Toni Marie Jones v. Progressive Baptist Church of Louisiana and Church Mutual Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

20-314

TONI MARIE JONES

VERSUS

PROGRESSIVE BAPTIST CHURCH OF LOUISIANA
AND CHURCH MUTUAL INSURANCE COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 18-01614
ANTHONY PALERMO, WORKERS’ COMPENSATION JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED.

Roshell Jones
495 Zick Miller Road
Sunset, Louisiana 70584
(337) 2558-8527
COUNSEL FOR CLAIMANT/APPELLANT:
Toni Marie Jones

Daniel Webb
145 Robert E. Lee Boulevard
New Orleans, Louisiana 70119
(504) 288-2000
COUNSEL FOR DEFENDANTS/APPELLEES:
Progressive Baptist Church of Louisiana
and Church Mutual Insurance Company

PERRY, Judge.

Toni Marie Jones (“Jones”) appeals the workers’ compensation judgment

sustaining the employer’s peremptory exception of prescription as to her claim for

indemnity benefits and denying her claim for medical benefits for failure to prove

the work accident injured her lower back, hip, and leg. For the reasons that follow,

we affirm the judgment of the Office of Workers’ Compensation.

FACTS AND PROCEDURAL HISTORY

On March 12, 2016, Jones slipped and fell in water, and reportedly injured her

right knee while working at Progressive Baptist Church of Louisiana (“PBC”). She

received treatment for right knee pain at an emergency room on the day of her

accident. On March 22, 2016, Jones began seeing Dr. Otis R. Drew, an orthopedic

surgeon, who treated her with medication and physical therapy.

Church Mutual Insurance Company (“Church Mutual”), PBC’s workers’

compensation carrier, approved medical treatment for Jones’s right knee injury. In

May 2016, however, Jones reportedly began experiencing pain in her left hip.

Church Mutual refused payment for treatment of Jones’s lumbar spine, denying the

condition was related to her work accident.

Jones was referred to Dr. Kevin J. Lassaigne, Jr., a spine interventionalist, for

treatment of her lower back, hip, and leg pains by her personal physician, Dr. Deidre

Stelly. After two epidural steroid injections offered no relief, Jones was referred by

Dr. Lassaigne to spine surgeon, Dr. Lon M. Baronne, II. In March 2018, Jones

underwent a discectomy at the L5-S1 level.

Jones filed a Disputed Claim for Workers’ Compensation (“1008”) against

PBC and Church Mutual (hereinafter collectively referred to as “Defendants”) for

nonpayment of medical benefits relating to alleged injuries to her lumbar spine on

March 9, 2018.1 In answer, Defendants admitted Jones was involved in a

compensable work accident on March 12, 2016; however, they disputed the

existence of a causal connection between the medical treatment requested in Jones’s

1008 and her work accident.2

On September 20, 2018, Jones filed an amended 1008 seeking indemnity

compensation benefits. In response, Defendants filed a peremptory exception of

prescription, contending the prescriptive period for payment of indemnity benefits

is one year under La.R.S. 23:1209. Defendants denied ever paying Jones indemnity

benefits, alleged Jones’s claim was filed more than two years after her work accident

and, thus, was time barred under the one-year prescriptive period. In opposition to

Defendants’ peremptory exception, Jones alleged she was paid wages in lieu of

compensation3 after her work accident.

A hearing on Defendants’ exception of prescription was held on July 19, 2019.

Jones, appearing in proper person, argued her indemnity claim had not prescribed

because she was paid for time she did not work. She claimed her supervisor, Gwen

Washington, could corroborate her allegation; however, all three witnesses whom

she had subpoenaed, including Gwen Washington, failed to appear for the hearing.

The workers’ compensation judge (WCJ) acknowledged Gwen Washington had

contacted the court prior to the hearing to state she would not be able to attend due

1
Jones was represented by counsel at this time; however, she has represented herself since
January 2019, after her counsel withdrew his representation. Jones proceeded in proper person
until a motion to enroll by her appellate counsel was filed with this court one day before Jones’s
appellate brief was filed.
2
Defendants also asserted several affirmative defenses.
3
Under La.R.S. 23:1209, payment of unearned wages by an employer is considered
compensation, and such payment serves to interrupt prescription. Dupaquier v. City of New
Orleans, 257 So.2d 385 (La.1972).

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to a scheduling conflict.4 Consequently, at the end of the hearing, the WCJ declared

it would “deny the exception with regards to indemnity benefits at this time. It can

be re-raised at the time of trial. But I want to hear from Ms. Washington concerning

whether the hours were worked or not.” After Defendants requested reasons for its

ruling, the WJC issued oral reasons on July 24, 2019, explaining, in pertinent part:

The Court rather than holding Gwen Washington, Harold Taylor[,] and
Claudia Williams in contempt, determined that the better course would
be simply to presume that their testimony would have been adverse to
the Church’s position because these three people are either employed
by the Church or sit on the Board.

Because [t]he Court determined that their testimony would be
adverse and Ms. Jones was alleging that she was paid wages in lieu of
comp, [t]he Court denied the exception of prescription based on the
presumption that Ms. Jones’s allegation with regards to the wages in
lieu of comp was correct.

A judgment denying Defendants’ peremptory exception of prescription was signed

on August 1, 2019.

Trial was held on August 19, 2019, on the issues raised in Jones’s disputed

claims for compensation.5 Additionally, Defendants re-urged the peremptory

exception of prescription.

At trial, Jones testified that after she fell, her right knee “was the prominent

injury at that time[,]” until “about six weeks later [she] started having severe hip

pain.” She reported her hip pain to Dr. Drew and Church Mutual and lessened

4
The WCJ noted the hearing on Defendants’ exception was originally set for July 12, 2019
but was cancelled due to Hurricane Barry.
5
At the start of trial, Jones introduced thirteen exhibits and Defendants introduced two
exhibits—one being the deposition of Dr. Alan C. Schroeder. A transcript of Dr. Schroeder’s
deposition, however, does not appear in the appellate record received by this court. Defendants’
appellate brief noted this oversight and included a copy of the deposition.
Louisiana Code of Civil Procedure Article 2132 permits the correction of evidence by the
appellate court. However, in order for La.Code Civ.P. art. 2132 to apply, we must ascertain that
the evidence was actually introduced at the trial level. See Sutton v. Montegut, 540 So.2d 1181
(La.App. 5 Cir. 1989).
In the present case, the transcript confirms Dr. Schroder’s deposition was properly
introduced into evidence at the trial court level. Thus, Dr. Schroder’s testimony has been
considered in our review of this appeal.

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physical therapy. Dr. Drew administered a steroid injection into her hip, but this

failed to relieve the pain. According to Jones, Dr. Drew suspected her work accident

caused her lower back, hip, and leg pains, but Defendants denied authorization for

magnetic resonance imaging of her lumbar spine. Defendants questioned Jones

about her indemnity claim. Despite admitting she had not filed a claim for indemnity

benefits until more than two years after her work accident, she insisted “That’s

already been settled at the last hearing.”

Jones called one witness, Genevieve Hebert, an administrative clerk at PBC,

who did not witness Jones’s fall, but did remember Jones being at work the week

after the accident until Jones’s surgery in March 2018. Genevieve Hebert also

recalled that while at work, Jones often used a heating pad for pain and a walker to

ambulate, and she noticed Jones “avoided getting up and down because [she] had a

very difficult time moving around.”

At the close of Jones’s case, Defendants moved for an involuntary dismissal.

Defendants argued Jones failed to present sufficient proof to support her claim for

indemnity benefits or competent medical evidence to prove the work accident

injured her lower back, hip, and leg. Defendants contended the only competent

medical evidence was the deposition testimony of Dr. Alan C. Schroeder, an

orthopedic surgeon, who opined Jones’s work accident did not injure her lumbar

spine.

The WCJ denied Defendants’ motion for involuntary dismissal, citing the

need to review the exhibits entered into evidence. Before the matter was taken under

advisement, though, the WCJ remarked:

The way I see it is we’ve got medical benefits and indemnity benefits.
There’s been an exception of prescription made toward the indemnity
benefits. I ruled on that at the hearing because of some witnesses not
appearing. So that’s still on the table. And then the medical treatment,
which I’ve got to review the medicals that has been submitted before I

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can determine anything about the medical treatment. Then that will
include Dr. Schroder’s deposition.

On September 9, 2019, the WCJ issued an oral ruling, decreeing “there has

been no showing that the indemnity benefits have not prescribed.” In regard to

Jones’s medical benefits’ claim, the WCJ declared, in pertinent part:

After a review of the testimony and the medical records that were
provided, the Court finds that there is no link between the low back, hip
and leg injuries and the accident that occurred in this case. The Court
therefore finds that the left hip is not compensable, and therefore denies
medical benefits.

By judgment signed September 18, 2019, the WCJ denied Jones’s claims for

indemnity and medical benefits. Jones filed a motion for new trial, which was also

denied. This devolutive appeal followed. Appearing before this court with counsel,

Jones asserts the WCJ erred in (1) reversing the prior denial of Defendants’

exception of prescription relating to her claim for indemnity benefits and (2) denying

her claim for medical benefits for failure to prove the work accident caused a lumbar

spine injury.

DISCUSSION

Indemnity Benefits

Jones asserts the WCJ improperly reconsidered its original decision on the

issue of prescription, and the WCJ should have found her claim for indemnity

benefits had not prescribed. In brief, Jones argues the WCJ erred in sustaining

Defendants’ exception “a month after issuing an Interlocutory Judgment denying

that same Exception of prescription.” She further submits Defendants could have

sought review of the WCJ’s denial of the peremptory exception of prescription via

an application for supervisory writs which would have been subject to the timeline

of Uniform Rules—Courts of Appeal, Rule 4–3 and La.Code Civ.P. art. 1914.

However, Defendants did not do so; thus, she submits that application would now

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be untimely, and it is her contention the WCJ’s judgment of August 1, 2019 “should

have stood.”

We consider Jones’s contention the WCJ improperly reconsidered its original

decision on the issue of prescription similar to that of an exception of res judicata.

As such, we find the WCJ did not err in reconsidering the exception when it had

previously denied same.

The peremptory exception of prescription may be raised at any stage of the

proceedings in the court below and even on appeal. La.Code Civ.P. art. 928(B);

Johnson v. Escude, 07-801 (La.App. 3 Cir. 12/5/07), 971 So.2d 529. Additionally,

a pretrial denial of this peremptory exception is an interlocutory order; it does not

determine the merits of the case and is therefore not a final judgment. La.Code

Civ.P. art. 1841. Accordingly, an earlier ruling by the WCJ denying an exception of

prescription is not res judicata and can be re-urged at any time in the proceedings.

See Johnson, 971 So.2d 529. Moreover, the previous denial of an exception of

prescription does not preclude a subsequent order sustaining the same exception.

See Bellard v. Seale Guest House, 04-376 (La.App. 3 Cir. 10/6/04), 884 So.2d 1252.

Thus, we find no merit in Jones’s assertion the WCJ improperly reconsidered its

original decision on the issue of prescription.

We now turn to the issue of whether the WCJ erred in sustaining the

subsequent exception of prescription on the merits. Jones contends Defendants had

the burden of proving her indemnity claim had prescribed, yet she asserts in brief

that Defendants provided “no evidence that [she] never received unearned wages

during the period at issue in the [e]xception.” We disagree.

Louisiana Revised Statutes 23:1209(A) provides that in the absence of

agreement, a claim for workers’ compensation indemnity benefits is prescribed

unless a formal claim is filed within one year of the accident, or if such payments

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have been made, within one year of the last payment.6 The burden of proof is

generally on the party pleading prescription. However, when a claim for workers’

compensation benefits has prescribed on its face, the burden shifts to the claimant to

prove prescription has been interrupted or suspended. Evans v. Smith, 06-974

(La.App. 3 Cir. 12/6/06), 945 So.2d 184. Contrary to Jones’s contentions in the

instant case, the burden does not shift to Defendants to offer evidence proving Jones

was not paid wages in lieu of compensation.

Jones’s work accident occurred on March 12, 2016, and her claim seeking

indemnity compensation benefits was filed more than two years later on September

20, 2018. Consequently, prescription is evident on the face of Jones’s claim,

resulting in Jones bearing the burden of proving prescription had been either

interrupted or suspended, rendering the suit timely although filed later than the

statutory one-year period.

Our review of the record reveals no evidence establishing an interruption of

prescription. Although Jones insists Gwen Washington could verify she was paid

wages in lieu of compensation, Jones did not call Gwen Washington to testify at the

trial on the merits. Further, although Jones now claims she relied on the WCJ’s prior

application of an adverse presumption for Gwen Washington’s failure to appear at

the exception hearing, the record reflects that at the end of the exception hearing, the

WCJ declared “I want to hear from Ms. Washington concerning whether the hours

were worked or not.” Notably, Jones’s witness, Genevieve Hebert, testified she

observed Jones at work, from the week after Jones’s work accident in March 2016

until Jones’s surgery in 2018. Accordingly, we find no error in the WCJ’s dismissal

6
Though inapplicable in the instant case, we note La.R.S. 23:1209(A)(3) does provide an
exception in the case of an injury which “does not result at the time of or develop immediately
after the accident,” whereby the prescription period does not end until one year from the date the
injury develops, and in no event later than two years from the accident date.

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of Jones’s claim for indemnity workers’ compensation benefits on the basis that,

from the face of the claim, Jones’s action is prescribed, and Jones failed to introduce

any evidence or otherwise bear her burden of proving prescription had been

interrupted or suspended.

Medical Benefits

In her second assignment of error, Jones asserts the WCJ erred in concluding

she failed to prove by a preponderance of the evidence that the work accident caused

injury to her lower back, hip, and leg. She further alleges in brief that Defendants

had the burden of proving some other particular incident must have caused her lower

back, hip, and leg injuries, and the WCJ was, therefore, obligated to find the work

accident caused these injuries considering Defendants “presented zero evidence that

another particular incident caused [her] injuries.” We disagree.

Initially, a workers’ compensation claimant has the burden of establishing by

a preponderance of the evidence that an accident occurred on the job and that she

sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381 (La.1987). Next, the

claimant must establish a causal connection between the accident and the resulting

disability by a preponderance of the evidence. West v. Bayou Vista Manor, Inc., 371

So.2d 1146 (La.1979).

“In a workers’ compensation case, as in other cases, the appellate court’s

review of factual findings is governed by the manifest error or clearly wrong

standard.” Hebert v. C.G. Logan Constr., Inc., 06-612, p. 2 (La.App. 3 Cir. 11/2/06),

942 So.2d 77, 79. “Whether a claimant has carried his burden of proof and whether

testimony is credible are questions of fact to be determined by the [WCJ].” Id.

The issue before us is whether the WCJ erred in finding Jones did not meet

her burden of proof that she had a work accident that caused injury to her lumbar

spine. The evidence reveals the WCJ ’s ruling Jones failed to prove a causal

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relationship between her work accident and her lumbar spine injury was based, in

large part, on the medical evidence presented. While Jones introduced selective

medical records into evidence—which primarily demonstrated the evolution of her

lower back, hip, and leg pain—she did not secure a medical expert to support her

allegation this ailment and her subsequent lumbar surgery were attributable to her

work accident. Jones’s self-serving testimony that Dr. Drew believed her lower back

pain, hip, and leg pain resulted from her work accident is insufficient to outweigh

the medical evidence submitted by Defendants.

Defendants’ expert, Dr. Alan C. Schroeder, testified he derived a medical

opinion after reviewing Jones’s medical records and conducting an in-person

examination of Jones. Dr. Schroeder opined that “[Jones’s] spine complaints are

more probably than not the result of a previous degenerative condition in her spine

rather than a new occurrence from March of 2016.” Considering the record

evidence, we find no error in the WCJ’s determination Jones failed in her burden of

proving the work accident injured her lumbar spine to thereby entitle her to medical

compensation benefits.

DECREE

For the reasons set forth in this opinion, the judgment of the Office of

Workers’ Compensation is affirmed. Costs are assessed to Toni Marie Jones.

AFFIRMED.

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