Broxlin T. Coleman Versus Ace Property & Casualty Ins. Co. / Esis & Brock Services, LLC

BROXLIN T. COLEMAN NO. 19-CA-305

VERSUS FIFTH CIRCUIT

ACE PROPERTY & CASUALTY INS. CO. / COURT OF APPEAL
ESIS & BROCK SERVICES, LLC
STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7
STATE OF LOUISIANA
NO. 18-2251,
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

November 27, 2019

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.

AFFIRMED
JJM
SJW
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
BROXLIN T. COLEMAN
Nathan L. Schrantz

COUNSEL FOR DEFENDANT/APPELLEE,
BROCK SERVICES, LLC AND INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA
Charles M. Jarrell

MOLAISON, J.

In this workers’ compensation case, the claimant, Broxlin T. Coleman,

appeals a judgment in favor of defendants, Brock Services, LLC, its insurer, Ace

Property & Casualty Ins.1 and ESIS, a third party administrator for the insurer

(collectively “defendants”), which sustained defendants’ exception of prescription.

For the following reasons, we affirm the judgment of the Office of Worker’s

Compensation (OWC).

PROCEDURAL HISTORY

Claimant, Broxlin Coleman, was injured in the course and scope of his

employment with Brock Services, LLC on July 5, 2011. The parties settled the

workers’ compensation indemnity claim on January 8, 2015. In that settlement,

claimant received $112,500.00 in satisfaction of his claim for future indemnity

benefits, and reserved his right to “unpaid past and future medical and medically-

related benefits under the Louisiana Workers’ Compensation Act.”

On April 5, 2018, Mr. Coleman filed a Disputed Claim for Compensation in

the Office of Workers’ Compensation District 7 Office, claiming payment for his

medical treatment was not authorized, and that medical benefits were terminated in

the fall of 2016. Defendants filed an exception of prescription asserting that more

than three years had elapsed between the date of the last payment of medical

benefits on December 17, 2014, and the date of filing of the claim on April, 5,

2018. After a hearing on the matter, the OWC judge sustained the exception,

finding that the claim had prescribed, and that prescription was not interrupted by

1
Although the disputed claim for compensation names Ace Property & Casualty Ins. as a defendant, it
appears the correct party name is Indemnity Insurance Company of North America. However, neither
party has made the correct name of the insurer an issue on appeal. Both names are used interchangeably
in the record.

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acknowledgment, nor renounced by the defendants. Further, the court found that

the doctrine of contra non valentem is not applicable. Mr. Coleman filed a timely

appeal.

FACTS

According to his testimony, Mr. Coleman was employed by Brock Services

LLC as a supervisor in 2011. He injured his neck, knee and back in a fall at work.

In January of 2015, he reached a settlement for the indemnity claim, but left the

medical claim open because he continued to seek medical treatment as a result of

the injury.

Initially after the injury, Mr. Coleman sought treatment with Dr. Yost and

Dr. Okoloise at Hope Pain Management. He paid for the treatment with the

understanding that he would be reimbursed. However, since neither doctor took

Workers’ Compensation insurance, ESIS referred Mr. Coleman to Dr. Eldridge

who did accept the insurance. At some point, Mr. Coleman was also treated by

other doctors, including Dr. Davis and Dr. Wolfson. Mr. Coleman ultimately

selected Dr. Eldridge as his pain management physician.

Since the settlement of his indemnity claim in 2015, Mr. Coleman has only

treated with Dr. Okoloise, seeing him about once a month. His health insurance

carrier partially pays for the continuing treatments, and Mr. Coleman pays the

remainder. He was given a prescription card by ESIS, however, the prescription

card was rejected when Mr. Coleman attempted to use it sometime in 2015 or

2016.

Mr. Coleman explained that after the settlement was completed in 2015, he

was no longer represented by counsel. He received no information about how to

assert his right to the continued medical coverage established in the settlement

agreement, and has had to navigate this matter on his own. Mr. Coleman testified

that he tried to return to Dr. Davis and Dr. Wolfson, but was told by ESIS that the

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case was closed and the cost of the treatment was not covered. Mr. Coleman was

able to obtain a new prescription card in 2018, but the card was rejected when he

attempted to use it.

Janell Forges, an attorney in the law office that represented Mr. Coleman in

his initial workers’ compensation claim, testified at the hearing. She stated that the

representation of their firm ended with the 2015 settlement, and the firm did not

reestablish an attorney/client relationship with Mr. Coleman after that. However,

when Mr. Coleman reached out to them for help in November of 2015 getting

medical treatment with other doctors who previously treated him, Ms. Forges

called Valencia Johnson, an adjuster with ESIS. Ms. Johnson would not return

phone calls or respond to emails.

Ms. Forges explained that when Mr. Coleman first called, she knew that he

was treating with Dr. Okoloise, however, she was not aware that workers’

compensation was not paying for that treatment. It wasn’t until sometime in 2016,

when Mr. Coleman called again, that Ms. Forges discovered Dr. Okoloise’s bills

were not being paid.

Ms. Forges again tried to contact Ms. Johnson or her supervisor at ESIS to

no avail. Subsequently, Ms. Forges discovered that there was a merger between

ESIS and CHUBB2. In December of 2017, after researching CHUBB on the

internet, Ms. Forges was able to speak with a customer service representative who

put her in touch with William Hubbard, a supervisor. Ms. Forges explained that

she was trying to get medical authorization for Mr. Coleman’s medical treatment in

accordance with the January 2015 agreement. Mr. Hubbard acknowledged there

were some problems with Ms. Johnson’s handling of claims and agreed to re-open

the claim. Mr. Hubbard also assured Ms. Forges that he would issue a new

2
The nature of CHUBB and the relationship agreement between ESIS and CHUBB is not clear from the
testimony or the record.

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prescription card, and requested that Ms. Forges forward to him any medical bills

or records that verified Mr. Coleman’s continued treatment. Ms. Forges provided

all of the bills and medical records requested. She denied giving any legal opinion

on the prescription issue.

At the hearing, claimant’s counsel introduced email correspondence between

Ms. Forges and Mr. Hubbard. These emails show that on February 12, 2018, Ms.

Forges sent Mr. Coleman’s medical records as requested. That same day, Mr.

Hubbard replied stating;

I apologize for the delay in this email. I have reopened the
claim and I am requesting a new RX card be sent. I’m going to try
and get a temporary one but since I just reopened the claim it will
probably not register in the system until tomorrow. I have set a
reminder tomorrow to review.

Ms. Forges forwarded this email to Mr. Nathan Schrantz, Mr. Coleman’s current

attorney. Shortly afterward a new prescription card was issued. Unfortunately, the

card was rejected upon attempted use. When Ms. Forges contacted ESIS, she was

told by an adjuster that no more medical payments would be made because the

claim had prescribed. No other explanation was given.

The defendants offered the deposition of William Hubbard. In that

deposition, Mr. Hubbard confirmed that he is an employee of ESIS, the third party

administrator for the workers’ compensation insurer. Mr. Hubbard was

supervising Mr. Coleman’s claim. He verified that, because of changes in staffing,

there was no adjuster on this file at various points in time. Mr. Hubbard stated that

during these times, a supervisor performed some of the functions necessary in

handling the claim. Mr. Hubbard also acknowledged there were problems with

Valencia Johnson, the adjuster assigned to Mr. Coleman’s claim in 2015. There

were instances when Ms. Johnson would not return phone calls from claimants and

attorneys. Ms. Johnson is no longer employed with ESIS, although Mr. Hubbard

gave no details regarding the time or circumstances of her departure. Mr. Hubbard

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verified that no notification was sent to Mr. Coleman regarding the change in

adjusters, nor was Mr. Coleman provided with new contact information.

In connection with his deposition, Mr. Hubbard produced documents to

show that the last medical payment made on Mr. Coleman’s behalf was on

December 17, 2014 to Advanced Pain Institute. Mr. Hubbard stated that ESIS did

not pay any of the costs of prescriptive medication directly or through

reimbursement since that time. Ultimately, Mr. Hubbard concluded that the claim

prescribed on December 17, 2017, three years from December 17, 2014, the date of

the last medical payment.

When he received the communication from Ms. Forges indicating that Mr.

Hubbard had been receiving continuing medical treatment, he reviewed the claim.

Mr. Hubbard acknowledged receiving medical bills from Ms. Forges in February

of 2018. Mr. Hubbard stated that Ms. Forges told him the claim was not

prescribed because of the ongoing treatment. Mr. Hubbard testified that he issued

the new prescription card based on Ms. Forges’ assertion that, legally the

prescriptive period starts at the end of treatment, not payment. Mr. Hubbard stated

that, had he known the correct law, and that issuance of a new prescription card

might interrupt prescription, he would not have issued the card.

Mr. Hubbard verified Mr. Coleman’s testimony that after the settlement in

2015, his company sent no information on the procedure for submission and

payment of any claim for medical treatment, although a claim packet would have

been mailed after the initial injury in 2011. When the claim was reopened in 2018,

it was assigned to a new adjuster. That adjuster denied medication requests made

through the newly issued prescription card because the medications were ordered

by Hope Medical and Dr. Okoloise, providers that were not in the system.

19-CA-305 5

ASSIGNMENTS OF ERROR

Claimant asserts the workers’ compensation court erred in sustaining the

defendants’ exception of prescription. Specifically, he assigns three errors:

1. The trial court erred as a matter of law by failing to find prescription was
renounced.

2. The trial court erred as a matter of law by failing to find the doctrine of
contra non valentem applied.

3. The trial court erred as a matter of law by failing to find the medical
claim was acknowledged and prescription interrupted.

LAW AND ANALYSIS

Standard of Review

The first issue raised by the claimant is the correct standard of review on

appeal. Claimant argues this Court should review the matter de novo because the

defendants’ exception involves the application of legal principals of renunciation,

contra non valentem and acknowledgment as related to legal prescription. We

disagree.

It is only when the trial court considers no properly admitted evidence prior

to its ruling that the de novo review standard is mandated. Prescription issues are

raised by a peremptory exception. La. C.C.P. art. 927. This Court explained the

correct standard of review of a peremptory exception in In re Med. Review Panel

of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19), 274 So.3d 750.

At a hearing on a peremptory exception pleaded prior to trial,
evidence may be introduced to support or controvert the exception. In
the absence of evidence, a peremptory exception must be decided
upon the facts alleged in the petition with all of the allegations
accepted as true. Furthermore, when no evidence is introduced at the
hearing on the exception, the reviewing court simply determines
whether the trial court's finding was legally correct. In a case
involving no dispute regarding material facts, but only the
determination of a legal issue, a reviewing court must apply the de
novo standard of review, under which the trial court's legal
conclusions are not entitled to deference. (citations omitted) In re
Med. Review Panel of Gerard Lindquist, 274 So.3d at 754.

19-CA-305 6

In the matter before us, there was evidence presented and there are disputed facts,

therefore a de novo review is not appropriate in the consideration of the exception

of prescription in this instance.

In reviewing a peremptory exception of prescription, the standard of review

requires an appellate court to determine whether the trial court's finding of fact

was manifestly erroneous. Taranto v. Louisiana Citizens Property Ins. Corp., 10-

0105 (La. 3/15/11), 62 So.3d 721, 726. This Court cannot set aside a trial court’s

finding of fact in the absence of “manifest error,” or unless it is clearly wrong.

Stobart v. State, 617 So.2d 880, 882 (La. 1993). Although the factfinder is

afforded deference and the factual findings will not be set aside absent manifest

error or unless clearly wrong, appellate courts have a duty to review the

facts. State, Dept. of Transp. & Development v. Schwegmann Westside

Expressway, Inc., 95-261 (La. 3/1/96), 669 So.2d 1172, 1177. There is a two-part

test for reversal of a factfinder’s determinations; (1) the appellate court must find

from the record that a reasonable factual basis does not exist for the finding of the

trial court, and (2) the appellate court must further determine that the record

establishes that the finding is clearly wrong. Stobart, supra. We review the facts,

not to resolve whether the trial court was right or wrong, but whether the

conclusion was a reasonable one. Troxclair v. Liberty Pers. Ins. Co., 17-520 (La.

App. 5 Cir. 2/21/18), 239 So.3d 1067, 1069.

One fact that is not in dispute is that the last payment for medical benefits

was on December 17, 2014. Claimant filed this claim on April 4, 2018. La. R.S.

23:1209(C) provides that;

All claims for medical benefits payable pursuant to R.S.
23:1203 shall be forever barred unless within one year after the
accident or death the parties have agreed upon the payments to be
made under this Chapter, or unless within one year after the accident a
formal claim has been filed with the office as provided in this
Chapter. Where such payments have been made in any case, this
limitation shall not take effect until the expiration of three years

19-CA-305 7

from the time of making the last payment of medical benefits.
(emphasis added)

As a general rule, the exceptor bears the burden of proof at trial that the

matter has prescribed. In re Med. Review Panel of Gerard Lindquist, supra, 274

So.3d at 754. However, if prescription is evident on the face of the pleadings, the

burden shifts to the plaintiff to show that the action has not prescribed. Id. As an

inchoate right, prescription, may be renounced, interrupted, or suspended;

and contra non valentem applies as an exception to the statutory prescription

period where in fact and for good cause a plaintiff is unable to exercise his cause of

action when it accrues. Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291,

1298.

Here, the petition is prescribed on its face. Pursuant to La. R.S. 23:1209(C),

the claim prescribed on December 17, 2017, three years from the last payment for

medical benefits. Claimant presents three arguments to defeat the exception of

prescription. He argues that: (1) the claim was acknowledged by the insurer as late

as November of 2015 when it made payments for a Social Security verification and

a Medicare Set-Aside Cost Allocation (MSA); (2) prescription was renounced by

the transmission of the new prescription medication card in February of 2018; and

(3) the doctrine of contra non valentem is applicable.

Interruption by acknowledgment

“Prescription is interrupted when one acknowledges the right of the person

against whom he had commenced to prescribe.” La. C.C. art. 3464. The

recognition of the obligation or the creditor’s right halts the progress of

prescription before it has run its course. Gary v. Camden Fire Ins. Co., 96-0055

(La. 7/2/96), 676 So.2d 553, 556. An acknowledgement involves an admission of

liability, either through explicit recognition of a debt owed, or through actions of

the debtor that constitute a tacit acknowledgement. Id. A tacit acknowledgment

19-CA-305 8

arises from a debtor's acts of reparation or indemnity, unconditional offers or

payments, or actions which lead the creditor to believe that the debtor will not

contest liability. Estate of Ehrhardt v. Jefferson Par. Fire Dep't, 12-319 (La. App.

5 Cir. 1/30/13), 108 So.3d 1223, 1229, citing Gary v. Camden Fire Ins. Co., supra.

Claimant argues that prescription was interrupted by the payment for the

MSA in November of 2015, and by the claim notes showing an ongoing review of

the claim including statements that if Mr. Coleman goes back to treatment the

claim will be reopened. Documentation in the record shows that ESIS paid PMSI

Settlement Solutions $95.00 on August 11, 2015 and $2,000.00 on November 13,

2015. Mr. Hubbard established through his testimony that the payments were for a

Social Security verification and an MSA, respectively. Mr. Hubbard explained

that these were necessary before any settlement could be considered. Mr. Hubbard

further testified that once the MSA was received, it was determined that a

settlement should not be pursued. The MSA was not provided to the claimant.

Claimant asserts that this is an acknowledgment of the debt sufficient to

interrupt prescription. We do not find claimant’s argument convincing. An

acknowledgment sufficient to interrupt prescription requires more than settlement

negotiations. Mullen v. Sears, Roebuck, & Co., 887 F.2d 615, 618 (5th Cir. 1989).

If the negotiations do not result in an agreement that the defendant is liable for the

plaintiff's injuries, there is no acknowledgment sufficient to interrupt prescription.

Id.

According to Mr. Hubbard’s testimony, an MSA is traditionally done to

explore possible settlements. In Estate of Ehrhardt v. Jefferson Par. Fire Dep't,

supra, this Court found that an MSA that was not transmitted to claimant’s attorney

was insufficient to constitute an acknowledgement. The Ehrhardt Court

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distinguished a Second Circuit case3 in which the court ruled that an MSA,

transmitted to claimant’s attorney in settlement negotiations, was an

acknowledgement. We find that no acknowledgment sufficient to interrupt

prescription occurred in this case. While ESIS paid for an MSA and a Social

Security report, neither were transmitted to claimant. Further, there is no

indication that any settlement negotiations between the parties were discussed.

Renunciation

Once prescription has run, it may be renounced. La. C.C. art. 3449.

“Renunciation of prescription” is the technical term designating the abandonment

of rights derived from an accrual of prescription. Id. at comment (c). That

is, renunciation of prescription destroys the effect of prescription that has already

run. Neese v. Papa John's Pizza, 10-15 (La. App. 5 Cir. 6/29/10), 44 So.3d 321,

328. Renunciation of prescription may be express or tacit. La. C.C. art. 3450.

Effective renunciation of accrued prescription must be unequivocal, and only

occurs when the intent to renounce is clear, direct, absolute and manifested by

words or actions of the party in whose favor prescription has run. Queen v. W. &

W. Clarklift, Inc., 537 So.2d 1214, 1216 (La. 4 Cir. App. 1989).

In this case, the issuance of a new prescription card in 2018 is the basis for

claimant’s assertion that prescription was renounced. Claimant argues that act is a

new promise to pay sufficient to constitute a renunciation. We do not find that act

is a “clear, direct, absolute” renunciation of prescription. Mr. Hubbard testified

that he issued the card only because he was given incorrect legal information on

the onset of the prescriptive period by Ms. Forges. He specifically stated that he

would not have issued the card had he known the claim legally prescribed three

years from the date of the last payment, not the last treatment. Further, he testified

3
See Reed v. Mid–States Wood Preservers, Inc., 43,799 (La.App. 2 Cir. 12/3/08), 999 So.2d 189, writ
denied, 09–0009 (La .2/20/09), 1 So.3d 500.

19-CA-305 10

that he had no intention of interrupting or renouncing prescription. Additionally,

when the adjustor reviewed the matter and discovered the card was issued after the

prescriptive period had run, the card was rejected before Mr. Coleman was able to

use it. For these reasons, we find no manifest error in the OWC judge’s finding that

prescription was not renounced.

Contra non valentem

Claimant invokes the doctrine of contra non valentem to challenge the

exception of prescription. The doctrine of contra non valentem is a jurisprudential

doctrine which means that prescription does not run against a person who could not

bring his suit. Carter v. Haygood, 04–646 (La.1/19/05), 892 So.2d 1261, 1268.

The doctrine of contra non valentem was created as an exception to the general

rules of prescription. Richards v. Choice Hotels Int'l, Inc., 13-973 (La. App. 5 Cir.

5/21/14), 142 So.3d 249, 252. The doctrine is to be strictly construed and only

applicable in exceptional circumstances. Id.

There are four situations in which the doctrine of contra non valentem can

be applied to suspend the running of prescription: (1) where there was some legal

cause which prevented courts or their officers from taking cognizance of or acting

on plaintiff's action; (2) where there was some condition coupled with contract or

connected with proceedings which prevented creditor from suing or acting; (3)

where defendant himself has done some act effectually to prevent plaintiff from

availing himself of his cause of action; and (4) where some cause of action is not

known or reasonably knowable by plaintiff, even though his ignorance is not

induced by defendant. Wells v. Zadeck, 11-1232 (La. 3/30/12), 89 So.3d 1145,

1150.

In the matter before us, claimant relies on the third and fourth situations,

arguing that ESIS did not provide him with any information about how to process

his medical claim or any new contact information for adjustors. Claimant argues

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he should not be penalized where the insurer knew of its ongoing obligation to pay

medical bills. He points out that he was not represented by counsel after the 2015

settlement and had difficulty contacting the adjuster.

In Giorlando v. Lowe's Home Centers, LLC, 16-262 (La. App. 5 Cir.

12/14/16), 209 So.3d 293, a factually similar case in which the parties had reached

a settlement on indemnity and the claim for medical payments remained open, the

claimant argued contra non valentem applied. In Giorlando, the claimant argued

that after the parties had reached the settlement on indemnity, there was an

ongoing discussion between his attorney and counsel for the employer regarding

the settlement of his future medical claims, which was dependent on the results of

the MSA. The claimant argued that the employer used the pending MSA to lure

him into inaction. The Giorlando claimant filed the disputed claim within one year

of notification that the MSA had been received and that the employer opted not to

settle the claim, but beyond three years from the last medical payment. The OWC

judge found that, while an email exchange discussed an MSA and a possible

settlement, it did not resolve the issue since there was no evidence that the

agreement to settle ever took place. This Court affirmed that ruling upon a finding

that the OWC judge was not clearly wrong. Id.

In the matter before us, it is significant to note that claimant does not argue

there was some action by the insurer which prevented him from submitting a claim

or lulled him into believing his claims would be paid when submitted. Rather he

argues the insurer did not tell him how to submit a claim or help with the claims

process. Mr. Coleman’s testimony established that he chose Dr. Eldridge as his

pain management physician and that he attempted to schedule appointments with

other doctors, but was told they could not get approval for treatment. It is clear that

Mr. Coleman knew Dr. Okoloise did not take workers’ compensation insurance,

but preferred to treat with him. Under this factual scenario, we cannot find error in

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the OWC judge’s determination that the doctrine of contra non valentem is

inapplicable.

We find no merit in claimant’s assignments of error. Accordingly, the

judgment of the Office of Workers’ Compensation is affirmed.

AFFIRMED

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 27, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-305
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
NATHAN L. SCHRANTZ (APPELLANT) CHARLES M. JARRELL (APPELLEE)

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