James Arness Thomas v. Marsala Beverage Company

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

Thomas’s disputed claims for compensation.

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.
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