Johnson v. Berg Mechanical Industries, Inc.
Johnson v. Berg Mechanical Industries, Inc.
Opinion of the Court
Minor Johnson,
FACTUAL AND PROCEDURAL HISTORY
On September 29, 1996, David B. Noles, attorney for Minor Johnson, filed a worker’s compensation claim against Berg, Inc., alleging that on October 1, 1995, at Atlas Refinery (a/k/a Pennzoil) in Shreveport, claimant sustained injuries from exposure to harmful chemicals which damaged his health. The parties stipulated that the claimant was employed by Berg on September 20, 1995; last worked at Atlas on October 10, 1995; and that he earned $15.35 per hour and would be entitled to the maximum compensation rate, if entitled to benefits. Another stipulation was that Berg was self insured.
Date Action Grounds
09/29/96 Claim filed with OWC Injuries resulted from working unprotected in a flooded pit containing hazardous material
|202/07/97 Joint Continuance Johnson’s counsel wrote that he and attorney for Berg agreed that both sides lacked relevant medical data
09/02/97 Joint continuance By agreement
12/08/97 Berg continuance Because Berg’s attorney learned Johnson’s attorney withdrew
04/08/98 Berg continuance Berg’s counsel could not reach Johnson to find out if he was represented, and Berg’s counsel was scheduled for surgery two days before trial; Johnson sent letter stating he had no objection to the continuance
08/03/98 Motion to Dismiss Johnson did not appear at trial set for that date
08/18/98 Dismissal Action dismissed without prejudice and Johnson had 30 days to resubmit claim
09/01/98 Motion to Reinstate Motion to Reinstate by David Lowe
09/25/98 Reinstatement order Order reinstating Johnson’s claim against Berg
03/11/99 Johnson continuance Lawyer leaving Cave firm; New lawyer in Cave firm needed time to prepare
04/01/99 Enrollment Order Renee Cooper of Cave firm seeks to enroll for Johnson
06/18/99 Enrollment Order John Frazier enrolls for Berg
07/09/99 Withdrawal Order Berg counsel, Thomas Hebert of Jones, Walker withdraws
10/07/99 Joint Continuance Both sides need medical reports from Dr. Rea, who examined Johnson
J3OI/2O/OO Johnson Continuance Renee Cooper and Cave Law Firm withdraw and trial continued at Johnson’s request
01/20/00 Intervention Cave Law Firm intervenes for fees and expenses
05/11/00 Berg Continuance Johnson counsel withdraws and Berg unable to get needed medical records (notwithstanding signed releases) from doctors who examined Johnson
12/18/00 Motion in Limine Berg wants testimony of Dr. Cave (wife of senior partner of Cave Law Firm) excluded from trial
01/09/01 Enrollment Order Brennan Hussey enrolled as co-counsel for Berg
01/12/01 Evidentiary Objection Berg objected to introduction of Dr. Johnson’s report
01/23/01 Enrollment Order David B. Noles enrolled as counsel for Johnson
01/26/01 Johnson Continuance Trial continued because Johnson in hospital; WCJ’s order stated no further continuances would be granted and set limits on discovery; Trial set for April 26, 2001
02/22/01 Ruling WCJ denied Berg’s motion to exclude Dr. Cave’s testimony
J403/20/01 Ruling WCJ excluded Dr. Johnson’s report as uncertified under La. R.S. 13:1715.1 and instructed Johnson the objection could be cured by having report properly certified
03/25/01 Motion in Limine Trial set for 4/2/01; Discovery deadline 3/27/01; 3/14/01 Johnson reported he would seek IME by toxicologist; Berg sought to exclude any testimony from toxicologist by deposition or otherwise
03/26/01 Motion to Compel Berg sought to compel Johnson to be examined by Dr. McWilliams and to obtain sanctions against Johnson
03/27/01 Motion to Reset Before the hearing, Berg counsel notified court he would be late; When he arrived, Johnson’s counsel, David Noles, had told court there was agreement and matter should be removed from docket; No agreement had been reached according to Berg
03/30/01 Order Hearing reset for April 23 by WCJ; Order stated no further continuances would be granted
05/01/01 Enrollment Order H. Clay Ward enrolled as co-counsel for Johnson
05/02/01 Judgment Motion to compel granted and Johnson ordered to be examined by Dr. McWilliams; Johnson ordered to submit medical records and to comply with discovery
05/14/01 Judgment Berg denied Motion in Limine as to Dr. Nassetta report, and Berg given opportunity to obtain toxicologist before trial
1508/13/01 Withdrawal Order permitting withdrawal of Johnson’s lawyer, David Noles
08/17/01 Withdrawal Order permitting withdrawal of Johnson’s co-coun
08/21/01 Johnson Continuance Johnson obtained continuance until 12/1/01 since his attorneys withdrew and he could not meet deadlines
10/08/01 Enrollment H. Clay Walker enrolled as Johnson’s attorney
12/10/01 Johnson Continuance Johnson granted continuance for good cause shown (attorney needed time to prepare) and matter set for trial April 2,2002
12/21/01 Motion to Compel Berg sought discovery responses
12/26/01 Johnson Motion to Continue April trial Johnson’s counsel cites conflict
12/26/01 Opposition Berg opposition to resetting April trial
03/12/02 Judgment WCJ ordered Johnson to supplement his discovery responses
03/19/02 Withdrawal Order H. Clay Ward withdrew as Johnson’s attorney
03/18/02 Johnson Motion Pro Se “Motion for Continuance and Allowance of Cases to Run Side by Side”
03/19/03 Intervention H. Clay Ward intervenes for attorney’s fees
03/18/02 Continuance Denied Johnson’s Request for Continuance Denied per telephone conference at which the WCJ stated no further continuances would be granted.
Jb03/28/02 Objections Berg filed multiple objections to Johnson’s evidence
04/2-5/02 Trial At commencement of trial, Johnson again objected to denial of continuance; trial court refused to delay the trial
06/12/02 Judgment signed Johnson’s and Intervenors’ claims denied
DISCUSSION
Continuance
At the beginning of trial in April 2002, claimant objected to the denial of his request to continue the trial and to his representing himself due to his mental and physical condition, for which he was still receiving medical care. In refusing to continue the matter, the WCJ noted:
• The case has been pending since September, 1996.
• Continuances had been granted over ten times: some via joint request, some at Berg’s request and some at Johnson’s request.
• In the conference call in March 2002, claimant told the WCJ that the decision for his lawyer to withdraw was mutual and claimant did not object; moreover, the WCJ advised there would be no more continuances and claimant informed the WCJ and Berg’s attorney that he intended to represent himself.
A continuance may be granted in any case if a good ground exists. La. C.C.P.
7 In Connor v. Scroggs, 35,521 (La.App. 2 Cir. 6/12/02), 821 So.2d 542, this court explained that the trial court must consider the particular facts in each case in deciding whether to grant or deny a discretionary continuance. Some factors to consider are diligence, good faith, and reasonable grounds. Equally important is the defendant’s corollary right to have his case heard as soon as is practicable. The trial court may also weigh the condition of the court docket, fairness to both parties and other litigants before the court, and the need for orderly and prompt administration of justice. Generally, a litigant whose lawyer withdraws at or near trial may be entitled to a continuance to employ another attorney. However, because the defendant’s desire to have the case against him tried is also a factor, the claimant is not entitled to indefinite continuances simply because he is unable to secure counsel. A trial court is vested with great discretion in granting or denying a continuance under La. C.C.P. art. 1601. That ruling will not be disturbed on appeal in the absence of clear abuse of that discretion. Connor v. Scroggs, supra.
Johnson was unrepresented at the lengthy trial. His lawyer on appeal argues that the trial court was manifestly erroneous in denying Johnson’s requested continuance before trial. On appeal Johnson argues:
• His lawyer had not met discovery deadlines and withdrew two weeks before trial.
• His ex-lawyer sent him his file in a piecemeal manner, and Johnson did not receive his complete file from the attorney until five days before trial.
• The material was so massive it could not be separated and catalogued.
Is* Claimant was not physically or mentally able to represent himself due to ongoing health problems.
• His lack of legal training and skills put him at a serious disadvantage at trial.
• Claimant diligently tried to obtain the documentary evidence but was unable to do so.
Under those circumstances, Johnson argues that the trial court’s denial of the continuance was an abuse of discretion in that the ruling was manifestly erroneous and clearly wrong.
On appeal Johnson states he was entitled to the mandatory continuance in La. C.C.P. art. 1602 because he had been unable to obtain material evidence despite his exercise of due diligence. When Johnson objected to trying the case unrepresented, he explained to the WCJ that he and his attorney “split up” because the lawyer was not “turning his evidence in,” apparently referring to responding to defendant’s discovery requests. Johnson stated he received his records in several unorganized batches of papers after his attorney withdrew on March 19 before the April 2 trial. Specifically, Johnson stated at trial that Ward withdrew on the 14th and he did not receive his evidence until March 26. However, the defendant correctly pointed out that Johnson did not assert there was particular evidence which he diligently tried to obtain without success. Johnson did not prove he was entitled to a mandatory continuance under La. C.C.P. art. 1602.
Moreover, Johnson did not establish that the WCJ abused her great discretion in refusing to continue the trial based upon
The record contains three joint continuances obtained by Johnson and Berg. Berg obtained four continuances, two of which were based upon the withdrawal of Johnson’s attorney and one of which was based upon Johnson’s not having hired an attorney. Of five continuances obtained by Johnson, two were to permit his different counsel more time to prepare for trial, two were because his attorneys withdrew, and one was because he was hospitalized.
hnAlthough Johnson had been warned that no further continuances would be granted, he agreed for his lawyer to withdraw shortly before the trial date. Moreover, in the March telephone conference, he informed the WCJ that he intended to represent himself. After the WCJ denied his motion for continuance on March 18, 2002, and again at the beginning of trial, Johnson did not seek supervisory review. At trial, Johnson did not provide any indication that he had tried and failed to obtain counsel. Under the particular facts and circumstances of this case, the WCJ was not manifestly erroneous or clearly wrong in denying the continuance.
Evidentiary Rulings
Johnson correctly notes that hearsay may be admitted in worker’s compensation proceedings. La. R.S. 23:1317 provides in pertinent part:
... The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself....
(Emphasis added.)
As a general rule, admissibility of evidence is determined by a three-part test,
Without specifying, Johnson complains that the WCJ erred in refusing to accept documents into evidence which were essential to his claim. The claimant contends that due to the highly technical nature of his complaint, the majority of his evidence was in the form of documents designed to prove which chemicals were present, to which chemicals claimant was exposed, and the effects of the chemicals on his body.
li2In Lady of the Lake Regional Med. Center v. Helms, 98-1931 (La.App. 1st Cir.9/24/99), 754 So.2d 1049; writ denied, 99-3057 (La.1/7/00), 752 So.2d 863, the claimant’s complaint that the WCJ erred in refusing to admit into evidence an original video tape could not be reviewed because she failed to proffer the tape into evidence, with the result that Helms had waived her right to argue that issue on appeal. The claimant in Kennedy v. Johnny F. Smith Trucking, 94-0618 (La.App. 5th Cir.3/3/95), 652 So.2d 526, did not make a proffer of the excluded testimony of two witnesses. The court held that the claimant’s failure to make a proffer of excluded evidence resulted in his being unable to claim on appeal the exclusion was erroneous.
Likewise, Johnson’s failure to proffer the excluded evidence makes appellate review impossible. This omission resulted in Johnson’s having waived his complaints about excluded evidence.
However, the record demonstrates and Johnson admits that the WCJ admitted a large amount of evidence offered by Johnson, notwithstanding objections by the defendant. Specifically, the WCJ accepted into evidence the records of Dr. Alfred R. Johnson, D.O.; Christus Schumpert Medical Records for January 12, 2001, through February 3, 2001; Christus Schumpert Medical Records for October 2000; Check History Report; Berg Daily Worksheets; and Dr. Stephanie Cave’s Deposition with attachments.
It is likely that almost any plaintiff without legal training who represents himself will face difficulties, particularly, as here, when faced with skilled, aggressive attorneys opposing the claim. Undoubtedly, this 113claimant had no knowledge of seeking supervisory review of adverse rulings on the continuance and admissibility of evidence. Moreover, claimant failed to preserve for appeal his complaints on evi-dentiary rulings by proffering the rejected evidence for review by this court. However, given the unusual history of this case with claimant’s multiple attorneys and the
DECREE
The judgment of the Worker’s Compensation Judge is AFFIRMED at the costs of Minor Johnson.
. Other litigation involving the same incident for which claimant seeks worker's compensa
. La. C.E. art. 404(B) limits introduction of other crimes evidence to prove character to particular exceptions.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.