Plastic Surgery Associates v. the Nacher Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0930

PLASTIC SURGERY ASSOCIATES

VERSUS

THE NACHER CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DIST. 4
PARISH OF LAFAYETTE, NO. 06-02306
HONORABLE SAM LOWERY
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

JUDGMENT VACATED AND REMANDED.

Lawrence N. Curtis
Lawrence N. Curtis, LTD.
P. O. Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
COUNSEL FOR PLAINTIFF/APPELLANT:
Plastic Surgery Associates

Mark L. Clark
Matthew L. Stedman
Brown Sims, P. C.
Poydras Center, Suite 2200
650 Poydras Street
New Orleans, LA 70130
(504) 638-8472
COUNSEL FOR DEFENDANT/APPELLEE:
The Nacher Corporation

PETERS, J.

The plaintiff, Plastic Surgery Associates (PSA), appeals from an judgment

issued by the workers’ compensation judge (WCJ), sustaining an exception of no

subject matter jurisdiction filed by the defendants: The Nacher Corporation (Nacher)

and its insurer, Ace American Insurance Company (Ace American). For the

following reasons, we vacate the WCJ’s judgment and remand the matter for further

proceedings.

DISCUSSION OF THE RECORD

This matter arises from a work-related injury suffered by a Nacher employee,

Johnathan Goodie. As a part of the employee’s medical care, Nacher authorized

treatment by Dr. Russell C. Romero, a PSA associate. In all, the treatment rendered

to Mr. Goodie by Dr. Romero, as authorized by Nacher and as calculated under the

workers’ compensation schedule [ La.R.S. 23:1034.2 and La.Admin. Code tit. 40, part

I, § 2507], totaled $11,750.17. The payment to PSA for this treatment is the issue in

this litigation.

On March 2, 2005, Mr. Goodie entered into a settlement agreement with

Nacher and Ace American, not under the Louisiana Workers’ Compensation Act, but

pursuant to Section 8(i) of the Longshore and Harbor Workers’ Compensation Act,

33 U.S.C.A. § 901 et seq. The settlement, which meticulously details Mr. Goodie’s

medical care and purports to satisfy all of his claims for compensation and medical

treatment, provides a total settlement amount of $20,356.98 paid directly to Mr.

Goodie. In breaking down the categories of the settlement, the settlement agreement

stated that $5,354.76 of the total amount was for outstanding medical bills, $4,307.67

was for future medical treatment, and $4,300.22 was for legal representation. The

parties to the settlement agreement submitted it to the District Director of the Seventh

Compensation District, U.S. Department of Labor, Office of Workers’ Compensation

Programs, Longshore and Harbor Workers’ Compensation Act, who approved it.

Slightly over one year and one month later, on April 13, 2006, PSA filed a

disputed claim for compensation against Nacher and its workers’ compensation

administrator, ESIS Insurance Company (ESIS),1 seeking payment of the $11,750.17

owed for Mr. Goodie’s medical treatment. It later amended its claim to add Ace

American as a party defendant. Among the numerous filings by Nacher and Ace

American in opposition to PSA’s claim is the exception of no subject matter

jurisdiction which is the subject of this appeal.

Nacher and Ace American filed their exception of no subject matter jurisdiction

and attached a copy of the previously-approved Section 8(i) settlement agreement

between Mr. Goodie, Nacher, and Ace American. Before PSA filed any response to

the exception, the WCJ issued a judgment granting the exception and dismissing

PSA’s claim. PSA has appealed this judgment.

OPINION

We find that the judgment of the WCJ should be vacated and the matter

remanded to the Office of Workers’ Compensation for further proceedings.

Louisiana Code of Civil Procedure Article 929 provides that declinatory

exceptions, “when pleaded before or in the answer shall be tried and decided in

advance of the trial of the case.” La.Code Civ.P. art. 929(A) (emphasis added). In

the matter before us, the WCJ decided the issue without holding a hearing and giving

PSA an opportunity to be heard. Thus, the WCJ’s dismissal of PSA’s claim is an

improper ex parte order. Because Article 929 requires a hearing to determine the

1
The WCJ subsequently dismissed ESIS as a party defendant, leaving only Nacher and Ace
American as defendants.

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merits of a declinatory exception prior to a trial on the merits of the matter, we find

that the WCJ improperly granted judgment in this matter. Accordingly, we vacate the

WCJ’s judgment and remand the matter so that a hearing may be held to decide the

merits of the declinatory exception of no subject matter jurisdiction.

DISPOSITION

For the foregoing reasons, we vacate the judgment of the workers’

compensation judge and remand the matter for further proceedings. We assess all

costs of this appeal to The Nacher Corporation and Ace American Insurance

Company.

JUDGMENT VACATED AND REMANDED.

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