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Clark v. Sedgwick CMS

Court of Appeals of Louisiana, Third Circuit

May 30, 2018

KENNETH CLARK
v.
SEDGWICK CMS, ET AL.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT NO. 3 PARISH OF CALCASIEU, NO. 14-01589 DIANNE M. MAYO, WORKERS' COMPENSATION JUDGE.

          Matthew D. Fontenot Hurlburt, Monrose & Ernest, COUNSEL FOR DEFENDANTS/APPELLANTS: Walgreen Company Sedwick CMS.

          Kevin L. Camel Cox Cox Filo Camel & Wilson, LLC, COUNSEL FOR PLAINTIFF/APPELLEE: Kenneth Clark.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         The employer, Walgreen Company (Walgreens), appeals from a judgment amending an order of approval for a settlement of its former employee's claim. For the following reasons, we affirm and render judgment in favor of the employee.

         DISCUSSION OF THE RECORD

         The facts which led to the instant appeal are partially set forth in our previous opinion, Clark v. Sedgwick CMS, 15-277 (La.App. 3 Cir. 11/25/15), 179 So.3d 943, wherein we reversed in part a decision of the workers' compensation judge (WCJ) in favor of the employee, Kenneth Clark, awarding him supplemental earnings benefits and reinstating his right to further vocational rehabilitation. Ultimately, the parties reached a settlement and submitted their request for approval of the compromise settlement, which the WCJ approved and additionally rendered a judgment of dismissal on October 3, 2016.

         Thereafter, Mr. Clark petitioned the WCJ to amend the order of approval to include language that reflected a division of the indemnity portion of the settlement over Mr. Clark's total lifetime, without altering the amount of the settlement agreed upon by the parties. His request was for the purpose of allowing the Social Security Administration (SSA) to pro-rate his settlement so that it could calculate any disability offset required as a result of the settlement. Walgreens objected to the amendment of the order and filed an exception of res judicata and a motion for sanctions. Following a March 27, 2017 hearing, the WCJ rendered an amended order of approval on June 2, 2017, to include language reflecting the indemnity aspect of the settlement over the total lifetime of the claimant and finding the "functionally limiting effects of the injuries or medical conditions upon which this settlement is based shall exist for the remainder of the employee's life expectancy." The amended order of approval further set forth a computation of monthly indemnity benefits based on the overall net settlement to Mr. Clark, which was referred to as "a stipulated monthly amount of $373.33." The court minutes from the hearing also indicate that both the exception of res judicata and the motion for sanctions were denied.

         Walgreens appealed from the amended order on July 28, 2017; however, the record indicates that its motion for appeal was denied based on the lack of a final judgment in the matter. Subsequently, the WCJ rendered a judgment on August 21, 2017, which stated that it "replaces and supersedes the Amended Order signed on the 2nd day of June, 2017 and is in conformity with my ruling in open court." Notice of the signing of this judgment was forwarded to all counsel on August 22, 2017. Among other issues addressed in this judgment was the formal denial of Walgreens' exception of res judicata and motion for sanctions. Walgreens appeals both the June 2, 2017 amending order and the August 21, 2017 judgment, asserting three assignments of error:

1. The trial court was legally erroneous in amending the Original Order of Approval.
2. The trial court was without jurisdiction to amend or in any way change the Order from June 2, 2017, since it was divested of jurisdiction to do so.
3. The trial court was legally erroneous in denying the Exception of Res Judicata and Motion for Sanctions.

         Mr. Clark answered Walgreens' appeal, seeking attorney fees and costs as a result of Walgreens' frivolous appeal.

         OPINION

         We review the WCJ's ruling on issues of law de novo to determine whether its decision was legally correct. Magbee v. Fed. Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048.

         SECOND ASSIGNMENT OF ERROR

         We consider Walgreens second assignment of error first. Walgreens argues that its July 28, 2017 motion appealing the June 2, 2017 amended order, which was signed by the WCJ on July 31, 2017, divested the WCJ of jurisdiction to render its August 21, 2017 judgment. However, the record reflects that the order for appeal was, in fact, denied, as it contains a strike-through of the order and the WCJ's signature. It further contains marginal notations reflecting that it was denied. In conjunction with the August 21, 2017 judgment, the WCJ notified counsel for both parties that "[t]his Judgment was redone so the employer could have an appealable judgment and to be in conformity with my ruling on March 27, 2017." Accordingly, we find no merit in Walgreens' argument that the WCJ was divested of jurisdiction based on its original motion for appeal, as the record reflects that this motion was denied by the WCJ.

         FIRST ASSIGNMENT OF ERROR

         In its first assignment of error, Walgreens asserts that the WCJ committed legal error by amending the October 3, 2016 order approving the settlement, first, by the amended order on June 2, 2017, and, second, by the judgment rendered on August 21, 2017.

         In McCarroll v. Livingston Parish Council, 13-2120, pp. 4-6 (La.App. 1 Cir. 10/27/14), 156 So.3d 1173, 1176-77, writ denied, 14-2498 (La. 2/27/15), 159 So.3d 1068 (footnote omitted), the court examined the law ...


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