FROM THE OFFICE OF WORKERS' COMPENSATION - District No. 3
PARISH OF CALCASIEU, NO. 08-22034 DIANNE MARIE MAYO,
WORKERS' COMPENSATION JUDGE
Michael B. Miller, Jacqueline K. Becker Miller &
Associates COUNSEL FOR PLAINTIFF/APPELLANT: Michael Green
Rabalais Borne, Wilkes & Rabalais, L.L.C. COUNSEL FOR
DEFENDANT/APPELLEE: Town of Lake Arthur
composed of Marc T. Amy, John E. Conery, and Van H. Kyzar,
Judges. Amy, concurs in the result and assigns reasons.
E. CONERY, JUDGE.
plaintiff, Michael Green, appeals the December 14, 2017
judgment of the workers' compensation judge (WCJ)
dismissing without prejudice Mr. Green's fully
adjudicated workers' compensation claim. The original
workers' compensation claim was reduced to final judgment
on October 14, 2009. The December 14, 2017 dismissal was
initiated at the request of the WCJ on her own initiative
with no reasons or explanation. The final judgment signed was
without prejudice and noted that if any dispute should arise
between the parties, they were to file a new Form
LDPL-WC-1008 claim under the original docket number 08-22034.
Finding that Mr. Green's October 14, 2009 final judgment
was dismissed without lawful cause, for the following reasons
we reverse and vacate in its entirety the WCJ's December
14, 2017 judgment of dismissal and reinstate the judgment
dated October 14, 2009.
AND PROCEDURAL HISTORY
Green originally filed a workers' compensation claim
properly utilizing Form LDPL-WC-1008 on October 14, 2008. The
case went to trial before the WCJ on August 24, 2009. Prior
to the beginning of trial, counsel stipulated on the record
to the following facts; 1) On or about September 23, 2008,
Mr. Green was an employee of the Town of Lake Arthur when he
suffered a work-related accident while in the course and
scope of his employment; 2) Mr. Green's choice of
orthopedist is Dr. Michael Heard, and his choice of
orthopedic surgeon is Dr. Mark McDowell; 3) The Town of Lake
Arthur is self-insured; 4) Mr. Green is entitled to Temporary
Total Disability Benefits; 5) The Town of Lake Arthur will
pay a penalty of $8, 000.00, the maximum allowed under the
law at the time of the trial.
issues remained to be heard by the WCJ at the 2009 trial, the
correct calculation of Mr. Green's Average Weekly Wage
(AWW), which the WCJ set at $236.67 per week, and the amount
of attorney fees owed by his employer. The WCJ awarded Mr.
Green $12, 000.00 in attorney fees and $419.15 in court
costs. The WCJ's ruling on Mr. Green's initial Form
LDPL-WC-1008 claim was reduced to a final judgment on October
the trial in 2009, various unrelated motions were heard and
resolved by the WCJ. On April 15, 2014, the parties filed a
"JOINT MOTION AND ORDER TO STAY" the case
"until a motion is filed by any of the parties."
The former WCJ signed the order to stay the case on April 15,
2014. The record does not indicate why the
"Joint Motion To Stay" was filed. No motions were
filed by either party, and the stay remained in place for
over three years.
26, 2017, the new WCJ, on her own initiative, sent counsel
for both parties a "NOTICE OF TELEPHONE STATUS
CONFERENCE" (TSC) in Mr. Green's original case,
docket number 08-22034. The notice did not explain the nature
of the conference but merely stated, "TAKE NOTICE: There
will be a Telephone Status Conference in the above case at
9:00 a.m. on 7/6/2017." Again, there is no explanation in
the record as to why the WCJ initiated this puzzling
the telephone conference on July 6, 2017, the WCJ of her own
accord stated her intention to lift the April 15, 2014 stay
and dismiss Mr. Green's original Form LDPL-WC-1008 claim,
as memorialized in a document entitled "NOTES OF
COURT." The WCJ's decision was issued following a
discussion with counsel during the July 6, 2017 TSC that
"there are no pending issues in this
case." The WCJ signed an Order on July 6, 2017
that "the Motion to Lift the Stay and to Dismiss shall
be filed with the court within ten days of the July 6, 2017
TSC." It was further ordered that if the motion was not
received timely, "a Rule to Show Cause will be
set." Counsel for the Town of Lake Arthur then
drafted and submitted a judgment to the WCJ for her signature
at her request.
11, 2017, in correspondence to the WCJ, counsel for Mr. Green
objected to the form of judgment drafted by counsel for the
Town of Lake Arthur and indicated it had not been sent to him
prior to opposing counsel sending the proposed judgment to
the WCJ. The objection was filed on July 13,
26, 2017, over the objection of counsel for Mr. Green, the
WCJ signed the judgment submitted by the Town of Lake Arthur
at her request lifting the stay and dismissing without
prejudice Mr. Green's original Form LDPL-WC-1008 claim in
docket number 08-22034. The WCJ's self-initiated ruling
allowed the parties to file a new Form LDPL-WC-1008 claim
under the original docket number 08-22034 if any further
action was required in the case.
August 1, 2017, counsel for Mr. Green sent correspondence to
the WCJ requesting a hearing to be set on the "Motion to
Dismiss prior to the decision."
request of Mr. Green's counsel, the WCJ set a hearing on
Mr. Green's Motion for August 31, 2017, and treated it as
a motion for reconsideration. The notice stated, "The
purpose of this hearing is to take evidence and/or hear oral
argument on the Plaintiff's request for reconsideration
of the Motion to Dismiss filed by defendant in compliance
with a court order."
held the hearing as scheduled on August 31, 2017. Mr. Green
argued that in dismissing the original Form LDPL-WC-1008
claim, the WCJ would also be dismissing its October 14, 2009
final judgment. Accordingly, if there was any problem in the
future, Mr. Green would have to start the claims' process
again because of the WCJ's requirement that he file a new
Form LDPL-WC-1008 claim. This procedure would, in fact,
result in prejudice to his client's rights, despite the
language of the WCJ's dismissal, of the October 14, 2009
final judgment "without prejudice."
for the Town of Lake Arthur argued in support of the
WCJ's dismissal claiming that just because the Form
LDPL-WC-1008 claim was dismissed, it had no effect on Mr.
Green's October 14, 2009 final judgment. If her client
stopped paying, then Mr. Green would have the opportunity to
come to the WCJ to enforce the judgment.
hearing, the WCJ maintained her position that Mr. Green's
rights were not in jeopardy and stated:
There's no action been taken on this case within the last
three years. The stay has been lifted. The Court is going to
dismiss this case without prejudice in saying that if an iota
of the judgment is violated, you know the vehicle you need to
get back in this court.
specific reasons were given, and, no legal authority was
cited for the WCJ's ruling. Counsel for the Town of Lake
Arthur was ordered to prepare a judgment in conformity with
the WCJ's ruling. The final judgment submitted by counsel
for the Town of Lake Arthur included the language
"without prejudice" and was signed by the WCJ on
December 14, 2017, from which Mr. Green now timely appeals.