FROM THE OFFICE OF WORKERS' COMPENSATION NO. 15-05122,
DISTRICT "EIGHT" Honorable Robert Varnado,
Workers' Compensation Judge.
M. Forrest THE FOREST LAW FIRM, LLC., COUNSEL FOR
L. Hutton Leslie E. Hodge Lindsey F. Louapre BROWN SIMS,
COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judge Rosemary Ledet, Judge Regina Bartholomew
Woods, Judge Paula A. Brown.
ROSEMARY LEDET JUDGE.
a workers' compensation case. The defendant, A-1 St.
Bernard Taxie & Delivery, LLC ("A-1"), appeals
the August 4, 2016 judgment of the Louisiana Office of
Workers' Compensation (the "OWC") rendered in
favor of the claimant, Veronica Gordon. For the reasons that
follow, we reverse and remand for further proceedings.
AND PROCEDURAL BACKGROUND
2, 2015, Ms. Gordon was involved in a motor vehicle accident
while working as an independent contractor for A-1. At the
time of the accident, Ms. Gordon was driving a cab owned by
A-1. Three days later, she sought treatment at the emergency
room for pain in her left arm, shoulder, neck, and back.
August 17, 2015, Ms. Gordon filed a disputed claim for
compensation- a Form 1008-against A-1 (the "Original
Claim"). In the Original Claim, she alleged that A-1
failed to pay wage benefits and to authorize medical
treatment. In addition to wage and medical benefits, she
sought penalties and attorney's fees. Also in the
Original Claim, Ms. Gordon listed A-1's contact
information for service as follows: "Attention Vincent
Rizzuto, 3301 Delille Street in Chalmette, Louisiana."
On August 31, 2016, the OWC notified Ms. Gordon's
attorney that service on A-1 was unable to be perfected at
that location. The OWC also requested that Ms. Gordon provide
it with either the correct address or the name of the
registered agent for service of process for service to be
September 8, 2015, Ms. Gordon filed an amended disputed claim
for compensation (the "First Amended Claim"). In
the First Amended Claim, she listed A-1's and Mr.
Rizzuto's address as "227 W. Genie Street,
Chalmette, Louisiana." On October 16, 2015, the OWC
notified Ms. Gordon's attorney that service could not be
perfected at that location. The OWC further explained in the
notification that Ms. Gordon's claim could not proceed
until service was perfected and it informed her that she
could file a motion to appoint a private process server.
December 21, 2015, the OWC, sua sponte, ordered that
Ms. Gordon show cause why her claim should not be dismissed
for failure to prosecute. The record is devoid of a ruling on
the dismissal for failure to prosecute. One week later,
however, Ms. Gordon filed a motion to appoint Jeff Toepfer as
special process server, which the OWC granted.
February 3, 2016, Ms. Gordon filed a second disputed claim
for compensation (the "Second Amended Claim"), in
which she changed A-1's and Mr. Rizzuto's address to
"3201 Delille Street, Chalmette, Louisiana." On
that same date, she filed a "Motion to Appoint Louisiana
Secretary of State as Agent for Service of Process." In
her motion, Ms. Gordon stated that Mr. Toepfer made several
unsuccessful attempts to serve A-1's agent for service of
process; a copy of Mr. Toepfer's affidavit was attached
to Ms. Gordon's motion. Thereafter, the OWC granted Ms.
Gordon's motion and appointed the Secretary of State as
A-1's agent for service of process. On February 10, 2016,
the Secretary of State transmitted, by certified mail, the
Second Amended Claim to A-1's last known mailing address.
April 25, 2016, the OWC again ordered Ms. Gordon to show
cause why her claim should not be dismissed for failure to
prosecute. A minute entry reflects that on May 12, 2016, the
OWC denied the motion. Four days later, the OWC scheduled a
telephone status conference, which was held on June 22,
2016. On that same date, the OWC judge issued a
scheduling order and set an August 2, 2016 trial
scheduled trial date, a trial against A-1 proceeded without
either counsel or any representative of A-1 being
present. Ms. Gordon was the only witness to testify
at trial. At the close of Ms. Gordon's case, the OWC
ruled in her favor. On August 3, 2016, A-1's attorney
filed a motion to enroll. On August 4, 2016, the OWC granted
A-1's attorney's motion to enroll and rendered a
judgment in Ms. Gordon's favor. Thereafter, the OWC denied
A-1's motion for new trial. This appeal followed.
workers' compensation cases, the standard of review to be
applied by an appellate court to the OWC's findings of
fact is the manifest error-clearly wrong standard. Orozco
v. Aries Bldg. Sys., Inc., 16-0187, p. 5 (La.App. 4 Cir.
9/28/16), 202 So.3d 1018, 1022, writ denied, 16-1949
(La. 12/16/16), 212 So.3d 1173 (citing Dean v. Southmark
Constr., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112,
117). "'When legal error interdicts the fact-finding
process in a workers' compensation proceeding, the de
novo, rather than the manifest error, standard of review
applies.'" Orozco, 16-0187 at p. 5, 202
So.3d at 1023 (quoting MacFarlane v. Schneider Nat'l
Bulk Carriers, Inc., 07-1386, p. 3 (La.App. 4 Cir.
4/30/08), 984 So.2d 185, 188).
A-1 raises six assignments of error on appeal,  we find this
appeal presents two issues: (i) whether A-1 was properly
served; and (ii) whether the OWC erred in rendering judgment
in Ms. Gordon's favor.
contends that it was never properly served with Ms.
Gordon's citation or any of her disputed claims for
compensation. A-1 argues that there was only one attempt to
serve its registered agent at its agent's proper address
before Ms. Gordon sought service through the Secretary of
State. A-1 further argues that service was never perfected by
the Secretary of State because the certified mail containing
the citation was never delivered; rather, the tracking
information showed it was still in transit to its destination
at the time of trial. According to A-1, the OWC erred in
rendering judgment against A-1 when it was never served as
required by law. A-1 thus contends that the OWC's
judgment must be annulled.
Gordon counters that service on A-1 was perfected when the
Secretary of State forwarded the citation to A-1's last
known address. According to Ms. Gordon, the law "simply
requires the Secretary of State to forward the citation of
service, nothing more." Louisiana Truck Parts, Inc.
v. W & W Clarklift, Inc., 444 So.2d 733, 734
(La.App. 5th Cir. 1984); see also Bastian v. Wallace
Colored Sch. Club, 11-708, p. 7 (La.App. 5 Cir. 5/8/12),
99 So.3d 680, 683. Furthermore, she contends that Mr.
Rizzuto, A-1's registered agent, received notice of the
trial date, yet he failed to retain counsel or appear at
trial. Given A-1 was served as required by law and had notice
of the trial, Ms. Gordon submits that the OWC's judgment
judgment rendered against a defendant who has not been served
with process as required by law is an absolute nullity, and
the judgment shall be annulled. La. C.C.P. art.
2002(A)(2); Brown v. Unknown Driver, 05-0421,
p. 11 (La.App. 4 Cir. 1/18/06), 925 So.2d 583, 590 (citing
Advanta Bank Corp. v. First Mount Zion Baptist
Church, 03-732, p. 4 (La.App. 5 Cir. 12/30/03), 865
So.2d 165, 167); see also Tunnard v. Simply S. Homes,
L.L.C., 07-0945, p. 3 (La.App. 1 Cir. 3/26/08), 985
So.2d 166, 168. In ordinary civil actions, the requirements
for service of process upon a limited liability company are
set forth in La. C.C.P. art. 1266, which provides as follows:
A. Service of citation or other process on a domestic or
foreign limited liability company is made by personal service
on any one of its agents for service of process.
B. If the limited liability company has failed to designate
an agent for service of process, if there is no registered
agent by reason of death, resignation, or removal, or if the
person attempting to make service certifies that he is
unable, after due diligence, to serve the designated agent,
service of the citation or other process may be made by any
of the following methods:
(1)Personal service on any manager if the management of the
limited liability company is vested in one or more managers
or if management is not so vested in managers, then on any
(2) Personal service on any employee of suitable age and
discretion at any place where the business of the limited
liability company is regularly conducted.
(3)Service of process under the provisions of R.S. 13:3204,
if the limited liability company is subject to the provisions
of R.S. 13:3201.
workers' compensation cases, service may also be made on
a named defendant by certified mail. See La. R.S.
23:1310.3(B); see also Jefferson Par. Hosp. Serv.
Dist. No. 2 v. K & W Diners, LLC, 10-767, p. 7
(La.App. 5 Cir. 4/12/11), 65 So.3d 662, 666-67.
citation is the cornerstone of all actions. The law is,
moreover, patently clear that actual knowledge cannot
supplant the need for strict compliance with the requisites
of proper citation." Elkins v. Louisiana Dep't
of Agric. & Forestry, 36, 829, p. 2 (La.App. 2 Cir.
3/5/03), 839 So.2d 992, 993 (citing Rivers v. Groth
Corp. 95-2509, p. 2 (La.App. 1 Cir.9/27/96), 680 So.2d
762, 763). Nonetheless, when service on an agent for service
of process cannot be effectuated with due diligence, a
process server may be appointed. La C.C.P. art. 1266(B).
After the process server certifies his inability to make
service in accordance with Article 1266, a plaintiff may
alternatively serve the Secretary of State. La. C.C.P. art.
1267;see also Kallauner v. One Source
Const., LLC, 08-0883, p. 3 (La.App. 4 Cir. 10/8/08), 995
So.2d 59, 61 (noting that "[a]ccording to La. C.C.P.
art. 1266, service pursuant to La. C.C.P. art. 1266 B may
only be used where service pursuant to La. C.C.P. art. 1266 A
cannot be effectuated with due diligence."). This court
in Kallauner further noted that "the process
server must certify that he was 'unable, after
due diligence, to serve the designated agent' before an
alternative means of service becomes acceptable.'"
08-0883 at p. 3, 995 So.2d at 61 (quoting La. C.C.P. art.
1266) (emphasis in original); see also Willis v. TMB
P'ship, 45, 813, p. 5 (La.App. 2 Cir. 12/15/10), 56
So.3d 324, 327 ...