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Lowery v. Jena Nursing & Rehab Center
Citations: 156 So. 3d 216; 14 La.App. 3 Cir. 1106; 2014 La. App. LEXIS 3055; 2014 WL 7272978Docket: No. WCA 14-1106
Court: Louisiana Court of Appeal; December 22, 2014; Louisiana; State Appellate Court
The court, on its own initiative, required Jena Nursing and Rehabilitation Center and Technology Insurance Company to justify why their appeal should not be dismissed as stemming from a non-appealable, partial judgment. In response, the appellants submitted a brief. The court decided to maintain the appeal and recalled the rule to show cause. Gay Lowery, the claimant, suffered a back injury at work, and her physician recommended surgery. Disagreement over the necessity of the surgery led to the recommendation being submitted to the Medical Director for approval, which was subsequently denied. Lowery contested this decision by filing a Form 1008, seeking penalties and attorney fees as part of her claim. The appellants challenged only the request for penalties and fees and filed a motion to compel Lowery to undergo a functional capacity evaluation (FCE). An expedited hearing was scheduled for June 30, 2014, where the appellants' attorney initially focused on the FCE motion, while Lowery’s attorney insisted that the appeal concerning the surgery should be prioritized. The Office of Workers' Compensation (OWC) judge agreed, allowing all issues to be discussed. During the hearing, it was argued that even if the Medical Director's decision was overturned, penalties should not be imposed on the appellants. Ultimately, the OWC judge ruled in favor of Lowery, reversing the Medical Director’s decision and granting her the right to the recommended surgery. The OWC judge denied the motion to compel a Functional Capacity Evaluation (FCE) but reserved the appellants' right to request it again after surgery. No rulings were made on penalties or attorney fees, nor was the appellants’ exception of no cause of action addressed. Counsel for Ms. Lowery stated he would prepare the judgment for the OWC court. The judge signed two judgments: one overturning the Medical Director's denial of surgery, authorizing it with the appellants responsible for costs; the second denying the motion to compel the FCE while reserving the right to renew the motion later. Both judgments left unaddressed the exception of no cause of action and entitlement to penalties or attorney fees. The appellants filed for a suspensive appeal regarding the surgery payment judgment. In response to a court rule questioning the appeal's validity due to it being a partial judgment, the appellants argued that a reversal of the Medical Director’s decision is appealable if it fully adjudicates the claim. The court agreed but noted that claims involving penalties and attorney fees are not fully adjudicated until all elements, including those fees, are ruled upon. Citing *Ken Lawler Builders, Inc. v. Delaney*, the court explained that if a demand for attorney fees isn't addressed in the judgment, it is considered rejected under principles of res judicata. The OWC court's silence regarding penalties and attorney fees during the hearings indicated a denial of those claims. Therefore, since no issues remain to be litigated before the OWC court, the earlier rule to show cause why the appeal should not be dismissed is recalled, allowing the appeal to proceed.