Fru-Con Construction Corporation v. Clarence Moore

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-528

FRU-CON CONSTRUCTION CORPORATION

VERSUS

CLARENCE MOORE

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT 2
GRANT PARISH, NO. 10-10536
JAMES BRADDOCK, WORKERS COMPENSAITON JUDGE

SYLVIA R. COOKS
JUDGE

Court composed of Sylvia R. Cooks, James T. Genovese, Phyllis M. Keaty,
Judges.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

Madeline J. Lee
Christina S. Slay
Bolen, Parker, Brenner & Lee, Ltd.
P.O. Box 11590
Alexandria, La 71315-1590
(318) 445-8236
Counsel for Plaintiff/Appellant; Fru-Con Construction Corporation

Daniel E. Broussard, Jr.
Broussard, Halcomb & Vizzier
P.O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
Counsel for Defendant/Appellee; Clarence Moore

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Clarence Moore (Claimant) is a fifty-four year old worker who was injured

in 2003 while working as a welder for Fru-Con Construction Corporation (Fru-

Con). Claimant received workers‟ compensation benefits for an injured knee and

back. Claimant was treated by Dr. Gordon Webb, Dr. Douglas Ganburg, and Dr.

Greg Garrison. He received weekly indemnity benefits and, in 2005, returned to

work for Fru-Con on a modified basis. In 2006, Claimant re-injured his left knee

and his back on the job while working for Fru-Con. In 2006, following the second

accident, Claimant underwent an MRI of his left knee. The MRI indicated

recurrent tearing and subtle medial and patellafemoral compartment

chondromalacia. In both 2003 and 2005, Claimant had two functional capacity

evaluations (FCE‟s) which demonstrated he could work at the sedentary level. He

has also been treated for depression and chronic pain syndrome by Dr. James

Quillin, a board certified psychologist. Dr. Michael Dole (Dr. Dole) is Claimant‟s

current treating physician who has prescribed various narcotic and anxiolytic

medications for treatment of chronic pain. Fru-Con had second medical opinion

(SMO) and independent medical examination (IME) orthopedic examinations

performed on Claimant. Fru-Con‟s doctor and the IME doctor recommended

Claimant‟s treating physician take him off all prescribed narcotic pain medications,

and anxiolytic medications, and further recommended that once Claimant has

stopped taking these medications a FCE be conducted on Claimant.

Dr. Dole rejected these recommendations. Fru-Con thereafter filed a

Petition for Declaratory Judgment, asking the workers‟ compensation judge (WCJ)

to decide what course of treatment the Claimant should follow. Claimant filed an

Exception of Prematurity, No Cause of Action, and a Motion for Sanctions and

Attorney Fees. The WCJ dismissed the Exception of Prematurity because it was
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not filed prior to filing an answer. He sustained Claimant‟s Exception of No Cause

of Action dismissing Fru-Con‟s Petition for Declaratory Judgment but denied

Claimant‟s Motion For Sanctions and Attorney Fees. Fru-Con sought leave of

court to amend their petition arguing that they could terminate either Claimant‟s

indemnity or medical benefits and thereby make an appropriate allegation bringing

their Petition for Declaratory Judgment within the requirements of La.R.S.

23:1314. The WCJ denied Fru-Con‟s request.

Fru-Con appeals alleging the WCJ erred in dismissing its Petition for

Declaratory Judgment; in granting Claimant‟s Exception of No Cause of Action;

and in failing to allow it to amend its petition. Claimant did not appeal the denial

of its Motion for Sanctions and Attorney Fees. For the reasons stated below and in

Fru-Con Construction Corp. v. Xchanging and Oscar A. Kierum,II 11-529,

(La.App. 3 Cir. 11/__ /11), __So.3d__, we affirm in part and remand with

instructions.

DISCUSSION

Fru-Con asserts that this court should not follow the decisions of our three

sister circuit courts of appeal which have held that the provisions of La.R.S.

23:1314 apply to both employers and employees. See La. Commerce & Trade

Ass’n v. Cruz, 09-2014 (La.App. 1 Cir. 5/7/10), 38 So.3d 1041; Michaels Store,

Inc. v. Hart, 01-655 (La. App. 4 Cir. 5/20/02), 815 So.2d 201, citing and attaching

as an appendix, Labor Ready, Inc. v. Lorick, 00-1559 (La.App. 4th Cir. 9/6/00),

unpublished opinion, writ denied, 00-2801 (La. 12/8/00), 776 So.2d 461; Bank One

v. Johnson, 04-508 (La.App. 4 Cir. 8/11/04), 882 So.2d 30; Jim Walter Homes v.

Long, 02-950 (La.App. 4 Cir. 12/18/02), 835 So.2d 877; and Clement v.

Blanchard, 05-531 (La.App. 5 Cir. 2/14/06), 924 So.2d 295. Under these decisions

Fru-Con concedes the correctness of the WCJ‟s ruling herein regarding application

of the provisions of La.R.S. 23:1314 to employers. Fru-Con, however, urges this

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court to render a decision at odds with these decisions and thereby give cause for

the Louisiana Supreme Court to make a ruling on the matter. We first note, that

the Louisiana Supreme Court has refused to take up this issue in a case out of the

Louisiana fourth circuit court of appeal. In Labor Ready, Inc., the Fourth Circuit

held that the provisions of La.R.S. 23:1314 apply equally to both employer and

employee governing “the procedure every court must follow when dealing with a

worker‟s compensation claim petition form.” Michaels Stores, Inc. at 204. In

Labor Ready, Inc. and in Michael Stores, Inc., the fourth circuit upheld the WCJ‟s

dismissal of an employer‟s petition as it failed to allege any of the bases

enumerated in La.R.S. 23:1314 and, therefore, under the express provisions of the

statute, found its petition was premature. In rejecting the employer‟s argument that

the court‟s interpretation of the statute “will surely lead to absurd results when a

court is forced to read this statute‟s requirements strictly and mandate an

„employer‟ claimant to include one of the necessary allegations mentioned above

to avoid a finding of prematurity[,]” Michaels at 204, the fourth circuit in Labor

Ready, Inc., agreed with the trial court‟s observation that the “employer has the

option under the La. Worker‟s Compensation Act to deny a claim it thinks is not

compensable.” Michaels at 205. Thus, the fourth circuit reasoned, “[w]ith this

noted option always available to an employer, the trial court‟s reading of La. R.S.

23:1314 does not always lead to such an absurd result as the appellant claims.” Id.

In the case before us, we note with interest the WCJ‟s observation made

during the hearing on the matter before him which illuminates the rationale for his

decision. The WCJ observed that the Petition for Declaratory Judgment filed by

Fru-Con sought to place competing medical advice regarding the care and

treatment of Claimant before him; have him decide whether the advice of the IME

doctor should be imposed upon Claimant or should Claimant‟s treating physician‟s

advice be followed by Claimant. The WCJ correctly observed that our workers‟

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compensation law entitles every claimant to be treated by a physician of his choice.

See La.R.S. 23:1121(B) and Smith v. S. Holding, Inc., 02-1071 (La. 1/28/03), 839

So.2d 5. As he further correctly observed, if and when an employer is convinced

that the IME doctor‟s findings and recommendations are correct, it has the right to

terminate the employee‟s benefits at its peril. But the employer in this case, and in

those decided by our sister circuits, seeks another remedy which does not put it at

risk for penalties and attorney fees for wrongfully denying/terminating benefits.

The employer argues that it should be allowed to bring its Petition for Declaratory

Judgment without meeting the requirements of La.R.S. 23:1314.

Fru-Con admits that none of the mandatory enumerated allegations of the

statute form the basis of its petition. Fru-Con argues that the statute was not

intended to apply to employers. It asserts that it is “absurd” to apply its

requirements to an employer seeking a declaratory ruling from a WCJ forcing the

WCJ to decide whether an IME doctor‟s recommendations as to treatment should

be implemented instead of the Claimant‟s treating physician‟s manner of treatment.

Fru-Con further seeks a determination of whether the IME doctor‟s findings of

disability should prevail. These arguments have failed to convince our sister

circuits to make such an interpretation of the provisions of our workers‟

compensation statutory scheme and likewise fail to convince this court. The

Louisiana Supreme Court refused to accept writs to address the findings of our

sister circuits on this issue when it had an opportunity to do so. Such refusal is at

least indicative of the correctness of the fourth circuit‟s ruling.

Fru-Con attempts to raise the issue of the constitutionality of La.R.S.

23:1314 as applied to employers for the first time in its reply brief. We cannot

address the issue of this statute‟s constitutionality in this case, as it was not

mentioned, briefed, nor argued in any filings in the court below. Louisiana

Revised Statutes 23:1310.3(G) expressly provides:

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(1) Any person challenging the constitutionality of any provision of
this Chapter shall specially plead such an allegation in the original
petition, an exception, written motion or answer, which shall state
with particularity the grounds for such an allegation.

(2) Within thirty days of the filing of any pleading raising the issue of
unconstitutionality, the party making such an allegation must file a
petition in a state district court of proper jurisdiction for purposes of
adjudicating the claim of unconstitutionality. Such filing shall be
given priority in hearing such claim not more than ten days from
being presented to the district court.

(3) Failure to follow the procedures set forth in this Section shall bar
any claim as to the unconstitutionality of any provision of this Chapter
on appeal.

When we are presented with a question of law concerning a WCJ‟s ruling,

we review the WCJ‟s finding to determine if it is legally correct. Scobee v. Brame,

98-564 (La.App. 3 Cir. 10/28/98), 721 So.2d 977, writ denied, 98-2952 (La.

1/29/99), 736 So.2d 833. We now turn to the applicable statutory provisions

regarding the filing of claims by either the employer or employee. Louisiana

Revised Statutes 23:1310(A) provides:

If at any time after notification to the office of the occurrence of
death or injury resulting in excess of seven days lost time, a bona fide
dispute occurs, the employee or his dependent of the employer or
insurer may file a claim with the state office, or the district office
where the hearing will be held, on a form to be provided by the
director.

Louisiana Revised Statutes 23:1310.3(A) provides in pertinent part: “A

claim for benefits, the controversion of entitlement to benefits, or other relief under

the Workers‟ Compensation Act shall be initiated by the filing of the appropriate

form with the office of workers‟ compensation administration.” The parties herein

agree that the appropriate form for filing this employer‟s Petition for Declaratory

Judgment is a Form 1008 which was filed by Fru-Con. Louisiana Revised Statutes

23:1314 provides (emphasis added):

A. The presentation and filing of the petition under R.S.
23:1310.3 shall be premature unless it is alleged in the
petition that:

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(1) The employee or dependent is not being or has not
been paid, and the employer has refused to pay, the
maximum percentage of wages to which the petitioner is
entitled under this Chapter; or

(2) The employee has not been furnished the proper
medical attention, of the employer or insurer has not paid
for medical attention furnished; or

(3) The employee has not been furnished copies of the
reports of examination made by the employer‟s medical
practitioners after written request therefor has been made
under this Chapter; or

(4) The employer or insurer has not paid penalties or
attorney‟s fees to which the employee or his dependent is
entitled.

B. The petition shall be dismissed when the allegations in
Subsection (A) of this Section are denied by the employer
and are shown at a time fixed by the workers‟ compensation
judge to be without reasonable cause or foundation in fact.

C. The workers’ compensation judge shall determine
whether the petition is premature and must be dismissed
before proceeding with the hearing of the other issues
involved with the claim.

The first, fourth, and fifth circuits have held that the provisions of La.R.S.

23:1314 apply to Form 1008 which are filed by employers as well as those forms

filed by employees. These courts have duly recognized the anomaly created by the

provisions of La.R.S. 23:1310.3 and La.R.S. 23:1314 as applied to employers, but

have rightly concluded that resolution of this statutory problem is within the

province of the Louisiana legislature, not the courts. As Judge Armstrong wrote in

her concurrence in Bank One v. Johnson, 882 So.2d at 33:

Bank One makes a valid argument that employers should have the
prerogative to file a LDOL-WC-1008 form in cases where an
employee is receiving benefits to which he or she may not be entitled.
However, as we noted in Michaels Store, Inc. v. Hart, 2001-0655
(La.App. 4 Cir. 3/20/02), 815 So.2d 201, that is something that must
be dealt with by the legislature‟s amending the Workers‟
Compensation statute or by the Supreme Court‟s holding that La.R.S.
23:1314 does not apply to LDOL-WC-1008 forms filed by employers.

We note that the earliest case deciding this issue was in 2002 and not since that

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time has the legislature deemed it necessary to correct what has been described by

the courts and employers as the “anomaly” presented by the workers‟

compensation statutes concerning the applicability of the provisions of La.R.S. 23:

1314 to employers. Further, the Louisiana Supreme Court has at least on one

occasion, when presented with the opportunity to disagree with the courts of appeal

on this issue, refused writs. Perhaps they, too, recognize that while employers may

present a valid argument, it is the exclusive province of the legislature to write the

laws. This court, as all others, is constrained to apply the laws as written and

cannot substitute or delete words in statutes which we would have to do in order to

rule as Fru-Con asks us to do. See La. Commerce & Trade Ass’n v. Cruz, 38

SO.2d at 1044.

We further note that Fru-Con‟s reliance on our decision in Snelling

Personnel Services v. Duhon, 00-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350, is

misplaced, and our decision in that case is not dispositive of the issue raised herein.

We addressed an entirely different issue in Snelling, and the dicta recited by Fru-

Con in brief does not support its position. In fact, as we read our language in

Snelling we find that language supports our decision herein. In Snelling v. Duhon,

772 So.2d at 353, we said:

Workers‟ Compensation law allows an employer or employee to file a
claim with the Office of Workers‟ Compensation to resolve a dispute
between the employer and the claimant. See La.R.S. 23: 1310(A).
The statute provides that “[i]f … a bona fide dispute occurs, the
employee … or the employer or insurer may file a claim … on a form
to be provided by the director.” Id. It was not legally necessary that
Snelling file this form; the employer may terminate voluntary
payments at will and with impunity, provided the termination is not
arbitrary and capricious.

This language supports our position herein that La.R.S. 23:1310 is applicable

to both employers and employees, thus rendering the provisions of La.R.S.

23:1314 as currently written also applicable to both. Further, as the WCJ in this

case asked Fru-Con in the hearing on the matter, what is the “dispute” presented in

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its Petition for Declaratory Judgment? The petition, rather than presenting a “bona

fide dispute,” seeks to have the WCJ chose the course of treatment and frequency

of visits Claimant must make to his treating physician and seeks to have the WCJ

make medical decisions for Claimant rather than allowing his treating physician,

whom he has an absolute right to choose, do so. The WCJ did not manifestly err in

refusing to make such choices. As we said in Snelling, this employer, if convinced

of the findings and recommendations of the IME doctor, may choose to act

accordingly and “terminate voluntary payments at will and with impunity,

provided the termination is not arbitrary and capricious.” Snelling Personnel

Services v. Duhon, 772 So.2d at 353. Under the present statutory provisions, the

employer cannot bring an action which does not comply with the provisions of

La.R.S. 23:1314 for, in such instance, the WCJ is duty bound to dismiss the action

as premature and is prohibited from addressing any other issue in the proceeding.

See La. R.S. 23:1314(A) and (C). The statute instructs the WCJ to dismiss the

petition if he finds that none of the enumerated causes are contained in the Form

1008 filed.

Fru-Con additionally asserts that it should be given the opportunity to “amend”

its petition to afford it time to create a cause of action by terminating Claimant‟s

indemnity or medical benefits. Fru-Con relies on the provisions of La.Code Civ.P.

art. 934 which provides: (emphasis added)

When the grounds of the objection pleaded by the peremptory
exception may be removed by amendment of the petition, the
judgment sustaining the exception shall order such amendment within
the delay allowed by the court. If the grounds of the objection raised
through the exception cannot be so removed, or if the plaintiff fails to
comply with the order to amend, the action, claim, demand, issue, or
theory shall be dismissed.

Article 934 provides when an amendment of the pleadings may suffice to state

a cause of action in this case, the WCJ shall allow plaintiffs time to make such

amendment. However, this right is not absolute. It necessarily hinges on whether,

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based on the facts existing at the time suit was filed, plaintiff may be able, through

amendment of the pleadings, to state facts sufficient for the WCJ to declare as a

matter of law that plaintiff is entitled to the relief it requested. Although the

transcript of the hearing contains the colloquy between the WCJ and Fru-Con‟s

attorney regarding Fru-Con‟s request for leave to amend its petition, the WCJ

failed to directly address in his judgment the issue of why Fru-Con would not be

allowed to amend its petition. The WCJ explained in the hearing that Fru-Con‟s

petition presents no “dispute”, i.e., no justiciable controversy upon which he could

issue a ruling. As we have held, “there is no right or cause of action when there is

no justiciable controversy.” Desselle v. Dresser Indus. Valve, 96-374 (La.App. 3

Cir. 2/5/97), 689 So.2d 549, 551-52, writ denied 97-618 (La. 4/25/97), 692 So.2d

1086. “Additionally, the Trial Court is given discretion to refuse to render a

declaratory judgment, and appellate courts should not reverse unless there is an

abuse of discretion.” Id. at 552. Fru-Con admits that at the time it filed its Petition

for Declaratory Judgment none of the grounds stated in La.R.S. 23:1314 existed.

Nevertheless, the WCJ did not address this issue in his judgment. We elect to

remand the case to the WCJ with instructions that he directly address the issue of

why he did not allow Fru-Con to amend its Petition for Declaratory Judgment.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS

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