Shannon Chaisson VS Central Crane Service and Louisiana Workers' Compensation Corporation
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0112 SHANNON CHAISSON VERSUS CENTRAL CRANE SERVICE AND LOUISIANA op 7 WORKERS COMPENSATION CORPORATION Judgment Rendered JUL 2 9 2010 On Appeal from the Office of Workers Compensation Parish of St Tammany District 6 No 09 02074 The Honorable Elizabeth A Warren Workers Compensation Judge Presiding Brian D Calvit Counsel for PlaintiffAppellant Baton Rouge Louisiana Shannon Chaisson Amanda H Carmon Counsel for DefendantAppellee Louisiana Workers Compensation Corporation Baton Rouge Louisiana BEFORE DOWNING GAIDRY AND McCLENDON JJ Although initia y na ed as a defendant Central Crane Service Inc was no longer in existence at the time this action was instituted GAIDRY J A workers compensation claimant appeals a judgment of the Office of Workers Compensation dismissing his workers compensation claim contesting the amount of his weekly indemnity benefit We amend the judgment and affirm it as amended FACTUAL AND PROCEDURAL BACKGROUND The claimant Shannon Chaisson sustained a work related injury on January 9 1995 while employed by Central Crane Service Inc On September 27 1995 he filed a disputed claim for workers compensation against his employer and its insurer Louisiana Workers Compenation Corporation LWCC Mr Chaisson claimed that his average weekly wage was 520 based upon an hourly wage of 13 for 40 hours per week 00 00 The parties eventually agreed to compromise Mr Chaisson existing s cause of action Pursuant to the compromise Mr Chaisson represented by counsel moved to voluntarily dismiss his claim for all weekly indemnity benefits penalties and attorney fees The motion recited the following basis for the requested dismissal 1 LWCC has paid Shannon Chaisson the sum of FOURTEEN THOUSAND SEVEN SEVENTY NINE AND 27 DOLLARS 100 HUNDRED 27 779 14 representing workers compensation weekly indemnity benefits from May 5 1995 through June 20 1996 in the amount of TWO HUNDRED FORTY SEVEN AND 50 DOLLARS 100 50 247 per week 2 It is undisputed that the parties entered into a compromise agreement and that the motion and order of dismissal were predicated upon that agreement even though no written release or compromise agreement was introduced into evidence Thus the order of dismissal rendered upon the agreement described in the motion was the functional equivalent of a consent judgment See Taylor v Orleans Parish Sch Bd 03 2023 pp 3 4 La App 4th Cir 9 883 So 449 451 52 At the hearing on the exception Mr 04 1 2d s Chaisson counsel conceded the existence of a compromise agreement that formed the basis of the motion and order of dismissal confession binding upon Mr Chaisson His admission constitutes a judicial See La C art 1853 and Cichirillo v Avondale Indus Inc 04 2894 p 6 La 11 917 So 424 428 29 05 29 2d 2 2 At present workers compensation weekly indemnity benefits in the amount of TWO HUNDRED FORTY SEVEN AND 50 DOLLARS 247 are continuing to be made 100 50 LWCC further agrees to pay all medical expenses associated with the injuries sustained by Shannon Chaisson on or about January 9 1995 during the course and scope of his employment with Central Crane Service Inc 3 Based upon the agreements set forth in the preceding paragraphs Shannon Chaisson wishes to dismiss with prejudice all claims for workers compensation benefits of any kind or character including penalties and attorney fees due and owing up through the date of the signing of this Motion to Dismiss In all other respects Shannon wishes to dismiss his workers compensation claim against Central Crane Service Inc and LWCC without prejudice The order of dismissal included with the motion was signed on July 18 1996 On March 13 2009 over twelve years later Mr Chaisson filed a second disputed claim for compensation claiming that his weekly indemnity benefits had been underpaid since the date of dismissal of his first claim due to miscalculation of his average weekly wage In his disputed claim form he claimed an average weekly wage of 540 entitling him to the 00 maximum weekly indemnity benefit of 323 003 sanswer was filed on April 9 2009 admitting Mr Chaisson LWCC s employment status at the time of injury and that it had paid weekly indemnity benefits of 247 from May 5 1995 through April 3 2009 50 Trial was set for September 23 2009 3 At the trial of this matter however Mr Chaisson explained that his hourly wage rate was actually 13 making his average weekly wage 520 for a 40hour week as set 00 00 forth in his first disputed claim form and that he had mistakenly believed the hourly rate was 13 at the time he filed his second disputed claim form thus yielding the figure of 50 00 540 for claimed average weekly wage K On September 14 2009 LWCC filed a peremptory exception of res judicata asserting that Mr Chaisson was precluded from asserting the issues of his average weekly wage and compensation rate for trial in this litigation as those issues were raised and dismissed in the previous litigation The exception was set for hearing on the day of trial In her oral reasons for ruling on the exception the workers compensation judge WCJ expressed her conclusion that res judicata did not apply because t was never a judicial determination of Mr here s Chaisson wage rate At the conclusion of the trial on the merits the WCJ took the matter under advisement for decision The WCJ judgment overruling the exception and dismissing Mr s s Chaisson claim was signed on the following day September 24 2009 In her written reasons for judgment the WCJ noted that the prior order of dismissal was based on an agreement that LWCC pay Mr Chaisson weekly indemnity benefits in the amount of 247 and that the order 50 constituted a consent judgment The WCJ further found that there was no competent evidence showing the amount of 247 was incorrect and that 50 the original stipulated indemnity amount of 247 must stand 50 Mr Chaisson appeals ASSIGNMENTS OF ERROR Mr Chaisson contends that the WCJ erred in the following respects 1 The WCJ erred in failing to apply the forty hour presumption rule of La R 23 where the S 1021 a 12 defendant offered no evidence to rebut the presumption 2 The WCJ erred in relying on secondary information from LWCC to determine claimant hourly rate of pay s 3 The WCJ erred in holding that the prior agreement between claimant and LWCC was a binding consent agreement 0 4 The WCJ erred in failing to award penalties and attorney fees for LWCC failure to reasonabl s y controvert the claim Because we ultimately resolve this matter adversely to Mr Chaisson on his third assignment of error we pretermit consideration of his other assignments of error as our decision renders their determination moot DISCUSSION A compromise is a contract whereby the parties through concessions made by one or more of them settle a dispute or an uncertainty concerning an obligation or other legal relationship La C art 3071 A compromise settles only those differences that the parties clearly intended to settle including the necessary consequences of what they express La C art 3076 While the doctrine of res judicata is ordinarily premised on a final judgment on the merits it also applies where the opposing parties enter into a compromise or settlement of a disputed matter See Ortego v State Dep t of Transp Dev 961322 p 6 La 2 689 So 1358 1363 A 97 25 2d compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised La C art 3080 Thus compromises have the legal efficacy of the thing adjudged res judicata Ortego 961322 at p 6 689 So at 1363 2d The doctrine of res judicata in our state is embodied in La R S 4231 13 which was substantially amended in 1990 This statute now 4 4 Louisiana Revised Statutes 13 provides 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 W embraces the broad usage of res judicata to include both claim preclusion traditional res judicata and issue preclusion collateral estoppel Under issue preclusion or collateral estoppel resolution of an issue of fact or law essential to determination of the dispute precludes relitigation of the same issue in a different action between the same parties See Mandalay Oil Gas L v Energy Dev Corp 01 0993 p 9 La App 1st Cir 8 C 04 4 880 So 129 135 36 writ denied 042426 La 1 893 So 72 2d 05 28 2d and La R 13 Comments S 4231 1990 b The case of Caparotti v Shreveport Pirates Football Club 33 570 pp 24 La App 2nd Cir 8 768 So 186 189 90 writ denied 00 00 23 2d 2947 La 12 777 So 1230 was not cited by either party to this 00 15 2d appeal but involved an issue quite similar to that before us The claimant had a fixed base salary and was initially paid weekly temporary total disability TTD benefits in the statutory maximum amount following an injury He later began to earn some income in another occupation and his TTD benefits were He discontinued filed a disputed claim for compensation which was ultimately compromised when the insurer agreed to pay all past due benefits penalties and attorney fees An order of dismissal was rendered that reserved the claimant rights to seek s supplemental earnings benefits SEB The TTD benefits discontinued and the claimant was paid SEB were later He then filed a second disputed claim for compensation relating to the proper amount of SEB 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 judgment bars a subsequent action on those causes of action 3 A judgment in favor of either the plaintiff or the defendant is conclusive in any subsequent action between them with respect to any issue actually litigated and determined if its determination was essential to that judgment 0 benefits raising the issue of his average weekly wage which he claimed was actually higher than that previously based on his base salary The insurer filed an exception of res judicata claiming that the issue of average weekly wage was previously determined The appellate court affirmed the WCFs overruling of the exception agreeing that the dismissal and release only affected the claimant average weekly wage claim with respect to the s expressly stated time period through the date of the compromise Id 570 33 at pp 3 4 768 So at 190 2d We disagree with the holding in Caparotti as we find its facts distinguishable and the reasoning related to the compromise terms flawed There the claimant undisputed base salary alone clearly entitled him to the s maximum weekly indemnity benefit at the time of his initial claim thereby making the issue of any additional weekly earnings moot and nonessential to determination of the proper amount of weekly benefits at that time The actual amount of his earnings later became relevant at the time of his second claim for supplemental earnings benefits SEB because SEB is predicated upon inability to earn 90 or more of average pre injury wage Here however Mr Chaisson in fact claimed average weekly wages of 520 at 00 the time of his first claim a disputed amount that if correct would have entitled him to the maximum weekly benefit of 323 rather than the 00 agreedupon weekly benefit of 247 Thus the actual amount of Mr 50 saverage weekly wages was a bona fide disputed issue essential to Chaisson resolution of his first claim Additionally we emphasize that Caparotti failed to specifically address the effect of issue preclusion or collateral estoppel under La R 13 S 4231 3 5 Issue preclusion serves the interests of judicial economy by preventing relitigation of the same issue between the same parties La R S 13 Comments 4231 1990 b Res judicata does not bar another action when the first judgment dismissed the first action 7 In Magee v Abek Inc 05 0388 La App 1st Cir 5 943 So 06 2d 372 on rehearing the claimant was initially found not to be disabled by reason of her work related injury and her claims related to other bodily injuries were found to be causally unrelated to the on accident Her job the medical expenses for treatment including surgery for the workrelated injury were found to be compensable The claimant later filed a second claim for indemnity benefits for alleged disability arising from the surgery We held citing Brown v Rouse Co 971243 pp 67 La App 4th Cir 98 14 1 706 So 547 550 51 writ denied 980419 La 5 805 2d 98 1 2d So 191 and Jackson v Iberia Parish Gov 981810 La 4 732 t 99 16 2d So 517 that the initial judgment finding no disability could not bar a later claim seeking modification of indemnity benefits under La R 23 S 1310 8 for an alleged change in condition or disability status resulting from the surgery for the work related injury Magee 05 0388 at pp 23 943 So at 2d 374 However we observed in dictum in the cited case that issue preclusion might operate to bar reconsideration of certain issues such as the causation of the other bodily injuries raised and decided in the earlier compensation claim Magee 05 0388 at p 3 n 943 So at 374 n The same l 2d l reasoning applies to the issue of the amount of weekly indemnity benefits The factual circumstances of average weekly wage like those of an injury s causal relationship to a work related accident are fixed as of the time of the accident and are not subject to change over time unlike disability status without prejudice or reserved the right of the plaintiff to bring another action See La S 4232 R 13 3 2 A Here however the first order of dismissal dismissed with prejudice any and all claims for workers compensation benefits including penalties and s attorney fees up to the date of the signing of this O All other claims for udgment workers compensation benefits were dismissed without prejudice As of the time the order was signed Mr Chaisson had no other existing claims or causes of action so the dismissal without prejudice has no relevance to those issues determined by the compromise agreement and dismissal with prejudice See e Delaney v City of g Alexandria 03 864 p 2 La App 3rd Cir 12 862 So 1085 1087 03 10 2d Eli Thus relitigation of such a factual issue already determined is not available under the modification jurisdiction of La R 23 and B S 1310 A 8 b Here Mr Chaisson is raising the same factual issue as to his purported average weekly wage 520 as he previously did in 1995 As 00 was the case in Brown the claimant has shown no new issues and no new circumstances Id 97 1243 at p 8 706 So at 551 Rather he seeks to 2d relitigate a factual issue raised at the time of his first claim the circumstances of which did not and could not change over time The evidence relating to the compromise agreement convinces us that the parties clearly intended to settle the matter of the proper amount of weekly indemnity benefits to which Mr Chaisson was entitled See Taylor v Orleans Parish Sch Bd 03 2023 p 5 La App 4th Cir 9 883 So 04 1 2d 449 452 Thus the issue was litigated through the filing of the disputed claim and determined by the parties compromise as required for operation of issue preclusion under La R 13 That the parties agreement S 4231 3 was intended to resolve the issue of the amount of ongoing weekly benefits is implicitly supported by the long interval between filing of the first and second compensation claims LWCC exception clearly was meritorious s and should have been sustained Mr Chaisson attempts to avoid the operation of issue preclusion by characterizing the dispute over his purported actual wage rate as an error as to the principal cause of the compromise agreement or an error in calculation which the WCJ should have found served as grounds to rescind 6 The modification power of La R 23 and B exists for the purpose of S 1310 A 8 modifying awards due to a change in the worker scondition Jackson 98 1810 at p 9 732 So at 524 Because changes in medical condition and disability status are dynamic 2d and ongoing by their nature the legislature enacted La R 23 and B to S 1310 A 8 afford needed flexibility to ensure that benefits correspond to such changes As noted by the court in Brown disability is not a condition etched immutably in stone fixed in one instant for all time Brown 97 1243 at p 6 706 So at 550 Res judicata thus cannot 2d preclude litigation seeking a change in the amount of compensation benefits based upon a change in disability Jackson 98 1810 at p 10 732 So at 524 25 2d 0 the compromise A compromise may be rescinded for error of fact but not error of law La C art 3082 The fact that a compromise has been reached does not preclude correction of an error in calculation in appropriate cases La C art 3080 Revision Comments 2007 c We disagree with Mr Chaisson characterization of the basis of his s present claim He has shown no fundamental error of fact or error in calculation on the part of either party in reaching their agreement as to the amount of his weekly indemnity benefit the final agreed upon amount of his weekly indemnity benefits was simply based upon a lower figure for average weekly wages than he initially claimed Mr Chaisson cannot now circumvent the operation of issue preclusion by attempting to rescind a voluntary compromise incorporating an agreement as to the amount of his weekly indemnity benefits In short he cannot relitigate that issue on the grounds that the compromise was a bad bargain on his part Because issue preclusion or collateral estoppel is a species of res judicata it is appropriately raised through a peremptory exception asserting that objection or by alleging it as an affirmative defense We accordingly conclude that the WCJ technically erred in failing to sustain the peremptory exception of res judicata as the compromise agreement and order of voluntary dismissal precluded relitigation of the issue of the amount of weekly indemnity benefits based upon the disputed average weekly wage As previously explained the issue of the proper amount of weekly indemnity benefits was essential to the compromise agreement which specifically incorporated the parties agreement that the weekly indemnity 7 If anything Mr Chaisson complaint regarding the compromise might more s appropriately be characterized as one of lesion Lesion is defined as an injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract Mullins v Page 457 So 64 71 La App 2nd Cir writ denied 459 So 538 La 2d 2d 1984 Black Law Dictionary 921 8th ed 2004 A compromise cannot be rescinded s on grounds of error of law or lesion La C art 3082 10 benefits of 247 would continue to be made after the date the order of 50 dismissal was signed during Mr Chaisson continuing disability s The WCFs written reasons recognized the binding and preclusive effect of the stipulated weekly indemnity amount of 247 and characterized the 50 order of dismissal of the first claim as a consent judgment However although the WCJ correctly found that there was an agreement that LWCC pay Mr Chaisson weekly indemnity benefits in the amount of 247 50 she erred as a matter of law in overruling the exception and in permitting evidence on that issue which was legally no longer an issue in dispute Although the WCJ erred in overruling the peremptory exception of res judicata LWCC understandably did not answer the appeal to challenge that error as the ultimate result dismissal of the claim was correct However because we conclude that the judgment is more properly grounded upon issue preclusion we notice the peremptory exception of res judicata on our own and sustain it pursuant to the authority of La C art 927 We P B accordingly amend the judgment of the WCJ to sustain the peremptory exception of res judicata and affirm it as so amended All costs of this appeal are assessed to the claimant appellant Shannon Chaisson JUDGMENT AMENDED AND AFFIRMED AS AMENDED 8 In doing so we observe in dictum that even if issue preclusion did not apply the evidence at trial supports the WCYs decision on the merits relating to the average weekly wage amount 11
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