Omsi v. Alvin Joe Elliott

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1178 consolidated with 03-1271

OMSI

VERSUS

ALVIN JOE ELLIOTT

**********

APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - DISTRICT # 3
PARISH OF CALCASIEU, NO. 01-02546
HONORABLE CHARLOTTE A. L. BUSHNELL,
WORKERS COMPENSATION JUDGE

**********

ARTHUR J. PLANCHARD

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Arthur J. Planchard*, Judges.

AFFIRMED.

Jeffrey C. Napolitano
Keith E. Pittman
Juge, Napolitano, Guilbeau, Ruli & Frieman
3838 N. Causeway Blvd., #2500
Metarie, LA 70002
Counsel for Plaintiff/Appellant:
OMSI

Patricia McKay Clotiaux
Waller & Associates
3838 N. Causeway, Ste. 3160
Metairie, LA 70002
Counsel for Defendant/Appellee:
Repcon, Inc.
*Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Robert L. Beck, Jr.
Rivers, Beck, Dalrymple & Ledet
P. O. Drawer 12850
Alexandria, LA 71315-2850
Counsel for Claimant/Appellee:
Alvin Joe Elliott, et al.

Jeffrey Martin Cole
Plauche, Smith & Nieset
P.O. Drawer 1705
Lake Charles, LA 70602
Counsel for Defendant/Appellee:
Wyatt Field Service

PLANCHARD, Judge1.

Plaintiff, OMSI, appeals a workers’ compensation judge’s (WCJ) decision

dismissing Plaintiff’s petition seeking indemnification and/or contribution from

Defendants, Wyatt Field Service (Wyatt) and Repcon, Inc. (Repcon) as prescribed.

We affirm the judgment of the WCJ.

FACTS

This case has a long history, dating back to Mr. Elloitt’s original injury in 1987.

The early history can be found in Elliott v. OMSI, 97-71, pp. 1-2 (La.App. 3 rd Cir.

4/30/97), 693 So.2d 847, 848, writ denied, 97-1841 (La.10/17/97), 701 So.2d 1327,

where a panel of this court related the following:

Claimant filed his Form 1008 on May 30, 1995, complaining that
he had become disabled by injury on June 7, 1994. The basis of his
complaint included allegedly disabling left arm and shoulder injuries and
carpal tunnel syndrome, the latter of which was diagnosed by claimant's
treating physician without contradiction.

The matter was tried on the briefs and the record, which shows:
the injuries relating to claimant's shoulder constituted an aggravation of
a pre-existing injury sustained on or about May 31, 1987, while claimant
worked for Labortron, Inc., almost three years before claimant began
working for the defendant in these proceedings; but that claimant's
carpal tunnel syndrome did not arise until after he became employed by
OMSI and while working in the course and scope of his employment
there.

After reviewing the record, the hearing officer concluded that
claimant was entitled to wage and medical benefits due to the
aggravation of his pre-existing shoulder injury and for the new carpal
tunnel syndrome.

Judgment was rendered by the WCJ on November 7, 1996. We affirmed the WCJ’s

decision on April 30, 1997.

1
Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

1

The record establishes that Mr. Elliott left his employment with OMSI on

March 27, 1994. After leaving his employment at OMSI, Mr. Elloitt went to work as

a boilermaker for Wyatt. He worked, off and on, for Wyatt from 1994 to sometime

in 1997. He left his employment at Wyatt because of lack of work. There is no

evidence that Mr. Elliott was in any accident or sustained any type of injury while

employed by Wyatt. He filed no claim for benefits against Wyatt. After leaving

Wyatt, Mr. Elliott was briefly employed by Repcon in Oklahoma. Records from the

workers’ compensation court of the state of Oklahoma show that Mr. Elliott, while

employed by Repcon, sustained an injury to his right chest on October 31, 1997, and

that his claim against Repcon, for that injury, was settled on May 28, 1998, for

approximately $2,000.00. There is no evidence in the record that Mr. Elliott sustained

a new injury or aggravated his prior injury to either his shoulder or carpal tunnel while

employed by Wyatt or Repcon.

The record establishes that OMSI filed the instant PETITION FOR

MODIFICATION OF JUDGMENT, INDEMNITY AND/OR CONTRIBUTION on

March 16, 2001, against Repcon and Wyatt. Both named Defendants filed exceptions

of prescription, no right of action and/or no cause of action. The exceptions were

deferred to a hearing on the merits which was held on April 23, 2003. The WCJ,

relying on Larkin v. Regis Hair Stylists, 02-127 (La.App. 3 Cir. 5/15/02), 817 So.2d

1266, sustained the exceptions of prescription as to both Defendants. OMSI appealed

arguing that the Defendants are bound in solido with OMSI for the payment of

benefits and that payment of benefits by OMSI interrupts prescription as to both

Defendants.

LAW AND DISCUSSION

2

Louisiana Civil Code Article 1796 states: “Solidarity of obligation shall not be

presumed. A solidary obligation arises from a clear expression of the parties' intent

or from the law.” OMSI argues that Wyatt and Repcon are bound with it in solido by

law. We disagree.

At first blush, it would appear that OMSI’s argument is well founded.

The coextensive obligations for the "same thing" create the
solidarity of the obligations. When it is not clear that the parties are all
obliged to the same thing (as in the case of an agreement by several
parties to repay a loan), then an obligation in solido is not presumed and
must be expressly stipulated. La.C.C. Art. 2093. However, when it is
entirely clear that the parties are all obliged to the same thing (as when
the law requires each of two or more parties to pay tort damages
concurrently caused by each party), then there is an obligation in solido
by definition, as a matter of law, and there is no need to presume
solidarity. The presumption against solidarity is only designed to be of
assistance when it is necessary to determine whether an obligation is
joint or solidary.

Thus, an employer and an employee are solidarily liable for
damages caused by the employee's negligence, although the employee's
liability is based on his act or omission (Article 2315) and the employer's
secondary and derivative liability is imposed by law on the basis of the
relationship (Article 2320). While no statute or codal article stipulates
solidary liability between the employer and the employee, the obligation
is solidary as a matter of law. Both are obliged to the same thing (to
repair the damage caused by the employee), neither is entitled to the
benefit of division, and either may be compelled for the whole, so that
payment by one exonerates the other toward the creditor. Foster v.
Hampton, 381 So.2d 789 (La.1980); Sampay v. Morton Salt Co., 395
So.2d 326 (La.1981).

In the Hoefly case [ Hoefly v. Government Employees Ins. Co., 418
So.2d 575 (La.1982)]. . ., this court recently held that a timely suit
against the tortfeasor interrupted prescription against the subsequently
joined uninsured motorist carrier of the claimant, because the two
defendants were solidary obligors. We held:

"An obligation is solidary among debtors when they are
obliged to the same thing, so that each may be compelled
for the whole, and when payment by one exonerates the
other toward the creditor. When these characteristics result
from provisions of law, as in the case of the obligation of
the tortfeasor and uninsured motorist carrier, an obligation
in solido exists without requiring an express declaration.

3

Consequently, the plaintiff's timely and properly filed suit
against the tortfeasors interrupted prescription as to his
uninsured motorist carrier." 418 So.2d at 576.

Narcise v. Illinois Cent. R. Co., 427 So.2d 1192, 1194-95 (La.1983)(footnote omitted).

However, upon closer examination one finds that such is not the case. The

judgment rendered by the WCJ in 1996 which forms the basis for OMSI’s obligation

to pay benefits, was awarded for both a shoulder injury and for a carpal tunnel

problem. Carpal tunnel syndrome is recognized as an occupational disease. La.R.S.

23:1031.1(B). After a lengthy discussion of solidarity among subsequent employers

and the responsibility of subsequent employers to pay employees benefits for

occupational diseases, the Louisiana Supreme Court reached the following conclusion:

In occupational disease cases under the workers' compensation
laws involving successive employers, an employer whose employment
of a claimant has contributed causally to his disabling occupational
disease is solidarily obliged to him for the whole obligation to pay
workers' compensation. As between successive employers contributing
to an employee's disabling occupational disease, the employer during
whose employment the employee was last injuriously exposed to a cause
of the occupational disease is fully responsible for all workers'
compensation.

Gales v. Gold Bond Bldg. Products, 493 So.2d 611, 617 (La.1986)(emphasis ours).

See also Ball v. Wendy’s Int’l., Inc., 36,922; 36,923 (La.App. 2 Cir. 3/5/03), 03-978

(La. 5/30/03), 843 So.2d 1056.

Inasmuch as there is no evidence in the record that Mr. Elliott had any carpal

tunnel or shoulder problems in his subsequent employments and considering that a

judgment of the Office of Workers’ Compensation, which has been affirmed by this

court, found that Mr. Elliott’s carpal tunnel problems developed as a result of his

employment at OMSI, we find OMSI remains fully responsible for all workers'

compensation benefits and has no cause of action against either Wyatt or Repcon.

4

Inasmuch as we find OMSI has no cause of action against either Defendant, we

need not address the issue of prescription.

Accordingly, for the reasons stated above, the judgment of the Office of

Workers’ Compensation is affirmed. All costs of this appeal are assessed against

Plaintiff/Appellant, OMSI.

AFFIRMED.

5