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Ortega v. Cantu Services, Inc.

Court of Appeals of Louisiana, Third Circuit

October 23, 2019

MARY ORTEGA Plaintiff-Appellant


          George A. Flournoy Flournoy Law Firm Counsel for Appellant: Mary Ortega

          Gregory J. Laborde Daigle Rayburn LLC Counsel for Appellees: Cantu Services, Inc. and Liberty Mutual Insurance Co.

          Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.


         In this 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 amended.


         Ortega, 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[1] 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.[2]

         On 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 C4-5.[3]

         On June 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, [4] we referenced and recited the settlement:

The agreement was explained on the record by counsel for Cantu and its insurer, Liberty Mutual Insurance Company, as follows:
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 to claimant.
Mr. Flournoy [counsel for Ms. Ortega]: .... Yeah, that's right.
Judge Braddock: And you understand the nature of this compromise, Ms. Ortega?
. . . .
Ms. Ortega: Yes, sir.

         In 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.

         After 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.

         A 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;[5] (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);[6] (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;[7] (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 paid.

         Ortega 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.


         In her 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 to Ortega.

         Defendants, 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.

         In Arceneaux v. Amstar Corp., 10-2329, p. 14 (La. 7/1/11), 66 So.3d 438, ...

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