Roger Rivers v. Bo Ezernack Hauling Contractor, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1495

ROGER RIVERS

VERSUS

BO EZERNACK HAULING CONTRACTOR, LLC, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 09-05912
JAMES BRADDOCK, WORKERS’ COMPENSATION JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and David E. Chatelain,
Judges.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Donald J. Anzelmo
Snellings, Breard, Sartor,
Inabnett & Trascher, L.L.P.
1503 North 19th Street
Monroe, Louisiana 71201
(318) 387-8000
Counsel for Defendants/Appellees:
Bo Ezernack Hauling Contractor, LLC
Bridgefield Casualty Insurance Company

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

R. Bray Williams
Williams Family Law Firm, L.L.C.
Post Office Box 15
Natchitoches, Louisiana 71458-0015
(318) 352-6695
Counsel for Plaintiff/Appellant:
Roger Rivers

CHATELAIN, Judge.

In this workers’ compensation case, the claimant appeals the dismissal of his

claim which sought a judgment ordering his employer to approve cervical surgery his

treating physician recommended and to pay him penalties, attorney fees, and legal

interest. For the following reasons, we reverse the judgment of the workers’

compensation judge and remand for further proceedings.

FACTS

The facts are undisputed. On October 10, 2007, Roger Rivers was involved in

an accident which occurred during the course and scope of his employment with Bo

Ezernack Hauling Contractor, LLC, (Bo Ezernack Hauling). In March 2008,

Mr. Rivers filed a disputed claim against Bo Ezernack Hauling and its insurer,

Bridgefield Casualty Insurance Company, claiming that he was injured in the accident

and seeking indemnity and medical benefits. The defendants did not dispute that the

accident occurred; however, they did dispute that Mr. Rivers was injured and/or

sustained any economic losses as a result of the accident.

Mr. Rivers’ claim was tried before the workers’ compensation judge on

April 16, 2009. Thereafter, the workers’ compensation judge rendered a judgment

in favor of Mr. Rivers, finding that he was injured in the accident and ordering the

defendants to pay indemnity and medical benefits, together with penalties, attorney

fees, and interest from the date of demand. The judgment provided in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there
be judgment herein in favor of the Claimant, Roger Rivers, and against
the defendants, Bo Ezernack Hauling Contractor, L.L.C. & Bridgefield
Casualty Insurance Company, to authorize and accept financial
responsibility for Roger Rivers’ choice of orthopedic surgeon, Dr. Pierce
Nunley, to treat Mr. Rivers’ cervical and lumbar spinal injuries[.]

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The defendants filed a suspensive appeal from that judgment. After this court

affirmed the judgment of the workers’ compensation judge, see Rivers v. Bo Ezernack

Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10), So.3d , the

defendants filed a writ application with the supreme court.

On July 15, 2009, Mr. Rogers filed another disputed claim for compensation

after the defendants refused to approve cervical surgery that Dr. Nunley

recommended. The defendants responded by filing a declinatory exception of lis

pendens, asserting that because they suspensively appealed the judgment and

Mr. Rivers’ claim for medical treatment was addressed in that appealed judgment, the

claim at issue herein should be dismissed. The workers’ compensation judge granted

the defendants’ exception of lis pendens without reasons.

Mr. Rivers appealed the grant of the exception of lis pendens, claiming that the

prior proceeding is not lis pendens because his request that the defendants be ordered

to approve and pay for the surgery Dr. Nunley recommended was not at issue therein.

His argument is premised on the fact that Dr. Nunley did not recommend the surgery

until after the deadline for submitting his pretrial statement had passed in the

proceeding on his originally-filed disputed claim.

DISCUSSION

The declinatory exception of lis pendens is appropriate “[w]hen two or more

suits are pending in a Louisiana court or courts on the same transaction or occurrence,

between the same parties in the same capacities.” La.Code Civ.P. art. 531.

The rudiments of lis pendens were set forth in Brooks Well Servicing, Inc. v.

Cudd Pressure Control, Inc., 36,723 (La.App. 2 Cir. 6/27/03), 850 So.2d 1027, writ

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denied, 03-2606 (La. 12/12/03), 860 So.2d 1157, 1031 (citations omitted), where the

court explained:

[Louisiana Code of Civil Procedure Article] 532 gives the district court
the discretion to grant a lis pendens exception. The test for deciding
whether an exception of lis pendens should be granted is whether a final
judgment in the first suit would be res judicata in the subsequently filed
suit. Because lis pendens does not address the merits of the disputes
between parties, the reviewing court considers lis pendens in the
procedural and factual climate that exists at the time of review, rather
than at the time of the trial court judgment. The decision of whether to
stay a proceeding under the doctrine of lis pendens “rests in the sound
discretion of the trial court,” and cannot be overturned on review absent
a clear abuse of that discretion.

Furthermore, “[a] suit is considered pending for Lis Pendens purposes if it is being

reviewed by an appellate court.” Bd. Of Trs. Sheriff’s Pension & Relief Fund v. City

of New Orleans, 01-497, p. 2 (La.App. 4 Cir. 3/13/02), 813 So.2d 543, 544.

The requirements for lis pendens set forth in Article 531 appear to be present

herein: 1) two or more suits pending in Louisiana courts (March 2008 disputed claim

and July 2009 disputed claim); 2) on the same transaction or occurrence (October 10,

2007 accident); and 3) between the same parties in the same capacities (Mr. Rivers

allegedly injured in the course and scope of his employment, his employer, and its

workers’ compensation insurer). Furthermore, a judgment reversing the judgment in

favor of Mr. Rivers, finding that he was not injured in the October 10, 2007 accident

as claimed by the defendants, would result in his July 2009 claim being res judicata.

Louisiana Revised Statutes 13:4231 outlines the elements of res judicata and

provides, in pertinent part:

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

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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.

“The doctrine of res judicata is stricti juris and should be rejected when doubt exists

as to whether a party’s substantive rights have actually been previously addressed and

finally resolved.” Lee v. Twin Bros. Marine Corp., 03-2034, pp. 3-4 (La.App. 1 Cir.

9/17/04), 897 So.2d 35, 37.

In a workers’ compensation case, the pertinent lis pendens factors must be

considered not only in light of the elements of res judicata but also in light of the fact

that “[w]orkers’ compensation judgments are . . . treated differently from ordinary

judgments” because “if the rules of finality applied to ordinary civil judgments are

applied to workers’ compensation judgments, the flexibility of the workers’

compensation system would be greatly restricted.” Falgout v. Dealers Truck Equip.

Co., 98-3150, pp. 8-9 (La. 10/19/99), 748 So.2d 399, 405. The workers’

compensation statute addresses this difference, providing the workers’ compensation

judge with continuing “power and jurisdiction” to modify former findings or orders

regarding entitlement to compensation, La.R.S. 23:1310.8(A), and to modify prior

compensation awards by “ending, diminishing, or increasing” such awards when “a

change in conditions” is established. La.R.S. 23:1310.8(B). Importantly, this statute

provides that “[a] judgment denying benefits is res judicata after the claimant has

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exhausted his rights of appeal,” but it does not address a judgment awarding benefits.

La.R.S. 23:1310.8(E).

In Jackson v. Iberia Parish Government, 98-1810, pp. 9-10 (La. 4/16/99), 732

So.2d 517, 524-25 (footnote omitted), the supreme court reviewed the purpose of the

modification provision of the workers’ compensation statute, explaining:

The modification statute is to be liberally construed in favor of the
claimant, and that through it, the Legislature did not intend that a
judgment determining the extent of a claimant’s disability be res
judicata, it having expressly provided that a compensation award can be
subject to modification based on a change in the worker’s condition.
The power of modification, while not a substitute for the appellate
process, exists for the purpose of modifying awards due to a change in
the worker’s condition. Malone, supra, § 284, p. 770 (3rd ed.1994).
Indeed, one of its main advantages is that “it permits the [hearing
officer] to make the best estimate of disability . . . at the time of the
original award, although at that moment it may be impossible to predict
the extent of future disability, without having to worry about being
forever bound by the first appraisal.” 8 Larson’s Workers’
Compensation Law § 81.31(a) at 1127, 1131-32 (1998).

Moreover, inherent in the concept of res judicata is the principle
that a party had the opportunity to raise a claim in the first adjudication,
but failed to do so. LSA-RS 13:4231 (West 1991); Terrebonne Fuel &
Lube, Inc. v. Placid Refining Co., 95-0654, 95-0671, p. 16 (La.1/16/96),
666 So.2d 624, 634. Indeed, the issue of Jackson’s disability at the time
of trial was amply litigated. Jackson’s original judgment fixed the
duration of his disability at the date of its rendition and is therefore res
judicata as to that time. However, the cause of action for modification
of the prior award requires litigation of Jackson’s present disability
status and its relation to the prior work-related injury, and that cause of
action did not exist at the time of the first adjudication. Consequently,
since the issue of Jackson’s present disability neither existed nor was
litigated in the original trial, Jackson’s petition for modification cannot
be barred by res judicata.

Additionally, we have previously recognized that the principles
of res judicata “are not ironclad, but must be applied to accomplish
justice in the light of public policy.” Terrebonne Fuel, supra, at 19, 666
So.2d at 635. Consequently, when determining whether Jackson’s
present petition for modification is barred by the exception of res
judicata such a determination must be made with the recognition that the
Legislature, through LSA-R.S. 23:1310.8 B, has taken affirmative steps
to provide claimants with a cause of action to modify a prior award of

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compensation due to an alleged change in condition. The policy behind
this decision was recognized in Harris [v. Southern Carbon Co., 189 La.
992, 181 So. 469 (1938)]: “In short, medical science in certain cases
cannot state exactly what is the extent or duration of disability or
incapacity, and if the judgment erroneously awards either too much or
not enough compensation, the Legislature afforded the aggrieved party
an opportunity . . . to have the error corrected.” Id. at 474. Applying
these principles to accomplish justice in light of the policy inherent in
the Legislature’s decision to enact LSA-R.S. 23:1310.8 B, we find that
Jackson’s petition for modification is not barred by res judicata.

We recognize that Mr. Rivers’ claim seeking approval of the surgery

Dr. Nunley recommended may not fall squarely within the parameters of La.R.S.

23:1310.8. See Brown v. Rouse Co., 97-1243 (La.App. 4 Cir. 1/14/98), 706 So.2d

547, writ denied, 98-419 (La. 5/1/98), 805 So.2d 191, which held that the workers’

compensation judge retains modification jurisdiction under La.R.S. 23:1310.8(A)

where no formal award of benefits existed but ongoing benefits (such as medical)

were being paid and that La. R.S. 23:1310.8(B) pertains to changes in the amount of

benefits. However, we believe that the intent and purpose of La.R.S. 23:1310.8 are

applicable to the facts present herein.

In the present case, Mr. Rivers filed this suit, seeking a judgment ordering the

defendants to approve the surgery Dr. Nunley recommended. That prior judgment

ordered the defendants “to authorize and accept financial responsibility for Roger

Rivers’ choice of an orthopedic surgeon, Dr. Pierce Nunley, to treat Mr. Rivers’

cervical and lumbar spinal injuries” but did not specifically order them to approve the

surgery Dr. Nunley recommended because that recommendation was not presented

to the workers’ compensation judge. While the defendants argue that the claims

presented in this matter and the prior matter are “identical,” a careful reading of their

argument shows that they recognize the claims are not identical, as they describe the

relief sought in both claims as being “virtually the same.” The defendants also argue

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that if the judgment is affirmed “the issues raised in the second dispute would be res

judicata.”

These arguments, however, ignore the fact that a workers’ compensation

claimant is only entitled to recover medical expenses that are “reasonably necessary”

as a result of the work-related accident in which he was injured. Bush v. Avoyelles

Progress Action Comm., 07-685, p. 6 (La.App. 3 Cir 10/31/07), 970 So.2d 63, 68.

Accordingly, a workers’ compensation defendant can always challenge the medical

necessity and causal relation of medical treatment recommended by a claimant’s

treating physician and require the claimant to prove that he is entitled to the

recommended treatment. Therefore, while the supreme court’s denial of the

defendants’ writ application would effectively affirm the workers’ compensation

judge’s judgment in favor of Mr. Rivers, it would nonetheless not equate to a

judgment ordering the defendants to approve the surgery recommended by

Dr. Nunley. As a result, if this court affirms the workers’ compensation judge’s

judgment sustaining the defendant’s declinatory exception of lis pendens, Mr. Rivers

claim for the recommended surgery could be even further delayed.

For these reasons, we find that the workers’ compensation judge abused his

discretion in granting the defendants’ declinatory exception of lis pendens and reverse

the judgment granting said exception.

Disposition

The judgment of the workers’ compensation judge granting the declinatory

exception of lis pendens is reversed, and this matter is remanded for consideration of

Roger Rivers’ claim seeking approval of surgery recommended by his treating

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physician. All costs are assessed to Bo Ezernack Hauling Contractor, LLC, and

Bridge Casualty Insurance Company.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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