Sidney Andrus v. Crowley Laundry & Dry Cleaners

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-571

SIDNEY ANDRUS

VERSUS

CROWLEY LAUNDRY & DRY CLEANERS

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION, DISTRICT # 4
PARISH OF ACADIA, NO. 00-9545
HONORABLE JOHN C. GROUT, JR.,
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, Oswald A. Decuir, and Marc T.
Amy, Judges.

REVERSED AND RENDERED.

Michael B. Miller
Miller & Miller
P. O. Box 1630
Crowley, LA 70527-1630
Counsel for Plaintiff/Appellant:
Sidney Andrus

John W. Penny Jr.
Penny & Hardy
P. O. Box 2187
Lafayette, LA 70502
Counsel for Defendant/Appellee:
Crowley Laundry & Dry Cleaning, Inc.

DOUCET, Chief Judge,

Claimant, Sidney Andrus, appeals a judgment of an Office of Workers’

Compensation (OWC) judge denying his claim for benefits during the disputed period

of time (between November 29, 2000 and August 14, 2001), but granting Claimant the

right to be treated by an orthopaedist of his own choosing, at Defendant’s, Crowley

Laundry and Dry Cleaners, Inc.’s, expense. We reverse the judgment of the OWC and

render judgment in favor of Claimant as set out below.

DISCUSSION OF THE RECORD

Both parties agree that Claimant had the distal portion of his right ring finger

amputated in a work-related accident on May 4, 2000. Claimant was working at

Crowley Laundry & Dry Cleaners at the time of the accident. Claimant also worked

a second job as a porter at the Rice Palace in Crowley. The injury to his finger was

treated at the emergency room of American Legion Hospital by Dr. Michael Holland.

Subsequently, on July 7, 2000, Dr. Holland performed an amputation-revision of

Claimant’s finger tip. Claimant continued to see Dr. Holland through November 29,

2000, complaining of “finger pain and a cold hand.” Noting that Claimant’s revision

“wound healed beautifully,” Dr. Holland discharged Claimant from his care at that

time. According to Dr. Holland’s records from Claimant’s November 29th visit,

Claimant had reached maximum medical improvement on August 17, 2000, and was

released to go back to work at that time. The records also indicate that Claimant was

“working full-time at the Rice Palace and doing fine.” Based upon the report of

November 29, 2000, Defendant terminated Claimant’s compensation benefits effective

that date.

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An affidavit from Jo Ann S. Broussard, the manager of the Rice Palace,

established that Mr. Andrus had worked 517.09 hours between August 13 and October

30, 2000, when he was terminated for non-performance.

Following discharge by Dr. Holland, Claimant filed a claim with the OWC for

continued weekly benefits. He also filed a Motion and Order to Provide Medical

Treatment, in which he sought treatment from another orthopaedist of his choosing.

Claimant’s case was assigned to OWC Judge Constance Abraham-Handy, who

ordered an independent medical examination (IME) by Dr. Gary L. Porubsky, and

reserved Claimant’s right to reargue that portion of his motion seeking treatment from

another orthopaedist of his choice.

The IME was performed on February 12, 2001. Dr. Porubsky’s report of the

IME is equivocal as to Claimant’s ability to work stating (emphasis ours):

He should work on desensitization of the tip of the digit. He may benefit
from utilizing a transdermal gel to deliver a nonsteroidal anti-
inflammatory agent topically. I would place him on a nonsteroidal anti-
inflammatory agent at this time. I would instruct the patient to return to
gainful employment and wear a loose fitting glove to protect the tip of
the digit. Hopefully by utilizing the transdermal gel and a nonsteroidal
anti-inflammatory agent he would tolerate wearing gloves and returning
to gainful employment.

Following Dr. Porubsky’s examination, on May 21, 2001, Claimant refiled his

motion seeking treatment from another orthopaedist of his choice. That motion was

heard before OWC Judge Abraham-Handy on July 19, 2001. She denied Claimant’s

motion on July 26, 2001, finding that Dr. Holland was Claimant’s “de facto”

orthopaedic choice and limiting Claimant to orthopaedic treatment from either Dr.

Holland or Dr. Porubsky (a writ on that ruling was taken to this court and denied).

Dr. Porubsky re-evaluated Claimant on August 14, 2001. His report of that

examination reads, in part as follows:

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I plan to place him in a formal rehabilitative program in Crowley to work
on active and passive range of motion of the MP and interphalangeal
joints of the ring digit as well as desensitization and strengthening
exercises. He was given a prescription to obtain a gel for the
transmission of a non-steroidal anti-inflammatory agent topically.

He was tentatively instructed to be seen in follow-up by myself in
approximately two weeks’ time.

As discussed with him, other recommendations would include a third
operative procedure to transect the radial and ulnar digital nerve further
proximally, although as discussed with him, there is still the possibility
that he could have persistent discomfort in the ring digit even if this
procedure was performed.

Following receipt of Dr. Porubsky’s report of Claimant’s August 14, 2001

examination, Defendant reinstated Claimant’s benefits effective that date. Claimant

then filed a motion seeking to have the benefits retroactively reinstated to November

2000, when they were originally terminated. A hearing on that motion was held

before OWC Judge Abraham-Handy on January 11, 2002, and taken under

advisement. Judge Abraham-Handy dictated her decision into the record on June 28,

2002, finding Claimant was entitled to have his benefits retroactively reinstated to

November 29, 2000. However, that decision was never reduced to a formal written

judgment and there is no indication in the record that either counsel was informed of

her decision. Judge Abraham-Handy died August 6, 2002.

Following her death, OWC Judge John Grout was appointed “to preside over

all matters pending prior to Judge Handy’s death.” After reviewing the evidence and

testimony, Judge Grout ruled that Claimant was not disabled between November 29,

2000 and August 14, 2000, and thus, was not entitled to weekly indemnity benefits

during that period of time. He further ruled that Claimant had not “been treated by an

orthopaedist of his own choosing,” and thus, was entitled “to be treated by an

orthopaedist of his choice at the employer’s expense.”

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Claimant, Sidney Andrus, appealed, arguing that the judgment by Judge Grout

should be set aside and the unsigned judgment of Judge Abraham-Handy be made the

judgment of the OWC.

DISCUSSION OF THE LAW

We find no specific provision in the Office of Workers’ Compensation Hearing

Rules which covers a situation as in the case sub judice. Provisions for decisions after

the death, resignation, removal from office or the expiration of a term in office are

covered in La.R.S. 13:4209 (emphasis ours) which states:

A. In all cases heard and taken under advisement of the district
judge or judges of the city courts, if the judge before whom a case is
tried dies, resigns, or is removed from office, or if his term expires
before rendering his judgment in the case, his successor in office shall
decide the case from the evidence in the record, if all of the testimony is
in writing. If it is a case in which the testimony has not been reduced to
writing, the succeeding judge shall decide the case from a statement of
the facts, if one is found in the record, or if the parties to the suit agree
upon a statement of facts. If the testimony is not in the record, and there
is no statement of facts, the case shall be tried de novo.

B. (1) In cases which are heard and in which judgment is
rendered, but not signed, whether the case was taken under advisement
or not, if the judge who rendered the judgment dies, resigns, or is
removed from office, or if his term expires before signing judgment in
the case, his successor in office shall have the authority to sign a
judgment which conforms with the judgment rendered.

(2) If a prior judge has stated an affirmative intent to sign a
judgment and failed to do so for whatever reason, the successor judge
is empowered to sign the judgment.

The applicability of this statute to OWC proceedings was discussed by our

brethren of the first circuit in Bass v. National Maintenance Corp., 95-0367, pp. 4-6

(La.App. 1 Cir. 12/15/95), 665 So.2d 782, 784-85 (footnote omitted):

LSA-R.S. 23:1310.5(A) provides:

(1) Insofar as may be possible, all the evidence
pertaining to each case, except as to noncontested matters,
shall be heard by the hearing officer initially assigned to the

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case. Upon the completion of such hearing or hearings, the
hearing officer 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. A
copy of the petition for appeal shall be filed with the
director who, upon receipt will prepare the record for the
appellate court. (Emphasis added.)

In light of this statutory provision, there is an implication that the
case cannot be decided by any hearing officer other than "the" one who
heard the case and only that hearing officer is authorized to enter such
order, decision, or award as is proper, just, and equitable in the matter.
See Darensbourg v. The Great Atlantic and Pacific Tea Company, Inc.,
94-0761, p. 3 (La.App. 1st Cir. 11/9/95), 665 So.2d 35, 37; Ledoux v.
Southern Farm Bureau Casualty Insurance Company, 337 So.2d 906,
908 (La.App. 3rd Cir.1976). As previously observed, the present case
was heard and decided by Rayford. Subsequently, Moses-Laramore
signed the judgment. Since the judgment was not signed by the hearing
officer who heard and decided the case, we must consider whether the
law authorizes a successor hearing officer to sign the judgment in this
matter.

LSA-R.S. 13:4209(B) authorizes a successor judge to sign a
judgment which conforms with the judgment rendered when the judge
who tried the case and rendered a decision dies, resigns or is removed
from office, or if his term expires before a judgment is signed in the case.
The applicability of this statute is specifically limited to successor judges
of the district courts and city courts of this state and by its terms is
inapplicable to OWC hearing officers who are not members of the
judiciary. LSA-R.S. 13:4209(A); see LSA-R.S. 23:1021(12) and 1310.1.

Since January 1, 1990, the administrative hearing officers are
vested with original, exclusive jurisdiction over claims or disputes
arising out of the workers' compensation [95 0367 La.App. 1 Cir. 5] law.
LSA-R.S. 23:1310.3(E); see LSA-Const. art. V, § 16(A). The hearing
officer's role in the administration of those claims or disputes is defined
in the Workers' Compensation Act. The hearing officer is not bound by
the technical rules of evidence or procedure other than as provided for
in the workers' compensation law. LSA-R.S. 23:1317(A). In addition
to those procedures set forth by statute, the director of the OWC has
authority to adopt and promulgate reasonable rules and regulations,
including the rules of procedure before the hearing officers, according
to the procedures established by the Administrative Procedure Act.

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LSA-R.S. 23:1291(B)(13) and 1310.1(C). All rules and regulations,
properly approved and promulgated under the Administrative Procedure
Act, shall be consistent with the workers' compensation law and shall be
binding in the administration of that law. LSA-R.S. 23:1310.1(C).

Chapter 10 of Title 23 of the Louisiana Revised Statutes does not
contain a provision similar to LSA-R.S. 13:4209, nor does it directly
make the provisions of LSA-R.S. 13:4209 applicable to the hearing
officer system in the OWC. In the absence of any such provision, a
successor hearing officer is without authority to render a decision and/or
sign an order, decision, or award if he or she was not the one who heard
the matter. See LSA-R.S. 23:1310.5(A). However, pursuant to the
authorization provided in LSA-R.S. 23:1291(B)(13) and 1310.1(C), the
director of the OWC has promulgated hearing officer rules which govern
the practice and procedure in workers' compensation proceedings. See
LAC 40:I.2101-2173[now LAC 40.I5501-6627] ("Hearing Officer
Rules"). Pertinent to the determination of the validity of the judgment
signed by the successor hearing officer is Hearing Officer Rule
2105[now §66011] which provides:

Any matter of practice or procedure not delineated
herein and not in conflict with either the Workers'
Compensation Act or these rules will be guided by practice
and procedure followed in the district courts of this state as
well as the practice and procedures provided for in the
Louisiana Code of Civil Procedure.

The annotation following this rule indicates that it was
promulgated in accordance with LSA-R.S. 23:1310.1.

Since the authority of a successor hearing officer has not been
delineated by the workers' compensation law or Hearing Officer Rules,
this issue will be governed by the practice and procedure applicable to
the district courts of this state which is found in LSA-R.S. 13:4209.
Furthermore, this court notes that Hearing Officer Rule 2159 [we find no
comparable section in the new rules adopted in 1999] implicitly assumes
the applicability of the principles of LSA-R.S. 13:4209 to the workers'
compensation proceeding in that it specifically provides for the
submission of a case when a successor hearing officer is involved.

We, as did our brethren of the first circuit, find La.R.S. 13:4209 applicable to

the situation before us.

1
LAC 40:I.6601- “Unless otherwise provided for in these rules, any practice or procedure
not in conflict with either the Workers’ Compensation Act or these rules will be governed by
practice and procedure provided for in the Louisiana Code of Civil Procedure.”

6

Insomuch as we have found La.R.S. 13:4209 applicable to the case sub judice,

we now look to that statute for resolution of the issue raised by appellant.

Louisiana Revised Statute 13:4209 was amended by Acts 1993, No. 1009, § 1.

The prior statute, with minor modifications, was designated subsection “A” in the

amended version and subsection “B” was added. Under the prior statute a judge’s

successor in office decided any case in which a final judgment had not been rendered

and signed. However, the amended statute, which is now in effect, added subsection

“B” which provides (emphasis added):

B. (1) In cases which are heard and in which judgment is
rendered, but not signed, whether the case was taken under advisement
or not, if the judge who rendered the judgment dies, resigns, or is
removed from office, or if his term expires before signing judgment in
the case, his successor in office shall have the authority to sign a
judgment which conforms with the judgment rendered.

(2) If a prior judge has stated an affirmative intent to sign a
judgment and failed to do so for whatever reason, the successor judge
is empowered to sign the judgment.

According to the general rules of statutory construction as reviewed for us by

our supreme court in Palmer v. Louisiana State Board of Elementary and Secondary

Education, 02-2043, pp. 4-6 (La. 4/9/03), 842 So.2d 363, 367-68:

Principles of judicial interpretation of statutes are designed to
ascertain and enforce the intent of the legislature in enacting the statute.
SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808
So.2d 294 [c]iting Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739
So.2d 762, 766; State v. Piazza, 596 So.2d 817, 819 (La.1992). The
fundamental question in all cases of statutory construction is legislative
intent and the reasons that prompted the legislature to enact the law.
Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128.
When a law is clear and unambiguous and its application does not lead
to absurd consequences, it shall be applied as written, with no further
inquiry made in search of the legislative intent. La. C.C. art. 9; La. R.S.
1:4. However, when a law is susceptible of different meanings, "it must
be interpreted as having the meaning that best conforms to the purpose
of the law." La. C.C. art. 10.

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The meaning and intent of a law is determined by considering the
law in its entirety and all other laws concerning the same subject matter
and construing the provision in a manner that is consistent with the
express terms of the statute and with the obvious intent of the lawmaker
in enacting it. Bond, supra at 302; Boyter, supra at 1129; Stogner, supra
at 766. The statute must therefore be applied and interpreted in a manner
that is logical and consistent with the presumed fair purpose and
intention the legislature had in enacting it. Boyter, 756 at 1129. Courts
should give effect to all parts of a statute and should not adopt a statutory
construction that makes any part superfluous or meaningless, if that
result can be avoided. Langlois v. East Baton Rouge Parish Sch. Bd.,
99-2007 (La.5/16/00), 761 So.2d 504, 507; Boyter, 756 at 1129.
Furthermore, "the object of the court in construing a statute is to
ascertain the legislative intent and, where a literal interpretation would
produce absurd consequences, the letter must give way to the spirit of the
law and the statute construed so as to produce a reasonable result." First
Nat'l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95),
650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115
So.2d 809, 814 1959)).

The starting point for the interpretation of any statute is the
language of the statute itself. Cat's Meow, Inc. v. City of New Orleans,
98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198; Touchard v.
Williams, 617 So.2d 885 (La.1993).

According to Black’s Law Dictionary, Fifth Edition, a “[j]udgment is ‘rendered’

when [a] decision is officially announced, either orally in open court or by

memorandum filed with [the] clerk.” In the instant case Judge Abraham-Handy

rendered her decision orally into the record on June 28, 2002. Considering the fact

that Judge Abraham-Handy rendered a decision before she died, the wording of

subsection “B” of La.R.S. 13:4209, and the rule of statutory construction which

mandates that we give effect to all parts of a statute and refrain from any interpretation

that would make any part of the statute superfluous or meaningless, we find that Judge

Grout should have signed a judgment which conformed with the judgment rendered

by Judge Abraham-Handy.

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

rendered and signed by OWC Judge John Grout, Jr. on February 7, 2003, and render

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judgment awarding Claimant, Sidney Andrus, weekly compensation benefits for the

period from November 29, 2000, through August 14, 2001, when his benefits were

voluntarily reinstated. All costs of this appeal are assessed against Defendant-

Appellee, Crowley Laundry & Dry Cleaning, Inc.

REVERSED AND RENDERED.

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