Warren A. Rave v. Wampold Companies

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-978

WARREN A. RAVE

VERSUS

WAMPOLD COMPANIES, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 03-08832
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

REVERSED AND REMANDED.

Michael Benny Miller
Miller & Miller
P. O. Drawer1630
Crowley, LA 70527-1630
Telephone: (337) 785-9500
COUNSEL FOR:
Plaintiff/Appellant - Warren A. Rave

Amanda H. Carmon
Eagan, Johnson, etc.
P. O. Box 98001
Baton Rouge, LA 70898-8001
Telephone: (225) 231-0875
COUNSEL FOR:
Defendant/Appellee - Louisiana Workers’ Compensation
Corporation

Eric J. Waltner
Allen & Gooch
P. O. Drawer 3768
Lafayette, LA 70502-3768
Telephone: (337) 291-1400
COUNSEL FOR:
Defendants/Appellees - Liberty Mutual Insurance Company and
Wampold Companies

Skylar J. Comeaux
Law Offices of Jeff R. Rytlewski
345 Doucet Road - Suite 104-A
Lafayette, LA 70503
Telephone: (337) 983-0170
COUNSEL FOR:
Defendant/Appellee - Hartford Casualty Insurance Company

THIBODEAUX, Chief Judge.

This case involves a summary judgment dismissal of claims of the

plaintiff, Warren A. Rave, for workers’ compensation benefits, penalties and attorney

fees. After allegedly sustaining three successive work related injuries in 1998, 1999,

and 2000, Mr. Rave filed complaints beginning in 2003 against his employer,

Wampold Companies (Wampold), and its three successive insurers for medical-

related disputes and for the underpayment of wage benefits. Two of the insurers filed

motions for partial summary judgment based upon exceptions of prescription. The

workers’ compensation judge (WCJ) granted both motions for partial summary

judgment, and Mr. Rave filed this appeal seeking to have both judgments reversed.

We reverse both judgments.

I.

ISSUES

We must decide:

(1) whether the workers’ compensation judge erred in
granting partial summary judgment in favor of
Hartford Casualty based upon exceptions of
prescription;

(2) whether the workers’ compensation judge erred in
granting partial summary judgment in favor of
Liberty Mutual and the employer based upon
exceptions of prescription; and,

(3) whether the workers’ compensation judge erred in
granting partial summary judgment on the issue of
prescription of penalties and attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Warren Rave, a 57-year-old air conditioning technician, began working

for Wampold Companies in 1993. Mr. Rave asserts that while in the course and

scope of his employment with Wampold, he sustained three work-related injuries in

three successive years. On September 8, 1998, he stepped into a hole while carrying

equipment and injured his right knee. On August 2, 1999, he re-injured the right knee

by stepping into another hole or depression while walking backward to re-wind a

hose pipe. On May 26, 2000, Mr. Rave twisted his left knee while carrying an air

conditioning unit at work. In each accident, Mr. Rave suffered a torn medial

meniscus of the knee. He has had numerous surgeries, including knee replacements

of both knees. For each of the three accidents, Mr. Rave received payments from his

employer’s insurance company for medical expenses and wages while he was unable

to work.

However, each accident was covered by a different insurance company.

Hartford Casualty Insurance Company (Hartford) covered the first accident in 1998

and does not dispute that Mr. Rave was injured while in the course and scope of his

employment with Wampold; Liberty Mutual Insurance Company (Liberty) covered

the second accident in 1999; and, Louisiana Workers Compensation Company

(LWCC) covered the third accident in 2000. Mr. Rave is still receiving medical

payments from Liberty Mutual for the second injury to the right knee in 1999, and he

is still receiving wage benefits and medical payments from LWCC for the third

injury, which was to the left knee, in 2000.

On December 5, 2003, Mr. Rave filed a claim for workers’

compensation, or 1008 complaint, against Wampold and its third insurer, LWCC,

based upon injuries to his knees in the second and third accidents, in August 1999 and

May 2000, respectively. He asserted a dispute over the choice of physician for an

orthopaedic specialist and a psychiatrist, and he requested penalties and attorney fees.

On February 7, 2005, Mr. Rave filed an amended 1008 and added Liberty Mutual as

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a defendant, added the complaint that his wage benefits had been wrongly calculated

resulting in an underpayment, and added a request for legal interest. On September

2, 2005, Mr. Rave filed a second amended 1008 complaint, adding Hartford Casualty

as a defendant and adding the first injury in September 1998 as a basis for his claims.

The first and second insurers, Hartford Casualty and Liberty Mutual,

respectively, filed motions for partial summary judgment based upon prescription.

The Liberty Mutual motion was filed on behalf of Liberty Mutual and the employer,

Wampold Companies. At the first summary judgment hearing, the defendants

asserted that they would only argue prescription, and that causation would be

addressed at a full trial on the merits. Following two separate hearings, both motions

for partial summary judgment based on prescription were granted by the WCJ. The

first hearing in April 2006 resulted in a dismissal of Liberty Mutual and Wampold

for all claims arising from the second accident in August 1999. While there was no

correction to the judgment, the WCJ admitted during the second hearing on

prescription, as to Hartford, that she had not intended to grant summary judgment to

the employer, Wampold, in the previous hearing. The second summary judgment

hearing in May 2006 dismissed all claims against Hartford Casualty. Mr. Rave

appeals both judgments.

III.

LAW AND DISCUSSION

Standard of Review

We review summary judgments de novo, using the same criteria that

govern the trial court’s consideration of the appropriateness of summary judgment.

Goins v. Wal-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783.

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Hartford’s Argument for Prescription of Wage
and Medical Benefits

Mr. Rave asserts that the WCJ erred in granting Hartford’s motion for

partial summary judgment based upon prescription of Mr. Rave’s claims for wage and

medical benefits. Hartford, which insured the first accident on September 8, 1998,

argued that Mr. Rave’s claims for both wage benefits and medical benefits had

prescribed when Mr. Rave added Hartford to his complaint via the second amended

1008 filed on October 31, 2005. We note that the second amended complaint adding

Hartford was actually filed on September 2, 2005. As argued by Hartford, La.R.S.

23:1209 (A) provides that a claim for TTD wage benefits prescribes one year after the

last wage benefit is paid, and La.R.S. 23:1209 (C) provides that a claim for medical

benefits prescribes three years after the last medical benefit is paid.

Hartford paid the last wage benefit for temporary total disability (TTD)

on December 2, 1998, and the last medical payment, which covered Mr. Rave’s first

surgery and follow-up expenses on the right knee, on January 26, 1999. Hartford,

therefore, argued that the claim for TTD prescribed on December 2, 1999, and argued

that the medical payments prescribed on January 26, 2002. Accordingly, even under

the relation back doctrine of La.Code Civ.P. art. 1153,1 which we need not address

herein, the prescription dates claimed by Hartford are well over three years prior to

the filing date of the original 1008, which was December 5, 2003. Therefore, on its

face, Mr. Rave’s claims against Hartford for wage benefits and medical benefits

appear to have prescribed, and it is Mr. Rave’s burden to show that his claim has not

prescribed. See Winford v. Conerly Corp., 04-1278 (La. 3/11/05), 897 So.2d 560.

1
La.Code Civ.P. art. 1153 provides: “When the action or defense asserted in the amended petition
or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of filing the original pleading.”

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Liberty Mutual’s Argument for Prescription of Wage Benefits

Mr. Rave asserts that the WCJ also erred in granting the motion for

partial summary judgment of Wampold and Liberty Mutual, which insured the second

accident on August 2, 1999. Wampold and Liberty argued only that Mr. Rave’s

claims for wage benefits had prescribed. It did not argue prescription as to claims for

medical benefits as those were still being paid by Liberty Mutual at the time of the

hearing. Liberty Mutual paid its last wage benefit to Mr. Rave on April 30, 2000,

over three years before the 1008 complaint was filed on December 5, 2003.

Accordingly, pursuant to the three-year prescriptive period for a worker’s claim for

medical benefits in La.R.S. 23:1209 (C), the claim against Liberty Mutual also

appears on its face to have prescribed, and therefore, Mr. Rave has the burden of

proving interruption or suspension of prescription.

Solidary Liability of Employers and Insurers

Mr. Rave opposes the motions for summary judgment because his

current disability arises, he claims, from the condition of both knees, and that his

employer, Wampold Companies, and its three insurers, Hartford, Liberty, and LWCC,

are all solidarily liable for his wage and medical benefits.2 He argues that each time

an insurer paid a benefit, it interrupted prescription as to the other obligors, and that

where he received benefits for all three injuries, continuously, with never a gap of

over nine months between the payments, none of the claims have prescribed. Counsel

for Mr. Rave cites Article 1799 of our Civil Code which provides: “The interruption

2
Mr. Rave’s opposition further argued the doctrine of contra non valentum, stating that he did not
know in 1998 that he was entitled to a calculation of wage benefits that included compensation for the fringe
benefits that he received from Wampold, which is at least one reason that the benefits are alleged to have
been underpaid. However, his opposition did not provide a date regarding when he obtained this knowledge.
Nor did he provide this information, or argue this doctrine, on appeal. Therefore, we do not have enough
information to make a decision based upon the doctrine of contra non valentum and will, therefore, decide
the issue of prescription based upon Mr. Rave’s claims of solidary liability between the employer and
insurers.

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of prescription against one solidary obligor is effective against all solidary obligors

and their heirs.” La.Civ.Code art. 1799.

Our jurisprudence holds that when the present disability of an employee

in a workers’ compensation claim is due to a combination of two or more successive

accidents or due to the second accident’s having aggravated the prior injury, both the

subsequent compensation insurer and the insurer at the time of the first accident are

solidarily liable for compensation benefits and medical expenses. Prevost v. Jobbers

Oil Transport Co., 95-0224 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, writ denied, 96-

0440 (La. 4/8/96), 671 So.2d 336; Labeaud v. City of New Orleans, Department of

Property Management, 576 So.2d 624 (La.App. 4th Cir.), writ denied, 581 So.2d 687

(La.1991). Likewise, when a combination of work-related accidents causes a

disability, or where by virtue of a second accident a prior injury is aggravated causing

disability, both the subsequent employer and the employer at the time of the first

work-related accident are solidarily liable for compensation benefits and medical

expenses. Hill v. Manpower-Collier Investments, 30,444 (La.App. 2 Cir. 4/8/98), 712

So.2d 560; Tron v. Little Italiano, Inc., 38,556 (La.App. 2 Cir. 6/25/04), 877 So.2d

1055.

In fact, it has been well-settled for at least sixty-five years that in

instances of two or more accidents, all of which are contributing causes of the

ultimate disability, the employers and their insurers at the time of such accidents may

be held solidarily liable for the payment of compensation. See also, Daigle v. Lajet,

Inc., 504 So.2d 1126 (La.App. 5 Cir. 1987); Scott v. Hartford Acc. & Indem. Co., 302

So.2d 641(La.App. 3 Cir. 1974); Carter v. Tri-State Ins. Co., 259 So.2d 433 (La.App.

2 Cir. 1972); Stockstill v. Bituminous Casualty Corp., 144 So.2d 918 (La.App. 4 Cir.

1962); Fontenot v. Great American Indemnity Company, 127 So.2d 822 (La.App. 3

6

Cir. 1961); Finley v. Hardware Mutual Insurance Company, 237 La. 214, 110 So.2d

583 (La.1959); Stansbury v. National Auto & Cas. Ins. Co., 52 So.2d 300 (La.App.1

Cir. 1951); Brock v. Jones & Laughlin Supply Co., 39 So.2d 904 (La.App. 1 Cir.

1949); and White v. Taylor, 5 So.2d 337 (La.App. 2 Cir. 1941).

In Labeaud, the plaintiff sustained a back injury in 1982 while working

for the Lehleitner company, which was insured by Liberty Mutual. Liberty Mutual

paid weekly benefits from September 1982 until March 1988. The plaintiff was

working in the course and scope of his employment with the City of New Orleans

when the second back injury occurred in 1987. Finding that the second back injury

was an aggravation of the first, Lehleitner, Liberty Mutual, and the City of New

Orleans were found liable in solido for the second injury. Prescription was not an

issue in Labeaud where the first employer was still paying benefits at the time of the

second accident.

In Hill, both employers were found solidarily liable for a second

shoulder injury, where the first accident occurred in September of 1994, and the

second accident occurred in May of 1996. Again, prescription was not an issue, even

though the claim against the first employer was not filed until June 7, 1996. The

solidary liability turned on the finding that the May 1996 accident caused either a new

injury or an aggravation of Hill’s prior shoulder injury.

In Prevost, the employee was working for the same employer and

sustained two work-related accidents six years apart. Prevost was injured in a

December 1985 motor vehicle accident, insured by Aetna Casualty, and then

sustained a second injury in a May 1991 accident, insured by Guarantee Mutual.

Where the second injury was found to have aggravated the first, Aetna was found

solidarily liable with Guarantee for the second accident (up to a point in 1993 when

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the plaintiff settled with a third party without approval), even though Aetna had

entered into a settlement and indemnity agreement with Prevost for the first accident.

The court in Prevost found that the settlement with Aetna for the first accident in

1985 extended only to those matters that the parties “expressly intended to settle,”

that being the claims arising out of the first accident. Prevost, 665 So.2d at 406. The

court refused to extend the scope of the settlement to the second accident in 1991.

In Tron v. Little Italiano, Inc., 877 So.2d 1055, the solidary liability

issue included a claim for prescription, and two different sides of the body were

involved. The plaintiff in Tron was working as a waitress for the Little Italiano

restaurant, insured by Louisiana Restaurant Association-Self Insurers Fund (LRA),

when she sustained a neck injury on March 9, 1999. An MRI indicated disk bulging

at C4-5 and C5-6 levels, resulting in fusion surgery at C4-6. The plaintiff did well

for a few months; then, her neck pain returned and radiated into her left shoulder and

left arm. Treatment was ongoing, with various disputes arising between the plaintiff

and LRA regarding physicians and diagnostic testing. The plaintiff also developed

a swollen nerve root at C6-7.

On December 6, 2001, while employed with CTC as a catering worker,

Ms. Tron was pushing a large frozen drink machine and felt a severe pain in her neck

with pain radiating into her right arm. An EMG showed denervation of the right arm

and indicated a C7 radiculopathy with more acute findings on the right side. After

receiving the report of the second accident, LRA terminated medical benefits. CTC

also denied benefits, contending that the claimant’s disability was related to the prior

accident in 1999. LRA and CTC designated a physician to evaluate the claimant, and

she opined that both accidents combined were responsible for, and substantially

contributed to, the plaintiff’s disability and need for medical benefits.

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In April 2002, Ms. Tron filed disputed claims for compensation against

Little Italiano and CTC for wage and medical benefits and for penalties and attorney

fees. LRA filed an exception of prescription, alleging that the April 2002 claim was

filed more than two years after LRA’s last acknowledged indemnity benefit in

February 2000. However, the record revealed that in October 2001, LRA had paid

Ms. Tron $4,434.84, which reflected the payment of indemnity benefits in settlement

of a dispute between the parties. Accordingly, the claim filed in April 2002 was

found to be timely, and solidary liability was enforced against both employers.

Applying the analysis above in Tron to the time line in the present case,

the record reveals that Hartford Casualty paid Mr. Rave his last TTD payment for the

1998 accident on November 25, 1998. Liberty Mutual paid Mr. Rave his first TTD

payment, for the 1999 accident on August 3, 1999. Therefore, if the insurers are

solidarily liable, then Liberty interrupted prescription as to Hartford in August 1999

by paying a wage benefit to Mr. Rave approximately nine months after Hartford paid

its last wage benefit in November 1998.

The record further reveals that Liberty Mutual paid its last wage benefit

to Mr. Rave on May 1, 2000, and that LWCC paid its first wage benefit to Mr. Rave,

for the 2000 accident, on January 31, 2001. Hence, under a solidary liability analysis,

LWCC interrupted prescription as to Liberty Mutual by paying a wage benefit to Mr.

Rave approximately eight months after Liberty paid its last wage benefit in May

2000.

With regard to medical benefits, both Liberty and LWCC are still paying

medical benefits for the right and left knees respectively, and only Hartford is

claiming that the claim for medical benefits against it has prescribed. The record

reflects that Hartford paid its last medical benefit on January 26, 1999, and that

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Liberty paid its first medical benefit in August or September 1999, depending on how

one interprets the printout regarding pending transactions. Therefore, again, under

a solidary liability analysis, Liberty interrupted prescription as to Hartford seven or

eight months after Hartford paid its last medical benefit in January 1999.

With regard to solidary liability in the present case, if all three accidents

are work-related, and if they all combined to cause Mr. Rave’s current disability, then

there will be solidary liability under the law. If there is solidary liability, as shown

above, the payments by Liberty interrupted prescription as to Hartford, and the

payments by LWCC interrupted prescription as to Liberty. However, the defendants

stated at the first summary judgment hearing on prescription that causation was an

issue for trial, and that only prescription would be argued for the summary judgment

motions. Therefore, we do not know at this time whether all accidents combined to

cause Mr. Rave’s current disability.

Notwithstanding, the parties have included in the record on appeal the

deposition and hearing testimony of Mr. Rave, and the deposition and medical

records of the physician Dr. Michael Duval, who performed all of Mr. Rave’s

surgeries and post-surgery follow-up care from 1998 to 2005. This evidence is

factually similar to the facts in Tron. More specifically, Mr. Rave testified that the

pain never stopped after the first accident, but rather remained at a level seven even

after he returned to work. He further stated that when he stepped into the second

hole, or depression, while walking backward in 1999, the pain went to a level nine

for several hours and then returned to a seven.

Dr. Duval testified that Mr. Rave suffered a torn medial meniscus in each

of the three accidents, for which he subsequently performed three arthroscopic

surgeries, two to the right knee and one to the left knee. He characterized the second

10

injury to the right knee as a “recurrent meniscal tear” indicating to him that Mr. Rave

may have re-aggravated his knee,” in the second accident. He further testified that

after surgery, the knee is more fragile and more susceptible to developing symptoms

and problems. Dr. Duval ultimately performed knee replacements to both knees,

along with other procedures, and testified that Mr. Rave has done poorly. In April

2006, Dr. Duval provided his opinion that Mr. Rave’s inability to work is a result of

both his right and left knee injuries, and further testified that additional surgeries to

both knees could improve his range of motion.

However, Dr. Duval is not the only physician who treated Mr. Rave. The

record indicates that Mr. Rave was treated by an occupational medicine physician,

that he has undergone much physical therapy, and that he has had problems with

depression. The pre-trial statement of the defendants indicates that many physicians

and adjusters will likely be called to testify regarding causation. Therefore, as

previously stated, we do not know yet whether causation will be proved at trial. Here,

where causation is inextricably intertwined with solidary liability, and solidary

liability indicates an interruption of prescription, we cannot determine one without

the other. However, the testimony of Dr. Duval and Mr. Rave create genuine issues

of fact regarding causation and solidary liability that prohibit summary judgment on

the ultimate issue of prescription.

Moreover, the record containing the motions and oppositions of the

parties and the comments of the WCJ indicate that she was not apprised by the parties

of the jurisprudence on solidary liability in workers’ compensation cases. Rather, her

comments indicate that she believed that the last insurer, LWCC, was liable for all of

the benefits due to the injured worker from the previous accidents. The lack of a

complete and developed record led the WCJ into an error of law. Accordingly,

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summary judgment was not proper as to Hartford Casualty, Liberty Mutual, and

Wampold Companies, on the issue of prescription of Mr. Rave’s claims for wage and

medical benefits, and those judgments are hereby reversed.

Prescription as to Claims for Penalties and Attorney Fees

Mr. Rave’s claims for wage and medical benefits were accompanied by

additional claims for penalties and attorney fees as to all defendants for their failure

to timely and fully pay benefits pursuant to La.R.S. 23:1201. Hartford Casualty and

Liberty Mutual, along with Wampold, argued that these claims had also prescribed,3

and the WCJ’s granting of their partial motions for summary judgment effectively

dismissed those claims as well. Accordingly, in reversing the summary judgments

in favor of Hartford Casualty and Liberty Mutual as to the underlying claims, we also

reverse the finding of prescription as to the claims for penalties and attorney fees. It

is clear from a reading of the jurisprudence that when claims for penalties and

attorney fees accompany the claims for benefits, if the underlying claims have not

prescribed, neither have the claims for attorney fees and penalties.

For example, in Tron v. Little Italiano, 877 So.2d 1055, where solidary

liability applied, the appellate court upheld the WCJ’s assessment of penalties and

attorney fees against the first insurer even though the first accident occurred over

three years before the 1008 complaint was filed. In fact, defendants, as was the case

in Tron, do not typically argue prescription of the claims for penalties and attorney

fees when they are sought along with the underlying claims for benefits. Rather, they

3
Defendants argue that the one-year prescriptive period for delictual actions set forth in La.Civ.Code
art. 3492 applies to a workers’ compensation claim for penalties and attorney fees, pursuant to Craig v.
Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La. 3/18/05),
896 So.2d 1004. However, Craig did not address the underlying claims for benefits. Rather, it involved the
prescriptive period on only the claim for penalties and attorney fees which did not accompany the original
claim for benefits. Accordingly, we need not address Craig where there was no contemporaneous filing of
a claim for penalties and attorney fees along with the underlying claim for benefits, as we have in the present
case with Mr. Rave.

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argue the fault of the defendant and whether penalties and fees are substantively

proper in each case. More specifically, pursuant to La.R.S. 23:1201(F), penalties and

attorney fees are assessed against either the employer or the insurer, depending upon

fault, and they will not apply if the claim is reasonably controverted or if the

employer or insurer can show that nonpayment resulted from conditions over which

the employer or insurer had no control.

In the present case, no substantive argument or evidence was presented

by either side regarding the fault of the defendants, i.e., what they knew and did not

know, or when they knew it, in order for this court to decide this issue substantively.

Once again, we are asked to rule only on the issue of prescription. Accordingly, we

find that if the underlying claims for benefits have not prescribed, the accompanying

claims for penalties and attorney fees have not prescribed. Therefore, without a

finding of causation, it was improper for the WCJ to grant summary judgments

dismissing Mr. Rave’s claims for penalties and attorney fees based upon prescription.

IV.

CONCLUSION

Based upon the foregoing, the Office of Workers’ Compensation’s

judgments in favor of Hartford Casualty, and in favor of Liberty Mutual and

Wampold Companies, granting partial summary judgment based upon prescription

of the underlying claims for benefits, and upon prescription of the claims for penalties

and attorney fees, are hereby reversed. The case is remanded to the Office of

Workers’ Compensation for a trial on the merits regarding causation and, in light of

the cited jurisprudence on solidary liability, for any attendant calculation of benefits

as to each defendant. The OWC shall also determine whether the conduct of any of

13

the defendants subjects them to penalties and attorney fees and, if so, the amounts

due. The costs of this appeal are assessed against the defendants.

REVERSED AND REMANDED.

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