Tina Krieg v. Baker Oil Tools

• Court: Louisiana Court of Appeal
• Decided: May 16, 2007
• Docket: WCA-0007-0418
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-418

TINA KRIEG VERSUS BAKER OIL TOOLS

********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4 PARISH OF LAFAYETTE, NO. 06-670 HONORABLE SHARON MORROW, DISTRICT JUDGE

********** ELIZABETH A. PICKETT JUDGE

**********

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell, Judges.

APPEAL DISMISSED.

COOKS, J., dissents and assigns written reasons.

Bret Christopher Beyer Attorney at Law Post Office Box 53006 Lafayette, LA 70505 (337) 232-9733 Counsel for Defendant/Appellee: Baker Oil Tools

Harry Karl Burdette The Glenn Armentor Law Corp. 300 Stewart Street Lafayette, LA 70501 (337) 233-1471 Counsel for Plaintiff/Appellant: Tina Krieg PICKETT, Judge.

This court issued a rule for the appellant, Tina Krieg, to show cause, by

brief only, why the appeal in this case should not be dismissed as premature.

Although the appellant responded to this court’s order with a letter, we dismiss

the appeal.

The appellant filed a claim with the Office of Workers’ Compensation

seeking payment by the appellee, Baker Oil Tools, for medical treatment,

indemnity benefits, and penalties and attorney fees. The appellee filed an

exception of prescription against the appellant’s claim for indemnity benefits.

The trial court held a contradictory hearing on the exception. On January 10,

2007, the trial court signed a judgment granting the exception. The judgment

reads, in pertinent part, “the defendant/employer’s Peremptory Exception of

Prescription as to Indemnity Benefits is hereby GRANTED, reserving the

rights of TINA KRIEG to claim medical benefits only.” Emphasis supplied.

The appellant filed a motion for appeal from this ruling, and the trial

court granted the order of appeal. Upon the lodging of the record in this case,

this court, on its own motion, issued a rule for the appellant to show cause, by

brief only, why the appeal should not be dismissed as premature.

The appellant responded to this court’s order by filing a letter with this

court. In the letter, the appellant explains that the instant appeal has been taken

in accordance with La.Code Civ.P. art. 1915(B)(1). The appellant further

argues that the dismissal of this appeal on this procedural ground would

prejudice the appellant because evidence on the issue of indemnity benefits

will not be able to be introduced at the trial on the merits of this case in the

workers’ compensation court.

1 The rule to show cause issued by this court in this matter cited the

appellant to Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817 So.2d 64, and

Evergreen Presbyterian Minist. v. Wallace, 2005-1343 (La.App. 3 Cir. 4/5/06),

926 So.2d 759. In Rhodes, 817 So.2d 64, two of three defendants were

dismissed from the action. Despite the fact that dismissal of that appeal

resulted in trial being conducted against only one defendant, which risked that

a new trial would have to be held in the event that a later appeal resulted in a

finding that the dismissal of the first two defendants was incorrect, the supreme

court held that La.Code Civ.P. art. 1915(A)(1) and (5) were inapplicable to

workers’ compensation suits.

The appellant’s letter to this court does not provide any basis for varying

from the established jurisprudence in this area of the law. While this court

recognizes that the appellant claims that she is seeking this appeal pursuant to

La.Code Civ.P. art. 1915(B) and that Rhodes pertained only to La.Code Civ.P.

art. 1915(A)(1) and (5), we find the logic of Rhodes dictates that Article

1915(B) should also be inapplicable to this case.

In Evergreen Presbyterian Minist., 926 So.2d 759, this court ordered the

dismissal of appeals filed by both sides. The rulings at issue in that appeal

were that the claimant was entitled to supplemental earnings benefits, but that

the claimant was not temporarily and totally disabled nor totally and

permanently disabled, as well as other rulings deciding other issues in the case.

This court stated therein:

The law is clear, and we are bound to follow the supreme court's dictates, that a piecemeal appeal is not permissible in a workers' compensation case. The judgment of the Office of Workers' Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 37,777 (La.App. 2 Cir. 10/29/03),

2 859 So.2d 896, in footnote four (citing Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Evergreen Presbyterian Minist., 926 So.2d at 763. Accordingly, we hereby

dismiss the instant appeal at appellant’s cost.

3 1 STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

TINA KRIEG

VERSUS

BAKER OIL TOOLS

I would not order the dismissal of this appeal. I find that the two cases cited

by the majority are distinguishable from the instant case. In Rhodes v. Lewis, 2001-

1989 (La. 5/14/02), 817 So.2d 64, and Evergreen Presbyterian Minist. v. Wallace,

2005-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759, the procedural posture of those

cases was such that the matters presented on the appeals involved issues arising out

of the cause of action that was yet to be litigated in the worker’s compensation court.

However, in the instant case, the trial court has ordered the dismissal of the worker’s

claim for indemnity benefits. This claim is wholly independent of the claim for

medical benefits, the only claim remaining in the worker’s compensation court.

These two claims are even subject to different prescriptive provisions. La.R.S.

23:1209. Therefore, I would find that this appeal is not subject to dismissal and that

this court’s rule should be recalled for good cause shown. At the very least, and in

the interest of justice, I submit that because the trial court’s ruling, if erroneous, may

cause the applicant irreparable harm, this court should accept this appeal as a properly

filed application for supervisory writs.