APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION DISTRICT
2 DOCKET NO. 18-01006 RAPIDES PARISH JAMES BRADOCK,
WORKERS' COMPENSATION JUDGE.
A. Flournoy Flournoy Law Firm Counsel for Appellant: Mary
Gregory J. Laborde Daigle Rayburn LLC Counsel for Appellees:
Cantu Services, Inc. and Liberty Mutual Insurance Co.
composed of John D. Saunders, Phyllis M. Keaty, and Jonathan
W. Perry, Judges.
JONATHAN W. PERRY JUDGE.
workers' compensation case, Mary Ortega
("Ortega") appeals the judgments of the Office of
Workers' Compensation, denying her motion to enforce a
settlement agreement, the denial of her request that she be
found permanently and totally disabled, the attendant issues
of the adequacy of the penalties, attorney fees, and the
assessment of costs. We reverse in part and affirm as
AND PROCEDURAL HISTORY
an employee of Cantu Services, Inc. ("Cantu"), was
injured on the job at Fort Polk on February 23, 2011. At the
time of the accident, Ortega was pulling
mermites to heat and then take to the soldiers in
the field. As she was pulling the mermites, she fell
backwards striking her neck and back on a crate; as a result
of her fall, she injured her right arm, and experienced
low-back and neck pain. After being treated at the
Natchitoches Hospital, Ortega was seen by Dr. Robert K. Rush
("Dr. Rush"), an injury management specialist, who
treated her conservatively with medication and physical
therapy. She also received like conservative treatment from
Dr. George R. Williams ("Dr. Williams"), an
orthopaedic surgeon in Opelousas, even though at one point he
recommended a two-level anterior cervical fusion. Eventually,
Dr. Rush referred her to Dr. J. David Delapp ("Dr.
Delapp") who performed rotator cuff surgery on
Ortega's right shoulder. Liberty Mutual Insurance Company
("Liberty Mutual"), Cantu's workmen's
compensation carrier, approved all of Ortega's medical
treatment, and began paying an appropriate sum of weekly
workers' compensation benefits to Ortega.
March 11, 2013, Ortega was involved in a motor vehicle
accident unrelated to her employment. She consulted Dr. Clark
A. Gunderson ("Dr. Gunderson"), an orthopaedic
surgeon, for injuries she sustained in the accident, which
included her claim that the accident exacerbated her
work-related injuries. Dr. Gunderson performed various
diagnostic tests and determined that Ortega needed surgery to
correct problems she was having in her neck. On September 9,
2013, Dr. Gunderson successfully performed a two-level
anterior cervical discectomy and fusion at C3-4 and
27, 2014, Ortega filed a Disputed Claim for Workers'
Compensation against Cantu and Liberty Mutual
("Defendants"). In 2016, Ortega and Defendants
reached a settlement which was judicially approved and
recited in open court on September 1, 2016. In Ortega v.
Cantu Services, Inc., 17-1123, p. 1 (La.App. 3 Cir.
5/2/18), 246 So.3d 827, 828-29,  we referenced and recited
The agreement was explained on the record by counsel for
Cantu and its insurer, Liberty Mutual Insurance Company, as
Mr. Laborde: Your Honor, we've agreed to compromise all
claims asserted by Ms. Ortega in each docket number for the
total sum of $120, 000.
We will file with CMS [Centers for Medicare and Medicaid
Services] approval for a Medicare set-aside agreement [MSA]
in the amount of $56, 049. The balance that would then be
paid in benefits is $63, 951.
Now, the proviso is if CMS does not approve the requested
amount, but alters it in any way, we will fund the MSA as
directed by CMS and then adjust the amount to be paid in
benefits accordingly, so that the total of the settlement
still amounts to $120, 000. And we will continue to pay
benefits until we get the CMS approval and the funds tendered
Mr. Flournoy [counsel for Ms. Ortega]: .... Yeah, that's
Judge Braddock: And you understand the nature of this
compromise, Ms. Ortega?
. . . .
Ms. Ortega: Yes, sir.
accordance with that workers' compensation settlement
agreement, Defendants continued weekly temporary total
disability benefits until January 25, 2018. Subsequent to the
discontinuation of weekly benefits, Ortega filed a Disputed
Claim for Compensation on February 16, 2018, for
Defendants' non-payment of temporary total disability
benefits and medical benefits, and further sought penalties,
attorney fees, interest, and court costs. Thereafter, on
September 5, 2018, Ortega also filed a Motion to Enforce
Settlement of 2016, in which she sought to have Defendants
resume payment of the weekly indemnity benefits, effective
January 25, 2018, and to continue those indemnity benefits
until Defendants obtain CMS approval of a MSA.
conducting a hearing on October 8, 2018, the Workers'
Compensation Judge ("WCJ") denied Ortega's
Motion to Enforce Settlement. A judgment to that effect was
signed on October 15, 2018. On October 24, 2018, Ortega filed
a motion for new trial on the denial of the motion to enforce
settlement. On November 26, 2018, the WCJ denied Ortega's
motion for new trial.
hearing with witnesses was held on October 18, 2018, on the
issues Ortega raised in her Disputed Claim for Compensation.
After taking the matter under advisement, the WCJ (1) denied
Ortega's claim for permanent total disability benefits;
(2) found Ortega's claims for medical benefits
prescribed; (3) found Ortega entitled to reinstatement
of indemnity benefits as supplemental earnings
("SEB") based on a zero earning capacity from
January 25, 2018 and continuing in accord with La.R.S.
23:1221(3); (4) cast Defendants with a $4, 000.00
penalty for discontinuance of indemnity benefits; (5) awarded
Ortega a penalty of $2, 000.00 for the failure of Defendants
to timely reinstate indemnity benefits; (6) awarded
Ortega an attorney fee of $7, 500.00; (7) ordered Ortega to
submit 1020 forms to Defendants in accord with La.R.S.
23:1221(3)(f); (8) assessed costs of $66.00 to Defendants and
rejected Ortega's claims for all other court costs; and
(9) awarded legal interest on the award of SEBs from the date
payment is due until paid and that interest on all other
monetary awards bear interest from the date of judgment until
timely filed a devolutive appeal contending that the WCJ
erred: (1) in refusing to enforce the judicially approved
settlement and requiring Defendants to continue weekly
indemnity benefits until CMS had approved a MSA and had
forwarded the settlement funds to Ortega; (2) should this
court not find merit to her first argument, she alternatively
argues that the WCJ erred in denying her permanent and total
disability status; (3) in awarding a penalty of only $4,
000.00 for the termination of Ortega's weekly indemnity
benefits; (4) in awarding an attorney fee of only $7, 500.00;
and (5) not assessing all reasonable costs to Defendants.
first assignment of error, Ortega contends that the WCJ erred
when it failed to enforce the 2016 settlement. She argues
that although this court rejected her earlier attempt to
enforce the settlement, her current action sought to enforce
the second part of the settlement, namely, Defendants'
agreement to continue weekly benefits until CMS approval of a
MSA had been obtained and the settlement funds were tendered
relying on this court's earlier opinion in
Ortega, 246 So.3d 827, argue that there was no
settlement to enforce. Accordingly, they contend that when
that decision became final, the law of the case doctrine
should apply because Ortega offered no new evidence to upset
that prior decision.
Arceneaux v. Amstar Corp., 10-2329, p. 14 (La.
7/1/11), 66 So.3d 438, ...