David Early v. R and J Technical Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-686

DAVID EARLY

VERSUS

R AND J TECHNICAL SERVICES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 10-09740
HONORABLE ADAM JOHNSON, JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Painter, Judge, dissents and assigns written reasons.

Harry Burdette
300 Stewart St.
Lafayette, LA 70501
COUNSEL FOR PLAINTIFF-APPELLANT:
David Early

Paul W. Jones
4766 S. Holladay Blvd.
Salt Lake City, UT 84117
COUNSEL FOR DEFENDANT-APPELLEE:
R and J Technical Services, Inc.

COOKS, Judge.

Plaintiff, David Early, appeals the judgment of the Workers’ Compensation

Judge (WCJ) dismissing his claim against Defendant, R and J Technical Services

(R and J) with prejudice. For the following reasons, we affirm.

FACTS

Plaintiff was contacted in Lafayette Parish, Louisiana to perform work for R

and J in North Dakota. He allegedly sustained an electrical shock injury on July

10, 2010. A claim was filed with the North Dakota Workforce Safety and

Insurance (NDWSI). On September 23, 2010, the NDWSI issued a "NOTICE OF

DECISION DENYING BENEFITS.” It was determined that Plaintiff did not

sustain a work-related injury. The Notice also included language notifying

Plaintiff of his right to dispute the decision within thirty days by notifying his

claims adjuster. Rather than disputing that decision, on October 10, 2010, Plaintiff

filed a disputed claim for compensation with the Louisiana Office of Workers’

Compensation. The disputed claim was served on the NDWSI, as well as R and J.

A motion to dismiss the disputed claim for compensation was filed by R and J,

asserting that the claim was adjudicated in the North Dakota tribunal and, that

because Plaintiff failed to properly dispute the decision of the NDWSI, that

decision is res judicata and, as the judgment of another state, it is entitled to the full

faith and credit of the courts of this state.1 The WCJ granted the motion. Early

appeals.

ANALYSIS

In his first issue, Plaintiff asserts he was not “properly noticed that [NDWSI]

was an alleged tribunal and not an insurance company.” We find no merit in this

argument.
1
Counsel for Defendant, Paul W. Jones, applied for and was granted admission to the Louisiana State Bar
Association pro hac vice.
1

The North Dakota legislature created the NDWSI, which is a tribunal with

authority to render judgments in all workers’ compensation claims that have the

same effect as a court. It is the equivalent of Louisiana’s Office of Workers’

Compensation. Plaintiff has set forth no reasonable assertion or any authority for

his erroneous belief that the NDWSI was an insurance company.

As to Plaintiff’s argument that he was not “properly noticed” by the NDWSI,

he unequivocally acknowledged that he received from NDWSI a “Notice of

Decision Denying Benefits,” which gave the following instructions with regard to

disputing the decision:

If you feel this decision is incorrect, please write to your claims
adjuster within 30 days of the date on this notice to request
reconsideration. Please explain why you think the decision is wrong
and what you think the correct decision should be. Also enclose any
additional information for WSI to consider. The request for
reconsideration must be in writing from you, not your physician. If a
request for reconsideration is not received within 30 days, this
decision will be final. If you agree with this decision, nothing more is
required.

Plaintiff argues this notice “does not advise [him] that this is a judicial

determination or that if he fails to request reconsideration within thirty days that all

remedies for his workers’ compensation claim will have been judicially

exhausted.” We note, initially, this assertion is untrue as the notice from the

NDWSI does advise him of his legal rights to appeal. Further, Plaintiff has cited

no legal authority as to why his erroneous belief the NDWSI was an insurance

agency would relieve him of his duty to adhere to North Dakota workers’

compensation law and appeal procedures considering he voluntarily filed his claim

there.

In his second assignment of error, Plaintiff argues the NDWSI “was divested

from any jurisdiction in claimant’s workers’ compensation claim when claimant

filed a Disputed Claim for Workers’ Compensation Benefits (Form 1108) in
2

Louisiana prior to a final adjudication by [the NDWSI].” Again, Plaintiff cites to

no legal authority for this proposition.

In his oral reasons for judgment, the OWC judge noted the United States

Supreme Court case of Thomas v. Washington Gas Light Co., 448 U.S. 261, 100

S.Ct. 2647 (1980). In that case, The United States Supreme Court stated “the fact

findings of state administrative tribunals are entitled to the same res judicata effect

in the second State as findings by a court.” Id. at 281, 100 S.Ct. at 2660.

Therefore, the Louisiana Office of Workers’ Compensation is compelled by the

Full Faith and Credit Clause to give preclusive effect to the fact findings of a North

Dakota administrative tribunal.

In the present case, Plaintiff’s claim for benefits in Louisiana is completely

conditional upon his having sustained his alleged injury while working in North

Dakota. However, the administrative tribunal of North Dakota (the NDWSI) has

already ruled on the fact and found that Plaintiff did not sustain such an injury.

Under Thomas, the Louisiana court must give full faith and credit to that factual

determination. Without an injury, the Louisiana Office of Workers’ Compensation

was required to dismiss Plaintiff’s claim. There was no error in the OWC’s grant

of the motion to dismiss.

Finally, R and J asks this court to award damages for frivolous appeal

pursuant to La.Code Civ.P. art. 2164. However, R and J failed to file an answer to

the appeal requesting such damages, and therefore, we are precluded from

considering this issue. La.Code Civ.P. art. 2133.

3

DECREE

The judgment of the Louisiana Office of Workers’ Compensation dismissing

Plaintiff’s claim is affirmed. All costs of this appeal are assessed to Plaintiff-

Appellant, David Early.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-686

DAVID EARLY

VERSUS

R AND J TECHNICAL SERVICES, INC.

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PAINTER, Judge, dissents.

I respectfully dissent from the majority opinion herein and would reverse the

judgment of the Workers’ Compensation Judge dismissing Early’s claim and would

order the matter stayed

I believe that the filing of the claim and service thereof on the NDWSI was

sufficient notice of intent to dispute the decision to interrupt the delay for disputing

it set out in the notice issued by the NDWSI.

Therefore, it is my opinion that no final judgment exists such as to support

an exception of res judicata or the existence of a final judgment entitled to the full

faith and credit of the courts of this state. I would, however, find that the doctrine

of lis pendens is, however, applicable. Louisiana Code of Civil Procedure Article

532 provides that:

When a suit is brought in a Louisiana court while another is pending
in a court of another state or of the United States on the same
transaction or occurrence, between the same parties in the same
capacities, on motion of the defendant or on its own motion, the court
may stay all proceedings in the second suit until the first has been
discontinued or final judgment has been rendered.

Because suit is pending in the North Dakota court, I would reverse the

judgment of the trial court dismissing Early’s claim and order this matter stayed

until the North Dakota proceeding is discontinued or a final judgment has been

rendered.