FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 1E,
PARISH OF CONCORDIA, NO. 14-4586 BENZA IRVING JONES,
WORKERS' COMPENSATION JUDGE
H. Benoist BENOIST LAW OFFICES Counsel for
Plaintiff/Appellee: Kevin Coolidge.
S. Watson Attorney at Law Counsel for Defendant/Appellant:
Austin Butler, DBA Austin's Auto Salvage.
composed of John D. Saunders, Elizabeth A. Pickett, and
Shannon J. Gremillion, Judges.
ELIZABETH A. PICKETT JUDGE.
Coolidge (Coolidge) filed a motion to dismiss the appeal of
Austin Butler, dba Austin's Auto Salvage (Austin's
Auto), alleging that the appeal is untimely because
Austin's Auto did not post a bond in compliance with
La.R.S. 23:1310.5(C). For the reasons that follow, we dismiss
the appeal and remand the matter to the Office of
Workers' Compensation (OWC) for the setting of a bond in
compliance with the applicable law.
appeal arises out of an alleged on-the-job injury that
occurred on April 29, 2014. Coolidge was employed by
Austin's Auto as a mechanic. Coolidge alleged that he was
working on a motor when it fell on his hand, causing a screw
to go through his hand. He filed a 1008 on July, 7, 2007. The
matter proceeded to trial on September 4, 2015. The
Workers' Compensation Judge (WCJ) took the matter under
advisement and issued written reasons for ruling on January
11, 2016. The WCJ ruled in favor of Coolidge and against
Austin's Auto. The WCJ found that the accident occurred
within the course of scope of Coolidge's employment; that
Coolidge was entitled to medical treatment and payment of all
related, reasonable, and necessary medical expenses; that
Coolidge was entitled to temporary total disability (TTD),
supplemental earnings benefits (SEB), and indemnity benefits;
and that Austin's Auto was arbitrary and capricious in
failing to provide workers' compensation benefits. The
WCJ further awarded sanctions and attorney's fees to
judgment in accordance with the written reasons was signed on
June 29, 2016, and notice of judgment issued that same day.
Austin's Auto filed a motion for appeal on August 29,
2016, and the WCJ signed an order of appeal on September 1,
2016. Neither the notice of appeal nor the order specified
whether the appeal was suspensive or devolutive. On September
2, 2016, the OWC issued a notice of appeal indicating that
the appeal was devolutive. A notice of estimated appeal costs
issued on September 9, 2016, and the amount was due twenty
days after receipt of the notice. Austin's Auto received
the notice on September 14, 2016, and timely paid the
estimated costs of appeal on October 3, 2016. Notice of a
November 17, 2016 return date was issued.
record was lodged in this court on November 21, 2016. On
November 28, 2016, Coolidge filed the instant motion to
dismiss appeal based on Austin's Auto failing to post an
appeal bond in accordance with La.R.S. 23:1310.5(C).
Austin's Auto opposed the motion to dismiss, alleging
that since the WCJ failed to assess an appeal bond, the case
should be remanded to the OWC for compliance with La.R.S.
Revised Statutes 23:1310.5(C) (emphasis added) provides as
When there has been an award of benefits by the
workers' compensation judge, no appeal by an employer
shall be entertained by the appellate court unless
the employer secures a bond with one or more sureties to
be approved by the workers' compensation judge,
guaranteeing that the employer will pay the amount of the
award rendered therein together with interest thereon as
otherwise provided by law, and all costs of the proceeding.
The time limits for perfecting the bond shall be as
provided in the Code of Civil Procedure, but shall not
commence to run against the appellant until the appellant is
notified by the workers' compensation judge as to the
amount of the bond fixed in accordance with law.
in workers' compensation matters, appeal bonds are
required in both suspensive and devolutive appeals where the
claimant has been awarded benefits and the employer seeks an
appeal. However, the delay for posting the bond does not
begin to run until the appellant gets notification of the
amount of the bond.
seeks to have the appeal dismissed since it is undisputed
that Austin's Auto did not post an appeal bond in this
case. It is also undisputed that no bond was set by the WCJ
or the OWC. Thus, Austin's Auto, on the other hand,
asserts that the matter should be remanded to the OWC so that
the amount of the appeal bond can be fixed in compliance with
Auto cites Hurst v. Arabi Taxi and Delivery Service,
96-108 (La.App. 5 Cir. 5/28/96), 675 So.2d 1210,
support of this proposition. In Hurst, a cabdriver
was murdered in his taxi while employed by Arabi Taxi and
Delivery Service. His mother was awarded death benefits, and
the taxi service took a suspensive appeal. The hearing
officer did not set a bond, and none was filed. The Fifth
Circuit, on its own motion, dismissed the ...