FROM THE OFFICE OF WORKERS' COMPENSATION #4 PARISH OF
LAFAYETTE, NO. 15-05101 ANTHONY PAUL PALERMO, WORKERS'
GRANTED AND MADE PEREMPTORY; CASE REMANDED.
Ziegler Shelby Sarah K. Lunn Airzola W. Cleaves Shelby Law
Firm COUNSEL FOR DEFENDANTS: Dillard Department Stores, Inc.
Murray Robert M. Waterwall Amber E. Murry Attorneys at Law
COUNSEL FOR PLAINTIFF/RELATOR: Darline Broussard.
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.
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
AND PROCEDURAL HISTORY
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.
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.
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
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.
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