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Thomas v. Marsala Beverage Co.

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

JAMES ARNESS THOMAS Plaintiff-Appellant

          Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Trial Court No. 1800902 Brenza Irving-Jones Workers' Compensation Judge

          JOHNSON & PLACKE, L.L.P. By: Don Hewitt Johnson Counsel for Appellant

          ANZELMO & CREIGHTON, L.L.C. By: Donald J. Anzelmo Counsel for Appellees

          Before COX, STEPHENS, and McCALLUM, JJ.

          MCCALLUM, J.

         James Arness Thomas, who was injured in an accident at work caused by a third party, obtained workers' compensation benefits from his employer's workers' compensation insurer, Louisiana United Business Association Casualty Insurance Company ("LUBA"). After Thomas filed a tort suit against the tortfeasor and the tortfeasor's employer, LUBA intervened in the tort suit to recover benefits it had paid to Thomas. The judgment obtained in the tort suit awarded damages for past losses, but denied damages for future medical expenses, future lost wages, and loss of earning capacity. The denial of damages was affirmed on appeal. LUBA subsequently terminated wage benefits and would not approve recommended treatment, and when Thomas filed disputed claims for compensation, raised the exception of res judicata in the workers' compensation proceeding. The WCJ sustained the exception and dismissed Thomas's claims. Thomas appeals. For the following reasons, we reverse the judgment and remand for further proceedings.


         James Thomas was employed as a forklift operator by Marsala Beverage Company in Monroe. His job duties included loading and unloading trucks, moving beer kegs and drink cases, and performing janitorial tasks such as sweeping and mopping. Thomas was injured at work on November 9, 2010, while unloading a truck with a forklift. Thomas was operating the forklift when it rolled out of the back of the truck as the truck pulled away from the loading dock. Thomas was 42 years old at the time.

         Thomas worked for several months following the accident performing janitorial duties but stopped working in February of 2011 and sought workers' compensation benefits from Marsala and LUBA.

         On June 17, 2011, Thomas and his wife filed a tort suit against Bryan Boyd, who drove the truck away from the loading dock, and Werner Enterprises, Inc., the owner of the truck. He contended that he was totally and permanently disabled from the accident, physically incapable of ever returning to any type of work, and needed pain management treatment for the balance of his life. Boyd and Werner countered that Thomas's injuries were not as severe or permanent as he claimed, and that he could work but refused to do so. LUBA filed a petition of intervention in the tort suit to recover all benefits and medical expenses it paid to or on behalf of Thomas as well as to obtain credit for any future benefits or medical expenses that it may pay. The parties acknowledged LUBA's statutory lien, and LUBA was excused from appearing at the trial.

         Dr. Vincent Forte, a pain management specialist who began treating Thomas in January of 2014, administered lumbar medial branch blocks to him. When Dr. Forte recommended an epidural steroid injection at L5-S1 in February of 2014, LUBA denied coverage of the treatment. The denial was appealed to the Office of Workers' Compensation ("OWC") Medical Director, who declined to approve the injection on the basis that it was diagnostic and not allowed under the OWC's medical treatment guidelines. The WCJ reversed that decision upon finding that the evidence was clear and convincing that the Medical Director's decision was not in accordance with the guidelines. This court affirmed the WCJ in Thomas v. Marsala Beverage Co., 50, 062 (La.App. 2 Cir. 9/30/15), 179 So.3d 620.

         On August 11, 2015, the jury in the tort suit rendered a verdict finding that although Thomas had been injured in the accident, he failed to mitigate his damages by 55%. He was awarded $40, 000 in general damages, $34, 977 in past lost wages, and $40, 000 in past medical expenses. The jury, rejecting Thomas's assertion that he was unable to work and entitled to medical expenses for the rest of his life, awarded no damages for future medical expenses, future lost wages, or loss of earning capacity. On appeal, this Court concluded the jury erred in the amount awarded for past lost wages as well in finding a failure to mitigate damages. In all other respects, the judgment was affirmed. This Court acknowledged the vast amount of evidence calling into question Thomas's truthfulness, which proved problematic for him as his claims were largely premised upon subjective complaints of pain. Thomas v. Boyd, 51, 621 (La.App. 2 Cir. 11/15/17), 245 So.3d 308, writs denied, 2018-0232 (La. 4/16/18), 239 So.3d 832, 2018-00233 (La. 4/16/18), 240 So.3d 923.

         Thomas continued to be treated by Dr. Forte following the jury trial. Dr. Forte saw him a week after the trial for a follow-up visit and as late as September 12, 2018, when Dr. Forte's diagnosis of Thomas's condition remained spondylosis in the cervical region and radiculopathy in the lumbar region. Dr. Forte also performed several treatment procedures on Thomas. Cervical medial branch nerve blocks were done on July 7 and on August 11 of 2016, and a cervical medial branch neurotomy was done on October 17. Thomas received lumbar epidural steroid injections at L5-S1 twice in 2016, and at L4-5 twice in 2017, with the latest on September 12.

         LUBA ceased paying weekly wage benefits to Thomas on January 18, 2018. The following month, Thomas filed a disputed claim for compensation in which he asserted that his wage benefits had been terminated. Thomas subsequently filed three additional disputed claims for compensation related to: (1) LUBA's denial of lumbar epidural steroid injections when LUBA's adjuster determined that the injections were not related to Thomas's compensation claim; (2) LUBA's failure to approve his request for neuropsychological testing; and (3) LUBA's denial of drug testing conducted by Dr. Forte as part of Thomas's treatment program when LUBA's adjuster determined it was unrelated to Thomas's compensation claim. Thomas contended in each disputed claim that he was disabled and not employable. LUBA filed answers in which it denied that Thomas remained disabled, was permanently disabled, had an injury resulting in a loss of earning capacity, or was entitled to rehabilitation services. The WCJ ordered the disputed claims consolidated.

         Marsala and LUBA filed an exception of res judicata in which they asserted that the doctrine of res judicata barred the consolidated claims. They contended that the judgment in the tort suit was res judicata as to Thomas's compensation claims asserting that he was disabled, not employable, and entitled to continuing medical treatment.

         At the hearing on the exception, the WCJ admitted into evidence a sextet of exhibits submitted by Thomas in opposition to the exception. Included among the exhibits were Dr. Forte's 2018 deposition, a 2019 deposition from Dr. Navneet Sharma, Dr. Forte's medical records, and a 2018 report from a rehabilitation consultant.

         Dr. Sharma, who specializes in physical medicine and rehabilitation, was retained by LUBA in November of 2017 to provide a second medical opinion, which he rendered on December 6, 2017. In his report, which was attached to his deposition, Dr. Sharma wrote: (1) his diagnosis was cervical and lumbar spine strain; (2) Thomas's current complaints did not correlate with his physical exam findings; (3) his recommendations were neuropsychological testing and vocational rehabilitation, although he doubted that Thomas would give a good effort; (4) Thomas's current medication regimen was appropriate; (5) Thomas reached maximum medical improvement between May of 2013 and December of 2014; (6) it was his opinion that Thomas was capable of doing light duty work on a full-time basis; and (7) he believed that Thomas could return to light-duty work immediately with work restrictions similar to what had been recommended in a functional capacity evaluation. Dr. Sharma testified in his deposition that there was no reliable evidence that Thomas had a disability related to the accident. He explained that one of the reasons that he recommended neuropsychological testing was he could not correlate some of the physical findings with Thomas's injury.

         Dr. Forte testified in his 2018 deposition that given Thomas's illness, limited job skills, and limited education, he thought that Thomas would be very hard to employ. He recommended that Thomas continue with the present treatment plan unless his symptoms changed. Dr. Forte asserted that he was not saying that Thomas was totally and permanently disabled, but only that he had not seen a job presented that he believed Thomas could do.

         The exception of res judicata was granted and all of Thomas's disputed compensation claims were dismissed with prejudice. Thomas has appealed.


         The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. Barnett v. Louisiana Medical Mutual Ins. Co., 51, 908 (La.App. 2 Cir 5/23/18), 248 So.3d 594, writ denied, 2018-0944 (La. 09/28/18), 253 So.3d 154; Toliver v. Entergy Servs., Inc., 49, 954 (La.App. 2 Cir. 6/24/15), 169 So.3d 774, writ denied, 2015-1633 (La. 10/30/15), 180 So.3d 299. The res judicata effect of a prior judgment is a question of law that is reviewed de novo on appeal. Alpine Meadows, L.C. v. Winkler, 49, 490 (La.App. 2 Cir. 12/10/14), 154 So.3d 747, writ denied, 2015-0292 (La. 4/24/15), 169 So.3d 357.

         Res judicata promotes the dual purposes of judicial efficiency and the final resolution of disputes by preventing needless relitigation. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 1995-0654 (La. 1/16/96), 666 So.2d 624. The doctrine of res judicata is set forth in La. R.S. 13:4231:

         Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the ...

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