FROM OFFICE OF WORKERS' COMPENSATION DISTRICT 4, PARISH
OF LAFAYETTE, NO. 12-3665 SHARON MORROW, WORKERS'
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.
composed of Sylvia R. Cooks, Elizabeth A. Pickett, and
Phyllis M. Keaty, Judges.
R. COOKS, JUDGE
AND PROCEDURAL HISTORY
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.
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. 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.
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.
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.
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.
(2)The Trial Court committed manifest error in finding that
TALBOT has satisfied the necessary "buy back"
amount under ...