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Talbot v. Mouton Plumbing and Hauling, Inc.

Court of Appeals of Louisiana, Third Circuit

April 25, 2018

TERRELL TALBOT
v.
MOUTON PLUMBING AND HAULING, INC. AND LIBERTY MUTUAL INS. CO.

          APPEAL FROM OFFICE OF WORKERS' COMPENSATION DISTRICT 4, PARISH OF LAFAYETTE, NO. 12-3665 SHARON MORROW, WORKERS' COMPENSATION JUDGE

          CARL RACHAL COUNSEL FOR PLAINTIFF/APPELLEE: TERRELL TALBOT

          PATRICK A. JOHNSON, COREY M. MEAUX, ALLEN & GOOCH, A LAW CORPORATION COUNSEL FOR DEFENDANTS/APPELLANTS: MOUTON PLUMBING AND HAULING, INC. AND LIBERTY MUTUAL INS. CO.

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.

          SYLVIA R. COOKS, JUDGE

         FACTS AND PROCEDURAL HISTORY

         Mouton Plumbing and Hauling, Inc. (Mouton Plumbing) and Liberty Mutual Insurance Company (Liberty Mutual) sought supervisory writs from the judgment of the Office of Workers' Compensation. This court rendered judgment on June 1, 2017, ordering the consolidation of that matter, Docket Number 17-357, with this appeal.

         Plaintiff, Terrell Talbot (Talbot) was involved in an automobile accident while acting within the course and scope of his employment with Mouton Plumbing. Mouton Plumbing and Liberty Mutual, its workers' compensation insurer, accepted Talbot's claim as compensable under La. R.S. 23:1021, et seq. Talbot was paid workers' compensation indemnity benefits in the amount of $23, 487.86 and medical expenses of $45, 777.16, for a total of $69, 265.02.[1] Talbot also filed a civil lawsuit against a third-party tortfeasor and her insurer, Farm Bureau. In accordance with the provisions of La.R.S. 23:1102(A) he notified his employer and its insurer in writing that he filed suit and provided the name of the court in which the suit was filed. The employer and its insurer intervened in the suit.

         Talbot settled his tort claim for $107, 389.73 without procuring Mouton Plumbing or Liberty Mutual's written approval. Liberty Mutual thereafter terminated Talbot's workers' compensation benefits. Under the provisions of La.R.S. 23:1102(B), if an employee fails to obtain the employer or workers' compensation insurer's approval for a compromise and settlement of his tort claim he forfeits his right to workers' compensation benefits. An employee, may, however, reclaim his right to workers' compensation benefits through a "buy-back" provision provided in La.R.S. 23:1102(B). At the time Talbot's benefits were terminated a lien filed by Liberty Mutual had not been satisfied. After deducting attorney fees in the amount of $42, 955.89, and costs calculated by Talbot's attorney totaling $35, 703.00, the balance due Talbot on the settlement, $28, 730.84, was paid directly to Liberty Mutual in satisfaction of its lien. Talbot asserts this payment satisfied the buy-back provision of La.R.S. 23:1102(B). Mouton and Liberty Mutual assert the $28, 730.84 payment is not sufficient to fully "buy-back" Talbot's benefits, and thus his claim for workers' compensation benefits remains forfeited until a sufficient amount is paid to Mouton/Liberty Mutual.

         Talbot, Mouton and Liberty Mutual all filed cross motions for summary judgment. Mouton and Liberty Mutual filed an opposition to Talbot's motion for summary judgment but Talbot did not file an opposition to their motion. The workers' compensation judge (WCJ) granted Talbot's motion for summary judgment. The WCJ fixed the buy-back amount at $26, 822.59 and held that Talbot's payment of $28, 730.84 restored his benefits. The WCJ also rendered judgment in favor of Mouton and Liberty Mutual decreeing they are entitled to an additional dollar for dollar credit against Talbot's future benefits in the amount of $28, 730.83 and finding that such sum had not yet been satisfied. The trial court also found Talbot overpaid the "buy-back" in the amount of $1, 908.24, plus accrued interest, and ruled the overpayment was either to be reimbursed to Talbot or applied against the dollar for dollar credit in favor of Mouton and Liberty Mutual, at Talbot's option. Costs in the trial court were assessed equally between the parties.

         Mouton and Liberty Mutual appeal the WCJ's rulings asserting the WCJ misapplied and misinterpreted La.R.S. 23:1102(B). They assert two assignments of error in the trial court ruling:

(1)The Trial Court committed legal error in its method of calculation of the "buy back" amount under LSA-R.S. 23:1102(B).
(2)The Trial Court committed manifest error in finding that TALBOT has satisfied the necessary "buy back" amount under ...

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