FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 15-06229 CHARLOTTE A. L. BUSHNELL,
WORKERS' COMPENSATION JUDGE.
Michael B. Miller Jacqueline K. Becker Miller &
Associates COUNSEL FOR PLAINTIFF/APPELLANT: Junius Robinson
J. King, Jr. Eric E. Pope Brett W. Tweedel Pamela N. Molnar
Blue Williams, L.L.P. COUNSEL FOR INTERVENOR/APPELLEE: South
East Personnel Leasing, Inc.
composed of Ulysses Gene Thibodeaux, Chief Judge, Billy
Howard Ezell, and John E. Conery, Judges.
E. Conery, Judge.
case has a long and twisted procedural history. It is once
again before this court on an appeal by the claimant, Mr.
Junius Robinson, of the Workers' Compensation Judge's
(WCJ) June 11, 2018 judgment granting Mr. Robinson's
employer, South East Personnel Leasing, Inc.'s motion to
enforce a judgment issued by this court in the case of
Robinson v. Capital Staffing, 17-114 (La.App. 3 Cir.
10/18/17), 230 So.3d 643 (Robinson I). For the
following reasons, we affirm in part, reverse in part, and
AND PROCEDURAL HISTORY
October 2, 2015, Mr. Robinson filed an LDOL 1008 claim
seeking workers' compensation indemnity benefits,
alleging he was injured while in the course and scope of his
employment. Once his employer situation was resolved, he
began to receive indemnity benefits from his employer South
East, who assumed the defense in this case.
South East began paying workers' compensation indemnity
benefits to Mr. Robinson, it scheduled a November 30, 2015
appointment for him to be examined by Dr. Harold Granger. Mr.
Robinson missed the appointment, and it was rescheduled by
South East for January 11, 2016. Mr. Robinson arrived at Dr.
Granger's office more than forty-five minutes late and
was informed that Dr. Granger had left for the day. Based on
Mr. Robinson's failure to attend the second appointment
with Dr. Granger, South East suspended Mr. Robinson's
indemnity benefits pursuant to La.R.S. 23:1124 and La.R.S.
23:1201.1(A)(4) and (5). Ultimately, after Mr. Robinson was
finally examined by Dr. Granger, South East reinstated Mr.
Robinson's indemnity benefits on approximately April 14,
2016. The amount of the suspended indemnity benefits totaled
2016, Mr. Robinson filed a motion seeking penalties and
attorney fees for South East's suspension of his
indemnity benefits. After a hearing, the WCJ found that South
East had violated the workers' compensation law by
failing to first obtain an order compelling his attendance at
the medical examinations with Dr. Granger. The WCJ issued a
judgment awarding Mr. Robinson $8, 000 in penalties and $6,
000 in attorney fees.
East filed a writ application with this court challenging the
WCJ's ruling. Another panel of this court concluded that
the WCJ's judgment was a final and appealable judgment
and converted the writ application to an appeal. See
Robinson v. Capital Staffing, 16-829 (La.App. 3 Cir.
12/1/16) (unpublished writ decision.)
appeal, a panel of this court in Robinson I reversed
the ruling of the WCJ and found that the notice to Mr.
Robinson's counsel by facsimile of the termination of his
indemnity benefits for failure to attend a scheduled medical
appointment was sufficient to satisfy the requirements of
La.R.S. 23:1201.1(A)(4) and (5) as required by Section 1124.
The court stated, "Having determined that South East
complied with the requirements of La.R.S. 23:1124 and La.R.S.
23:1201.1(4) and (5) when it suspended Mr. Robinson's
[indemnity] benefits, we reverse the WCJ's awards of
penalties and attorney fees." Robinson I, 230
So.3d at 650-51. All costs were assessed to Mr. Robinson.
shortly before the panel in Robinson I decided the
case, South East paid the penalties and attorney fees with
interest to Mr. Robinson as had been ordered by the WCJ's
judgment. The payment of the amounts owed during the
devolutive appeal was not communicated to the panel in
Robinson I, which issued its opinion on October 18,
2017. Mr. Robinson sought rehearing of the October 18, 2017
appellate ruling in Robinson I, which was denied by
that panel on December 6, 2017. Mr. Robinson did not apply
for writs to the supreme court, and the Robinson I
ruling became final on December 6, 2017.
Robinson and his attorney, Mr. Michael Miller, did not refund
the penalties and attorney fees pursuant to the panel's
ruling in Robinson I. Nor did they refund the
Temporary Total Disability (TTD) benefits South East had paid
to Mr. Robinson. On April 5, 2018, South East filed a Motion
to Enforce Judgment, seeking an order from the Office of
Workers' Compensation to enforce this court's
appellate ruling in Robinson I. South East claimed
it had paid the WCJ's judgment in full, including the
penalties, attorney fees, and the amount of suspended
benefits with interest, but had not received Mr.
Robinson's reimbursement payment after amicable written
demand. In response, Mr. Robinson filed an exception of res
judicata wherein he asserted South East never requested any
reimbursement of the funds paid toward the penalties and
attorney fees paid by South East while the case was on appeal
in Robinson I.
hearing, on May 23, 2018, the WCJ issued a judgment dated
June 11, 2018, which denied Mr. Robinson's exception of
res judicata and granted South East's motion to enforce
judgment for the repayment of the penalties and attorney
fees. The WCJ ordered Mr. Robinson to repay the penalties to
South East in the amount of $8, 027.10. At Mr. Robinson's
counsel's request, the parties stipulated in open court
and the WCJ ordered the $8, 027.10 in penalties would be paid
by a reduction of fifty percent of Mr. Robinson's weekly
indemnity benefits until the entire sum had been paid.
Counsel for South East asked the WCJ if "The attorney
fees will be repaid in a lump sum?" To which counsel for
Mr. Robinson, Mr. Miller replied, "I'm going
to pay that in a lump sum, Judge." (Emphasis
added.) Counsel for South East was ordered by the WCJ to
prepare a judgment ordering Mr. Robinson to repay the
penalties of $8, 027.10 by reducing his weekly indemnity
benefits by fifty percent, and ordering Mr. Miller to repay
the attorney fees of $6, 020.33 to South East in a lump sum
payment. When questioned about the "issue of the TTD
benefits," the WCJ responded, "That's not
before the Court today." Therefore, no ruling on the
issue of TTD benefits was included in the June 11, 2018
21, 2018, Mr. Robinson filed a Motion and Order for New
Trial. Following a July 23, 2018 hearing, the WCJ denied the
motion on August 9, 2018. The WCJ also denied South
East's motion for sanctions, but its succinct ruling
contained no analysis, findings, or reasons. Mr. Robinson
then filed an appeal of the WCJ's judgment denying a new
trial. South East responded by filing a motion to dismiss Mr.
Robinson's appeal of the denial of a new trial on the
basis that a judgment denying a new trial is interlocutory,
and not normally appealable
Robinson v. Capital Staffing, 18-990 (La.App. 3 Cir.
3/27/19), 269 So.3d 823 (Robinson II), another panel
of this court denied South East's motion to dismiss the
appeal. The panel agreed with South East "that a
judgment denying a motion for new trial is an interlocutory
order and is normally not appealable." Id. at
825. However, the Robinson II panel quoted
Edwards v. Southeastern Freight Lines, Inc., 14-871,
p. 3 (La.App. 3 Cir. 10/15/14), 149 So.3d 1020, 1021, and
[I]n cases in which the motion for appeal states that the
appeal is being taken only from the judgment on a motion for
new trial[, ] but the appellant exhibits the intent to appeal
the judgment on the merits, this court has held that the
appeal can, nonetheless, be considered as an appeal of the
judgment on the merits. McClure [v. City of
Pineville, 05-1460 (La.App. 3 Cir. 12/6/06) ], 944 So.2d
805, [writ denied, 07-43 (La. 3/9/07), 949 So.2d
446]; Thompson v. Nationwide Mut. Ins. Co., 95-258
(La.App. 3 Cir. 10/4/95), 663 So.2d 191.
Robinson II, 269 So.3d at 825.
court in Robinson II further found that:
In this case, it is clear from Mr. Robinson's assignments
of error that he seeks to appeal the judgment of June 11,
2018, which granted [South East's] motion to enforce
judgment, denied Robinson's exception of res judicata and
ordered Robinson to repay [South East] by reducing his
indemnity benefits by fifty percent. In as much as Robinson
has demonstrated his intent to appeal the underlying
judgment, we find that the appeal should be considered as an
appeal of that judgment. Therefore, we deny [South
East's] motion to dismiss the appeal.
East filed an Answer to Mr. Robinson's appeal seeking the
imposition of sanctions based on Mr. Robinson's allegedly
frivolous motion for a new trial pursuant to La.Code Civ.P.
art. 863(B)(1), which was denied by the WCJ in its August 9,
2018 judgment at issue in Robinson II.
panel in Robinson II did not address South
East's request for sanctions for Mr. Robinson's
frivolous appeal, pursuant to La.Code Civ.P. art. 863(B)(1),
or the WCJ's denial of his motion for new trial, but
instead converted the entire case to an appeal of the June
11, 2018 judgment. As such South East continues to assign as
error in the matter now before this court that the WCJ failed
to award sanctions based on Mr. Robinson's filing of a
meritless motion for new trial.