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Dorsey v. Protemp Staffing Solutions, Inc.

Court of Appeals of Louisiana, Third Circuit

May 23, 2018

CAREY DORSEY
v.
PROTEMP STAFFING SOLUTIONS, INC.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 15-06413 CHARLOTTE BUSHNELL, WORKERS' COMPENSATION JUDGE.

          Stacy C. Auzenne Auzenne Law Firm, L.L.C., COUNSEL FOR DEFENDANT/APPELLEE: ProTemp Staffing Solutions, Inc.

          Charles W. Farr, COUNSEL FOR DEFENDANT/APPELLEE: Boise Cascade Company

          Carey Dwayne Dorsey IN PROPER PERSON.

          Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.

          MARC T. AMY JUDGE.

         The workers' compensation claimant sought benefits from injuries he allegedly sustained in a work-related accident. After the parties entered into a settlement, the claimant sought to reopen his claim by filing an amended claim. The workers' compensation judge concluded that the claimant failed to prove that the settlement should be set aside or modified. Subsequently, the claimant filed a motion to amend judgment and motion for new trial, and the workers' compensation judge denied both motions. The claimant now appeals. For the following reasons, we affirm.

         Factual and Procedural Background

         On October 9, 2015, the claimant, Carey Dorsey, filed a "Disputed Claim for Compensation" in which he alleged that he injured his neck and back on September 21, 2011, while employed by ProTemp Staffing Solutions, Inc. ("ProTemp"). In particular, Mr. Dorsey asserted that the injury occurred when he was attempting to open a panel on a "chipper, " which was subsequently engaged and jerked his body. Mr. Dorsey contended that his wage benefits terminated or were reduced on September 7, 2015, and that Protemp should be assessed penalties, attorney fees, court costs, and legal interest, as well as a penalty for the failure to have workers' compensation insurance.

         ProTemp answered and, in pertinent part, denied that Mr. Dorsey sustained an injury and denied that he was either temporarily or permanently disabled. In its answer, ProTemp stated that, at the time of Mr. Dorsey's alleged injury, it was insured by the Louisiana Safety Association of Timbermen. Additionally, ProTemp provided that compensation had been paid to Mr. Dorsey from September 21, 2011, the date of the alleged accident, until September 7, 2015. The record indicates that around September 7, 2015, the Louisiana Safety Association of Timbermen filed for bankruptcy.

         Subsequently, Mr. Dorsey filed a "Motion and Order to File Amended and Supplemental Disputed Claim for Compensation." Mr. Dorsey alleged that, at the time of the injury, he had been "hired by ProTemp and loaned to defendant, Boise Cascade Company ("Boise Cascade") to perform work as a temporary employee." He further contended that, "[a]s the borrowing employer and/or the statutory employer, Boise Cascade is liable for workers' compensation indemnity benefits to Carey Dorsey." The workers' compensation judge granted Mr. Dorsey's motion. Mr. Dorsey and Boise Cascade ultimately entered into a consent judgment, which stipulated that Boise Cascade was the "special employer" or "borrowing employer" on the date of the alleged accident.

         A hearing on Mr. Dorsey's claims was scheduled for November 16, 2016. However, prior to the start of the hearing, counsel notified the workers' compensation judge that the parties had reached an agreement to settle, and a compromise settlement was read into the record before the workers' compensation judge. Mr. Dorsey was represented by counsel, Gregory P. Marceaux, at this hearing. The workers' compensation judge asked Mr. Dorsey whether he had heard the terms and conditions of the settlement and whether he agreed with them, and Mr. Dorsey responded affirmatively to both questions. Thereafter, Mr. Dorsey, ProTemp, and Boise Cascade filed a "Joint Motion to Dismiss with Prejudice, " which was granted by the workers' compensation judge. The parties then submitted signed compromise settlement documents and a "Joint Petition for Compromise Settlement of Workers' Compensation Claim" to the workers' compensation judge. On January 17, 2017, the workers' compensation judge signed the parties' "Request for Compromise or Lump Sum Settlement, " as well as an "Order of Approval of Compromise Settlement" and an "Order of Dismissal." The "Order of Approval of Compromise Settlement" provided, in pertinent part:

EMPLOYER, PROTEMP STAFFING SOLUTIONS, INC., and DEFENDANT, BOISE CASCADE COMPANY, shall be fully, finally and forever released and relieved from any and all further liability from any claims for compensation, damages as they relate to this workers' compensation claim, attorney's fees, travel expenses, penalties, medical expenses, and weekly workers' compensation indemnity or monthly supplemental earnings benefits or any other such claims arising heretofore which may hereafter arise out of the Louisiana Worker's Compensation laws in any manner connected with or growing out of any accident or injury occurring prior to the date of this Order, except for the obligation to comply with the terms of this Settlement Agreement.

         On March 2, 2017, appearing in proper person, Mr. Dorsey filed an "Amended Disputed Claim for Compensation, " which again named ProTemp and Boise Cascade and alleged that Mr. Dorsey had injured his neck and back on September 21, 2011. In the claim, Mr. Dorsey alleged that "Wage benefits terminated or reduced on 09/07/2015" and "Medical benefits terminated 09-07-2015." He also contended: "I have not received any temporary total disability benefits, cash or medical treatment and services since 09-07-2015. Comproise [sic] lump sum. And not seen by physican [sic] Dr. Hodges since 8-2015[.] Status TTD still unable to work. In treatment." ProTemp and Boise Cascade both filed exceptions of res judicata, motions to enforce the settlement, and motions for sanctions. On April 12, 2017, the workers' compensation judge held a hearing to address Mr. Dorsey's request. At the hearing, Mr. Dorsey argued that the settlement should be set aside on the basis of fraud or misrepresentation. After taking the matter under advisement, the workers' compensation judge issued a ruling, concluding that Mr. Dorsey had failed to prove that the settlement should be set aside or modified; denying Mr. Dorsey's motion to set aside or vacate the settlement; and held that the exceptions filed by ProTemp and Boise Cascade were rendered moot.

         Subsequently, on April 26, 2017, Mr. Dorsey filed a "Motion to Amend Judgment and for New Trail [sic]." In response, ProTemp and Boise Cascade filed exceptions of res judicata, motions for sanctions, and memoranda in opposition to Mr. Dorsey's motions. After a hearing on June 12, 2017, the workers' compensation judge denied Mr. Dorsey's motions, as well as ProTemp's and Boise Cascade's exceptions of res judicata and motions for sanctions.

         Mr. Dorsey thereafter appealed, and ProTemp and Boise Cascade moved to dismiss the appeal. A panel of this court issued a limited remand of the appeal in order for the workers' compensation judge to conduct a contradictory hearing and enter a ruling as to whether Mr. Dorsey timely fax-filed his motion for new trial. Dorsey v. ProTemp Staffing Solutions, Inc., 17-793 (La.App. 3 Cir. 11/15/17), 233 So.3d 122. After the workers' compensation judge conducted the hearing and entered judgment finding that Mr. Dorsey timely filed the motion with an appropriate filing fee within the time required by La.R.S. 13:850, the panel denied the motions to dismiss the appeal. Dorsey v. ProTemp Staffing Solutions, Inc., 17-793 (La.App. 3 Cir. 1/31/18), 237 So.3d 1195.

         Accordingly, we now consider the merits of the appeal, in which Mr. Dorsey, appearing in proper person, asserts that the workers' compensation judge: 1) failed to adequately inquire into his understanding of the settlement agreement, thereby resulting in fraud and ill practices; 2-3) erred in failing to consider his claim on the merits and that benefits, penalties, and attorney fees should have been awarded; 4) erred in permitting the entry of the settlement agreement into the record at what should have been a hearing on the merits; 5-6) erred in approving the settlement agreement without adequate assurance that Mr. Dorsey was aware that it was a compromise of his claim; and 7) erred in not awarding a penalty due to the employers' alleged late payment of the sums due.

         Discussion

         Inquiry as to understanding of settlement

         Mr. Dorsey contends that the workers' compensation judge failed to adequately inquire into his understanding of the settlement agreement. He further asserts that the workers' compensation judge erred in approving the settlement agreement without adequate assurance that Mr. Dorsey was aware that the settlement was a compromise of his claim. Mr. Dorsey alleges that the workers' compensation judge's actions constitute fraud and "Ill Practice" and allowed the "Defendants To Committ [sic] Unlawful Practice."

         The procedural requirements for approval of workers' compensation settlement agreements are found in La.R.S. 23:1272, which provides, in pertinent part:

A.A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers' compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.
B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers' compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers' compensation judge shall approve the ...

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