Junius Robinson v. Capital Staffing Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 18-990

JUNIUS ROBINSON

VERSUS

CAPITAL STAFFING, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 15-06229
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS

JUDGE

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Court composed of John D. Saunders, Billy H. Ezell and Jonathan W. Perry,
Judges.

MOTION TO DISMISS APPEAL DENIED.

Michael Benny Miller
Jacqueline K. Becker
Miller & Associates
Post Office Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Junius Robinson

Errol J. King, Jr.
Eric Edward Pope
Brett W. Tweedel
Blue Williams, L.L.P.
3421 North Causeway Boulevard, Suite 900
Metairie, LA 70002
(504) 831-4091
COUNSEL FOR DEFENDANT/INTERVENOR/APPELLEE:
Southeast Personnel Leasing, Inc.

SAUNDERS, Judge.

On January 2, 2019, the Defendant-Appellee, Southeast Personnel Leasing, Inc.

(Southeast), filed a Motion to Dismiss the instant appeal of the denial of a motion for

new trial. Southeast contends that the denial of a motion for new trial is an

interlocutory judgment which is not appealable. For the following reasons, we deny

the motion to dismiss the appeal.

On October 2, 2015, the Plaintiff-Appellant, Junius Robinson, filed the instant

workers’ compensation claim against Louisiana Rice Mill, Inc. and Capital Staffing,

asserting that he sustained an injury to his back on September 4, 2015, while acting

within the course and scope of his employment. These two Defendants denied

employing Robinson. Southeast intervened and stipulated that it was considered

Robinson’s employer at the time of the alleged accident for the purpose of paying

workers’ compensation benefits.

As a result of the accident, Southeast issued indemnity benefits to Robinson.

Soon thereafter, Southeast scheduled an appointment for Robinson to be examined by

Dr. Harold Granger on November 30, 2015. When Robinson missed the appointment

and the rescheduled appointment for January 11, 2016, Southeast suspended his

indemnity benefits. The benefits were reinstated on approximately April 14, 2016,

after Robinson was examined by Dr. Granger. Robinson subsequently sought

penalties and attorney fees in June 2016 for the suspension of his benefits. The

Workers’ Compensation Judge (OCJ) found that Southeast violated the workers’

compensation law by suspending Robinson’s benefits without first obtaining an order

compelling his attendance at the medical examination. Robinson was awarded $8,000

in penalties and $6,000 in attorney fees. On appeal, the ruling was reversed, with all

costs assessed to Robinson. Robinson v. Capital Staffing, 17-114 (La.App. 3 Cir.

10/18/17), 230 So.3d. 643.

On April 5, 2018, Southeast filed a Motion to Enforce Judgment, seeking an

order from the Office of Workers’ Compensation (OWC) to enforce this court’s

appellate decision. Southeast stated therein that it had paid the OWC’s judgment in

full, including the amount of the suspended benefits with interest but had not received

Robinson’s payment following amicable and written demand. In response, Robinson

filed an Exception of Res Judicata, wherein he asserted that Southeast never requested

this court to allow Southeast reimbursement of any funds paid towards the penalties

and attorney fees in the judgment. On June 11, 2018, the OWC granted the motion to

enforce the judgment as to the repayment of penalties and attorney fees and ordered

Robinson to repay Southeast $8,027.10. Also, Robinson’s weekly indemnity

payments were reduced by fifty percent, until such time as the full amount has been

repaid to Southeast. Robinson’s counsel was ordered to repay Southeast $6,020.33 in

a lump sum payment. Lastly, Robinson’s exception of res judicata was denied.

Robinson filed a Motion and Order for New Trial on July 21, 2018, which was denied

following a hearing on August 9, 2018.

Southeast correctly asserts that a judgment denying a motion for new trial is an

interlocutory order and is normally not appealable. See La.Code Civ.P. art. 2083(C).

However, in Edwards v. Southeastern Freight Lines, Inc., 14-871 (La.App. 3 Cir.

10/15/14), 149 So.3d 1020, 1021, we stated:

[I]n cases in which the motion for appeal states that the appeal is being
taken only from the judgment on a motion for new trial[,] but the
appellant exhibits the intent to appeal the judgment on the merits, this
court has held that the appeal can, nonetheless, be considered as an
appeal of the judgment on the merits. McClure [v. City of Pineville, 05-
1460 (La.App. 3 Cir. 12/6/06)], 944 So.2d 805, [writ denied, 07-43 (La.
3/9/07), 949 So.2d 446]; Thompson v. Nationwide Mut. Ins. Co., 95-258
(La.App. 3 Cir. 10/4/95), 663 So.2d 191.

In this case, it is clear from Robinson’s assignments of error that he seeks to

appeal the judgment of June 11, 2018, which granted Southeast’s motion to enforce

the judgment, denied Robinson’s exception of res judicata, and ordered Robinson to

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repay Southeast by reducing his indemnity benefits by fifty percent. In as much as

Robinson has demonstrated his intent to appeal the underlying judgment, we find that

the appeal should be considered as an appeal of that judgment. Therefore, we deny

Southeast’s motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED.

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