APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION DISTRICT
7 STATE OF LOUISIANA NO. 15-5613 HONORABLE SHANNON BRUNO
BISHOP, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, JUAN CAMPOS Cristian P.
Silva William R. Penton, III
COUNSEL FOR DEFENDANT/APPELLEE, EDDIE AND VANESSA SMITH J.
Douglas Sunseri Richard J. Wolff
composed of Judges Susan M. Chehardy, Jude G. Gravois, Marc
E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.
E. JOHNSON JUDGE
claim for workers' compensation benefits, Claimant
appeals a judgment excluding all of his evidence on the basis
he failed to file a pre-trial order pursuant to the
court's scheduling order which resulted in the dismissal
of his disputed claim for compensation for failing to carry
his burden of proof. For the following reasons, we vacate the
judgment and remand the matter for further proceedings.
& PROCEDURAL HISTORY
Juan Campos, filed a Disputed Claim for Compensation - 1008
Form on August 31, 2015 against his employer, Unlimited
Master Contractors, LLC ("UMC"), seeking
workers' compensation benefits for back, ribs and
shoulder injuries he allegedly sustained in a work-related
accident on July 11, 2015. Claimant asserted that the
accident occurred when he fell off the roof of a house
located on Broad St. in New Orleans while he was installing
plywood. Claimant amended his disputed claim in March 2016 to
add Eddie Smith, Vanessa Smith and LL5 Enterprises, LLC
("LL5") as defendants/employers.
filed an answer denying all claims. UMC denied that they had
any employer/employee relationship with Claimant and filed an
exception of no cause of action. Claimant filed a motion to
strike the answers of LL5 and UMC on the basis the pleadings
were not filed by licensed attorneys. He further sought a
default judgment against the two defendants. According to a
minute entry dated September 23, 2016, the workers'
compensation court granted Claimant's motion to strike
LL5's and UMC's answers and entered a preliminary
default judgment. There is nothing in the record indicating
that Claimant confirmed the preliminary default judgment
against either LL5 or UMC.
Eddie and Vanessa Smith ("the Smiths") filed
exceptions of no cause of action and no right of action,
which were overruled after a hearing. Thereafter, in February
2017, the Smiths filed their answer. On September 26, 2017,
the workers' compensation court signed a Scheduling
Conference Order, ordering that all pre-trial statements be
filed 30 days prior to trial. The order further noted that
trial was scheduled for February 15, 2018.
one week prior to trial, on February 6, 2018, Claimant filed
an ex parte motion seeking to perpetuate his
testimony for trial through a telephone deposition in lieu of
his live testimony. Claimant's counsel represented that
Claimant had been deported to El Salvador in December 2017
and would be unable to be present for trial. The Smiths
objected to the motion and a hearing was held. On March 13,
2018, the workers' compensation court denied
Claimant's motion "based on the facts and
information presented." However, the court ordered that
upon receipt of documentation showing Claimant's
unavailability for trial and the duration for which he would
be unavailable, a video deposition could be taken
pursuant to La. C.C.P. art. 1434, but did not order
Claimant to submit to or provide a video deposition.
4, 2018, Claimant submitted a letter from the U.S.
Immigration and Customs Enforcement dated May 2, 2018,
stating that Claimant had been removed from the United States
on November 9, 2017. Claimant also submitted a copy of
Section 212 of the Immigration and Nationality Act to show
that because he has been removed from the United States, he
is unable to return to the United States for a period of ten
years. Claimant urged that based on these two documents, he
had adequately demonstrated his unavailability for trial.
on May 21, 2108, Claimant filed a motion to admit his June
26, 2017 deposition at trial in lieu of live testimony. His
motion was not ruled upon prior to trial, which was held on
May 23, 2018. At the beginning of trial, the Smiths indicated
that they had a motion to dismiss based on two grounds -
Claimant's inability to be present at trial - arguing
against the use of Claimant's June 2017 deposition on the
basis it was a "discovery" deposition and not a
"perpetuation" deposition - and the failure of
Claimant to file a pre-trial statement.
Defendants' motion to dismiss, the workers'
compensation judge noted that her prior February 2018 ruling
regarding the use of deposition testimony in lieu of live
testimony was not followed; specifically, Claimant failed to
submit a deposition in compliance with La. C.C.P. art. 1434.
Further, remarking that neither Claimant nor the Smiths had
filed a pre-trial statement, the workers' compensation
judge struck all the witnesses and exhibits Claimant
indicated that he intended to offer into evidence during
trial on the basis they were not listed in the pre-trial
statement and granted the Smiths' motion to dismiss.
Claimant proffered his evidence, which included various
exhibits and a statement regarding the content of a
workers' compensation court subsequently signed a written
judgment on June 8, 2018, denying Claimant's motion to
use his June 2017 deposition in lieu of live testimony and
excluding all of his evidence at trial on the basis he failed
to file a pre-trial statement. The judgment concluded that
Claimant failed to meet his burden of proving that he
sustained a work-related accident and injuries and dismissed
Claimant's disputed claim for compensation with
sole issue raised in this appeal is whether the workers'
compensation court abused its discretion in excluding all of
Claimant's witnesses and exhibits at trial on the basis
his attorney failed to file a ...