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.
L. Camel Cox Cox Filo Camel & Wilson, LLC, COUNSEL FOR
PLAINTIFF/APPELLEE: Kenneth Clark.
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and Van H. Kyzar, Judges.
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.
OF THE RECORD
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,
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
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.
Clark answered Walgreens' appeal, seeking attorney fees
and costs as a result of Walgreens' frivolous appeal.
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.
ASSIGNMENT OF ERROR
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.
ASSIGNMENT OF ERROR
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,
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 ...