Ary v. Personal Care
Ary v. Personal Care
Opinion of the Court
| ¡/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’s return from a personal errand. Personal 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
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’s case and testimony, the OWC rendered oral reasons for judgment, finding in favor of the claimant. Specifically, the OWC found that claimant suffered a work-related 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 | ¡¡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.
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’s motion to continue, which counsel elected to fax on Friday, May 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.
J^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. LSA-C.C.P. art. 1843; see also LSA-
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.
The same standard of review applicable to factual findings of district courts, the “manifest error-clearly wrong” standard, is also applicable to factual findings of a workers’ compensation judge. Smith v. J.E. Merit Constructors, Inc., 2001-2824 (La.App. 1st Cir.11/8/02), 835 So.2d 749, 753. Accordingly, for an appellate court to reverse a workers’ compensation judge’s factual 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. 1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly -wrong or manifestly erroneous. 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’s conclusion was a 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’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882.
At trial, Ary testified that on July 2, 2009, he began his shift at Personal Care
In awarding benefits to Ary, the OWC noted that she had “reviewed the medical documentation and in light of claimant’s testimony, the Court finds that Mr. Ary was employed by Personal Care Services, Inc.” The OWC further found “[tjhat on July 1, 2009 Mr. Ary was injured in the course and scope of his 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’s first assignment of error in which it contends that the evidence presented at the trial was insufficient to support the judgment rendered herein.
17Assignment of Error Number Two
Personal Care also argues on appeal that the OWC erred in failing to grant its motion for new trial.
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.
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 defendant/appellant, Personal Care.
AFFIRMED.
. 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).
. With reference to Personal Care’s additional contention that it was not given proper notice of Ary’s claim initially, as required by LSA-R.S. 23:1301, et seq., we note that 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.1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994); Stewart v. Livingston Parish School Board, 2007-1881 (La.App. 1st Cir.5/2/08), 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.
. Although 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 judgment is rendered in the same case. Moran v. G & G Construction, 2003-2447 (La.App. 1st Cir.10/29/04), 897 So.2d 75, 83 n. 4, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148; see also Nelson v. Teachers' Retirement System of Louisiana, 2010-1190 (La.App. 1st Cir.2/11/11), 57 So.3d 587, 589 n. 2.
. Although Personal Care argues that the result herein is harsh, similar results have been upheld in other cases. See Piper v. Dillard's Department Store, 93-0081 (La.App. 4th Cir.6/30/93), 621 So.2d 865, writ denied, 93-2097 (La.11/12/93), 627 So.2d 654 (where appellate court determined the OWC’s dismissal of workers' compensation claim was justified when claimant in workers’ compensation case chose not to appear for trial after receiving notice of the trial date); Mitchell v. Accent Construction Company, 2000-0996 (La.App. 4th Cir.3/14/01), 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 plaintiff’s case when his attorney failed to appear for trial after having received notice of the trial date); Payne v. Glass, 41,232 (La.App. 2nd Cir.8/23/06), 939 So.2d 526 (where appellate court dismissed employer's action for nullity where employer attempted to annul judgment obtained in its absence after employer had been served with notice of trial date).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.