Kevin Smith VS Isle of Capri Casino & Hotel
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0161 KEVIN D SMITH VERSUS ISLE OF CAPRI CASINO HOTEL Judgment Rendered September 10 2010 Appealed from the Office of Workers Compensation Administration District 5 In and for the State of Louisiana Docket Number 09 04654 Honorable Pamela Moses Laramore Judge Kevin D Smith Baton Rouge LA In Proper Person Plaintiff Appellant F Scott Kaiser Attorney for Baton Rouge LA Defendants Appellees St Charles Gaming Co d a b Hotel Isle of Capri Casino and Cambridge Integrated Services Inc BEFORE CARTER C AND GAIDRY AND WELCH JJ J WELCH J Plaintiff Kevin D Smith appeals a judgment sustaining a peremptory exception raising the objection of res judicata filed by defendants St Charles Gaming Co da Isle of Capri Casino b Hotel Isle of Capri and Cambridge Integrated Services Group Inc Cambridge and dismissing his workers compensation claim We affirm BACKGROUND On June 1 2009 plaintiff filed this disputed claim for compensation benefits in the Office of Workers Compensation OWC against Isle of Capri his employer and its claim administrator Cambridge Plaintiff alleged that on December 9 2004 he was cleaning out a storage room and was bitten by a spider on his left hand and also ruptured two discs in his neck on that day from heavy lifting Defendants filed a peremptory exception raising the objection of res judicata urging that the parties entered into a valid compromise agreement releasing defendants from all past and future liability for plaintiffs claims for compensation medical expenses and claims of whatever kind arising out of any accident or injury occurring before the date of the agreement Defendants asserted that the compromise agreement entered into in order to settle an ongoing disputed claim for compensation previously filed in the OWC satisfied all of the legal requirements set forth in the Louisiana Workers Compensation Act In opposition to the exception plaintiff argued that he settled only his claim for the spider bite injury and never intended to settle his separate claim for the two ruptured discs for which his employer had been paying compensation benefits that he was not represented by counsel at the time the compromise agreement was approved by the Workers Compensation Judge WCJ and he was never apprised by the WCJ that he was settling both of his claims 2 Following a hearing at which both parties presented evidence the WCJ found that plaintiff settled any claims he had against defendants for any injuries arising on December 9 2004 and sustained the exception of res judicata LAW AND DISCUSSION The workers compensation law contains specific requirements which govern the compromise of claims The requirements for effecting a compromise settlement of a workers compensation claim are set out in subsections A B and C of La R 23 as follows S 1272 A A lump sum or compromise settlement entered into by the parties under R 23 shall be presented to the workers S 1271 compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent or by recitation of the terms of the settlement and acknowledgement by the parties in open court which is capable of being transcribed from the record of the proceeding B When the employee or his dependent is represented by counsel and if attached to the petition presented to the workers compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items 1 the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him and 2 that such employee or dependent understands his rights and the consequences of entering into the settlement then the workers compensation judge shall approve the settlement by order and the order shall not thereafter be set aside except for fraud or misrepresentation made by any party C When the employee or his dependent is not represented by counsel the workers compensation judge shall determine whether the employee or his dependent understands the terms and conditions of the proposed settlement and shall approve it by order unless he finds that it does not provide substantial justice to all parties and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party There can be no settlement of a workers compensation claim in the absence of compliance with the procedure prescribed by La R 23 S 1272 Nguyen v Lengsfield Bros Inc 417 So 525 527 La App 0 Cir 1982 Once the 2d procedural requirements of the workers compensation law have been complied with and an order approving a compromise settlement has been entered by the 3 WO the judgment is conclusive and it cannot be set aside except for fraud misrepresentation or ill practices See Smith v Cajun Insulation Inc 392 2d So 398 401 402 La 1980 Morris v East Baton Rouge Parish School Board 93 2396 La App I Cir 3 653 So 4 writ denied 95 0852 La 95 2d 95 5 654 So 335 Condoll v Johns Manville Sale Corp 448 So 169 2d 2d 171 La App 5 Cir 1984 At the hearing on the exception of res judicata defendants introduced documents confected in connection with the March 13 2009 settlement of s plaintiff claims against them arising in connection with an earlier lawsuit seeking additional compensation benefits for a spider bite injury to his hand on December 9 2004 The first a joint petition for approval of the compromise settlement setting forth the terms of the parties settlement clearly refers to the December 9 2004 spider bite as the basis for the parties dispute and sets forth that the parties disputed whether plaintiff injuries had healed or were work related s The agreement notes that plaintiff had been paid workers compensation indemnity benefits totaling 110 and medical benefits in the amount of 69 64 197 25 778 The agreement further states In order to compromise and settle the disputes existing among these parties Employer has agreed to pay 19 in full 00 000 settlement of Employee claim for all workers compensation s benefits medical expenses penalties and attorney fees including s any of Employee medical expenses related in any way to the alleged s work accident of December 9 2004 or any workrelated injuries incurred before this settlement is approved in full and final settlement satisfaction and compromise of any and all claims which Employee has now or might hereafter acquire against Employer because of the alleged accidental injury described above or anything else that occurred while Employee was employed by Employer Defendants also introduced a judgment of approval of the proposed settlement signed by the WO on March 13 2009 Therein the WCJ expressed the opinion that the proposed settlement was fair and equitable and entered into primarily to avoid continuing litigation and was in substantial accord with the workers 10 compensation law The judgment decreed that upon payment of the sum of 00 000 19 to plaintiff defendants shall be forever released and relieved from all past and future liability for claims asserted by plaintiff for compensation medical expenses and claims arising from any accident or injury occurring prior to the date of the settlement agreement Lastly defendants offered a joint motion to dismiss the earlier disputed claim for compensation setting forth that defendants paid 19 to plaintiff pursuant to the approved settlement agreement 00 000 In opposition to the exception of res judicata plaintiff submitted a memorandum in which he insisted that the March 13 2009 settlement covered only the injuries he sustained as a result of the spider bite He urged that he suffered separate injuries to his neck as a result of heavy lifting on the same date as the spider bite December 9 2004 Plaintiff asserted that he reported these injuries and was receiving compensation for these injuries but was not aware that he was settling both of his claims based on the spider bite and the ruptured discs when he entered into the settlement Plaintiff introduced a letter written by him to the OWC prior to the date on which the settlement agreement was signed indicating that his attorney had withdrawn from the case Additionally he introduced some medical records that an MRI had purportedly been taken in 2006 in connection with his claim of pain in his neck and hand along with a November 12 2008 disputed claim he filed in the OWC in which he listed his neck and left hand as parts of his body that had been injured on December 9 2004 At the hearing plaintiff argued that his neck injury was a separate injury he reported to his employer and that the WCJ who was also hearing the exception of res judicata did not advise him that he was settling claims for both of his accidental injuries occurring on December 9 2004 To challenge plaintiff claim that he reported a separate neck injury to his s employer defendants introduced an August 15 2007 disputed claim for 5 compensation filed by plaintiff in the OWC in which he listed only his left hand as having been injured as a result of the December 9 2004 spider bite They also introduced the affidavit of Bryan Leach employed by defendant as its head of risk management who attested to his familiarity of plaintiffs claim for compensation benefits arising from an alleged work accident on December 9 2004 and that plaintiff always represented that his injuries arose out of a work accident related to the alleged spider bite At no time Mr Leach attested did plaintiff ever report to his employer that he had some separate injury to his neck or spine arising out of his employment at any time Several documents were attached to the affidavit identified by Mr Leach in which plaintiff referenced the reported injury of a spider bite to the left hand and made no mention of a separate neck or spine injury In sustaining the exception of res judicata the WCJ stated that she always asks workers compensation claimants whether they understand that they are settling any and all claims with opposing counsel related to this job accident and recalled so asking plaintiff and receiving a positive response The WCJ found that settlement covered any claims plaintiff had against his employer while he worked for them and that he specifically settled any claims he had for the date of the accident December 9 2004 for the sum of 19 00 000 Plaintiff did not seek to set aside the settlement on the basis of fraud misrepresentation or ill practices While we recognize that the failure of a WCJ to have a settlement discussion with an unrepresented employee may give rise to a cause of action for nullity as recognized by the Supreme Court in Smith 392 2d So at 402 plaintiff has not alleged that such a discussion did not take place Rather he alleges that the WCJ did not inform him that he was settling his claim for benefits arising from a neck injury sustained on the same day as the spider bite injury Defendants offered evidence indicating that plaintiff did not assert a separate claim based on the alleged neck injury resulting from heavy lifting prior to 0 the date on which he filed the instant disputed claim for compensation Plaintiff failed to offer evidence that he did present a separate claim for benefits based on two ruptured discs resulting from heavy lifting to the WCJ prior to the date on which she approved the settlement Plaintiff has not alleged facts which even if true could serve as a basis for setting aside the compromise agreement Therefore the compromise agreement is valid and enforceable and has acquired the quality of a thing adjudged The authority of a thing adjudged resulting from the compromise agreement extends only to those matters the parties expressly intended to settle Bailey v Martin Brower Co 941179 p 3 La App 1 Cir 4 658 So 1299 95 7 2d 1301 The only issue is whether the parties intended to compromise the claim for which plaintiff now seeks to recover benefits when they entered into the compromise agreement In the compromise agreement plaintiff and defendants expressly settled all of plaintiffs claims for all workers compensation benefits medical expenses penalties and attorney fees related in any way to the alleged work accident of s December 9 2004 or any work related injuries incurred before this settlement is approved because of the alleged accidental injury described in the agreement as well as anything else that occurred while plaintiff was employed by Isle of Capri We conclude as did the WCJ that this language clearly demonstrates that the parties agreed to bring to a conclusion all disputes existing between them prior to the date on which the agreement was executed whether they arose from the alleged spider bite or from any other cause in exchange for the sum of 19 00 000 The claim for which plaintiff now seeks recovery clearly falls under this language of the compromise agreement as it occurred prior to the date on which the settlement agreement was entered into it was not based on the alleged spider bite and it constituted a claim based on anything else that occurred while plaintiff 7 was in Isle of Capri employ Therefore because the parties clearly intended to s compromise and release the claim for which plaintiff now seeks to recover compensation benefits the WCJ correctly sustained the exception of res judicata CONCLUSION For the foregoing reasons the judgment sustaining the peremptory exception raising the objection of res judicata and dismissing this workers compensation claim is hereby affirmed All costs of this appeal are assessed to plaintiff Kevin D Smith AFFIRMED M
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