommended
neuropsychological testing was he could not correlate some of the physical
findings with Thomas’s injury.
Dr. Forte testified in his 2018 deposition that given Thomas’s illness,
limited job skills, and limited education, he thought that Thomas would be
very hard to employ. He recommended that Thomas continue with the
present treatment plan unless his symptoms changed. Dr. Forte asserted
that he was not saying that Thomas was totally and permanently disabled,
but only that he had not seen a job presented that he believed Thomas could
do.
The exception of res judicata was granted and all of Thomas’s
disputed compensation claims were dismissed with prejudice. Thomas has
appealed.
5 DISCUSSION
The standard of review of a ruling on an exception of res judicata is
manifest error when the exception is raised before the case is submitted and
evidence is received from both sides. Barnett v. Louisiana Medical Mutual
Ins. Co., 51,908 (La. App. 2 Cir 5/23/18), 248 So. 3d 594, writ denied, 2018-
0944 (La. 09/28/18), 253 So. 3d 154; Toliver v. Entergy Servs., Inc., 49,954
(La. App. 2 Cir. 6/24/15), 169 So. 3d 774, writ denied, 2015-1633 (La.
10/30/15), 180 So. 3d 299. The res judicata effect of a prior judgment is a
question of law that is reviewed de novo on appeal. Alpine Meadows, L.C. v.
Winkler, 49,490 (La. App. 2 Cir. 12/10/14), 154 So. 3d 747, writ denied,
2015-0292 (La. 4/24/15), 169 So. 3d 357.
Res judicata promotes the dual purposes of judicial efficiency and the
final resolution of disputes by preventing needless relitigation. Terrebonne
Fuel & Lube, Inc. v. Placid Refining Co., 1995-0654 (La. 1/16/96), 666 So.
2d 624. The doctrine of res judicata is set forth in La. R.S. 13:4231:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent: (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action. (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
6 Under La. R.S. 13:4231, a second action is precluded by res judicata
when all of the following are satisfied: (1) the judgment is valid; (2) the
judgment is final; (3) the parties are the same; (4) the cause or causes of
action asserted in the second suit existed at the time of final judgment in the
first litigation; and (5) the cause or causes of action asserted in the second
suit arose out of the transaction or occurrence that was the subject matter of
the first litigation. Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843
So. 2d 1049.
Thomas maintains that res judicata is precluded because the doctrine
has narrow application in workers’ compensation proceedings. In support of
his argument, he cites La. R.S. 23:1310.8, which grants continuing
jurisdiction to a WCJ to modify awards.1
The doctrine of res judicata applies in workers’ compensation cases
only in certain limited situations. Borja v. FARA, 2016-0055 (La. 10/19/16),
218 So. 3d 1. Where the legislature has expressly provided that an award or
judgment can be subject to a claim of modification, res judicata does not
apply. Id. In La. R.S. 23:1310.8, the legislature expressly provided that a
compensation award may be modified by either party because of a change in
disability after an award has been made. Borja v. FARA, supra.
As the Louisiana Supreme Court stated in Falgout v. Dealers Truck
Equip. Co., 1998-3150, pp. 8-9 (La. 10/19/99), 748 So. 2d 399, 405:
Usually, once a judgment has become final and definitive, parties are bound by it, regardless of any future change of circumstances. See La. C. Civ. Pro. arts. 1841, 425. Workers’
1 Regarding the prescription period for bringing a workers’ compensation claim, La. R.S. 23:1209(A)(2) provides: “Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).” 7 compensation judgments, however, are treated differently from ordinary judgments. This is due to the fact that if the rules of finality applied to ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation system would be greatly restricted.
Generally, a determination of the extent of disability in a prior
proceeding will not be res judicata as to a renewed request for a reevaluation
of the issue in a petition seeking modification of the prior judgment. Borja
v. FARA, supra (citing 13 H. Alton Johnson, La. Civil Law Treatise,
Workers’ Compensation Law & Practice § 284, p. 797 (5th ed. 2010)).
Thus, the doctrine of res judicata applies in a workers’ compensation case
only in the instance of a final judgment denying benefits or a lump sum
settlement approved by the WCJ under La. R.S. 23:1271 and 23:1274.2
Borja v. FARA, supra.
While we agree that res judicata has limited application within a
workers’ compensation proceeding, we disagree that La. R.S. 23:1310.8 is
directly relevant to the issue at hand. LUBA is not arguing in this matter
that an award or order already made by the WCJ is res judicata as to
Thomas’s disputed claims for compensation.
Res judicata does not bar a subsequent claim between the same parties
if the parties appear in a different capacity. Burguieres v. Pollingue, supra.
There must be an “identity of parties” before the doctrine of res judicata can
be used to preclude a subsequent suit. Id.
The Louisiana Supreme Court found in Burguieres that although an
amendment to La. R.S. 13:4231 in 1990 made a substantial change to the
law, the requirement in the statute that the parties be the same in order for
2 A judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal. La. R.S. 23:1310.8(E). 8 the second suit to be precluded by the operation of res judicata retained the
“identity of capacity” component. Thus, in order for a second suit to be
precluded under La. R.S. 13:4231, the parties must appear in both suits in
the same capacities. Burguieres, supra.
Identity of parties does not mean that the parties must be the same
physical or material parties. Instead, it means that the parties must appear in
the suit in the same quality or capacity. Alpine Meadows, L.C. v. Winkler,
supra.
In Penton v. Castellano, 49,843 (La. App. 2 Cir. 6/24/15), 169 So. 3d
739, the Caddo Parish School Board paid workers’ compensation benefits to
Penton, an assistant principal who had been injured by a student. Penton
filed a tort suit against the school board, among other defendants, asserting
that the school board was responsible for the student’s intentional acts. The
school board was dismissed from the tort suit by summary judgment. The
school board, which was self-insured for purposes of workers’
compensation, then filed a petition for intervention in Penton’s tort suit
seeking to recover the benefits that it had paid to her. Penton filed an
exception of res judicata to the intervention, which the trial court granted.
Reversing the judgment, this Court concluded that res judicata did not
bar the school board’s claims as an intervenor. The claims made by Penton
against the school board in the tort suit were not related to its status as her
own employer. Thus, the school board had appeared in the lawsuit in two
entirely different capacities. It first appeared as a defendant who was
allegedly vicariously liable for the school principal’s actions. It then
appeared as an intervenor exercising its right of reimbursement to benefits it
paid to and on behalf of Penton. 9 When the school board in Penton intervened in the tort suit, it was not
bringing a claim against its employee. Rather, the basis for its intervention
was its mutual cause of action with Penton against the tortfeasor. In essence,
a property right consisting of the right to recover damages from a third party
is co-owned by an injured employee and the employer who paid
compensation benefits. Penton v. Castellano, supra. See also La. R.S.
23:1103(C).
As authorized by La. R.S. 23:1102, LUBA intervened in the tort suit
to recover the amount of benefits that it had paid Thomas. After the parties
to the tort suit recognized its statutory lien, LUBA remained a party but did
not participate in the jury trial. We also note that LUBA later filed a motion
in February of 2016 to join Thomas’s motion for a devolutive appeal in the
tort suit.3 Thus, LUBA appeared in one capacity in the tort suit, as an
intervenor whose interests aligned with Thomas, and in a different capacity
in the workers’ compensation proceeding, this time taking a position
contrary to that of Thomas. Therefore, the parties were not the same in the
tort suit and in the workers’ compensation proceeding.
In Roland v. Owens, 00-1846 (La. App. 5 Cir. 4/24/01), 786 So. 2d
167, writ denied, 2001-1500 (La. 8/31/01), 795 So. 2d 1213, Roland was
injured when his vehicle was struck by a vehicle driven by an employee of
Frosty Treats. Roland filed a tort suit against Frosty Treats and Zurich, its
insurer. Zurich answered that Roland’s exclusive remedy was in workers’
compensation because Frosty Treats was his statutory employer. Roland
3 A footnote in this Court’s opinion in the tort appeal states that in December of 2016, the parties stipulated that LUBA would not appeal the quantum award but would reserve its rights against Thomas. 10 filed a workers’ compensation claim against Frosty Treats. The WCJ found
that Frosty Treats was Roland’s statutory employer and awarded benefits.
Zurich then filed a motion for summary judgment in the tort suit on the
ground that the workers’ comp judgment was res judicata to the tort suit.
The trial judge granted summary judgment on the basis that he was bound by
the WCJ’s finding that Roland was a statutory employee of Frosty Treats.
Roland argued on appeal that the doctrine of res judicata did not apply
because there was no identity of parties and Zurich could not enforce the
doctrine since Zurich was not a party to the workers’ compensation suit.
The Fifth Circuit rejected this argument, noting that Zurich’s involvement in
the lawsuit stemmed from its relationship as Frosty Treats’ insurer. The
appellate court added that allowing Roland to continue his suit against
Frosty Treats and Zurich would allow him to relitigate the statutory
employee issue after it had already been litigated in the workers’
compensation proceeding.
Roland v. Owens can be distinguished as Marsala and LUBA were
never parties to the tort suit as defendants. Rather, LUBA only appeared as
an intervenor whose interest was aligned with Thomas.
In Hawkins v. Span Systems, Inc./DFW Int’l Airport OCIP, 51,378
(La. App. 2 Cir. 5/17/17), 223 So. 3d 593, Hawkins filed a workers’
compensation claim in Texas against his employer’s insurer and a workers’
compensation claim in Louisiana against his employer and the insurer. The
hearing officer in Texas determined, among other things, that Hawkins’
work-related injury did not involve various back symptoms, but made no
determination regarding any cervical sprain/strain. The employer then filed
the exception of res judicata in the Louisiana proceeding, which the WCJ 11 sustained as to all of Hawkins’ compensation claims other than for cervical
sprain/strain. This court affirmed. On appeal, Hawkins did not argue that
res judicata was inapplicable per se, but he argued that pursuant to La. R.S.
13:4232(A)(1), he was entitled to relief from the harsh effects of res judicata
because of exceptional circumstances. This Court concluded that no relief
was warranted given that Louisiana and Texas had strong policies of
protecting employees through their respective workers’ compensation laws,
and that this Court had previously used a workers’ compensation judgment
in Texas as the basis for res judicata in a Louisiana workers’ compensation
proceeding. This Court also concluded in Hawkins that it was immaterial
that the insurer, but not the employer, was a defendant in the Texas
proceeding while both were defendants in Louisiana. For purposes of res
judicata, the insurer and the insured shared the same qualities and identity.
We distinguish Hawkins from the present case because the judgment used as
the basis for res judicata in that matter was also a workers’ compensation
judgment, albeit in a foreign jurisdiction.
Res judicata forecloses both the relitigation of matters that have not
been litigated but should have been raised in the earlier suit (claim
preclusion) and matters previously litigated and decided (issue preclusion).
Alpine Meadows, L.C. v. Winkler, supra.
Claim preclusion treats a judgment, once rendered, as the full measure
of relief to be accorded between the same parties on the same claim or cause
of action. Paradise Village Children’s Home, Inc. v. Liggins, 38,926 (La.
App. 2 Cir. 10/13/04), 886 So. 2d 562, writ denied, 2005-0118 (La. 2/4/05),
893 So. 2d 884. Issue preclusion bars the relitigation of issues actually
12 litigated, and essential to a judgment, in a prior litigation between the same
parties. Id.
Claim preclusion is addressed in comment (a) to La. R.S. 13:4231:
This serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless relitigation of the underlying facts and will free the defendant from vexatious litigation; and, by focusing on the transaction or occurrence which would be comparatively easy to determine, . . . the much more difficult problem of defining what constitutes “cause of action” is avoided. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.
The principle of issue preclusion serves the interests of judicial
economy by preventing relitigation of the same issue between the same
parties. Comment (b) to La. R.S. 13:4231.
The concerns about relitigation behind the doctrine of res judicata are
absent in this matter. The WCJ is vested with original, exclusive jurisdiction
over claims or disputes if they arise out of the Workers’ Compensation Act.
La. R.S. 23:1310.3(F). Thus, the district court could not serve as the forum
for Thomas’s compensation claims, and the OWC could not serve as the
forum for his tort claim. Furthermore, the possibility of two
contemporaneous proceedings by an injured employee, one in tort and one in
workers’ compensation, is recognized in La. R.S. 23:1101 and 23:1102.
Nevertheless, Thomas could not cumulate his actions in either forum due to
the limited jurisdiction of the respective forums.
Several cases have discussed the differences between tort claims and
workers’ compensation claims in the context of the possible res judicata
effect of a prior judgment. In Stacy v. Minit Oil Change, Inc., 38,439 (La. 13 App. 2 Cir. 5/12/04), 874 So. 2d 384, Stacy was injured when a coworker,
Stevenson, hit him over the head with a pipe during a dispute at the carwash
where they both worked. After Stacy filed a disputed claim for
compensation, the WCJ found that his injury was work-related for purposes
of the Workers’ Compensation Act (“WCA”) and awarded benefits. Stacy
also filed a tort claim against his employer on the grounds that Minit was
responsible for his coworker’s intentional tort. The district court rendered
summary judgment in Minit’s favor, which this Court affirmed. In doing so,
this Court noted that the finding in the workers’ compensation judgment that
the injury was work-related was not res judicata or the law of the case in the
tort matter. This Court reached that conclusion by considering that the
compensation standard was different from, and broader than, the vicarious
liability test. “[T]he prior finding that Stacy’s injury arose out of and in the
course of Stacy’s employment does not prove that [the] assaultive conduct
occurred in the course and scope of Stevenson’s employment.” Id., 38,439
at p. 8, 874 So. 2d at 389.
In Domingue ex rel. Domingue v. Allied Discount Tire & Brake, Inc.,
2002-1338 (La. App. 1 Cir. 5/9/03), 849 So. 2d 690, writ denied, 2003-1605
(La. 10/03/03), 855 So. 2d 320, Jones, a district manager for Allied, engaged
in a physical fight with Dominque, an Allied employee, at one of Allied’s
stores. A WCJ determined that Domingue was not the initial aggressor.
When a tort suit was filed, the district court granted the exception of res
judicata on the issue of aggression as to Allied but not as to Jones
individually. The district court ultimately found Jones and Allied to be
completely at fault for Domingue’s injuries.
14 The First Circuit found that the exception of res judicata had been
granted in error.4 First, the court noted that the WCJ’s factual conclusion
issued from the bench fell short of a judgment upon which the exception of
res judicata could be based. The court then stated:
Moreover, the procedural requisites and burdens of proof associated with a workers’ compensation claim are divergent from the requisites of a tort case; therefore, a factual determination in one forum does not readily substitute for the evidentiary requirements of the other. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party’s substantive rights have actually been previously addressed and finally resolved.
Id., 2002-1338 at p. 5, 849 So. 2d at 695. (Citation omitted.)
In Robertson v. Popeye’s Famous Fried Chicken, Inc., 524 So. 2d 97
(La. App. 4 Cir. 1988), writ denied, 526 So. 2d 802 (La. 1988), Robertson
was injured when he tripped and fell while delivering frozen chicken to
Popeye’s.5 Robertson filed a workers’ compensation claim against his
employer and its insurer, State Farm. The Louisiana Supreme Court held
that Robertson had carried his burden of proving a causal relationship
between his total and permanent disability and the work-related accident.
Robertson v. Scanio Produce & Institutional Foods, Inc., 449 So. 2d 459
(La. 1984). When Robertson filed a tort suit against Popeye’s, State Farm
intervened in the lawsuit for reimbursement of the benefits that it had paid to
Robertson. The jury awarded general damages as well as damages for past
medical expenses and past lost wages, but awarded no damages for future
4 Any error as to Allied was considered inconsequential by the appellate court because the trial court fully considered the issue of aggression as to Jones. The trial court ultimately determined that Jones had been the initial aggressor. 5 At one time, an injured employee with a disputed workers’ compensation claim brought a civil suit against his employer in state district court. However, by Act 938 of 1988, the OWC was given original and exclusive jurisdiction over all claims filed pursuant to the WCA. 15 medical expenses or future lost wages. State Farm appealed, arguing that
the damages were inadequate. In support of its argument, State Farm
referred to the Supreme Court’s holding that Robertson had met his burden
of proving causation between the accident and his total and permanent
disability.
The Fourth Circuit noted that the Supreme Court’s decision in the
workers’ compensation case did not determine the issues of causation and
damages in the tort case. The appellate court concluded that res judicata did
not apply because the parties, causes, and things demanded in the two suits
were not identical. The court recognized that although both cases involved
the same accident and the question of Robertson’s disability, the demands of
the parties, nature of the evidence, and burdens of proof were different in the
tort and compensation actions. The court also pointed to the provisions of
La. R.S. 23:1101(A), which state that a payment or award of compensation
benefits “shall not affect the claim or right of action of the said employee . . .
against such third person, nor be regarded as establishing a measure of
damages for the claim[.]”
LUBA contends that there is no difference in the cause of action for
future medical treatment associated with this accident in either the tort or the
workers’ compensation cases. However, there is an element of uncertainty
inherent in a claim for future medical expenses in a tort suit that is largely
absent when a workers’ compensation claimant seeks approval from the
insurer for a proposed medical treatment or procedure.
The recovery of future medical expenses is dependent upon the tort
victim establishing the probability of the future medical expenses with
16 supporting medical testimony and estimations of their probable cost. Terry
v. Simmons, 51,200 (La. App. 2 Cir. 2/15/17), 215 So. 3d 410.
A worker’s access to medical benefits is the most central element of
the workers’ compensation scheme. See Arrant v. Wayne Acree PLS, Inc.,
2015-0905 (La. 1/27/16), 187 So. 3d 417. It is well settled that a workers’
compensation claimant may recover costs of medical treatment that is
reasonably necessary for the treatment of a medical condition caused by a
work-related injury. La. R.S. 23:1203(A); Daniels v. State Through Dept.
of Transp. & Dev., 52,750 (La. App. 2 Cir. 7/17/19), 275 So. 3d 998.
Furthermore, a claimant’s entitlement to medical expenses is a
continuing potential liability for the employer. As was stated in Church
Mut. Ins. Co. v. Dardar, 2013-2351, pp. 14-15 (La. 5/7/14), 145 So. 3d 271,
281:
According to the plain words of the statute, an injured employee is not entitled to payment for all future medical treatment occasioned by an accident; rather, the employer's liability is limited to that which is necessary. Thus, in order to state a cause of action for and recover medical expenses authorized by the statute, an injured worker must require medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work injury. . . . Notably, because the employer's obligation under La. R.S. 23:1203(A) does not extend to all future medical treatment, but only that which is necessary, the employer’s liability for medical expenses arises only as those expenses are incurred.
Emphasis added.
In reaching our conclusion that res judicata does not bar Thomas’s
claims for compensation, we are mindful that the doctrine of res judicata is
stricti juris, and any doubt concerning the application of res judicata must be
resolved against its application. See Kelty v. Brumfield, 1993-1142 (La.
2/25/94), 633 So. 2d 1210.
17 We are also mindful of the rationale behind the Louisiana Workers’
Compensation Act (“WCA”). The purpose of Louisiana’s workers’
compensation law is set forth in La. R.S. 23:1020.1(B), which states:
The legislature declares that the purpose of this Chapter is all of the following: (1) To provide for the timely payment of temporary and permanent disability benefits to all injured workers who suffer an injury or disease arising out of and in the course and scope of their employment as is provided in this Chapter. (2) To pay the medical expenses that are due to all injured workers pursuant to this Chapter. (3) To return such workers who have received benefits pursuant to this Chapter to the work force.
The WCA was designed to serve as a substitute for an employee’s
right to sue the employer in tort and to provide no-fault recovery. O’Regan
v. Preferred Enters, Inc., 1998-1602 (La. 3/17/00), 758 So. 2d 124.
The workers’ compensation regime represents a quid pro quo
compromise of interests, whereby an employee receives an absolute right to
recover limited benefits in exchange for the employer’s tort immunity.
Benoit v. Turner Indus. Group, L.L.C., 2011-1130 (La. 1/24/12), 85 So. 3d
629. This quid pro quo between employers and employees is central to the
WCA. O’Regan v. Preferred Enters., Inc., supra. Both employees and
employers surrender certain advantages in exchange for others which are
more valuable to both parties and society. Deshotel v. Guichard Operating
Co., Inc., 2003-3511 (La. 12/17/04), 916 So. 2d 72. The employee
relinquishes his right to be made whole in a civil suit, while the employer
cedes his available tort defenses. Id.
An injured employee whose upkeep is being maintained by his
workers’ compensation benefits may attempt to be made whole by filing suit
against a third party tortfeasor. La. R.S. 23:1101. Damages recovered in
18 tort would benefit the employer or the workers’ compensation insurer who
intervened in that tort suit. La. R.S. 23:1101 also permits the employer or its
insurer to bring its own action against the third party to recover benefits
paid.
Uppermost in our consideration of this matter, however, is our
recognition that the citizens of this state, through their duly elected
legislators, have created a separate and distinct tribunal for resolution of
workers’ compensation claims between employers and their employees. The
resulting paradigm, together with any attendant inconveniences, we accept
as a result of the purposeful and considered deliberations of the legislature.
Whatever arguments may be made to the contrary, our resolution of this case
holds inviolable the right and responsibility of the legislature to enact the
laws of this state, while maintaining the ambit of the courts to interpret and
apply them.6
CONCLUSION
For the foregoing reasons, we conclude that the WCJ was manifestly
erroneous in sustaining LUBA’s exception of res judicata. This matter is
remanded to the OWC for further proceedings. In reversing the judgment,
this Court is not commenting on or considering the relative merits of
At Marsala’s and LUBA’s costs, the judgment is REVERSED and the
matter REMANDED for further proceedings.
For further elucidation on this issue see this writer’s concurring opinion in 6
McDonald v. City of Bastrop, 52,911 (La. App. 2 Cir. 9/25/19), __ So. 3d __, 2019 WL 4667602. 19