John L. Davis VS J.R. Logging, Inc.
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STATE C L F UiSIANA ZT COL GF APPEAL IRST CIR I LI 568 7 R k LJN 204 dOI i I9AV1S VERSLTS R J LOGGING INC Judgment Rendered NOV 0 1013 f Y Appealed from the Office of Workers Compensation District 6 State of Louisiar a Case Number 11 00856 Honorable G F Thampson Presiding vendoly Jolui B Lambremont Sr Baton Texesa Rouge LA Leyva Martin Scott R Huete New Orleans LA Counsel for Plaintiff Appellant John L Davis Counsel for Defendants Appellees R ogging Inc J I and Praetorian Insurance Company FURE BF PARRO GiJIDRY AIvD DRAKE JJ GUIDRY J In this workers compensation case claimant John L Davis appeals from a judgment of the Office of Workers Compensation OWC sustaining a peremptory exception raising the objection of res judicata in favor of dJ Logging fendant R Inc and dismissing his claim for compensation with prejudice F the reasons or that follow we affirm FACTS AND PROCEDURAL HISTORY John L Davis was employed by J Logging Inc J Logging as a R R personnel and delivery truck driver and a vehicle and equipment mechanic On October 11 2010 while driving home from work in a company truck Davis experienced a dizzy spell that made him lose control of the truck and crash into a ditch On February 2 2011 Davis filed a disputed claim for compensation I asserting injury to his back neck and head as a resuit of the alleged work accident on October 11 2010 Davis asserted that he was entitled to indemnity benefits medical benefits penalties and attorney fees and the determination of his s disability status R J Logging filed an answer to Davis disputed claim for compensation denying that Davis was in ti course and scope of employment at e the time of the alleged accident and that Davis injuries arose out of his employment Thereafter J Logging filed a peremptory exception raising the objection R of res judicata asserting that Davis alleged injuries arose out of a 20Q5 work accident while employed by J Logging and that aIl claims arising from this R accident were settled between the parties and dismissed by the OWC on May 20 2008 R T Logging also filed a peremptory exception raising the objection of prescription asserting that although the disputed claim for compensation lists the At the heareng of this matter Davis admitted that he no longer claimed neck and back disabiliry as a result of the October 11 2010 accident 2 date of accident as October 11 2010 subsequent pleadings and medical injury records refer to an alleged work injury in 20Q5 Therefore J Logging asserted R that because the instant disputed claim for compensation was not fled until February 2 2011 any claim based on a 2005 injury is clearly prescribed Davis subsequently filed an amended disputed claim for compensation naming J Logging workers compensation carrier Praetorian Insurance R s Company as an additional defendant Following trial the OWC judge signed a judgment sustaining J Logging R sexception raising the objection of resjudicata and dismissing Davis claim with prejudice Additionally the OWC found that even if Davis claim was not barred by res judicata Davis failed to cany his burden of proof that he suffered a work related accident with injury during the course and scope of his employment with J Logging Davis now appeals from R this judgment DISCUSSION Louisiana Revised Statute 13 provides in pertinent part the following 4Z31 regarding res judicata 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 2 If the judgment is in favar of the defendant all causes of action existing at the time of final jndgment 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 The chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action Landry v Town of Livin Police Department 10 p 5 App ston 0673 La lst Cir 12 54 So 3d 772 776 However the Louisiana Supreme Court has 10 22 also emphasized that all of the following elements must be satisfied in order for res judicata to preclude a second action 1 the first judgment is valid and final 2 3 the parties are the s 3 the cause or causes of ac8ion asserted in the second me suit existed at the time of final judgment in the first litigation and 4 the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject er mat of the first litigation Burguieres v ze 1385 La 03 Pollin 02 p 8 25 843 So d 1049 1053 The peremptory exception raising the objection of res judicata is based on the conclusive legal presumption of a thing previously adjudged between the same parties Labiche v Louisiana Patients Cornpensation Fund Oversight Board 98 2880 p 5 App lst Cir 2 753 So 2d 376 380 La 00 18 Although the exeeption of res judicata typically contemplates the existence of a final judgment on the merits it also applies where there is a transaction or settlement of a dispute that has been entered into by the parties Ortego v State Department of Transportation and Development 96 p 6 2 689 So 2d 1358 1322 La 25 97 1363 The burden of proving the facts essential o sustaining the objection is on the party pleading the objection Ifany doubt exists as to its application the exception raising the objection of res judicata must be overruled and the second lawsuit maintained Lan 0673 10 at p 5 54 So 3d at 776 When an objection of res judicata is raised before the case is submitted and evidence is received on the objection the standard of review on appeal is manifest error Landry 10 at 0673 p 5 54 50 3d at 776 In the instant case J Logging introduced R documents in connection with the 2005 work accident copies of compromise The Joint Petition to Compromise and Settle WorkerYs Compensation Claim states that while working for J Logging on May 28 2005 Davis suffered injuries to his arm and forehead R when a boom dipped down and caused the grapple to mash Davis arm and resulted in a laceration to Davis forehead 4 The petition stated that the parties mutually agreed that a fair and just settlement of their respective rights would be attained through the payment to Davas of 9Q a lump sum The parties 0in 000 further agreed that upon payment of said lurnp sum to employee by employer that employer and insurer shall be forever released and relieved from all further and future liability claims of employQe of whatsoever nature and kind arising heretofore or which may hereafter arise under said statutes growing out ofany accident and injury occurring prior to or this date Emphasis added R J Logging also introduced a copy of the order signed by the OWC on May 20 2008 approving the aforementioned settlement and also introduced a copy of the joint motion to dismiss Davis claim See La R 23 Finally S 1272 R J Logging introduced a copy of the receipt and release executed by Davis acknowledging that he forever releases J Logging from all claims of R whatsoever nature and kind which may have arisen heretofore or which may hereafter arise from any accident ofany sort or injury occurring prior to this date In filing his disputed claim for compensation regarding the October 11 2010 accident Davis asserted that he sustained disabling injuries to his head as a result of that accident This disabling head injury as asserted by Davis is a dizziness disorder However the testimony and medical evidence in the record indicate that the dizzy spells from which Davis suffers arise from the injuries he sustained to his head in the 2005 accident Particularly Dr Peter Roland who is board certified in otolaryngology testified on behalf of Davis and stated that the 2005 head injury led to the development of Davis dizziness disorder diagnosed as Meniere s Disease Additi Davis admitted and the medical records support that in onally seeking medical attention for his dizzy spells both prior to and after the October 11 2010 accident he related to medical personnel that he had been suffering from dizzy spells since 2008 and that he had sustained a blunt force trauma to his head in a 2005 accident 5 As such because Davis instant cPaim far compensation seeking compensation for injuries ta his head arises out of the heacY injury sustained in the 2005 work accideni and all future liability claims of Davis arising out of that head injury were compromised bet the same parties in the May 20 2008 veen settlement we find no error in the OWC detex that Davis instant claim s for compensation is barred by res judciata Davis asserts on appeal howevex that even if his instant claim for compensation is barred by res judicata exceptional circumstances exist so as to justify relief from the effects of res judicata See La R 13 The S 4232 1 A discretion given to courts to grant relief from a j on the basis of adgment exceptional circumstances allows the courts to balance the principle of res judicata with the interests ofjustice However this discretion must be exercised on a case case by basis and such relief should be granted only in truly exceptional cases otherwise the purpose of res judicata would be defeated La R 13 S 4232 1990 Comment The exceptional circumstances exception generally applies to complex procedural situations in which litigants are deprived of the opportunity to i present their claims due to unanticipated quirks in the system to factual situations that could not be anticipated by the parties or to decisions that are totally beyond the control of the parties McGre orv Hospice Care of Louisiana in Baton Rou e LLC 09 pp La App 1sT Cir 2 36 So 3d 272 279 writ 1357 11 12 l0 12 denied 10 La 536 So 3d 253 0701 10 28 From our review of the record tl is no evidence to support that Davis was deprived of the opportunity to present his claim due to unanticipated quirks in the system Furthex because Davis voluntaril entered into a compromise whereby he settled future claims for injuries arising out of his head wound we cannot say that such settlement was beyond his control nor that his need for future medical care related to that wound was unanticipated by the parties Therefore we do not 6 find that the OWC abused its disc in iailing to find that exceptional retiora circumstances exist so as to justify relief om the effects fres judicata CUNCLUSION For the faregoing rea we affirm the judgment of the OWC sustaining sons R s J Logging exception raising the objectian of res judicata and dismissing Davis claim for compensation with prejudice All costs of this appeal are assessed to John L Davis AFFIRMED I 2 Because we affirm the OWC decision sustaining the exception raising the objection of res s judicata we pretermit discussion of whether the OWC erred in finding that Davis failed to prove that he suffered a work related accident and injury during the course an scope of his d employment with J Logging R 7 I JOHN L DAVIS NUMBER 2013 CA 0568 FIRST CIRCUIT VERSUS COURT OF APPEAL J R LOGGING INC STATE OF LOUISIANA KE J concurring in result only I concur in the result of the majority opinion for the reasons set forth below Res Judicata The burden of proving the facts essential to sustaining the objection is I on the party pleading the objection and if any doubt exists as to the application ofres judicata the objection raising the peremptory exception of res judicata must be overruled and the second lawsuit maintained Landrv v Town ofLivingston Police Department 10 La App 1 Cir 12 0673 10 22 54 So 3d 772 776 In Mitchell v Travelers Ins Co 136 So 2d 143 La App 3d Cir 1961 a claimant was injured while at wark He had previously suffered a similar injury three years earlier The court held that if the second accident produced an aggravation of the previously latent disability or a disabling intensification of previously mild complaints the injured employee was entitled to compensation for total disability for the second accident Id at 145 144 In the present case the claimant returned to work after the 2005 accident Even if he did have dizziness it was not until after the second accident that he claims he Liability Assurance Corp was v totally unable to work General Accident Fire See Employer s Life Assurance Corp 148 So 2d 425 432 La App 1 Cir 1962 writ denied 244 La 33 1 114 150 So 2d 583 1963 In Duncan v R Reynolds Inc 305 So 2d J 707 La App 4 Cir 1974 the claimant injured himself while at work Two years later he again injured himself with the same employer It was determined that the second accident aggravated the pre condition existing and resulted in the claimant s current condition An aggravation of a preexisting condition is fully compensable Id at 709 I Even though Davis had dizzy spells prior to the 2010 accident at no time did it disable him or prevent him from working The employer knew the claimant had dizzy spells but did not believe they were an impediment to his working Prior to the 2010 accident the dizzy spells had lessened in frequency and at the time of the accident Davis had not had a dizzy spell for several months and had not seen Dr Sheik for seven months After the 2010 accident the dizzy spells were exacerbated in frequency and severity In the days following the accident the claimant had nearly daily dizzy spells nausea and attacks causing him to fall and he was temporarily unable to drive Davis was unable to resume his duties as a personnel and delivery driver because of his inability to drive Davis was not diagnosed with Meniere disease until after his 2010 accident Dr Peter s Roland who testified on behalf of Davis opined that Meniere disease s started with the 2005 head injury but that it was greatly exacerbated by the 2010 automobile accident Furthermore the fact that an employee has received compensation in one ar more previous compromise settlements will not bar him from collecting compensation for another injury Sibley v Solvay Process Co 25 So 2d 101 103 La App 1 Cir 1946 Davis claims that his 2010 accident exacerbated his existing pre injuries The compromise relied upon by defendant does not contain a waiver of future accidents or future injuries In 2 Davis v The Home Depot 96 La App 5 Cir 2690 So 2d 208 850 97 25 writ denied 97 La 5 693 So 2d 740 the plaintiff injured her 0728 97 1 back while warking for defendant in 1990 She reinjured her back in 1994 while working for the defendant The claimant had settled the 1990 claim and the defendant filed an exception of res judicata The court found that the trial court was manifestly erroneous in finding that claimant was barred by res judicata from bringing suit for the 1994 injury The court noted that the claimant alleged that she was injured again in the 1994 accident Transactions and compromises regulate the differences that appear clearly to be comprehended in them by the parties and they do not extend to differences which the parties never intended to include in them The burden of proof in the present case is clearly on defendant to establish the requisites for a valid compromise including the parties intent to settle the differences being asserted in the action in which it is interposed Even when valid releases offuture actions are narrowly construed by the courts to assure that the parties fully understand which rights have been released and further that they understand the resulting consequences As a result if the release instrument leaves any doubt as to whether a particular future action is covered by the compromise it should be construed as not covering such future action Davis 690 So 2d at 212 The court in Davis found that the claimant did not waive any future accidents or future injuries Furthermore under La R the cause 4231 13 S of action which arose in 1994 after the rendition of the final compromise judgment could not have been asserted earlier and was therefore not pNecluded by that compromise judgment Similarly the claimant in the present case has brought a claim far an injury which occurred after the compromise judgment He also claims an 3 aggravation of the condition which resulted from the 2005 accident or that another injury occurred in 2010 Therefore the workers compensation judge committed manifest error in granting the exception of res judicata Course and Scope Because the majority affirms the exception of res judicata it does not discuss the issue of whether the accident was in the course and scope of semployment However the workers compensation judge stated claimant in the judgment And even if not barred by Res Judicata claimant John L Davis failed to carry his burden of proof that he suffered a work related accident with injury during the course and scope of employment with defendant Claimant argued that because he was on call twenty hours a day four this automobile accident was employment related Contrary to claimant s assertion the mere fact an employee is on call does not automatically give rise to employer liability Rather an employee on ca1P status simply s gives rise to a question of whether the employee was acting within the scope of his employment at the time of the accident See Migliore v Gill 11 407 La App 5 Cir 12 81 So 3d 900 903 writ denied 12 La ll 13 0094 12 9 3 84 So 3d 555 There is no twenty hour liability rule for on four call employees but rather the nature of the employee activities at the time of s an accident is determinative of whether compensation is owed Id There is no evidence in the record that Davis was on at the time call of this accident Therefore the workers compensation judge correctly held that Davis did not prove he suffered a work related accident with injury during the course and scope of his employment with defendant Consequently I would dismiss claimant suit for failure to carry his burden s of proof at trial 4
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