Brock Dore v. S & S Coating Specialties

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-455

BROCK DORE

VERSUS

S & S COATING SPECIALTIES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 07-07236
HONORABLE SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Harry K. Burdette
The Glenn Armentor Law Corporation
300 Stewart Street
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFF/APPELLANT:
Brock Dore

Jennifer E. Frederickson
Stemmans & Alley, PLLC
2798 O'Neal Lane, Suite B-3
Baton Rouge, LA 70816
(225) 752-5266
COUNSEL FOR DEFENDANT/APPELLEE:
S & S Coating Specialties, Inc.

AMY, Judge.

The claimant filed for modification of a judgment denying workers’

compensation benefits. The defendant filed an exception of res judicata pursuant to

La.R.S. 23:1310(E). The workers’ compensation judge sustained the defendant’s

exception. The claimant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Brock Dore, originally filed a disputed claim for compensation

against his employer, S & S Coating Specialties, Inc., alleging he injured his neck and

shoulder while working for the employer on December 22, 2003. On October 13,

2006, a hearing was held in which the workers’ compensation judge denied benefits

related to the claimant’s alleged disc injury. That ruling was affirmed by this court.

See S & S Coating Specialties v. Dore, 07-745 (La.App 3 Cir. 12/5/07), 971 So.2d

491. On September 29, 2007, the claimant filed another disputed claim for

compensation seeking indemnity and medical benefits for his December 22, 2003,

accident. In his second claim, the claimant alleged that his medical condition had

deteriorated since the original ruling, thus necessitating disc surgery. He contends

he is entitled to a modification of his previous judgment in accordance with La.R.S.

23:1310.8(B). The defendant filed a peremptory exception of res judicata alleging

that La.R.S. 23:1310.8(E) precludes the plaintiff from bringing an action to modify

the previous judgment denying the claimant benefits. At the hearing on December

12, 2008, the workers’ compensation judge sustained the defendant’s exception of res

judicata. The claimant now appeals.

Discussion

The claimant contends that the workers’ compensation judge erred in

sustaining the exception of res judicata based upon its finding that the original

judgment did not constitute an award upon which a modification judgment may be

made. The claimant asserts that the workers’ compensation judge originally found

that he was disabled for four days and that it recognized that S & S’s payment of

medical bills was proper. He contends these findings constitute an award for the

purposes of La.R.S. 23:1310.8(B).

Louisiana Revised Statutes 23:1310.8(B) provides:

Upon the application of any party in interest, on the ground of a
change in conditions, the workers’ compensation judge may, after a
contradictory hearing, review any award, and, on such review, may
make an award ending, diminishing, or increasing the compensation
previously awarded, subject to the maximum or minimum provided in
the Workers’ Compensation Act, and shall state his conclusions of fact
and rulings of law, and the director shall immediately send to the parties
a copy of the award.

Louisiana Revised Statutes 23:1310.8(E) provides, however, that “[a] judgment

denying benefits is res judicata after the claimant has exhausted his rights of appeal.”

Further, Louisiana’s res judicata statute, La.R.S. 13:4231, reads:

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.

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The issue here is whether the workers’ compensation judge erred in sustaining

S & S’s exception of res judicata based upon a finding that no original award was

granted. The workers’ compensation judge’s reasons for ruling reveal specific

findings regarding the alleged disability. The record evidences that the workers’

compensation judge made a distinction between two alleged injuries, specifically,

injuries allegedly resulting in disc abnormalities and injuries allegedly resulting in

muscle strain. With regards to the disc abnormalities, the workers’ compensation

judge stated:

Considering the problems with Dore’s credibility, the WCJ is
unwilling to give Dore any benefit of the doubt that his is the unique case
where the symptoms are on the opposite side of the protrusions.
Therefore the WCJ does not relate Dore’s cervical disc abnormalities to
his work related accident.

In regards to muscle strain, the workers’ compensation judge stated:

This leads to the question of whether Dore sustained a right-sided
muscle strain as a result of the accident. Dr. Dellanger gave Dore a four-
day release the day of the accident. The WCJ believes this is a
reasonable period of disability. The depositions of the physicians clearly
establish that the remainder of Dore’s complaints could just a [sic] likely
be as [a] result of his previous problems and general physical condition.
The record does not preponderate that Dore sustained any injury beyond
the four-day work release as the result of the work-related accident,
either directly or by aggravation of the pre-existing condition. The
employer has paid the medical bills associated with Dore’s intial
emergency room visit, and therefore, no further benefits are owed.

As determined by the workers’ compensation judge, the claimant failed to carry his

burden of proof in the original proceeding to establish that a disc abnormality was

caused or aggravated by his work-related accident. In a workers’ compensation case,

a claimant must prove not only that an accident occurred, but that the accident was

causally related to the disability claim. Baker v. Conagra Broiler Co., 93-1230

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(La.App. 3 Cir. 5/4/94), 640 So.2d 494, writ denied, 94-1435 (La. 9/23/94), 642 So.2d

1289.

In this case, the workers’ compensation judge determined that while the

claimant may have exhibited disc abnormalities, the abnormalities were not related to

his work accident. This determination was affirmed by this court. See S & S Coating

Specialties, 971 So.2d 491. Thus, the workers’ compensation judge made no award

of benefits relating to Dore’s alleged disc abnormalities. At the hearing on the

peremptory exception, the workers’ compensation judge clarified that the original

ruling was not an award, stating:

So I don’t think there is any change of condition as anticipated by the
statute and I do find that there was a judgment denying benefits and that
the matter is therefore res judicata.

The record supports the determination that no award was intitally made for the alleged

disability, and, thus, a modification of that ruling to allow a disc-related surgery was

barred by res judicata. See La.R.S 23:1310.8(E).

The claimant argues that this case is similar to Jackson v. Iberia Parish

Government, 98-1810 (La. 4/16/99), 732 So.2d 517, wherein the supreme court

determined that res judicata did not preclude a suit to modify a prior judgment even

if that judgment determined that claimant’s disability terminated before trial and the

judgment was satisfied. The present case differs from Jackson. In Jackson, the

claimant was seeking a modification of the original judgment claiming his condition

has worsened, an original condition determined by the hearing officer to constitute a

compensable injury. In this case , however, the original ruling found no work-related

nexus to any disc abnormality. The language of La.R.S. 23:1310.8(B) clearly requires

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a prior award of compensation before a hearing officer has the authority to modify that

award. Matthews v. Farley Indus., 95-1387 (La. 2/28/96), 668 So.2d 1144.

This assignment of error lacks merit.

DECREE

The ruling granting defendant’s exception of res judicata is affirmed. Costs

of this proceeding are assessed to the claimant-appellant.

AFFIRMED.

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