Lionel Ricks VS Homer Collins d/b/a Homer's Corner
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M1 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1978 LIONEL RICKS VERSUS HOMER COLLINS D HOMER CORNER A B S JUN 1 120t3 Judgment Rendered s x On Appeal from the The Office of Workers Compensation District 6 State of Louisiana Docket No 07 07751 The Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding J Richard Kanuch Attorney for Plaintiff Appellant New Lionel Ricks Orleans Louisiana Homer Collins DB Homer A sCorner Covington Louisiana DefendanUAppellee In Proper Person BEFORE PARRO WELCH AND DRAKE J7 v L e v Jt J 7 L ti2 LU DRAKE J Claimant Lionel Ricks appeals a final judgment of the Office of Warkers Compensation OWC that dismissed his claim for workers compensation benefits for want of prosecution For the following reasons we reverse and remand FACTS AND PROCEDURAL HISTORY Claimant Lionel Ricks alleges he was involved in a work accident related on October 17 2006 while in the course and scope of his employment with Homer and Greg Collins DB Homer Corner Mr Ricks filed a disputed claim for As compensation with the OWC on October 8 2007 Mr Ricks alleged that no wage benefits had been paid nor had there been any authorization for his medical treatment Mr Ricks sought all workers compensation benefits including medical and permanent disability benefits On December 4 2009 the Workers Compensation Judge WCJ for the OWC District 5 dismissed Mr Ricks claim for failure to prosecute and ordered s that his claim could be reinstated upon a showing of good cause within thirty days of the receipt of the order of dismissal On February 1 2010 Mr Ricks filed a motion to reinstate claim and set the claim for trial on the merits Following a hearing on his motion the WCJ reinstated Mr Ricks claim on April 23 2010 s and transferred his case to the OWC District 6 After his case was transferred a hearing on a motion to dismiss Mr Ricks suit for failure to prosecute his claim s was held on November 12 2010 The WCJ ruled that the motion was moot as Mr Ricks was filing a request for a preliminary default judgment against his former employers A hearing on the confirmation of the preliminary default was scheduled for February 11 2011 Mr Ricks requested a continuance which the WCJ granted setting re the hearing for April 1 2011 Prior to the April 1 2011 hearing Mr 2 Ricks requested a second continuance which the WCJ granted re the scheduling confirmation of the preliminary default for July 22 2011 At the hearing on July 22 20ll the WCJ called Mr Ricks attorney who was a at court that s show no day to confirm that he could not attend tha hearing The WC7 continued the hearing on the confirmation ofthe preliminary default to September 19 2011 On September 19 2011 no party or attorney involved in the case attended the hearing on the confirmation of the preliminary default The WCJ ordered that Mr Ricks show cause on October 21 2011 why his claim should not be dismissed far failure to appear at the hearing held on September 19 2011 The WCJ further ordered that Mr Ricks attorney show cause why he should not be assessed 200 s in court reporter fees On the day of the dismissal hearing Mr Ricks attorney s called the WCJ and requested a continuance The WCJ continued the hearing to December 7 2011 The notices for this hearing were not sent out so the hearing was continued to January 27 2012 Following the January 27 2012 hearing regarding the dismissal of Mr s Ricks claim the WCJ ruled that his claim was not dismissed for lack of prosecution The WCJ scheduled a phone status conference for April 20 2012 to detertnine whether Mr Ricks would voluntarily dismiss his claim for workers compensation benefits Following the phone status conference neither Mr Ricks nor his former employer provided the WCJ with any voluntary dismissal or settlement documents The WCJ then ordered Mr Ricks to show cause on June 22 2012 why his claim should continuance of the 7une not be dismissed 22 2012 dismissal hearing Mr Ricks requested a The WCJ denied the continuance Following the hearing the WCJ dismissed Mr Ricks claim on June s 27 2012 without prejudice for want of prosecution Mr Ricks filed a motion to reinstate claim on August 23 2012 That same day the WCJ issued an order 3 denying Mr Rick motion to reinstate claim Mr Ricks now appeals the June 27 s 2012 dismissal of his claim for want of prosecution DISCUSSION Pursuant to the Louisiana Warkers Compensation Act a claimant has one year from the date of the accident to file a claim for compensation and medical benefits La R 23 A WCJ may dismiss a workers compensation S 1209 1 A claim without prejudice after a contradictory hearing for several reasons including when no responsive pleadings have been filed and no default entered within sixty days after service of process and when a claim has been pending six months without proceedings being taken within such period Following an order of dismissal a WCJ shall allow for reinstatement of the action within thirty days for good cause shown La Admin Code tit 40 pt I C 5705 See Drain v Mid South Wood Preservers Inc 27 La App 2 Cir 9 661 So 2d 632 307 95 27 633 Additionally when a petition for workers compensation benefits is initiated unless the claimant in good faith requests a hearing and final determination within five years from the date the petition is initiated that claim shall be barred and dismissed by the OWC for want of prosecution which operates as a final adjudication of the right to claim workers compensation benefits La R S 23 1209 D Mr Ricks argues that his claim cannot be dismissed for lack of prosecution pursuant to Louisiana Revised Statutes 23 Dand because five years have not 1209 elapsed in which he failed to request a hearing and a final determination In support he cites the case of Bruce v Becnel 98 La App 5 Cir 1349 99 13 10 747 So 2d 647 writ denied 99 La 1 753 So 2d 830 The Bruce 3250 00 28 case stands for the proposition that when a tort suit was filed prior to the workers compensation claim the employee filing of a tort suit against his statutory s employer interrupted prescription as to a subsequently workers compensation filed 4 claim by the employee against the statutory employer Bruce v Becnel 747 So 2d at 649 Accordingly on appeal the court concluded that the employee 50 s workers compensation claim against the statutory employer was not barred by prescription Id Isaac v Lathan 2001 La App 1 Cir 11 836 So 2d 2639 02 8 191 195 The Bruce case is distinguishable from the case before us as there are no issues of the interruption of prescription due to a previously filed related tort suit In this case Mr Ricks initiated his workers compensation claim on October 8 2007 which was within one year of his alleged work accident on related October 17 2006 The OWC dismissed Mr Ricks claim on December 4 2009 s On February 1 2010 Mr Ricks filed a motion to reinstate claim and set the claim for trial on the merits The WCJ reinstated his claim on April 23 2010 and transferred his case to the OWC District 6 Also a hearing on the confirmation of a preliminary default obtained by Mr Ricks was originally scheduled for February 11 2011 While that hearing date was continued several times there is no indication that counsel for Mr Ricks attempted in bad faith to prolong this litigation Furthermore the record indicates that Mr Ricks requests for s continuances of hearings on both the confirmation of the preliminary default and the dismissal of his claim resulted because counsel far Mr Ricks was waiting to receive certified medical records The case was dismissed for non on prosecution June 27 2012 We acknowledge that there have been continuances and delays in this matter however it is clear that on the date the WCJ dismissed the claim for lack of prosecution five years have not elapsed since Mr Ricks filed his petition and requested hearings or a final determination of his claim Accordingly this claim cannot be dismissed far lack of prosecution pursuant to Louisiana Revised Statutes 23 D 1209 5 DECREE For the foregoing reasons the judgment of the OWC dismissing the suit of Appellant Plaintiff Lionel Ricks is reversed We remand the case to the OWC for further proceedings consistent with this opinion All costs of this appeal are assessed to Defendant Homer Collins D Homer Appellee A B sCorner REVERSED AND REMANDED 6
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