Lynn Lavigne Versus Ochsner Clinic Foundation

LYNN LAVIGNE NO. 20-CA-417

VERSUS FIFTH CIRCUIT

OCHSNER CLINIC FOUNDATION COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7
STATE OF LOUISIANA
NO. 19-3069
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

February 24, 2021

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

APPEAL DISMISSED WITHOUT PREJUDICE; CASE REMANDED
WITH INSTRUCTIONS
JGG
SJW
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
LYNN LAVIGNE
William R. Mustian, III

COUNSEL FOR DEFENDANT/APPELLEE,
OCHSNER CLINIC FOUNDATION
Michele W. Crosby
Joseph J. Lowenthal, Jr.

GRAVOIS, J.

In this workers’ compensation proceeding, claimant/appellant, Lynn

Lavigne, appeals a July 20, 2020 judgment from the Office of Workers’

Compensation court. Upon review, for the following reasons, because we find that

the judgment at issue is not a final, appealable judgment, we dismiss the appeal

without prejudice for lack of jurisdiction, and remand the matter for a final

determination of all issues presented, with instructions to the trial court to proceed

with the appointment of an independent medical examiner as set forth in its July

20, 2020 judgment, if it intends to do so, and if it has not already done so, and

ultimately to issue a final appealable judgment in this case.

FACTS AND PROCEDURAL BACKGROUND

On May 13, 2019, claimant/appellant, Lynn Lavigne, filed a Disputed Claim

for Compensation (Form 1008) regarding a slip and fall accident that occurred on

March 27, 2015. In her petition, Ms. Lavigne alleged that her employer, Ochsner

Clinic Foundation, did not authorize a laminectomy that was recommended by Dr.

Samer Shamieh and approved by the Office of Workers’ Compensation’s Medical

Director. She also alleged that she was owed penalties and attorney’s fees for

Ochsner’s arbitrary and capricious actions. Trial on the matter was held on

January 27, 2020. On July 20, 2020, the court signed a judgment finding that Ms.

Lavigne did not meet her burden to show that she is entitled to the laminectomy

recommended by Dr. Shamieh. The court specifically found that “the evidence

does not currently support the medical necessity of [Ms. Lavigne] undergoing the

recommended treatment.” However, the court determined it would “appoint an

independent medical examiner to provide the Court with an opinion regarding the

laminectomy based on the medical treatment guidelines, as well as whether the

procedure is reasonable and necessary in light of [Ms. Lavigne’s] overall medical

condition.” The court then rendered judgment in favor of Ochsner and against Ms.

20-CA-417 1

Lavigne with prejudice, each party to bear their own costs. The judgment does not

specifically dismiss the petition. This appeal followed.

On January 22, 2021, this Court issued a Show Cause Order, ordering the

parties to this appeal to show cause, by brief only, why the appeal should not be

dismissed for lack of appellate jurisdiction, as it appeared to this Court that the

judgment at issue is not a final, appealable judgment under La. C.C.P. art. 2083.1

Both parties timely filed briefs in response to the Show Cause Order.

In her response to the Show Cause Order, Ms. Lavigne argues that La.

C.C.P. art. 2083(C) allows appeals of interlocutory judgments when expressly

provided by law, and that La. R.S. 23:1310.5 specifically permits appeals of

interlocutory judgments issued in workers’ compensation matters. La. R.S.

23:1310.5 provides, in pertinent part:

A. (1) Insofar as may be possible, all the evidence pertaining to each
case, except as to noncontested matters, shall be heard by the
workers’ compensation judge initially assigned to the case.
Upon the completion of such hearing or hearings, the workers’
compensation judge shall make such order, decision, or award
as is proper, just, and equitable in the matter.
(2) Either party feeling aggrieved by such order, decision, or
award shall, after receipt by certified mail of the order,
decision, or award, have the right to take an appeal to the
circuit court of appeal for the judicial district elected by the
claimant upon the filing of the petition. The motion and order
for appeal shall be filed with the district office assigned to
handle the claim, which shall be responsible for preparation of
the record for the appellate court.

B. The decision of the workers’ compensation judge shall be final
unless an appeal is made to the appropriate circuit court of appeal.
An appeal which suspends the effect or execution of an appealable
judgment or order must be filed within thirty days. An appeal
which does not suspend the effect or execution of an appealable
judgment or order must be filed within sixty days. The delay for
filing an appeal commences to run on the day after the judgment

1
La. C.C.P. art. 2083 provides, in pertinent part:
A. A final judgment is appealable in all causes in which appeals are given by law,
whether rendered after hearing, by default, or by reformation under Article 1814.
***
C. An interlocutory judgment is appealable only when expressly provided by law.

20-CA-417 2

was signed or on the day after the district office has mailed the
notice of judgment as required by Louisiana Code of Civil
Procedure Article 1913, whichever is later. Motions for new trial
shall be entertained in disputes filed under this Chapter. The delay
for filing an appeal when a motion for new trial has been filed shall
be governed by the Louisiana Code of Civil Procedure.

***

Ms. Lavigne argues that the language of La. R.S. 23:1310.5(B) is broad and

permits direct appeal of any “order, decision, or award” rendered by the workers’

compensation judge, and that the judgment at issue certainly qualifies as an “order,

decision, or award” within the meaning of the statute. Accordingly, she concludes

that this appeal is properly brought under La. R.S. 23:1310.5(B) and should not be

dismissed.

In its response to the Show Cause Order, Ochsner argues that the appeal is

premature and should be dismissed for lack of appellate jurisdiction. It argues that

the judgment at issue is not a final, appealable judgment under either La. C.C.P.

art. 2083 or La. R.S. 23:1310.5(B). According to Ochsner, Louisiana

jurisprudence explains that a final appealable judgment must contain decretal

language of a final decision awarding the relief to which the parties are entitled,

thus disposing of or dismissing the claims at issue. That is, there must be a clear

indication that the case is over, or the issues resolved. Here, it argues, no such

precise, definite, or certain indication exists. It argues that the judgment at issue

did not contain the specific relief that was granted or denied, and does not dispose

of Ms. Lavigne’s claims against Ochsner or dismiss Ms. Lavigne’s underlying

Disputed Claim for Compensation. Additionally, it argues that the language of the

judgment at issue includes anticipated future action by the Office of Workers’

Compensation judge. In conclusion, Ochsner argues that in the absence of a valid

final, appealable judgment, such as here, this Court lacks jurisdiction to review the

judgment at issue and the pending appeal must be dismissed.

20-CA-417 3

ANALYSIS

Appellate courts have the duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Lynch-Ballard v. Lammico

Ins. Agency, Inc., 13-475 (La. App. 5 Cir. 11/19/13), 131 So.3d 908, 910. This

Court cannot determine the merits of an appeal unless our jurisdiction is properly

invoked by a valid final judgment. Powell v. Gramercy Ins. Co., 12-564 (La. App.

5 Cir. 3/13/13), 113 So.3d 343, 345; La. C.C.P. art. 2083.

The law is clear that under the Workers’ Compensation Act only final

judgments which adjudicate the entire claim are appealable. Beaumont v. Exxon

Corp., 98-1239 (La. App. 5 Cir. 4/27/99), 734 So.2d 155, 156. In Smith v. UNR

Home Products, 614 So.2d 54, 54-55 (La. 1993), the Louisiana Supreme Court

explained:

LSA–R.S. 23:1310.5 contemplates an appeal from a final decision by
the hearing officer upon completion of the required evidentiary
hearing or hearings. Piecemeal appeals go counter to the new
workers’ compensation procedures which are designed to allow the
hearing officer to “decide the merits of the controversy as equitably,
summarily and simply as may be.” LSA–R.S. 23:1317(A). The new
procedures are designed to speed up the adjudicative process, not to
prolong and complicate it by partial judgments and multiple appeals.

(Emphasis added.)
In the present case, the court did not definitively rule on the claim for a

laminectomy. The court found that the evidence did not currently support the

claim for a laminectomy, but the court then went on to state that it will appoint an

independent medical examiner to provide the court with “an opinion regarding the

laminectomy based on the medical treatment guidelines, as well as whether the

procedure is reasonable and necessary in light of Ms. Lavigne’s overall medical

condition.” Thus, the judgment of which an appeal is being sought states that the

issue is not yet fully resolved, and thus it is not a “final decision” by the hearing

officer. Accordingly, we find that the judgment is not a final, appealable judgment

under La. C.C.P. art. 2083 or La. R.S. 23:1310.5(B).

20-CA-417 4

Furthermore, the judgment does not fall under any of the specific instances

outlined in La. C.C.P. art. 1915(A) which would automatically make it a final,

appealable judgment. Also, the judgment does not qualify as a partial final

judgment under La. C.C.P. art. 1915(B)(1) because as stated above, the issue in

dispute is not yet fully resolved and thus it cannot be designated as a final

judgment by the court after an express determination that there is no just reason for

delay.2

Additionally, lack of jurisdiction is further supported by the Supreme

Court’s reasoning that piecemeal appeals run counter to the workers’ compensation

procedure since such procedures “are designed to speed up the adjudicative

process” and not “prolong and complicate it by partial judgments and multiple

appeals.” Smith v. UNR Home Prod., supra.

2
La. C.C.P. art. 1915 provides, in pertinent part:
A. A final judgment may be rendered and signed by the court, even though it may not
grant the successful party or parties all of the relief prayed for, or may not adjudicate
all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party
plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968,
and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through
969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two
have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried
separately by the court, or when, in a jury trial, the issue of liability has been
tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or
Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains
an exception in part, as to one or more but less than all of the claims, demands,
issues, or theories against a party, whether in an original demand, reconventional
demand, cross-claim, third-party claim, or intervention, the judgment shall not
constitute a final judgment unless it is designated as a final judgment by the court
after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or
decision shall not constitute a final judgment for the purpose of an immediate
appeal and may be revised at any time prior to rendition of the judgment
adjudicating all the claims and the rights and liabilities of all the parties.
***

20-CA-417 5

In light of the above, we find that the judgment at issue is not a final,

appealable judgment, and thus, we have no jurisdiction to determine the merits of

this appeal. Until all issues presented in Ms. Lavigne’s pending Disputed Claim

for Compensation have been decided by the trial court in this case, this appeal is

premature. Accordingly, we dismiss the appeal without prejudice for lack of

jurisdiction, and remand the matter for a final determination of all issues presented,

with instructions to the trial court to proceed with the appointment of an

independent medical examiner as set forth in its July 20, 2020 judgment, if it

intends to do so, and if it has not already done so, and ultimately to issue a final

appealable judgment in this case.

APPEAL DISMISSED WITHOUT
PREJUDICE; CASE REMANDED WITH
INSTRUCTIONS

20-CA-417 6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
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
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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
FEBRUARY 24, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-CA-417
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
WILLIAM R. MUSTIAN, III (APPELLANT) JOSEPH J. LOWENTHAL, JR. (APPELLEE) MICHELE W. CROSBY (APPELLEE)

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