American Home Insurance Company and Unified Recovery Group, LLC VS Keith Morrison
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Lf3Lr::SIANA STAT, C JU T' OF r1F'PEAI kIRST CIRCUIT 2Q13 CA ? 48 A_? v1ERICAN HOME SURAI T E COt49PANY UNIFIED RECOVERY GRt tiP 1.. L.C. ti i.SU KF,iTH :( DAT ON APPEAL FROM IT R. RISON Ot'. L? aGMENT: APR 2 8 2014 OFFICE OF WORKERS' CONIl' ENSATION NUiVIBER I3- 00819, DIST. 5, PARISH OF EAST BAT'ON ROUGE S' ATE OF L NOI H iJISIA_ A N LE PA:V' LA A. MZ?SES- L AMORF,, WQRKI:R' COMPE?' SATION JUDUE Raytrf K. New l x,;: 5., A 1z zabetl3 " Counsel farPlaintiff-Appeilee e., ?-. Li by" American Home Insurance Company eiren rleans, Louisiana Counsel for Jefendant-Appellant C. Ray Murry Shannon C. Lindsey Keith Mon ¢ ison Slideli, Louis:ana K BBFOR.: o : RS 9T KUHN, J., K-# # k Ki;I V: HIc, GINBOTHAiv1, AND T: fERIOT, JJ. 1'LGUAS ¢ R.WI ) v sP M arm : vn zEa. s The defendani- appei_ nt, i eit: Morrisor., appeals a workers' compensation judgment of April 5, 2 I', whic we reverse. Procedural History and Facts Mr. Morrison was injured on January 11, 2008, while in the employ of United Recovery Group, Home Assurance LLC (United Recovery). Home), Company ( American Plaintiff-appellee, American is the workers' compensation insurer of United Recovery. It appears that Mr. Morrison originally filed a claim far workers' compensation in dacket Number 09- 07382 in the Office of Workers' C mpensation ( OWC). However, the record presented to this Court in the ins ant case arising out of Workers' Compensation docket No. 13- 00819 contains nothing from the record of the proceediiigs in the original claim. The nature of Mr. Morrison' s original compensation claim is not now before this court. Therefore, our kno, ledg of those proceedings is limited to the little we are able to infer & om the brief references to thase proceedings found in the transcript of the Workers' Gompensation hearinD in the instant case and the various filings of the parties to the proceedings now before this Court. On January 25, 3013, the instant proceedings were initiated when a Disputed Claim for Compensation" was filed by Americari Home as the insurer of Mr. Momson' s employer, United Recovery, on the grounds that Mr. Morrison failed to appear for " properly noticed second medical opinions with Dr. Ivajee'o Thomas on November 8, 2012 and January 8, 2013." On March 13, 2013, for reasons that do not appear in the record, another identical " Disputed Claim for Cotnpensation" seca_ d " was tiled. However, contemporaneous with the filing af this Dispu: ed Ciaim ior Compensation," American Home also filed a " Motion to Te: minate/ Reduce Benefits or Compel Second Medical Opinion." This Motion ail ged, inter alia, that Mr. Morrison had already received benefits in the form af oa 2 payments to medical pr:; ders totaiing $28is, 8 4. 84. These payments are r. ot disputed in these proceed. ngs: On March 14, 2013, the motion, returnable on April 5, 5/ C issued a show cause order pursuant to this 2013. On Apri1 1, 2013, Mr. Morrison filed a pleading entitled, `Bmployee' s Exceptions and Defenses and Answer," along with a supporting memorandum and ex; ibits. In this pleading, Mr. Morrisan asserted the following exceptions: 1. Dilatory exception of prematurity: 2. Dilatory exception of nonconiormity of the petition, Dilatory exceptiom of vagueness. 4. Pr em tory exception of no cause of action. 5. Preemptory except?on of no right of action. Further, Tvir. Morrison also asserted that t}ie preceedings against him were unconstitutional by virtue of faiiing to allege a " Bona Fide Dispute" ( see I,a. R.S. 23: 1310( A); and because his empYoyer was seeking an advisory opinion. At the hearing held on Ap'ri: :,, 2013, : he O WC judge rzndered aral reasons that were later followed by a writter judginent and written reasons dated May 2, 20l 3. Th May 2, 2013 judginent denied all of I Ir. Niorrison' s eXCeptions; denied his claims af unconstitutionality; granted American Home' s motion to compel a second medical opinion; but ordered iJnited Recovery to provide transportation; denied American Home' s motion to suspend benefits; denied Mr. Monison' s oral motion for sanetior.s; denied NIr. Morrisori' s oral motion to amend the petiYion, but allowed that once the stay was ;ifted, DockeYNo. 09- 073 2 " may be amended for actions predicated in this dacket;" and dismissed the instant case, i.e., Docket No. 13- 00819. n April 17, 2013, after the rendering of the oral judgment, but priar to tne May 2, 2013 issuance of the written judgment and reasons in support thereof, Mr. 3 Morrison filed a Motion ta Stay i rder to er m to take writs to this Court, it which was denied. At tne same time, he filed a notice of intention to apply for writs to this Court, whicr v as ordered returnable on May 31, 2013. Prior to this return date, on May 29, 2013, Mr. Morrison filed a Motion for Devolutive Appeal pursuant to wnich this case is now before this Court. Assignments of Error Mr. Morrison asseris three assignment of error. However, they a11 relate to whether or not certain statutes should have retroactive effect and, therefore, shall be considered as one. Louisiana Revised Statutes 23: 1314 was referred to by the OWC as the Mr. Vlorrison contends that the Disputed Claim for Statute." Prematurity Compensation filed below by the appellee was prematurely filed as it failed to meet any of the four enumerated requirements s t forth in R.S. 23: 1314(A): A. The preser tation and filing of the petiticn under RS. 23 : 1310: 3 shall be _premature unless it is alleged in the petition that: 1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or 2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or 3) The employee has not been furnished copies of the reports of examination rriade by the employer' s medical practitioners after written request therefore has been made under this Chapter; or 4} The employer or insurer has not paid penalties or attorney' s fees to which the employee ar his dependent is entitled. It is undisputed that the Disputed Claim for Compensation meets none of these four exceptions to prematurity, Hovvever, the appellee seeks to avail itself of the benefit of La. Acts 2012, No. 860, § add the following as La. R.S. 23: 1314( E): 4 1, whereby this statute was amended to Notwithstanding any . ther proviskon employer shall be permitted to file controvert benef?s or under this ChaFYer. of ihis Section, a disputed the claim to ancerning any other dispute arising [Fznphasis addec3.] This amendment, if applicable, would arguably permit the filing of the Disputed Claim far Compensation as timely. However, this provision was not in effect when Mr. Morrison was injured in 2008. Mr. Morrison contends that it is substantive in effect and cannot constitutionally be applied retroactively. Mr. Morrison does not dispute the fact ttiat if instead it is deemed to be procedural or remedial in nature then it can 1 e applied retroactively. The OWC noted that La. RS. 23: IS10 was in effect at the time Mr. Morrison was injured. It provides for tbe filing of disputed claims: A. If, at any t?me after nati cation to the office of the occurrence of death or injury resulting in excess of seven days tost time, a bona fide dispute occurs, the employee or his dependent or the employer or i nsurer may file a claim with the tate office, ar the district office where the hearing will be held, on a form to be provided by the director. B. In addition to any other informati n required by the director, the claim shall set forth the time, place, naYure, and iniury, the bei efit in dispute, and the employee' s actual earnings, if any, at the time of the filing of cause of the ihe ciaim with trie office. Emphasis added. Thus, the OWC noted that under La. R,S. 23: 1310 the employer' s right to frle a claim was established prior to the date of the injury. We agree. The OWC further oted th t the prematuriry bar that was found in La. R.S. 23: li14 at the time of the injury was procedural in nature. Therefore, when it was aznended to permit the filing by the empl yer of clairns such as the one filed in these proceedings, without th rrecessity factors listed in part " A" of xli ait? for the occurrence of any of the ng of stattrte, die ainendrnent was procedural in nature and, consequentiy, retroactive. We agree. Additionally, the OWC noted that: s r: Hearirg 0= ee 1999, fn define " clai ant" insurance the health as " z Rul 1; i( was amended to the injut ¢ ed ar tployee, t he employer, the group self'-insurance fund, the carrie.-, care provi.; er, or u depencier.t." [ Emphasis added.] The OWC " found it was thz le islature' s intent to have the Prematurity statute eeflect the cause ot' a.ction alrLady in e* fect." We agree. None of the cases cited by Mr. Morrison are relevant to the time period during which La. R. S. 23: 1314( E), as amended by La. Acts 2012. No. 860, § 1, was in effect. If that were all there were to this issue, we would agree with the appellee and affirm the trial Court. But ivlr. Morrisou points out that rn tters did r. t end with the reudering of o the judgment below. He nates tha La. R.: 23: 13 i4 was again amended, replacing the language reIied upcn by tl c appellze zn 23: 1314( Ej, with the following language adopted by La. cts 2013; No. 337, l: 2j Notwithstan ing any other provision of this Section, the employei ¢ or payor shall be permitted to file a disputed claim agains a person or ent ity other than an injured _ empioyee, his dependent, or bsne ciary concerving any other dispute arising under this Chapter. [ Fmphasis added.] The judgment effective below dat. of e was this rendered amendmenY and after was iVir. August Morrison 1, ? 013, filed after the this appeal. Nonetheless; Mr. Morrison contends that tfiis amendment should be applied retroactively, making what might be characterized as a " what is sauce for the goose is sauce for the gander" type of argutnent, i.e., if the 2012 amendment relied upon by the appellee is to be given retroactive effect, then the 2013 amendment should also he given retroactive eff ct. We agr e. The argument that the 013 amendment should be g'rven retroactive effee is, in Fact, even stronger than the argument to ihe same effect regarding the ? 012 amendment, because when the 2013 amendment was enacted, the iegislature specified that it be given retroactive 6 The legislature effect.' was ? le. t on the wb; act when it enacted the 2012 amendment. Having determined that the 2013 amendment is to be given effect retroactively, we now turn to the question of whether it is too late to raise that issue when the effective date of the retroactive statute occurs after judgment is rendered. Mr. Morrison relies on Segura v. 93- 1401 ( La. 1/ 14/ 94), 630 Frank, 93- 1271, So. 2d 714, cert. den. sub nom., Allstate Ins. Co. v. La. Ins. Guar. Ass' n, 511 U.S. 1142, 114 S. Ct. 2165 ( 1994), in support of his argument that the rendering of the judgment below prior to the effective date of the 2013 amendment does not prevent its retroactive application. We agree based on our reading of Segura: The third circuit noted that at the time of the proceedings in the trial court, Act 237 of 1992 had not yet been passed and could not have beer considered by the trial judge, much less applied the to proceedings." these normal The court conciuded that " in of events" the applicability of the 1992 scherne amendment should not be argued for the first time on appeal. If the third circuit is correct, then we need not consider LIGA' s argument that the 1992 amendment applies. The consider general issues rule raised for is that the appellate first time on courts will appeal. not Another g nerai rule, however, is that an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct rendered. under the iaw in effect at the time it was Needless to say, where the law has changed after the trial court' s decision, the applicability of the new law can be argued for the rst time only on appeal. In light of the foregoing, we conclude a claim is pending as long as it is subject to judicial scrutiny. Even though a lower court has adjudicated a claim and rendered judgment, the claim continues to be pending until appeal of that judgment has been exhausted. Until then, something further remains to Section 2 of La. Acts 2013, No. 3.i7, states, " T1 is Act is declared to be remedial, curative, and procedaral and therefore is to be applied retroactively as well as prospectively." 7 fix the plaintiff s - ighi tc enforce tf: a claim as well as the defendant' s obligat on o pay it. Segura, 630 So. 2d at Citations 725 & 727. omitted.] [ Footnote omitted.] Retroactive application woutd not impose an inequitable result in this case, given that American Home requested retroactive application of the 2012 amendment to the same statute in thL OWC. See WzZs ex r-el. Wilson v. LandYy, 98 365 ( La. App, lst Cir. 12/ 2R.!99), 748 So. Zd 655, 661, writ denied, 00- 0260 I_a. 3/ 24/ 00), 758 So. 2d 155. Where the positi n of the appellee is predicated on a retroac iviry argument, it is offensive to the sense af fair play and justice to deny to the appellant the benefits of ren ¢oactivity when the retroactive nature of the 2013 statute upon which he bases his argument is so much stronger than that of the 20I2 statute apon which appellee relies. In other words, if the 2012 statute has retroaative effect, the 2013 "statate is even more clearly retroactive, and Mr. Morrison prevails. Conversely, if t1 e 2013 sfatute does not have retroactive effect, then the 20I2 statuYe even more ciearly does nat have retroactive effect and Mr. Morrison prevails. Consequentiy, once this Court decided to apply Segasra, thereby permitting the consideration of the retroactive effect of the 2013 amendment for the first time on appeal, Mr. 1Vlorrison must prevail. CONC. CSION Por the foregoing reasoris, the juclganer.t below is reversed and judgment is hereby rendered in favar of the efendant- appellant; Mr. Morrison, and against the plaintiff-a} pellee, American Home, dismissi. g its claim in its entirety. As the law n upon which this jud mem is based did not go into effect until after the judgment below had been renderec and this appeal had b en flled, each parry is to bear its own costs. REVERSFD AND REND I2ED: 8
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