Carey Dorsey v. Protemp Staffing Solutions, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-793

CAREY DORSEY

VERSUS

PROTEMP STAFFING SOLUTIONS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 15-06413
CHARLOTTE BUSHNELL, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.

AFFIRMED.

Stacy C. Auzenne
Auzenne Law Firm, L.L.C.
3600 Jackson Street, Suite 121
Alexandria, LA 71303
(318) 880-0087
COUNSEL FOR DEFENDANT/APPELLEE:
ProTemp Staffing Solutions, Inc.

Charles W. Farr
1966 N. Highway 190, Suite B
Covington, LA 70433
(985) 626-3812
COUNSEL FOR DEFENDANT/APPELLEE:
Boise Cascade Company

Carey Dwayne Dorsey
Post Office Box 562
Oberlin, LA 70655
(337) 977-1244
IN PROPER PERSON

AMY, Judge.

The workers’ compensation claimant sought benefits from injuries he

allegedly sustained in a work-related accident. After the parties entered into a

settlement, the claimant sought to reopen his claim by filing an amended claim.

The workers’ compensation judge concluded that the claimant failed to prove that

the settlement should be set aside or modified. Subsequently, the claimant filed a

motion to amend judgment and motion for new trial, and the workers’

compensation judge denied both motions. The claimant now appeals. For the

following reasons, we affirm.

Factual and Procedural Background

On October 9, 2015, the claimant, Carey Dorsey, filed a “Disputed Claim for

Compensation” in which he alleged that he injured his neck and back on

September 21, 2011, while employed by ProTemp Staffing Solutions, Inc.

(“ProTemp”). In particular, Mr. Dorsey asserted that the injury occurred when he

was attempting to open a panel on a “chipper,” which was subsequently engaged

and jerked his body. Mr. Dorsey contended that his wage benefits terminated or

were reduced on September 7, 2015, and that Protemp should be assessed

penalties, attorney fees, court costs, and legal interest, as well as a penalty for the

failure to have workers’ compensation insurance.

ProTemp answered and, in pertinent part, denied that Mr. Dorsey sustained

an injury and denied that he was either temporarily or permanently disabled. In its

answer, ProTemp stated that, at the time of Mr. Dorsey’s alleged injury, it was

insured by the Louisiana Safety Association of Timbermen. Additionally,

ProTemp provided that compensation had been paid to Mr. Dorsey from

September 21, 2011, the date of the alleged accident, until September 7, 2015. The

record indicates that around September 7, 2015, the Louisiana Safety Association

of Timbermen filed for bankruptcy.

Subsequently, Mr. Dorsey filed a “Motion and Order to File Amended and

Supplemental Disputed Claim for Compensation.” Mr. Dorsey alleged that, at the

time of the injury, he had been “hired by ProTemp and loaned to defendant, Boise

Cascade Company (“Boise Cascade”) to perform work as a temporary employee.”

He further contended that, “[a]s the borrowing employer and/or the statutory

employer, Boise Cascade is liable for workers’ compensation indemnity benefits to

Carey Dorsey.” The workers’ compensation judge granted Mr. Dorsey’s motion.

Mr. Dorsey and Boise Cascade ultimately entered into a consent judgment, which

stipulated that Boise Cascade was the “special employer” or “borrowing employer”

on the date of the alleged accident.

A hearing on Mr. Dorsey’s claims was scheduled for November 16, 2016.

However, prior to the start of the hearing, counsel notified the workers’

compensation judge that the parties had reached an agreement to settle, and a

compromise settlement was read into the record before the workers’ compensation

judge. Mr. Dorsey was represented by counsel, Gregory P. Marceaux, at this

hearing. The workers’ compensation judge asked Mr. Dorsey whether he had

heard the terms and conditions of the settlement and whether he agreed with them,

and Mr. Dorsey responded affirmatively to both questions. Thereafter, Mr.

Dorsey, ProTemp, and Boise Cascade filed a “Joint Motion to Dismiss with

Prejudice,” which was granted by the workers’ compensation judge. The parties

then submitted signed compromise settlement documents and a “Joint Petition for

Compromise Settlement of Workers’ Compensation Claim” to the workers’

compensation judge. On January 17, 2017, the workers’ compensation judge

signed the parties’ “Request for Compromise or Lump Sum Settlement,” as well as

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an “Order of Approval of Compromise Settlement” and an “Order of Dismissal.”

The “Order of Approval of Compromise Settlement” provided, in pertinent part:

EMPLOYER, PROTEMP STAFFING SOLUTIONS, INC., and
DEFENDANT, BOISE CASCADE COMPANY, shall be fully,
finally and forever released and relieved from any and all further
liability from any claims for compensation, damages as they relate to
this workers’ compensation claim, attorney’s fees, travel expenses,
penalties, medical expenses, and weekly workers’ compensation
indemnity or monthly supplemental earnings benefits or any other
such claims arising heretofore which may hereafter arise out of the
Louisiana Worker’s Compensation laws in any manner connected
with or growing out of any accident or injury occurring prior to the
date of this Order, except for the obligation to comply with the terms
of this Settlement Agreement.

On March 2, 2017, appearing in proper person, Mr. Dorsey filed an

“Amended Disputed Claim for Compensation,” which again named ProTemp and

Boise Cascade and alleged that Mr. Dorsey had injured his neck and back on

September 21, 2011. In the claim, Mr. Dorsey alleged that “Wage benefits

terminated or reduced on 09/07/2015” and “Medical benefits terminated 09-07-

2015.” He also contended: “I have not received any temporary total disability

benefits, cash or medical treatment and services since 09-07-2015. Comproise

[sic] lump sum. And not seen by physican [sic] Dr. Hodges since 8-2015[.] Status

TTD still unable to work. In treatment.” ProTemp and Boise Cascade both filed

exceptions of res judicata, motions to enforce the settlement, and motions for

sanctions. On April 12, 2017, the workers’ compensation judge held a hearing to

address Mr. Dorsey’s request. At the hearing, Mr. Dorsey argued that the

settlement should be set aside on the basis of fraud or misrepresentation. After

taking the matter under advisement, the workers’ compensation judge issued a

ruling, concluding that Mr. Dorsey had failed to prove that the settlement should be

set aside or modified; denying Mr. Dorsey’s motion to set aside or vacate the

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settlement; and held that the exceptions filed by ProTemp and Boise Cascade were

rendered moot.

Subsequently, on April 26, 2017, Mr. Dorsey filed a “Motion to Amend

Judgment and for New Trail [sic].” In response, ProTemp and Boise Cascade filed

exceptions of res judicata, motions for sanctions, and memoranda in opposition to

Mr. Dorsey’s motions. After a hearing on June 12, 2017, the workers’

compensation judge denied Mr. Dorsey’s motions, as well as ProTemp’s and Boise

Cascade’s exceptions of res judicata and motions for sanctions.

Mr. Dorsey thereafter appealed, and ProTemp and Boise Cascade moved to

dismiss the appeal. A panel of this court issued a limited remand of the appeal in

order for the workers’ compensation judge to conduct a contradictory hearing and

enter a ruling as to whether Mr. Dorsey timely fax-filed his motion for new trial.

Dorsey v. ProTemp Staffing Solutions, Inc., 17-793 (La.App. 3 Cir. 11/15/17), 233

So.3d 122. After the workers’ compensation judge conducted the hearing and

entered judgment finding that Mr. Dorsey timely filed the motion with an

appropriate filing fee within the time required by La.R.S. 13:850, the panel denied

the motions to dismiss the appeal. Dorsey v. ProTemp Staffing Solutions, Inc., 17-

793 (La.App. 3 Cir. 1/31/18), 237 So.3d 1195.

Accordingly, we now consider the merits of the appeal, in which Mr.

Dorsey, appearing in proper person, asserts that the workers’ compensation judge:

1) failed to adequately inquire into his understanding of the settlement agreement,

thereby resulting in fraud and ill practices; 2-3) erred in failing to consider his

claim on the merits and that benefits, penalties, and attorney fees should have been

awarded; 4) erred in permitting the entry of the settlement agreement into the

record at what should have been a hearing on the merits; 5-6) erred in approving

the settlement agreement without adequate assurance that Mr. Dorsey was aware

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that it was a compromise of his claim; and 7) erred in not awarding a penalty due

to the employers’ alleged late payment of the sums due.

Discussion

Inquiry as to understanding of settlement

Mr. Dorsey contends that the workers’ compensation judge failed to

adequately inquire into his understanding of the settlement agreement. He further

asserts that the workers’ compensation judge erred in approving the settlement

agreement without adequate assurance that Mr. Dorsey was aware that the

settlement was a compromise of his claim. Mr. Dorsey alleges that the workers’

compensation judge’s actions constitute fraud and “Ill Practice” and allowed the

“Defendants To Committ [sic] Unlawful Practice.”

The procedural requirements for approval of workers’ compensation

settlement agreements are found in La.R.S. 23:1272, which provides, in pertinent

part:

A. A lump sum or compromise settlement entered into by the
parties under R.S. 23:1271 shall be presented to the workers’
compensation judge for approval through a petition signed by all
parties and verified by the employee or his dependent, or by recitation
of the terms of the settlement and acknowledgment by the parties in
open court which is capable of being transcribed from the record of
the proceeding.

B. When the employee or his dependent is represented by
counsel, and if attached to the petition presented to the workers’
compensation judge are affidavits of the employee or his dependent
and of his counsel certifying each one of the following items: (1) the
attorney has explained the rights of the employee or dependent and
the consequences of the settlement to him; and, (2) that such
employee or dependent understands his rights and the consequences
of entering into the settlement, then the workers’ compensation judge
shall approve the settlement by order, and the order shall not
thereafter be set aside or modified except for fraud or
misrepresentation made by any party.

In discussing La.R.S. 23:1272, this court has explained:

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Although the procedural requirements of La.R.S. 23:1272 are
mandatory, a judgment obtained in conformity therewith should be
“virtually unassailable.” Harrington v. Quality Steel Bldg. Erectors,
95-822, p. 6 (La.App. 3 Cir. 3/6/96); 670 So.2d 1372, 1376, writ
denied, 96-1315 (La.6/28/96); 675 So.2d 1128 (quoting Smith v.
Cajun Insulation, Inc., 392 So.2d 398, 401 (La.1980)).

Under its prior version,[1] the statute required a district judge to
“discuss” the terms of the settlement with the claimant. Now, a
workers’ compensation judge need only “determine” that the
employee understands the settlement and that it is fair, equitable, and
consistent with the workers’ compensation law. If these safeguards
are followed, the settlement may only be set aside for fraud or
misrepresentation made by any party.

Sedgwick Claims Mgmt. Serv. Inc. v. Cormier, 02-0216, pp. 6-7 (La.App. 3 Cir.

3/26/03), 841 So.2d 1032, 1037, writ denied, 03-1185 (La. 6/20/03), 847 So.2d

1234. With this is mind, we turn to the facts of the case.

Included with the settlement documents that the workers’ compensation

judge received was a “Receipt and Release” signed by Mr. Dorsey and his

attorney, Mr. Marceaux, which provided, in pertinent part:

1
In Smith v. Cajun Insulation, Inc., 392 So.2d 398, 400 (La.1980), the
supreme court summarized the prior version of La.R.S. 23:1272:

The procedure governing the approval of disputed workmen’s
compensation claims is set forth in La.R.S. 23:1272, which states in
part:

“The agreement entered into between the
employee or his dependents and the employer or his
insurer, shall be presented to the court for its approval
upon a joint petition verified by all parties thereto. The
judge to whom the petition is presented shall, in every
case, discuss the settlement and its terms with the
employee or his dependents. When the employee or his
dependents are not represented by a lawyer ... the judge
shall appoint one to advise them relative to the proposed
compromise settlement. A reasonable fee for such
services shall be fixed by the court and taxed as costs.
The judge shall require such proof of the dispute between
the parties and of the other facts set out in the joint
petition as he thinks proper.”

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[Carey Dorsey] further declares that he has been represented
herein by Gregory P. Marceaux, Attorney at Law, who has advised
him of all of his rights under the workers’ compensation laws of the
State of Louisiana and all other applicable laws, and that he fully
understands these rights, and further that he understands and agrees
that this settlement is intended to encompass and compromise all of
his rights with regard to the above described incident.

Also came and appeared Gregory P. Marceaux, duly authorized
attorney of record for CAREY DORSEY, who executed this release
in order to concur in and consent to this release.

Additionally, the settlement documents contained a “Verification,” which was

signed by Mr. Dorsey and stated, in pertinent part:

CAREY DORSEY, who, after being duly sworn, did depose and
state:

....

That his rights under the Workers’ Compensation laws of
the State of Louisiana have been fully explained to him;

....

That he fully understands the ramifications of this
settlement and he fully understands that in the event this
settlement is approved by the Office of Workers’
Compensation Administration, he will accept said sum in
full and final satisfaction of any and all claims which he
has for workers’ compensation benefits[.]

The settlement documents also contained a “Certificate,” whereby Mr. Marceaux:

“does hereby certify that he has discussed the terms, conditions and effects of the

above and foregoing proposed settlement, with the said CAREY DORSEY, and

has advised him of his rights under Louisiana Law and believes that the said

CAREY DORSEY understands the terms, and conditions of the proposed

settlement.”

Further, as discussed above, the settlement agreement was read into the

record at the November 16, 2016 hearing, at which time the following colloquy

occurred:

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THE COURT:

Gentlemen, you may put the terms and conditions on the record
at this time.

MR. MARCEAUX:

Judge, the parties have agreed to settle the matter for $55,000;
of that money, $31,000 is designated to settle the pending issues
before the Court, the pending 1008; $24,000 is designated a lump sum
settlement; out of $24,000, $5,000 will be set aside for an MSA,
medical savings account, and of the remaining $19,000, that will be
prorated over the lifetime of Mr. Dorsey’s life expectancy for the
reverse offset.

THE COURT:

Mr. Dorsey, you have heard the terms and conditions of the
settlement, sir?

MR. DORSEY:

Yes.

THE COURT:

And you are in agreement with those terms and conditions?

MR. DORSEY:

Yes, ma’am.

....

THE COURT:

Thank you. The Court finds the settlement fair, equitable and
consistent with the workers’ compensation laws and, therefore, I am
approving the terms and conditions of the settlement.

In the “Order of Approval of Compromise Settlement,” the workers’ compensation

judge stated that the order was being issued upon:

[H]aving determined that the EMPLOYEE understands the terms and
conditions of the settlement proceedings, and being of the opinion that
the compromise settlement proposed is in the best interest of the
parties, is fair and equitable . . . and is in substantial accord with the
terms of Title 23, Chapter 10, Revised Statutes of Louisiana[.]

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The “Receipt and Release,” “Verification,” and “Certificate” excerpted

above reveal that, in accordance with La.R.S. 23:1272, the workers’ compensation

judge approved the settlement after receiving an affidavit certifying that Mr.

Marceaux explained to Mr. Dorsey his rights and the consequences of the

settlement and certifying that Mr. Dorsey understood his rights and the

consequences of the settlement. Though Mr. Dorsey suggests that the workers’

compensation judge erred by not discussing the settlement with him, the workers’

compensation judge was not required to do so. See Cormier, 841 So.2d 1032.

Rather, the workers’ compensation judge needed only to determine that Mr.

Dorsey understood the settlement and that the settlement was fair, equitable, and

consistent with the workers’ compensation law. Id. The colloquy from the

November 16, 2016 hearing, as well as the “Order of Approval of Compromise

Settlement,” evidence that the workers’ compensation judge determined that Mr.

Dorsey understood the settlement and that the settlement was “fair, equitable, and

consistent with the workers’ compensation law.” Id. at 1037. Thus, we find that

there is no merit in Mr. Dorsey’s assertions that the workers’ compensation judge

erred by not further inquiring into his understanding of the terms of the settlement

and by not more extensively ensuring that he understood that the settlement was a

compromise of his claim, thereby resulting in ill practices. Moreover, we observe

that Mr. Dorsey has not otherwise presented evidence of “fraud or

misrepresentation made by any party” so as to justify setting aside or modifying

the settlement pursuant to La.R.S. 23:1272(B).

Penalties, attorney fees, and legal interest

Next, Mr. Dorsey alleges that the workers’ compensation judge erred by not

assessing a penalty for ProTemp’s failure to have workers’ compensation

insurance. He also asserts that the workers’ compensation judge erred by not

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ordering penalties, attorney fees, and legal interest for the defendants’ failure to

reinstate his workers’ compensation benefits. In Taylor v. Hathorn Transfer &

Storage, 07-993, p. 4 (La.App. 3 Cir. 2/6/08), 976 So.2d 259, 262, a panel of this

court noted:

A “compromise instrument is the law between the parties and
must be interpreted according to the parties’ true intent.” Brown v.
Drillers, Inc., 93-1019, p. 7 (La.1/14/94), 630 So.2d 741, 748. “Thus,
the intent which the words of the compromise instrument express in
light of the surrounding circumstances at the time of execution of the
agreement is controlling.” Brown, 630 So.2d at 748.

For example, in Taylor, the parties entered into a compromise by which the

claimant released the employer from any obligation to pay past or future weekly

benefits, as well as medical benefits, whether or not the bills had been submitted to

the employer at the time of the settlement. After the settlement, the claimant filed

a disputed claim for unpaid mileage and unpaid medical bills. Id. The panel in

Taylor concluded that any further claim for expenses was barred by the settlement.

Id.

In this case, the settlement documents included a “Joint Petition for

Compromise Settlement of Workers’ Compensation Claim,” which was signed by

Mr. Dorsey, and which states, in pertinent part:

The EMPLOYEE has agreed to grant a full and complete
release and discharge to the EMPLOYER and DEFENDANT from
any and all liability for workers’ compensation indemnity benefits,
both temporary total and supplemental earnings, burial expenses,
death benefits, penalties, medical expenses, mileage benefits,
contingent expenses, other damages as they relate to this workers’
compensation claim, attorneys fees, court costs, Medicare Secondary
Payer reimbursement sums, and all other amounts, which might be
due by reason of the alleged accident which occurred on or about
September 21, 2011.

The settlement documents also included a “Verification” signed by Mr. Dorsey,

which provides, in pertinent part: “[Mr. Dorsey] fully understands that in the event

this settlement is approved by the Office of Workers’ Compensation

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Administration, he will accept said sum in full and final satisfaction of any and all

claims which he has for workers’ compensation benefits[.]” Mr. Dorsey has not

identified anything in the record demonstrating that he was misled or defrauded

into signing the settlement documents. Further, Mr. Dorsey was represented by

counsel when he signed the documents. See Taylor, 976 So.2d 259. Accordingly,

we leave undisturbed the workers’ compensation judge’s conclusion that the

totality of Mr. Dorsey’s claim, including that for penalties, attorney fees, and legal

interest, was subject to the compromise settlement.

Temporary total disability

We next turn to Mr. Dorsey’s assertion regarding temporary total disability

status. Mr. Dorsey argues that the workers’ compensation judge erred in allowing

ProTemp and Boise Cascade “To Ajudicate [sic] The Permanency of [his]

Temporary Total Disability[.]” Louisiana Revised Statutes 23:1271 (emphasis

added) provides, in pertinent part:

[A.] A lump sum payment or compromise settlement in exchange for
full and final discharge and release of the employer, his insurer, or
both from liability under this Chapter shall be allowed only:

....

(3) Upon the expiration of six months after termination of
temporary total disability. However, such expiration may be waived
by consent of the parties.

The “Joint Petition for Compromise Settlement of Workers’ Compensation Claim”

states: “Movers waive the six month waiting period of L.A.-R.S. 23:1271.”

Additionally, a completed “Waiver of Six Month Waiting Period for Joint

Settlement and Compromise” was also submitted to the workers’ compensation

judge. The waiver provides, in pertinent part:

CAREY DORSEY . . . who after being duly sworn did depose and
state:

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That he is the petitioning EMPLOYEE in these proceedings;
that it has been explained to him that pursuant to La. R.S. 23:1271 a
lump sum payment or compromise settlement in exchange for full and
final discharge and release of the EMPLOYER, PROTEMP
STAFFING SOLUTIONS, INC., and DEFENDANT, BOISE
CASCADE COMPANY, from liability under the worker’s
compensation laws of the State of Louisiana, shall be allowed only
upon the expiration of six months after the termination of payment of
benefits.

That he fully understands and intelligently waives the six month
waiting period which is required under Louisiana law pursuant to La.
R.S. 23:1271.

Considering the foregoing, we detect no error in the workers’ compensation

judge’s conclusion. Rather, as evidenced above, the six month waiting period for a

lump sum payment or compromise settlement after termination of temporary total

disability was waived by consent of Mr. Dorsey, ProTemp, and Boise Cascade in

accordance with La.R.S. 23:1271. Therefore, we find no merit in Mr. Dorsey’s

assignment in this regard.

Entry of the settlement at a hearing on the merits

Mr. Dorsey also asserts that the workers’ compensation judge erred in

permitting the entry of the settlement agreement at what should have been a

hearing on the merits. However, Mr. Dorsey fails to point to a provision in the

workers’ compensation law prohibiting the entry of a settlement into the record on

the date scheduled for a hearing on the merits. Thus, we find no merit in Mr.

Dorsey’s assignment of error.

Penalty allegedly due for late payment of settlement funds

Lastly, Mr. Dorsey lodges a seemingly alternative argument whereby he

contends that the workers’ compensation judge erred in not enforcing the

settlement agreement and, in turn, by not assessing a penalty in accordance with

La.R.S. 23:1201(G) due to the alleged untimely payment of the settlement funds

following the November 16, 2016 hearing. In his brief to the Court, he asserts that

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he received a check in the amount of $19,200.00 on December 19, 2016. Mr.

Dorsey states that on January 23, 2017, he received a check for $23,701.85, which

constituted the remainder of the settlement. However, appellate courts will not, in

general, consider issues that are raised for the first time on appeal and which were

not addressed by the trial court. See Uniform Rules—Courts of Appeal, Rule 1–3;

see also Allen v. Affordable Home Furnishings, 13-176 (La.App. 3 Cir. 11/13/13),

130 So.3d 345. Review of the record reveals that Mr. Dorsey’s allegation that a

penalty is owed for late payment of the settlement is presented for the first time on

appeal and was not considered by the workers’ compensation judge. As such, we

do not consider Mr. Dorsey’s assertions regarding the penalty allegedly owed for

late payment of the settlement funds.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge,

denying Mr. Dorsey’s Motion to Amend Judgment and Motion for New Trial, is

affirmed. All costs of this proceeding are assessed against Carey Dorsey.

AFFIRMED.

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