Edward Montgomery v. Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
P.O. Box 16577
Lake Charles LA 70616
(337) 433-9403

Larry Lane Roy
Preis & Roy
P. O. Drawer 94-C
Lafayette LA 70509

REHEARING ACTION: April 7, 2010

Docket Number: 09 00643-WCA

EDWARD MONTGOMERY
VERSUS
LAFAYETTE PARISH SCHOOL BOARD

Appealed from Office of Workers' Compensation - # 4 Case No. 06-05862

BEFORE JUDGES:

Hon. Ulysses Gene Thibodeaux
Hon. Sylvia R. Cooks
Hon. John D. Saunders

As counsel of record in the captioned case, you are hereby notified that the application

for rehearing filed by Lafayette Parish School Board has this day been

DENIED.
Cooks, J., dissents and assigns written reasons.

cc: Janice Hebert Barber, Counsel for the Appellee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-643

EDWARD MONTGOMERY

VERSUS

LAFAYETTE PARISH SCHOOL BOARD

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 04
PARISH OF LAFAYETTE, NO. 06-05862
HONORABLE SHARON MORROW, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks, and John
D. Saunders, Judges.

AFFIRMED, AS AMENDED.

Janice H. Barber
Janice H. Barber Law Corporation
P.O. Box 1909
Sulphur, LA 70664-1909
(337) 625-4443
COUNSEL FOR PLAINTIFF/APPELLEE:
Edward Montgomery

L. Lane Roy
Preis & Roy
P.O. Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
COUNSEL FOR DEFENDANT-APPELLANT:
Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-643

EDWARD MONTGOMERY

VERSUS

LAFAYETTE PARISH SCHOOL BOARD

COOKS, J., dissenting.

ON REHEARING

The School Board filed an application for rehearing, asserting our original

opinion failed to address its assignment of error that the trial court erred in finding

it arbitrary and capricious in terminating Mr. Montgomery’s benefits. I would

vote to grant rehearing solely for the limited purpose of clarifying our original

opinion, wherein we specifically noted the School Board’s arbitrary and capricious

acts in wrongfully terminating benefits. We noted, among other things, that Ms.

Herron, Mr. Montgomery’s vocational rehabilitation counselor, failed to contact

the two security jobs in question to verify availability. We also stated it was

unreasonable for Ms. Herron not to further investigate exactly what physical

requirements the State mandated training courses required. Further, Ms. Herron

acknowledged she failed to discuss transportation issues with Mr. Montgomery,

which the workers’ compensation judge expressly believed was an issue of

concern. For these reasons, we found the judgment of the Office of Workers’

Compensation was correct in all aspects, including the awards of penalties and

attorney fees. I would decline to award counsel for Mr. Montgomery’s request for

additional attorney fees for having to respond to this Rehearing Application.