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White v. WIS International

Court of Appeals of Louisiana, Third Circuit

October 25, 2017

DEBRA WHITE
v.
WIS INTERNATIONAL

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 16-05483 JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE

          W. Jay Luneau Robert L. Beck, III Luneau & Beck, LLC Counsel for Plaintiff/Appellee: Debra White

          Eric J. Waltner Corey Meaux Allen & Gooch Counsel for Defendant/Appellant: Washington Inventory Service Inc. (erroneously listed as WIS International)

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          PHYLLIS M. KEATY JUDGE.

         The employer, Washington Inventory Service Inc. (WIS), [1] appeals an October 26, 2016 judgment rendered by the workers' compensation judge (WCJ) in favor of its former employee, Debra White, awarding her indemnity benefits, plus a penalty and attorney fees after a confirmation of default hearing. White answers the appeal seeking an award of additional attorney fees for having to defend this appeal. For the following reasons, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         On May 28, 2016, White tripped and fell over security rail tracks that were left on the floor of an Office Depot she was entering to perform inventorying services as part of her employment with WIS. By check dated August 8, 2016, White began receiving Temporary Total Disability Benefits (TTDs) retroactive to July 27, 2016, which benefits WIS continues to pay her to the present time. White filed a Form 1008 Disputed Claim for Compensation (1008) against WIS on August 31, 2016, alleging that she sustained injuries to her knees, upper and lower back, neck, and left shoulder in the May 28, 2016 accident and seeking an award of indemnity benefits from that date, plus penalties and attorney fees. She wrote "unknown" in the sections of the 1008 asking for her "Average Weekly Wage" and "Workers' Compensation Rate." WIS failed to answer the complaint, and the WCJ entered a preliminary default against it on September 27, 2016. After an October 24, 2016 evidentiary hearing, the WCJ rendered judgment declaring that White suffered disabling injuries in an on-the-job accident on May 28, 2016, awarding her TTDs in the amount of $164.30 per week beginning the day after the accident, subject to a credit for all indemnity benefits paid by WIS since July 27, 2016. White was also awarded a $2, 000.00 penalty for WIS's failure to pay indemnity benefits and $6, 000.00 in attorney fees.

         WIS filed a motion for new trial, which White opposed. Following a hearing, the WCJ denied WIS's motion for new trial, and this appeal followed.[2] In a single assignment of error, WIC asserts that the WCJ erred in finding that White "proved her prima facie case and in granting the default judgment awarding indemnity benefits between the date of the accident and July 27, 2016[, ] and in awarding penalties and attorney's fees." As mentioned previously, White answered the appeal to request an award of additional attorney fees for the work necessitated to defend the judgment rendered in her favor.

         DISCUSSION

         The second circuit discussed the law applicable to appellate review of a confirmation of a default judgment in a workers' compensation case in Nickerson v. Finance America of Louisiana, 47, 876, pp. 2-3 (La.App. 2 Cir. 2/27/13), 110 So.3d 1216, 1218, wherein it held:

A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C. C. P. art. 1702; Nickens v. Patriot Home Systems, 97-0291 (La.App.1st Cir.06/29/98), 713 So.2d 1179. A prima facie case is established when the claimant proves the essential allegations of her petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Nickens, supra.

         The legislature set out the requirements for rendition of a default judgment in a workers' compensation matter in La.R.S. 23:1316.1, [3] which provides:

A. A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive ...

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