Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Broussard v. Dillard Department Stores, Inc.

Court of Appeals of Louisiana, Third Circuit

February 16, 2017

DARLINE BROUSSARD
v.
DILLARD DEPARTMENT STORES, INC., ET AL.

         WRIT FROM THE OFFICE OF WORKERS' COMPENSATION #4 PARISH OF LAFAYETTE, NO. 15-05101 ANTHONY PAUL PALERMO, WORKERS' COMPENSATION JUDGE

         WRIT GRANTED AND MADE PEREMPTORY; CASE REMANDED.

          Azelie Ziegler Shelby Sarah K. Lunn Airzola W. Cleaves Shelby Law Firm COUNSEL FOR DEFENDANTS: Dillard Department Stores, Inc. Gallagher Bassett.

          C. Ray Murray Robert M. Waterwall Amber E. Murry Attorneys at Law COUNSEL FOR PLAINTIFF/RELATOR: Darline Broussard.

          Court composed of John D. Saunders, Marc T. Amy, D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, Judges.[*]

          CHATELAIN, J., dissents for the reasons assigned by Amy, J.

          SAVOIE, JUDGE.

         In this writ application, Relator Darline Broussard seeks review of the workers' compensation court's ruling denying her motion to compel Defendants Dillard's Department Store, Inc. and Gallagher Bassett Services, Inc. to retain a claims adjuster in Louisiana. For the foregoing reasons, Relator's writ is granted and made peremptory. The case is remanded to the workers' compensation court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         This case involves a workers' compensation action which Relator filed against her employer, Dillard's Department Store, Inc. (Dillard's), and Gallagher Bassett Services, Inc. (Gallagher Bassett). Dillard's is a self-insured employer, and its workers' compensation claims are handled by a third party administrator, Gallagher Bassett. Relator alleges that while restocking clothing at the Dillard's store in Lafayette, Louisiana, on April 8, 2014, she slipped and fell in vomit on the floor of the store. Relator further alleges that, as a result of the accident, Relator sustained injuries to her back. On August 20, 2014, Relator's treating physician, Dr. John Sledge, took her completely off work. Thereafter, Relator began receiving temporary total disability (TTD) benefits.

         On June 22, 2015, counsel for Dillard's sent Relator's attorney a letter, advising that, because Dr. Foster (the employer's choice of physician) had opined that Relator was capable of sedentary work, Dillard's was offering Relator a part-time sedentary position. However, Relator's attorney notified the employer's attorney that Relator's treating physician, Dr. Sledge, had not released Relator to return to work in any capacity. Subsequently, on July 2, 2015, Dillard's sent Relator and her attorney a Form 1002, Notice of Payment Modification, Suspension, Termination or Controversion of Compensation or Medical Benefits, whereby Dillard's indicated its intention to deny Relator's claim for TTD benefits and converted her TTD benefits to lesser supplemental earnings benefits. On that same day, Relator's attorney, in accordance with La.R.S. 23:1201.1(F)(1), sent a letter of amicable demand to Dillard's requesting a reinstatement of Relator's workers' compensation benefits. On July 9, 2015, Dillard's terminated Relator's TTD wage benefits and reduced them to significantly lower supplemental earnings benefits. Thereafter, on August 14, 2015, Relator filed the instant lawsuit, seeking, in addition to her workers' compensation benefits, penalties and attorney's fees for improper termination of her benefits.

         On September 3, 2015, Dillard's filed an answer, general denial, and request for a preliminary determination hearing pursuant to La.R.S. 23:1201.1(H). Relator filed a motion to strike Dillard's' request for a preliminary determination hearing. In her motion, Relator argues that Plaintiff is not entitled to a preliminary determination hearing and is not entitled to the exemption from penalties and attorney's fees which is afforded to those employers who are entitled to a preliminary determination hearing. See La.R.S. 23:1201.1(I)(1). As is permitted by La.R.S. 23:1201.1(I)(2), Relator sought to have the workers' compensation court conduct a rule to show cause hearing to resolve the dispute regarding Dillard's' entitlement to a preliminary determination hearing. Following a rule to show cause hearing on December 21, 2015, the workers' compensation court denied Relator's motion to strike and found that Dillard's is entitled to a preliminary determination hearing. Relator seeks review of that ruling.

         Meanwhile, on December 18, 2015, Relator also filed a motion to compel Defendants (Dillard's and Gallagher Bassett) to retain a claims adjuster in the State of Louisiana pursuant to La.R.S. 23:1161.1. Gallagher Bassett, the third party administrator that is handing Relator's claim for workers' compensation benefits, has an office in Nashville, Tennessee. Relator's claim has been assigned to Anne Mayo, who is a senior claims adjuster. Ms. Mayo works in Gallagher Bassett's Tennessee office, and she is a licensed claims adjuster in Mississippi and Georgia, but not in Louisiana. A hearing on the matter was held on January 15, 2016. On February 5, 2016, the workers' compensation court signed a judgment denying Relator's motion to compel Defendants retention of a Louisiana adjuster. The workers' compensation court concluded that it does not have subject matter jurisdiction to determine the issue of whether an employer or insurer has complied with La.R.S. 23:1161.1 because such issues are regulated by the Louisiana Commissioner of Insurance. Relator also seeks review of the ruling which denies her motion to compel.

         Relator has filed two separate writ applications with this court. Our review of the workers' compensation court's ruling which denied Relator's motion to strike Dillard's' request for a preliminary determination hearing and for protection from a claim for penalties and attorney's fees is discussed in the companion case, Darline Broussard v. Dillard Department Stores, Inc., et al., 16-99. Our review of the workers' compensation ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.