Terry L. Piper v. Shakti, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

02-1010

TERRY L. PIPER

VERSUS

SHAKTI, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 01-1624,
HONORABLE JAMES L. BRADDOCK,
WORKERS’ COMPENSATION JUDGE

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NED E. DOUCET, JR.
CHIEF JUDGE

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Court composed of Ned E. Doucet, Jr., Chief Judge, Billie Colombaro Woodard, and
Jimmie C. Peters, Judges.

REVERSED AND REMANDED.

Terry L. Piper, #309140
Pro Se
5905 Coliseum Blvd.
Alexandria, LA 71309
PLAINTIFF/APPELLANT

Shakti, Inc.
d/b/a Quality Inn of Alexandria
Pro Se
Post Office Box 1994
Laurel, MS 39441-1994
DEFENDANT/APPELLEE

DOUCET, Chief Judge.

Claimant, Terry L. Piper, appeals a judgment of an Office of Workers’

Compensation judge dismissing his suit against Defendant, Shakti, Inc., for

Claimant’s failure to prosecute his claim. We reverse and set aside the judgment of

the workers’ compensation judge and remand to the Office of Workers’

Compensation for further proceedings consistent with this opinion.

FACTS

Claimant, Terry L. Piper, alleges that he was injured in the course and scope

of his employment with the Defendant on November 9, 1998. He further alleges that

wage benefits were terminated or reduced on June 6, 2000. A Louisiana Department

of Labor Workers’ Compensation form 1008 was timely filed March 7, 2001. At that

time Claimant was represented by counsel. Following Defendant’s failure to attend

a mediation conference on June 18, 2001, a preliminary default was granted in

Claimant’s favor on August 24, 2001. A confirmation hearing was set for September

17, 2001. Sometime between August 24, 2001, and September 17, 2001, Claimant

was incarcerated and the confirmation hearing was upset. On January 9, 2002,

Claimant’s counsel filed a motion to withdraw, leaving Claimant unrepresented. In

his letter of resignation sent to Claimant, counsel informed Claimant of a pending

telephone conference in the workers’ compensation action which was scheduled for

January 16, 2002, at 1:30 p.m. Because of the short notice and his incarceration,

Claimant was unable to arrange to participate in the telephone conference. We note,

there is no evidence in the record that either Claimant or counsel received proper

notice of the telephone conference.

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On January 17, 2002, Claimant’s suit was dismissed for his failure to

participate in the telephone status conference. The record reflects that Claimant filed

a pro se “Motion For Reinstatement of Action” on February 26, 2002. Although the

record does not show the disposition of this motion, the workers’ compensation judge

did issue a “Writ of Habeas Corpus Ad Testification” to Warden Kelly Ward, of the

David Wade Correctional Center, on February 26, 2002, ordering that the Claimant

be produced at the Alexandria office of the Office of Workers’ Compensation on

August 29, 2002, for a hearing on the matter.

The next significant entry in the record is the Office of Workers’ Compensation

(OWC) judge’s “Order of Dismissal” rendered July 8, 2002. Said order was based

upon Claimant’s failure to attend or request a continuance of a pretrial conference

scheduled for July 1, 2002. The order of dismissal referenced OWC Hearing Rule

5705(A)(4) as authority. On July 18, 2002, a “Motion to Reinstate Claim” was filed

by Claimant explaining that due to his incarceration, he could not appear without an

order from the OWC. That same day the OWC judge issued an order denying

Claimant’s motion to reinstate his suit, based upon Claimant’s failure to participate

in the telephone status conference of January 16, 2002, or the “telephone pretrial

conference” (emphasis ours) of July 1, 2002. We note that the order of dismissal of

July 18, 2002, states Claimant failed to “attend” the July 1, 2002, pretrial conference.

It is from the OWC judge’s order refusing to reinstate Claimant’s suit that

Claimant appeals.

LAW AND DISCUSSION

There are two aspects of this case which are troubling. First, neither the body

of the record nor the minute entries indicate that proper notice was served on

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Claimant or his counsel for either the telephone conference scheduled for January 16,

2002, or the hearing scheduled for August 29, 2002.

Second, the OWC judge stated he dismissed Claimant’s action in accordance

with an OWC Hearing Rule. OWC Hearing Rules form part of the Louisiana

Administrative Procedure Act.. OWC Hearing Rule 5705 is entitled “Abandonment”

and states, in pertinent part, as follows:

A. A claim may be dismissed by an ex parte order of the judge
for lack of prosecution for the following reasons:

....

(4) Where a party fails to appear for a properly
noticed conference or trial.

....

C. Dismissal under this Rule shall be without prejudice. Any
order of dismissal shall allow for reinstatement of the
action within thirty (30) days for good cause shown.

This provision appears to be in conflict with La.R.S. 23:1209(D) which states:

When a petition for compensation has been initiated as provided
in Section 1310.3, unless the claimant shall in good faith request a
hearing and final determination thereon within five years from the date
the petition is initiated, same shall be barred as the basis of any claim for
compensation under the Workers' Compensation Act and shall be
dismissed by the office for want of prosecution, which action shall
operate as a final adjudication of the right to claim compensation
thereunder.

The pertinent section of the statute referenced above, La.R.S.

23:1310.3(B)(2)(Emphasis added), provides as follows:

If any party fails to appear at a mediation conference after proper
notice, the workers' compensation judge, upon report from the workers'
compensation mediator, may fine the delinquent party an amount not to
exceed five hundred dollars, which shall be payable to the Office of
Workers' Compensation Administrative Fund. In addition, the workers'
compensation judge may assess against the party failing to attend costs

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and reasonable attorney fees incurred by any other party in connection
with the conference. If the plaintiff fails to appear after proper notice,
the workers' compensation judge may dismiss the plaintiff's case without
prejudice. The penalties provided for in this Subsection shall be
assessed by the workers' compensation judge only after a contradictory
hearing which shall be held prior to the hearing on the merits of the
dispute.

The following is well settled:

In determining the applicability of laws, the more specific governs
over the more general. In the Interest of A.C., 93-1125 (La.1/27/94),
643 So.2d 719, 730, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132
L.Ed.2d 292 (1995). With regard to administrative agencies, the more
specific laws are those which govern the agency. These specific laws
govern over the more general laws of the APA [Administrative
Procedures Act] or of the Louisiana Code of Civil Procedure. See
Corbello v. Sutton, 446 So.2d 301, 303 (La.1984); State, Louisiana
Riverboat Gaming Commission v. Louisiana State Police Riverboat
Gaming Enforcement Division, 95-2355 (La.App. 1 Cir. 8/21/96), 694
So.2d 316, 321.

Victorian v. Stalder, 99-2260, p. 6 (La.App. 1 Cir. 7/14/00), 770 So.2d 382, 389.

Last fall, this court dealt with a similar problem in Bellard v. Seale Guest

House, 02-355, pp. 3-6 (La.App. 3 Cir. 10/30/02), 829 So.2d 1080, 1082-84, stating

the following:

In the present case, the record suggests that the action was
dismissed in May of 1998 for failure to attend a pre-trial conference.
The authorization for such a dismissal is found in the Office Workers'
Compensation's Hearing Rule 5705[A](4), which permits the workers'
compensation judge to dismiss a claim ex parte for lack of prosecution
"[w]here a party fails to appear for a properly noticed conference or
trial." (Emphasis added.) Hearing Rule 5705 further provides that the
order of dismissal shall be without prejudice and shall allow for
reinstatement within thirty days for good cause shown. Mr. Bellard filed
for reinstatement well beyond thirty days, but in his "Motion to
Reinstate" he alleged that he never received notice of the conference.
From the record before us, we are unable to determine if the conference
was "properly noticed," as required by Hearing Rule 5705.

....

Mr. Bellard also argues that his claim should not have been
dismissed as abandoned because three years had not elapsed without any

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party taking a step in the prosecution of the claim, as required by
La.Code Civ.P. art. 561. More specific to workers' compensation
claims, however, is La.R.S. 23:1209(D) (emphasis added), which
provides:

When a petition for compensation has been initiated
as provided in Section 1310.3, unless the claimant shall in
good faith request a hearing and final determination
thereon within five years from the date the petition is
initiated, same shall be barred as the basis of any claim for
compensation under the Workers' Compensation Act and
shall be dismissed by the office for want of prosecution,
which action shall operate as a final adjudication of the
right to claim compensation thereunder.

In Clark, 809 So.2d 514, the fourth circuit was poised to decide
whether Hearing Rule 5705[A](4), then identified as Hearing Officer
Rule 2139(4), was in conflict with La.R.S. 23:1209(D) when presented
with these facts. The claimant in Clark was injured on May 22, 1991.
Notwithstanding his receipt of indemnity benefits through July 12, 1993,
he filed a disputed claim in the Office of Workers' Compensation in July
of 1992. On October 29, 1992, that claim was "administratively closed"
or "dismissed" for reasons not readily apparent from the record. The
claimant filed a second disputed claim on August 10, 1994, some
thirteen months after the receipt of his last payment of benefits and after
he had been released from prison. The supreme court would ultimately
reject the claimant's argument that prescription was suspended during
his incarceration, but the court remanded the case to consider whether
prescription had been interrupted by his 1992 petition. Clark v. Mrs.
Fields Cookies, 97-397 (La.1/21/98); 707 So.2d 17. In the meantime,
the claimant had filed for reinstatement of his 1992 claim on July 15,
1995, two years and nine months after its dismissal, arguing that a
workers' compensation claim could not be dismissed for failure to
prosecute until five years had elapsed under La.R.S. 23:1209(D). The
workers' compensation judge agreed, ruling that La.R.S. 23:1209(D)
superseded Hearing Rule 5705[A](4). Because five years had not
elapsed between the 1992 dismissal and the filing of the motion to
reinstate in 1995, the workers' compensation judge found that the claim
had not been abandoned, despite the earlier "dismissal," and that the
second petition of 1994 related back to the original petition of 1992.

On appeal, the fourth circuit did not reach the correctness of that
ruling because the parties disputed whether the 1992 dismissal was
based upon the failure to attend a pre-trial conference per Rule
5705[A](4) or upon prematurity, as the claimant was receiving some
benefits when the claim was filed. After concluding that this factual
dispute could be not resolved without a judgment of dismissal, written
reasons, or a docket entry indicating the reason for the dismissal, the

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fourth circuit remanded the case to establish a complete record for
appeal.

The parties in the present case agree that Mr. Bellard's claim was
dismissed in May of 1998 for failure to attend a pre-trial conference, but
we are unable to determine from the record whether that conference was
"properly noticed," as required by Hearing Rule 5705[A](4).
Additionally, the record does not contain the petition filed in 1997.
Hence, we are unable to identify the original Defendant(s) or to
determine whether the petitions naming the later-added Defendants
"relate back" to the original filing under La.Code Civ.P. art. 1153,
should that issue arise. Accordingly, we will remand the case for
clarification of the record and for consideration of the concerns
expressed herein and in Clark, 809 So.2d 514.

While this case is factually different, it does raise some of the same issues

raised in Bellard. As in Bellard, there is nothing in the record to show that Claimant,

Terry Piper, received proper notice of the July 1, 2002, hearing. Thus we, like our

brethren in the Fourth Circuit and the panel of this court in Bellard, do not have to

reach the issue of whether R.S. 23:1209(D) supercedes OWC Rule 5705 (A)(4).

Accordingly, for the reasons stated above we reverse the judgment dismissing

Claimant’s suit. We remand the case to the Office of Workers’ Compensation for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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