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Orozco v. Aries Building Systems, Inc.

Court of Appeals of Louisiana, Fourth Circuit

January 24, 2018

MARIANA OROZCO (FILIBERTO SERNA, JR. DEC'D)
v.
ARIES BUILDING SYSTEMS, INC. AND FILSER CONSTRUCTION

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 2014-05423, DISTRICT "SEVEN" Honorable Shannon Bruno Bishop, Workers Compensation Judge

          Roberto L. Costales William H. Beaumont COUNSEL FOR PLAINTIFF/APPELLANT

          Philip J. Borne Joshua O. Hess CHRISTOVICH & KEARNEY, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase

          DANIEL L. DYSART JUDGE.

         This workers' compensation matter, arising out of the death of Filiberto Serna, Jr. (the "Decedent"), was previously before this Court following a trial before an Office of Workers' Compensation ("OWC") judge. In Orozco v. Aries Bldg. Sys., Inc., 16-0187 (La.App. 4 Cir. 9/28/16), 202 So.3d 1018, 1021, writ denied, 16-1949 (La. 12/16/16), 212 So.3d 1173, this Court set forth the salient facts leading to the litigation as follows:

On September 21, 2013, Decedent was killed in a construction accident while attempting to move a series of trailers located at a United States Navy facility in Belle Chasse, Louisiana. At the time of the accident, Decedent was being paid by Filser Construction ("Filser"), which was a subcontractor of Aries [Building Services, Inc.].
On August 15, 2014, [Mariana] Orozco ["Ms. Orozco"] filed a disputed claim for compensation, Form LDOL-WC-1008 (the "disputed claim" or "1008"), against Filser and Aries, alleging that Orozco was the wife of Decedent and was entitled to bring a claim for death benefits against both of Decedent's alleged employers. Decedent's father Filiberto Serna, Sr. ("Serna, Sr."), the owner of Filser and Aries, filed separate responsive pleadings to the 1008 on behalf of Filser and Aries, each contending that Decedent was performing work as an independent contractor and was not their employee.

Id., 16-0187, pp. 1-2, 202 So.3d at 1021.[1]

         The Orozco Court framed the issue before it as "whether Decedent was a business partner of Filser under circumstances that prevent Decedent from qualifying as an employee under the Louisiana Workers' Compensation Act." Id., 16-0187, p. 5, 202 So.3d at 1023. The Orozco Court first found that the OWC judge erred in concluding that Decedent was a partner in Filser, noting that "record evidence . . . [did] not provide a sufficient factual basis to support" this finding. Id., 16-0187, p. 8, 202 So.3d at 1024. The Court then considered "whether Decedent qualified as an employee under the Louisiana Workers' Compensation Act." Id., 16-0187, p. 10, 202 So.3d at 1025. Noting that our workers' compensation laws include a rebuttable presumption that a "person rendering service for another in any trades, businesses or occupations covered by this Chapter is . . . an employee, " Id. (quoting La. R.S. 23:1044), this Court found that the OWC judge:

. . . erred as a matter of law in failing to determine whether the statutory presumption of employment was rebutted. Having failed to determine under the correct standard of law whether Decedent was an employee, the OWC did not properly reach the issues of whether Decedent was an independent contractor performing manual labor, borrowed employee, or statutory employee or any other employment status that would entitle the Claimants to workers' compensation benefits, if any.

Id., 16-0187, pp. 12-13. 202 So.3d at 1026. The Court, noting the fact intensive nature of these issues, as well as the requirement of credibility determinations, remanded the case to the OWC judge "for adjudication as to Decedent's employment relationship to both Filser and Aries and a determination of any corresponding benefits that may be due." Id., 16-0187, p. 14, 202 So.3d at 1027.

         On remand and over the objection of Ms. Orozco, Aries filed a Motion to Set Trial on Remand for Argument Only. By order dated January 19, 2017, the trial court granted the motion, setting a new trial for argument only.[2] The matter proceeded by argument before the OWC judge on March 16, 2017. Thereafter, the parties filed post-trial briefs and various motions not pertinent to this appeal. On June 19, 2017, the OWC judge rendered its judgment.[3] The judgment states the following:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Claimants, were unable to prove that Filiberto Serna, Jr. was an employee of ...

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