Roshall L. Ary VS Personal Care Services, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 2291 ROSHALL L ARY VERSUS PERSONAL CARE Judgment Rendered June 10 2011 Appealed from the Office of Workers Compensation District 5 In and for the Parish of East Baton Rouge State of Louisiana Docket Number 0906070 The Honorable Pamela A Moses Laramore Judge Presiding Robert L Campbell Baton Rouge LA Counsel for PlaintiffAppellee Roshall L Ary Russell Stegeman Counsel for DefendantAppellant Madisonville LA Personal Care BEFORE WHIPPLE McDONALD AND McCLENDON JJ WHIPPLE J This matter is before us on appeal by defendant Personal Care from a judgment of the Office of Workers Compensation OWC in favor of claimant Roshall L Ary For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Ary was employed by Personal Care as a security officer personal care attendant and medical technician On July 2 2009 Ary was involved in an automobile accident while allegedly returning a client he found walking on the side of the road to the facility after Ary return from a personal errand Personal s Care refused to pay claimant benefits and on July 21 2009 Ary filed a disputed claim for compensation In response on August 13 2009 an answer on behalf of Personal Care was filed by Margaret L Chaney whose stated title was President denying the claim set forth by Ary However thereafter no representative from Personal Care appeared at the scheduling conference pretrial mediation or the trial of the disputed claim despite the fact that Personal Care was served with a copy of the scheduling conference order which reflected the dates set for pretrial mediation and trial On May 10 2010 the matter was called for trial but no one appeared on behalf of Personal Care Before hearing the matter the OWC noted on the record that service of the scheduling conference order had been made on Personal Care on January 12 2010 At the conclusion of claimant case and testimony the s OWC rendered oral reasons for judgment finding in favor of the claimant Specifically the OWC found that claimant suffered a workrelated accident on July 2 2009 which resulted in injuries and that the medical treatment rendered to Ary at Our Lady of the Lake Regional Medical Center Baton Rouge Orthopaedic Clinic and Spine Diagnostic Treatment Center were related to his work 2 accident The OWC then awarded indemnity benefits temporary total disability benefits interest on indemnity benefits medical benefits penalties and attorney s fees with interest finding that Personal Care had failed to reasonably controvert the claim However on May 12 2010 counsel retained by Personal Care filed a motion to enroll and continue as well as a motion for new trial In support of its motion for new trial Personal Care contended that on May 7 2010 it had faxed to the OWC a copy of its motion to enroll and continue the May 10 2010 trial and that it would be in the interest of fairness and due process to grant a new trial After a hearing the OWC denied the motion for new trial on July 2 2010 A written judgment conforming to the OWC prior reasons was signed on July s 20 2010 In denying the motion for new trial the OWC noted that Margaret Chaney had personally signed for the scheduling order in this case on January 12 2010 five months before the trial date The OWC further noted that it did not receive Personal Care motion to continue which counsel elected to fax on Friday May s 7 2010 until after the trial had concluded on Monday May 10 2010 The OWC concluded that granting such relief and having to redo the trial would be unjust to the claimant and his counsel especially since neither of them were notified by Personal Care or its counsel of the motion to continue Accordingly a judgment denying the motion for new trial was signed by the OWC on July 20 2010 From this judgment Personal Care filed a suspensive appeal contending that the OWC erred 1 in granting the default judgment because the evidence presented does not establish a prima facie case for relief under the law and 2 in failing to grant a new trial Notably the motion to enroll and continue contains an assertion by counsel that counsel has just been retained pro Bono that counsel had an appearance scheduled elsewhere and that counsel felt that it would be in the best interest of all parties to reschedule the mediation prior to trial Emphasis added 3 DISCUSSION Assignment of Error Number One At the outset we note that Personal Care incorrectly characterizes the judgment on the merits rendered by the OWC as a default judgment A judgment by default is that which is rendered against a defendant who fails to plead or otherwise answer within the time prescribed by law LSAC art P C 1843 see also LSA C arts 1701 1704 In the instant case Personal Care P filed an answer to claimant disputed form for compensation thereby making an s appearance in the underlying proceedings and joining issues for trial Personal Care however simply failed to appear at trial despite receiving notice of the trial date A trial of the merits was conducted and claimant presented his case in the s defendant absence Thus Personal Care errs in its contention that the judgment rendered on the merits by the OWC constitutes and should be subjected to review as a default judgment Nonetheless as appeals are favored in law we will address Personal Care s argument that the evidence presented at trial was insufficient to support the judgment rendered by the OWC herein Specifically Personal Care contends on appeal that the medical evidence failed to establish that the treatment received by claimant was causally related to the work injury alleged and that the accident took place within the course and scope of claimant employment s The same standard of review applicable to factual findings of district courts the manifest error clearly wrong standard is also applicable to factual E findings of a workers compensation judge Smith v J MeritConstructors With 2 reference to Personal Care additional contention that it was not given proper s notice of Ary claim initially as required by LSAR 23 et seq we note that s S 1301 appellate courts will not consider issues that were not raised in the pleadings were not addressed by the trial court or are raised for the first time on appeal Segura v Frank 93 1271 La 1 630 So 2d 714 725 cert denied 511 U 1142 114 S Ct 2165 128 94 14 S 2d Ed L 887 1994 Stewart v Livingston Parish School Board 20071881 La App 1 Cir st 08 2 5 991 So 2d 469 474 Thus because this issue was not raised below by Personal Care the issue is not preserved for review on appeal 4 Inc 2001 2824 La App 1 Cir 11 835 So 2d 749 753 Accordingly st 02 8 for an appellate court to reverse a workers compensation judge factual s finding it must find from the record that a reasonable factual basis does not exist for the finding of the workers compensation judge or that the record establishes that the finding is clearly wrong See Stobart v State through Department of Transportation and Development 617 So 2d 880 882 La 1993 Mart v Hill 505 So 2d 1120 1127 La 1 Thus the reviewing 987 court must do more than simply review the record for some evidence that supports or controverts the workers compensation judge finding s The reviewing court must review the record in its entirety to determine whether the workers erroneous compensation judge finding was clearly wrong or manifestly s See Stobart v State through Department of Transportation and Development 617 So 2d at 882 The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong but whether the factfinder conclusion was a s reasonable one Stobart v State through Department of Transportation and Development 617 So 2d at 882 Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony Stobart v State through Department of Transportation and Development 617 So 2d at 882 Where two permissible views of the evidence exist the factfinder choice s between them cannot be manifestly erroneous or clearly wrong Stobart v State through Department of Transportation and Development 617 So 2d at ON At trial Ary testified that on July 2 2009 he began his shift at Personal Care at 3 p He further testified that at 4 p when he left to get a 00 m 00 m G1 pack of cigarettes at the store he received a phone call advising that one of his s employer clients had left the facility and was seen walking up the road Ary found the patient and was in the process of returning him to the facility when he was involved in an accident Ary testified that he sought medical treatment after the accident at Our Lady of the Lake Hospital and subsequently received treatment from Dr Joseph W Turnipseed at the Spine Diagnostic Pain Treatment Center and Diagnostic Health Baton Rouge for pain in his neck causing tingling and numbness down his arm as well as pain in his lower back right hip and right knee Ary further testified that at the time of trial he was still under the treatment of Dr Turnipseed and Dr Jason E Smith an orthopaedic surgeon at Baton Rouge Orthopaedic Clinic upon referral by Dr s Turnipseed Ary medical records documenting his injury and outlining the treatment he received were also introduced into evidence According to Ary the expenses were all for treatment of injuries he received in the accident of July 2 2009 In awarding benefits to Ary the OWC noted that she had reviewed the medical documentation and in light of claimant testimony the Court finds that s Mr Ary was employed by Personal Care Services Inc The OWC further found t on July 1 2009 Mr Ary was injured in the course and scope of his hat employment in a motor vehicle accident On review and given the record before us we are unable to say the OWC was clearly wrong in these determinations which we also find are reasonable in light of the testimony and evidence presented Accordingly we find no merit to Personal Care first s assignment of error in which it contends that the evidence presented at the trial was insufficient to support the judgment rendered herein 0 Assignment of Error Number Two Personal Care also argues on appeal that the OWC erred in failing to grant its motion for new trial Specifically Personal Care contends that the fact that the OWC judge was unaware that counsel for Personal Care had faxed a motion requesting a continuance to the OWC office the afternoon before trial constitutes good cause entitling it to a new trial We disagree As the OWC noted neither counsel nor a corporate representative for Personal Care contacted claimant or his counsel to inform anyone that a motion requesting a continuance had been faxed to the OWC office on the Friday afternoon before the Monday morning trial Moreover even after counsel for Personal Care placed a phone call to the OWC office on the morning of trial to inquire about the matter and was informed by a staff member they didn know anything counsel for Personal Care made no t further effort to discuss the matter with the OWC judge or opposing counsel nor did he appear for trial despite the fact that he had not received confirmation that his faxed motion requesting a continuance had in fact been granted Louisiana Code of Civil Procedure article 1973 provides that a new trial may be granted in any case if there is good ground therefor except as otherwise provided by law The OWC refusal to grant a new trial was entirely within its discretion s LSA P art 1973 see also Mitchell v Dresser Industries Inc 472 So 2d 183 185 La App 4th Cir 1985 Moreover the determination to grant or deny a motion for new trial shall not be disturbed absent an abuse of the OWC wide s discretion Burris v WalMart Stores Inc 940921 La App 1 Cir 3 st 95 652 So 2d 558 561 writ denied 95 0858 La 5 654 So 2d 352 After 95 12 Although 3 an interlocutory judgment such as a denial of a motion for new trial is not generally appealable it is subject to review by an appellate court when an appealable G Construction 2003 2447 La App judgment is rendered in the same case Moran v G 1 Cir 10 897 So 2d 75 83 n writ denied 20042901 La 2 894 So 2d 04 29 4 05 25 1148 see also Nelson v Teachers Retirement System of Louisiana 20101190 La App 1s Cir 2 1111 57 So 3d 587 589 n 2 7 considering the circumstances herein the OWC concluded that good grounds did not exist herein to grant a new trial On review and considering the circumstances herein and in particular that notice of trial had issued many months prior to the trial date we find no abuse of discretion or error by the OWC Accordingly we find no merit to this assignment of error CONCLUSION For the above and foregoing reasons the July 20 2010 judgment of the OWC is affirmed Costs of this appeal are assessed against the appellant defendant Personal Care AFFIRMED Although 4 Personal Care argues that the result herein is harsh similar results have been See Piper v Dillard Department Store 93 0081 La App 4 Cir s r upheld in other cases 93 30 6 621 So 2d 865 writ denied 932097 La 11 627 So 2d 654 where appellate 93 12 court determined the OWC dismissal of workers compensation claim was justified when s claimant in workers compensation case chose not to appear for trial after receiving notice of the trial date Mitchell v Accent Construction Com an 20000996 La App 0 Cir 3 01 14 785 So 2d 864 where a judgment entered by the OWC awarding claimant benefits at trial after employer chose not to appear citing insufficient notice was affirmed by appellate court Mitchell v Dresser Industries Inc 472 So 2d 183 where appellate court affirmed dismissal of plaintiffs case when his attorney failed to appear for trial after having received notice of the trial date Payne v Glass 41 La App 2 Cir 8 939 So 2d 526 where appellate 232 nd 06 23 court dismissed employer action for nullity where employer attempted to annul judgment s obtained in its absence after employer had been served with notice of trial date 8
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