State of La Office of Governor, Div. of Admin. Office of Risk Mgmt, Dotd v. Patrick Richard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-566 WCA c/w 22-567-WCA c/w 22-568-WCA

PATRICK RICHARD

VERSUS

STATE OF LOUISIANA THROUGH THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT

************
APPEAL FROM THE
OFFICE OF WORKERS COMPENSATION, DISTRICT 04
PARISH OF LAFAYETTE, DOCKET NO. 14-06189 c/w 14-06211 c/w 21-03081
HONORABLE ADAM JOHNSON, WORKERS’ COMPENSATION JUDGE
************
LEDRICKA J. THIERRY
JUDGE
************

Court composed of Shannon J. Gremillion, Van H. Kyzar, and Ledricka J. Thierry,
Judges.

AFFIRMED.

Michael B. Miller
Attorney at Law
P.O. Drawer 1630
Crowley, LA 70527
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Patrick Richard

Beau Anthony LeBlanc
Voorhies & Labbé, APLC
Special Assistant Attorney General
700 St. John Street/P.O. Box 3527
Lafayette, LA 70502
(337) 232-9700
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana Through the Department
of Transportation and Development

THIERRY, Judge.

The injured employee, Mr. Patrick Richard, appeals a judgment rendered by

the Office of Worker’s Compensation (“OWC”) finding his claims for indemnity

benefits against the State of Louisiana through the Office of Risk Management and

the Department of Transportation and Development (“the State”) are prescribed. Mr.

Richard further appeals the OWC’s ruling that a previous judgment against the State

was timely and fully paid. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This case has an unusual, complicated procedural history. This case has been

before this Court on two previous occasions. See Louisiana Office of Risk

Management v. Richard, 12-1247 (La.App. 3 Cir. 3/20/13), 112 So.3d 936, rev’d,

13-890 (La. 10/15/13), 125 So.3d 398; Richard v. State, 16-277, 228 (La.App. 3 Cir.

11/30/16), 239 So.3d 840, writ denied, 17-16 (La. 2/10/17), 216 So. 3d 48. In the

present appeal before the Court, there are three different docket numbers and

proceedings, all stemming from one single accident. That accident occurred on

September 20, 2005, when Mr. Richard was injured while working for the Louisiana

Department of Transportation. The State paid him worker’s compensation benefits

following his injury.

In August of 2007, the State notified Mr. Richard that that it had been

overpaying him. The State thereafter filed a claim with the OWC, asking the court

to offset retirement benefits to Mr. Richard until retirement at sixty years of age. Mr.

Richard filed an exception of prescription in response, which was denied by the

Workers’ Compensation Judge (“WCJ”), reversed by this Court, then reversed again

by the Louisiana Supreme Court. Richard, 112 So.3d 936.

Later, it was discovered that Mr. Richard’s retirement age was fifty-five, not

sixty. Under a different docket number and different petition, the OWC nullified its

1

previous judgment, finding that the State presented false information to the court in

order to obtain the offset. The OWC rendered this judgment on September 15, 2015.

On appeal, this Court affirmed the OWC’s award of attorney’s fees of $13,000.00

and awarded an additional $4,000.00 in attorney’s fees for work performed on

appeal. Richard, 239 So.3d 840. This Court also assessed appeal and court costs

against the State, totaling $925.00. The Louisiana Supreme Court denied writs on

February 10, 2017.

On July 17, 2017, Mr. Richard filed a “Motion for Penalties and Attorney

Fees” in the existing proceeding, alleging that the State failed to pay the September

15, 2015 judgment timely. On September 20, 2017, Mr. Richard filed an amended

motion, adding an additional claim that the State terminated Mr. Richard’s

indemnity benefits on September 19, 2015 without cause and failed to pay him

adequate mileage. He filed a second amended motion on October 19, 2017, adding

that the State failed to pay the attorney’s fees affirmed and awarded by this Court in

Richard v. State, 239 So.3d 840.

In response, the State filed an Exception of Unauthorized Use of Summary

Proceedings on January 31, 2018, in which it sought to have all claims filed by Mr.

Richard dismissed. On March 28, 2018, Mr. Richard filed a third motion, in which

he added another mileage claim against the State. On May 3, 2018, the State re-urged

its previously filed Exception of Unauthorized Use of Summary Proceedings and

added additional exceptions of lack of personal jurisdiction and prematurity. The

State argued that Mr. Richard’s additional new claims for benefits were improperly

initiated and should have been set forth in a Form 1008. On August 31, 2018, the

WCJ granted the State’s Motion of Partial Dismissal, ordering Mr. Richard to file

another Form 1008 and serve it by ordinary proceedings.

2

Mr. Richard filed Form 1008 on August 23, 2018, bearing docket number 18-

06158. In that petition, he alleged that he was entitled to payment for his medical

expenses, weekly compensation benefits, and mileage, inter alia. In response to this

Form 1008, on October 21, 2019, the State filed a Motion for Involuntary Dismissal

under docket number 18-06158, alleging improper service. On February 17, 2020,

the Court granted the Motion for Involuntary Dismissal, dismissing the case bearing

docket number 18-06158 without prejudice.

On December 19, 2019, Mr. Richard filed another Form 1008. He alleges that

this Form 1008 was filed in the proceeding bearing docket number 18-06158 and

that the OWC changed the docket number to 19-08406. This petition alleged the

same allegations as the previously filed (and dismissed) Form 1008. In response, the

State filed an exception of prescription. At the hearing for this exception on March

9, 2020, Mr. Richard made an oral Motion for Voluntary Dismissal. The OWC

dismissed the Form 1008 filed under docket number 19-08406, as stated in the

judgment dated June 9, 2021. Mr. Richard denies requesting dismissal, but there is

nothing in the record to contradict this.

On October 19, 2020, Mr. Richard filed a Fourth Amended Motion and Order

for Penalties and Attorney’s Fees under docket numbers 14-06189 and 14-06211.

On October 26, 2020, Mr. Richard filed a Fifth Amended Motion and Order for

Penalties and Attorney’s Fees under those same docket numbers, adding additional

dates in which the State failed to pay Mr. Richard indemnity benefits. In response,

the State filed another Exception of Unauthorized Use of Summary Proceedings and

an Exception of Prescription.

On May 24, 2021, Mr. Richard filed a new Form 1008, attaching two

previously filed Motion for Penalties and Attorney Fees. This new Form 1008 was

assigned OWC docket number 21-03081. On September 27, 2021, Mr. Richard filed

3

an amended Form 1008, claiming for the first time that he was totally and

permanently disabled. The State responded with Exceptions of Prescription and Res

Judicata, alleging that Mr. Richard’s indemnity benefits had prescribed. The State

further alleged that the only proper way to raise these new indemnity benefits was

through a Form 1008, and that the 2021 Form 1008 was prescribed.

After both parties submitted briefs, the OWC issued an oral ruling on January

14, 2022, granting the State’s exception of prescription and finding that the State

timely paid the September 15, 2015 judgment. However, the OWC ruled in favor of

Mr. Richard on the mileage claims and ordered the State to pay Mr. Richard mileage

requests and awarded attorney’s fees and penalties to Mr. Richard.

Mr. Richard now appeals, challenging the OWC’s ruling that Mr. Richard’s

indemnity benefits claims are prescribed. He further appeals the OWC’s ruling that

denied his request for imposition of penalties under La. R.S. 23:1201(G). Mr.

Richard does not appeal the portion of the judgment pertaining to mileage

reimbursements due and the penalties and attorney’s fees imposed for the failure to

pay same timely.

ASSIGNMENTS OF ERROR

Mr. Richard claims that the OWC erred in: (1) finding that his claim was

prescribed; (2) failing to award indemnity benefits, penalties, attorney’s fees, legal

interests, and costs to him; (3) failing to rule on his permanent and total disability

claim; (4) excluding the “Petition for Offset of Disability Retirement Benefits” and

the “Petition to Nullify Judgment” in its ruling; and (5) issuing multiple claim

numbers for the one accident that occurred on September 20, 2005.

ANALYSIS

Mr. Richard’s first and third assignments of error arise out of the same ruling,

namely, that his claim for permanent and total disability has prescribed. This Court

4

discussed the appellate standard of review for an exception of prescription in Allain

v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278 and

in McCauley v. Stubbs, 17-933 (La.App. 3 Cir. 4/25/18), 245 So.3d 41. When

evidence is introduced in support or against the exception of prescription, the

“appellate court reviews the exception under the manifest error standard of

review….” Id. at 44 (quoting Allain, 128 So.3d at 1285). If the findings are

reasonable based on the entirety of the record, then an appellate court may not

reverse, even though it may have weighed the evidence differently as the trier of

fact. Morse v. Louisiana Veterinary Referral Ctr., LLC, 21-0965 (La.App. 1 Cir.

2/25/22), 340 So.3d 1130. In this case, the manifest error standard of review applies,

as evidence was introduced on the exception of prescription.

On an exception of prescription, the burden of proof generally lies with the

party pleading the exception. However, if the case is prescribed on the face of the

pleadings, then the burden shifts to the other party to prove the action is not

prescribed. McCauley v. Stubbs, 17-933, 245 So.3d 41.

La.R.S. 23:1209 sets forth the prescriptive periods in workers’ compensation

cases, providing, in pertinent part:

A. (1) In case of personal injury, including death resulting therefrom,
all claims for payments shall be forever barred unless within one year
after the accident or death the parties have agreed upon the payments
to be made under this Chapter, or unless within one year after the
accident a formal claim has been filed as provided in Subsection B of
this Section and in this Chapter.

(2) Where such payments have been made in any case, the limitation
shall not take effect until the expiration of one year from the time of
making the last payment, except that in cases of benefits payable
pursuant to R.S. 23:1221(3) this limitation shall not take effect until
three years from the time of making the last payment of benefits
pursuant to R.S. 23:1221(1), (2), (3), or (4).

5

The OWC found it unnecessary to decide whether the one-year or three-year

prescriptive period applies, finding that Mr. Richard’s claim was prescribed under

both prescriptive periods. We, too, find it unnecessary to reach this issue on appeal.

In this case, Mr. Richard received his last payment from the State on March

20, 2017. The OWC held that the longest possible prescription date would be three-

years after that date, or March 20, 2020. However, the Governor of Louisiana

suspended and extended prescriptive periods during this time due to the public health

emergency created by Covid-19. Louisiana Revised Statutes 9:5829 provides: “The

right to file a pleading or motion to enforce any right, claim, or action which would

have expired during the time period of March 17, 2020, through July 5, 2020, shall

expire on July 6, 2020.” This Court finds that the OWC’s determination of the

prescriptive date was wrong. The correct date is July 6, 2020. Nevertheless, this error

does not affect the substance of the OWC’s rulings.

From the period of March 20, 2017, when Mr. Richard received his last

payment, until the end of the prescriptive period on July 6, 2020, Mr. Richard filed

several motions and pleadings arising out of his September 20, 2005 injury.

However, the State argues—and the OWC agreed—that none of these pleadings

were sufficient to interrupt prescription. On the other hand, Mr. Richard avers that

prescription is a red herring, and the true issue is one of abandonment. See La.Code

Civ.P. art. 561.

The application of prescription or abandonment depends on whether injured

workers are required to file a new Form 1008 each time they have an additional

request for relief, or whether they can simply request such relief in an existing

proceeding. The State contends that a new Form 1008 is required, while Mr. Richard

asserts that relief can be filed in the existing proceeding.

6

Louisiana Revised Statutes 23:1310.3 states, “A claim for benefits, the

controversion of entitlement to benefits, or other relief under the Workers’

Compensation Act shall be initiated by the filing of the appropriate form with the

office of workers' compensation administration.” Louisiana Administrative Code 40

§ I-5507, entitled “Commencement of a Claim,” governs workers’ compensation

claims and states that “’Form LWC-WC-1008’ shall be the form to initiate a claim

or dispute.”

Clearly, then, a Form 1008 is necessary to initiate a claim for benefits. But

what is less clear is whether “claim” broadly encompasses any and all controversies

surrounding an accident at issue, or whether “claim” is narrowly limited to only the

issues explicitly set forth in a Form 1008.

As noted by the OWC in its oral ruling, the Louisiana Supreme Court

addressed this issue in Soileau v. Wal-Mart Stores, Inc., 19-0040 (La. 6/26/19), 285

So.3d 420. In that case, Ms. Soileau filed a motion to compel her employer to

designate another pharmacy to fill her prescriptions in an existing proceeding, rather

than seeking relief through a new Form 1008. The court held:

The term “claim” is nowhere defined in the Workers’
Compensation Act. Ross v. Highlands Ins. Co., 590 So.2d 1177, 1181
(La. 1991). However, we have determined it is clear from the context
of provisions that the term refers to a claim for relief, not the
enforcement of a judgment. Id. A claim is initiated by the filing of a
petition with the OWC once an issue surfaces which the parties cannot
themselves resolve. Id.

In the case at bar, Ms. Soileau is not seeking to enforce a
judgment stemming from her earlier claim, but is instead seeking new
relief in the form of an order requiring Wal-Mart to permit her to use a
pharmacy other than its own. Because the parties are unable to resolve
this issue on their own, Ms. Soileau is required to file a new claim to
seek such relief.

Id. at 424.

7

Thus, Louisiana’s highest court has held that each new unresolvable issue in

a Workers’ Compensation case must be set forth in a new claim for relief, i.e., Form

1008. This Court cannot say that the OWC was manifestly erroneous in relying on

the Soileau decision in its oral ruling, as it is currently the supreme court’s last ruling

on this issue.

Therefore, even though Mr. Richard filed several motions in the existing

proceeding, those motions were not sufficient to interrupt prescription on Mr.

Richard’s new indemnity claims. The new relief requested in those motions—

including his claim that he is permanently and totally disabled—needed to be set

forth in a newly filed Form 1008.

Mr. Richard filed three such Forms 1008 after his last payment on March 20,

2020, filing one on August 23, 2018, the second on December 19, 2019, and the third

on May 24, 2021. However, none of these filings interrupted prescription.

The 2018 Form 1008 was dismissed for improper service under La.R.S.

13:5107. Pursuant to La.R.S. 13:5107, the 2018 Form 1008 did not interrupt

prescription. “When the state, a state agency, or a political subdivision, or any officer

or employee thereof, is dismissed as a party pursuant to this Section, the filing of the

action, even as against other defendants, shall not interrupt or suspend the running

of prescription as to the state, state agency, or political subdivision, or any officer or

employee thereof[.]” La.R.S. 13:5107.

The 2019 Form 1008 was voluntarily dismissed. Though Mr. Richard disputes

that he voluntarily dismissed this Form, he introduced no evidence into the record to

prove otherwise. The record reflects a Judgment dated June 9, 2021, which states,

“Upon oral Motion for Voluntary Dismissal made in open court by counsel for

Patrick Richard, and there being no objection thereto; IT IS HEREBY ORDERED,

ADJUDGED, and DECREED that the Form 1008 filed under Docket Number 19-

8

08406 is dismissed without prejudice.” The record also reflects the oral ruling of the

OWC on January 14, 2022, in which the OWC stated: “the Court signed a judgment

dismissing docket number 19-08406 without prejudice pursuant to an Oral Motion

for Voluntary Dismissal made in open court by counsel for Mr. Richard.” Therefore,

the record is clear, and contains no evidence to the contrary, that the 2019 Form 1008

was voluntarily dismissed by Mr. Richard.

Louisiana Civil Code Article 3463 states, in relevant part, “Interruption is

considered never to have occurred if the plaintiff abandons the suit, voluntarily

dismisses the suit at any time either before the defendant has made any appearance

of record or thereafter, or fails to prosecute the suit at the trial.” Therefore, the 2019

Form 1008 did not interrupt prescription.

The 2021 Form 1008 is prescribed on its face, as it was filed outside the

prescriptive period ending July 6, 2020. When a pleading is prescribed on its face,

“the burden shifts to the plaintiff to show that the action has not prescribed.” Allain,

128 So.3d at 1285. Mr. Richard failed to meet his burden in showing that the 2021

Form 1008 has not prescribed.

Mr. Richard contends in his second assignment of error that the State failed to

timely and fully pay the September 15, 2015 judgment. Citing La.R.S. 23:1201(F),

he claims that the judgment was due sixty days after the judgment was signed on

November 15, 2015. The State, however, claims that the judgment was not due until

thirty days after the Louisiana Supreme Court’s denial of writs became final. The

supreme court denied writs on February 10, 2017, and that judgment became final

five days after that, exclusive of legal holidays, on February 17, 2017. The State

claims that the judgment would have been due thirty days after that on March 19,

2017, a Sunday, and therefore was due on March 20, 2017.

9

We find no merit in Mr. Richard’s argument. Louisiana Revised Statutes

23:1201(G) governs the applicability of penalties to judgments and specifically only

applies when “a final, nonappealable judgment is not paid within thirty days after it

becomes due[.]” The September 15, 2015 judgment became a final, nonappealable

judgment on February 17, 2017.

Mr. Richard also claims that the September 15, 2015 judgment was never paid

in full. He claims that the State’s check of $28,260.21 was sent to the OWC, not him.

This assertion is not supported by the record. The record shows that Mr. Richard was

paid the $28,260.21, as evidenced by a copy of the check bearing Mr. Richard’s

endorsement.

Mr. Richard also alleges procedural errors in his fourth and fifth assignments

of error, including the OWC’s failure to include certain pleadings in the record and

the OWC’s issuance of multiple claim numbers arising out of his single accident that

occurred on September 20, 2005. We find that neither of these assignments of error

have merit.

As to the first, Mr. Richard had an opportunity at the OWC level to introduce

those documents into the record. He did not. Even after the OWC’s decision on

January 14, 2022, Mr. Richard could have filed a Motion to Supplement the Record

with the requested pleadings. He did not. Therefore, we find this assignment of error

to be without merit.

As to the second, Mr. Richard has not explained or suggested any harm caused

by the issuance of multiple docket numbers to him, nor has he pointed to any law

that justifies reversal of such. We, too, find this assignment of error meritless.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed against, appellant, Mr. Patrick Richard.

10

AFFIRMED.

11