Gay Lowery v. Jena Nursing & Rehab Center

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 14-1106

GAY LOWERY

VERSUS

JENA NURSING & REHAB CENTER

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - #1E
PARISH OF CATAHOULA, NO. 14-03212
BRENZA IRVING-JONES, WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS

JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese and John E. Conery,
Judges.

RULE TO SHOW CAUSE RECALLED.

Curtis Daniel Street
Street & Street
508 N. 31st St.
Monroe, LA 71201
(318) 325-4418
COUNSEL FOR PLAINTIFF/APPELLANT:
Gay Lowery

Stephanie L. Cheralla
Degan, Blanchard & Nash
400 Poydras St., Suite 2600
New Orleans, LA 70130
(504) 529-3333
COUNSEL FOR DEFENDANT/APPELLEE:
Jena Nursing & Rehab Center

PETERS, Judge.

This court, on its own motion, issued a rule for the appellants, Jena Nursing

and Rehabilitation Center and Technology Insurance Company, to show cause, by

brief only, why this appeal should not be dismissed as having been taken from a

non-appealable, partial judgment. The appellants have filed a brief in response to

this court’s rule to show cause. For the reasons given below, we recall the rule to

show cause and maintain the appeal.

The claimant, Gay Lowery, sustained a back injury in a work related

incident. Ms. Lowery’s physician, Dr. Michael Drerup, recommended surgery.

Since the parties disagreed as to whether this procedure was necessary for the

injuries sustained in the work related incident, this recommendation was presented

to the Medical Director for the Office of Workers’ Compensation seeking approval

pursuant to La.R.S. 23:1203.1. The Medical Director denied approval for the

surgery. Therefore, Ms. Lowery filed a Form 1008, Disputed Claim for

Compensation with the Office of Workers’ Compensation appealing the Medical

Director’s decision. Ms. Lowery also prayed for an award of penalties and

attorney fees, with interest and costs.

The employer and its compensation insurer, appellants herein, responded by

filing an exception of no cause of action directed only against the claim for

penalties and attorney fees. They also answered the petition and filed affirmative

defenses. Additionally, being of the opinion that the surgery should not be

authorized, the appellants filed a motion seeking to have the OWC judge enter an

order compelling Ms. Lowery to attend a functional capacity evaluation (FCE).

Appellants also sought an expedited hearing on Ms. Lowery’s appeal of the

Medical Director’s decision, and the OWC judge set the matter for hearing on June

30, 2014.

Thus, at the start of the hearing held on June 30, the attorney for the

appellants began arguing the merits of their motion to compel the FCE. In

response to appellants’ counsel’s statements to the court, the attorney for Ms.

Lowery opined that the question of whether Ms. Lowery should be compelled to

undergo an FCE should, logically, be the last issue examined by the court. Instead,

Ms. Lowery’s counsel contended that the first issue should be the merits of the

appeal from the Medical Director’s decision to deny Ms. Lowery’s back surgery.

Specifically, Ms. Lowery’s counsel stated:

I think that [the FCE] would be the last one we would get to. We filed
for this Court to review--we filed for an appeal of the medical
director’s decision denying the surgery. It would appear to me that
would be the first thing that would need to be address [sic], because if
she’s entitled to surgery, she certainly doesn’t need to be having to
undergo a functional capacity test until she’s had her surgery and
gotten well, which is essentially the same situation we were in before.
But in this case they have filed--let’s see if I can find it here. They
filed an exception of no cause of action on the claim for penalties and
attorney fees that we brought in this connection, which-- And as I
understand it, they set our appeal for hearing today on an expedited
basis. So we’re here--we’re here to try our case on whether she’s
entitled to the surgery. And then-- And so, I don’t know what order
the Court wants to take all that in. But as I understand it, all of that is
at issue today.

The OWC judge agreed; therefore, Ms. Lowery’s counsel began presenting the

case against the Medical Director’s decision.

Not only did Ms. Lowery’s counsel express the opinion that all issues were

to be presented to the OWC court on June 30, appellants’ counsel commented at

the conclusion of her argument that, even if the OWC court determined that the

medical director’s decision should not be upheld, the award of penalties should not

be assessed against the appellants. And finally, near the completion of Ms.

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Lowery’s counsel’s arguments to the OWC judge, he again argued that penalties

and attorney fees should be awarded to Ms. Lowery due to the appellants’ failure

to authorize and pay for her recommended back surgery.

At the conclusion of the hearing, after taking a break to review the case, the

OWC judge orally rendered the ruling finding that the Medical Director’s decision

should be reversed and ordered that Ms. Lowery is entitled to the back surgery.

The OWC judge then stated that the motion to compel the FCE was denied at this

time, reserving the appellants’ right to ask for an FCE at the appropriate time

following the surgery. However, the OWC judge did not enter any ruling with

regard to the issue of penalties or attorney fees nor did the OWC judge directly

address the appellants’ exception of no cause of action directed against these

claims. Counsel for Ms. Lowery stated on the record that he would prepare the

judgment for the OWC court to sign.

The OWC judge ultimately signed two separate judgments on the same day.

One judgment overturns the decision of the Medical Director denying Ms.

Lowery’s surgery, and then proceeds to authorize the surgery with the appellants

paying for it. The second judgment denied the appellants’ motion to compel the

FCE, reserving to them the right to urge this motion again when appropriate.

Neither judgment addressed the exception of no cause of action or the issue of Ms.

Lowery’s entitlement to penalties or attorney fees.

The appellants filed a motion seeking a suspensive appeal from the judgment

ordering them to pay for Ms. Lowery’s back surgery. Upon receipt of record, this

court issued the subject rule for the appellants to show cause why the appeal

should not be dismissed as having been taken from a partial judgment.

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In response to this court’s rule to show cause, the appellants argue that a

judgment reversing the Medical Director’s decision denying the employee’s

request for approval of a medical procedure is appealable if the appealed judgment

is a complete adjudication of the claim. This court does not disagree with the

appellants on this point. However, this court recognizes that when elements of a

claim set forth by the petitioner include recovery of penalties and attorney fees,

there has not been a complete adjudication of the claim until the court has ruled on

all of the elements of the claim including penalties and attorney fees.

Thus, in Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir.

3/5/03), 840 So.2d 672, an appeal was taken from an award of attorney fees. The

trial court had previously rendered a final judgment on a motion for summary

judgment filed by the plaintiff finding that the defendants were liable for breach of

a lease agreement. The lease agreement had a provision entitling the plaintiff to an

award of attorney fees if the defendants were found to have breached the lease.

However, when the plaintiff filed the motion for summary judgment, the plaintiff

failed to raise the right to an attorney fee award in the motion. While the

defendants filed an appeal from the judgment finding they had breached the lease,

the plaintiff also failed to file an answer in the appellate court seeking an award of

attorney fees.

Instead, the plaintiff filed a motion in the trial court seeking the award of

attorney fees in accordance with the lease provision while the appeal was pending

in the appellate court from the judgment finding that the defendants had breached

the lease. The trial court awarded attorney fees for the plaintiff, and the defendants

appealed.

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On appeal from the attorney fee award, the appellate court found that the

trial court had been without jurisdiction to decide the attorney fee issue since an

appeal had already been perfected from the judgment finding the breach of the

lease agreement. The defendants also argued that res judicata applied to the earlier

judgment and that this principle also barred litigation of the attorney fees issue. In

agreeing with the defendants’ position on this latter issue, the appellate court

remarked:

All issues related to the breach of the lease were extinguished and
merged into the final judgment rendered by the district court. La.R.S.
13:4231(1). As previously stated, neither the record nor the previous
judgment rendered indicate any reservation of the attorney fees issue
for future adjudication. In this instance, we deem it appropriate to
apply the principle that a demand not granted or reserved in the
judgment must be considered as rejected. See Soniat v. Whitmer, 141
La. 235, 74 So. 916 (La.1917). The legal effect of the silence of a
judgment on any part of a demand that might have been allowed under
the pleadings is a rejection of such part of the demand, which tacit
rejection has the force and effect of res judicata against subsequent
suit for such part of the demand. Edenborn v. Blacksher, 148 La. 296,
86 So. 817 (1921).

840 So.2d at 675.

Turning to the instant case, it is clear from the transcript of the hearing that

the parties and the OWC court knew that the issue of whether Ms. Lowery was

entitled to penalties and attorney fees was being litigated during that hearing. Like

the court in Ken Lawler, 840 So.2d 672, concluded, we can only conclude that the

OWC court’s silence in the two written judgments resulting from that hearing

constituted a denial of the claim for penalties and attorney fees. Therefore, we find

that, since no issues remain to be litigated at this time before the OWC court, this

court’s rule to show cause why the appeal should not be dismissed as having been

taken from a partial judgment must be recalled, and the appeal is hereby

maintained.

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RULE TO SHOW CAUSE RECALLED.

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