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Robinson v. Capital Staffing Services, Inc.

Court of Appeals of Louisiana, Third Circuit

October 2, 2019

JUNIUS ROBINSON
v.
CAPITAL STAFFING SERVICES, INC., ET AL.

          APPEAL 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

          Errol 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.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

          John E. Conery, Judge.

         This 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 impose sanctions.

         FACTS AND PROCEDURAL HISTORY

         On 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.

         After 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). [1]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 $5, 133.26.

         In June 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.

         South 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.)

         On 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.

         Meanwhile, 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.[2] 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.

         Mr. 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.

         After a 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 judgment.

         On June 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

         In 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 stated:

[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.

         The 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.

Id.

         South 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.

         The 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.

         ASSIGNMENTS OF ...


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