FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF
CALCASIEU, NO. 15-06413 CHARLOTTE A. L. BUSHNELL,
WORKERS' COMPENSATION JUDGE
Christopher Auzenne, Auzenne Law Firm, COUNSEL FOR
DEFENDANT/APPELLEE: ProTemp Staffing Solutions, Inc.
Charles William Farr Attorney at Law COUNSEL FOR
DEFENDANT/APPELLEE: Boise Cascade Company.
Dwayne Dorsey APPELLANT: IN PROPER PERSON.
ProTemp Staffing Solutions, Inc. (ProTemp Staffing) and Boise
Cascade Company (Boise Cascade), move to dismiss this appeal.
For the reasons given herein, we issue a limited remand of
case involves a workers' compensation action which was
filed by Plaintiff-Appellant, Carey Dorsey. Plaintiff was
hired by ProTemp Staffing as a temporary employee, and
ProTemp Staffing sent Plaintiff to work for Boise Cascade. On
September 21, 2011, while Plaintiff was attempting to open a
door panel on a "chipper" at Boise Cascade's
facility in Pineville, Louisiana, the chipper was placed in
use and caused Plaintiff's body to jerk. As a result of
that incident, Plaintiff sustained neck and back injuries. On
October 9, 2015, Plaintiff filed suit against ProTemp
Staffing and Boise Cascade. Boise Cascade stipulated that it
was Plaintiff's special or borrowing employer, and a
consent judgment to that effect was signed on August 23,
2016. Subsequently, the Plaintiff, ProTemp Staffing, and
Boise Cascade reached a settlement agreement, and the
settlement agreement was placed on the record on November 16,
2016. On January 17, 2017, the workers' compensation
court signed an order approving the settlement as well as an
order dismissing the lawsuit.
March 2, 2017, Plaintiff filed with the workers'
compensation court a disputed claim form whereby Plaintiff
sought to reopen his workers' compensation case. Although
Plaintiff had been represented by counsel in the prior
proceedings, he acted in proper person when reopening his
case. In response to Plaintiff's attempt to reopen the
case, both ProTemp Staffing and Boise Cascade filed
exceptions of res judicata, motions to enforce settlement,
and motions for sanctions.
April 12, 2017, the trial court held a hearing to address
Plaintiff's request to have the settlement agreement
previously entered into by the parties set aside. After
taking the matter under advisement, the workers'
compensation court found that Plaintiff had failed to prove
that the settlement should be set aside or modified for fraud
or misrepresentation pursuant to La.R.S. 23:1272. Therefore,
on April 13, 2017, the workers' compensation court signed
a judgment denying Plaintiff's request to set aside the
settlement agreement and holding that Defendants'
exceptions had been rendered moot. The notice of judgment was
mailed on April 13, 2017.
April 26, 2017, Plaintiff filed a motion for new trial or
amendment of the April 13, 2017 judgment. The workers'
compensation court conducted a hearing on Plaintiff's
motion on June 12, 2017. Via a judgment signed on June 16,
2017, the workers' compensation court denied
Plaintiff's motion for new trial and for amendment of
judgment. The June 16, 2017 judgment also denies the
exceptions of res judicata and motions for sanctions which
had been filed by ProTemp Staffing and Boise Cascade. The
notice of judgment was mailed on June 16, 2017. Plaintiff
filed a motion for appeal on July 7, 2017, and the order of
appeal was signed on July 10, 2017. The appeal was lodged in
this court on September 1, 2017. Subsequently, both ProTemp
Staffing and Boise Cascade filed motions seeking to have this
court dismiss Plaintiff's appeal as untimely.
regard to the timeliness issue, we note that La.Code Civ.P.
art. 1974 provides that "[t]he delay for applying for a
new trial shall be seven days, exclusive of legal holidays.
The delay for applying for a new trial commences to run on
the day after the clerk has mailed, or the sheriff has
served, the notice of judgment as required by Article
1913." In situations where an application for new trial
is not filed, La.Code Civ.P. art. 2087 provides that a
devolutive appeal may be taken within sixty days after the
expiration of the delay for applying for a new trial, and
La.Code Civ.P. art. 2123 provides that a suspensive appeal
may be taken within thirty days of the expiration of the
delay for applying for a new trial. In situations wherein an
application for new trial is filed, La.Code Civ.P. art.
2087(A)(2) provides that a devolutive appeal may be taken
within sixty days after "[t]he date of the mailing of
notice of the court's refusal to grant a timely
application for a new trial[, ]" and La.Code Civ.P. art.
2123(A)(2) provides that a suspensive appeal may be taken
within thirty days of "[t]he date of the mailing of
notice of the court's refusal to grant a timely
application for a new trial[.]"
instant case, the judgment denying the motion for new trial
was signed on June 16, 2017, and the notice or judgment was
mailed that same date. The appeal was filed on July 7, 2017,
which is within thirty days of the mailing of the notice of
judgment denying Plaintiff's motion for new trial.
However, ProTemp Staffing and Boise Cascade argue that the
appeal delay did not commence to run on the date on which the
notice was mailed for the judgment denying Plaintiff's
motion for new trial. They argue that Plaintiff's motion
for new trial was filed untimely. In that regard, ProTemp
Staffing and Boise Cascade note that the judgment at issue in
this appeal was signed on Thursday, April 13, 2017, and that
the notice of judgment was mailed on that same date. They
argue that the seven-day period for filing a motion for new
trial commenced to run on Friday, April 14, 2017, and ended
on April 24, 2017, thus making the motion for new trial filed
on April 26, 2017 untimely. However, we note that Friday,
April 14, 2017, was Good Friday, which is a legal holiday. As
such, the delay for filing the motion for new trial did not
begin to run on that date. Rather, the delay for filing the
motion for new trial commenced on April 17, 2017, and ended
on April 25, 2017. Since the record indicates that the motion
for new trial was filed on April 26, 2017, the motion appears
to have been filed untimely. ProTemp Staffing and Boise
Cascade point out that without a timely-filed motion for new
trial, La.Code Civ.P. art. 2087 requires that the appeal be
filed within 60 days of the mailing of notice of the final
judgment. Since that notice was mailed on April 13, 2017,
ProTemp Staffing and Boise Cascade assert that the motion for
appeal filed on July 7, 2017, is untimely as it was filed
more than sixty days after the notice of judgment was mailed.
pro se Plaintiff filed a response to the motions to dismiss
the appeal. In that response, Plaintiff asserts that he
fax-filed his motion to the Office of Workers'
Compensation on April 24, 2017, and he submits to this court
documentation purporting to prove that assertion. The issue
of the alleged fax filing is relevant to the determination of
whether the appeal should be dismissed as untimely; however,
the record contains no information regarding a fax filing.
this court was faced with an appellate record that appeared
to indicate that the motion for appeal had been filed
untimely in a termination of parental rights case. State
in the Interest of J.A., 17-500 (La.App. 3 Cir.
6/28/17), 224 So.3d 411. However, in responding to a rule,
issued by this court, to show cause why the appeal should not
be dismissed as untimely, the appellant asserted that the
certificate of service which appeared in the appellate record
did not reflect the true facts of the service. In ordering a