Broxlin T. Coleman Versus Ace Property & Casualty Ins. Co. / Esis & Brock Services, LLC ( 2019 )

BROXLIN T. COLEMAN NO. 19-CA-305
VERSUS FIFTH CIRCUIT
ACE PROPERTY & CASUALTY INS. CO. / COURT OF APPEAL
ESIS & BROCK SERVICES, LLC
STATE OF LOUISIANA
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7
STATE OF LOUISIANA
NO. 18-2251,
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING
November 27, 2019
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED
JJM
SJW
HJL
COUNSEL FOR PLAINTIFF/APPELLANT,
BROXLIN T. COLEMAN
Nathan L. Schrantz
COUNSEL FOR DEFENDANT/APPELLEE,
BROCK SERVICES, LLC AND INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA
Charles M. Jarrell
MOLAISON, J.
In this workers’ compensation case, the claimant, Broxlin T. Coleman,
appeals a judgment in favor of defendants, Brock Services, LLC, its insurer, Ace
Property & Casualty Ins.1 and ESIS, a third party administrator for the insurer
(collectively “defendants”), which sustained defendants’ exception of prescription.
For the following reasons, we affirm the judgment of the Office of Worker’s
Compensation (OWC).
PROCEDURAL HISTORY
Claimant, Broxlin Coleman, was injured in the course and scope of his
employment with Brock Services, LLC on July 5, 2011. The parties settled the
workers’ compensation indemnity claim on January 8, 2015. In that settlement,
claimant received $112,500.00 in satisfaction of his claim for future indemnity
benefits, and reserved his right to “unpaid past and future medical and medically-
related benefits under the Louisiana Workers’ Compensation Act.”
On April 5, 2018, Mr. Coleman filed a Disputed Claim for Compensation in
the Office of Workers’ Compensation District 7 Office, claiming payment for his
medical treatment was not authorized, and that medical benefits were terminated in
the fall of 2016. Defendants filed an exception of prescription asserting that more
than three years had elapsed between the date of the last payment of medical
benefits on December 17, 2014, and the date of filing of the claim on April, 5,
2018. After a hearing on the matter, the OWC judge sustained the exception,
finding that the claim had prescribed, and that prescription was not interrupted by
1
Although the disputed claim for compensation names Ace Property & Casualty Ins. as a defendant, it
appears the correct party name is Indemnity Insurance Company of North America. However, neither
party has made the correct name of the insurer an issue on appeal. Both names are used interchangeably
in the record.
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acknowledgment, nor renounced by the defendants. Further, the court found that
the doctrine of contra non valentem is not applicable. Mr. Coleman filed a timely
appeal.
FACTS
According to his testimony, Mr. Coleman was employed by Brock Services
LLC as a supervisor in 2011. He injured his neck, knee and back in a fall at work.
In January of 2015, he reached a settlement for the indemnity claim, but left the
medical claim open because he continued to seek medical treatment as a result of
the injury.
Initially after the injury, Mr. Coleman sought treatment with Dr. Yost and
Dr. Okoloise at Hope Pain Management. He paid for the treatment with the
understanding that he would be reimbursed. However, since neither doctor took
Workers’ Compensation insurance, ESIS referred Mr. Coleman to Dr. Eldridge
who did accept the insurance. At some point, Mr. Coleman was also treated by
other doctors, including Dr. Davis and Dr. Wolfson. Mr. Coleman ultimately
selected Dr. Eldridge as his pain management physician.
Since the settlement of his indemnity claim in 2015, Mr. Coleman has only
treated with Dr. Okoloise, seeing him about once a month. His health insurance
carrier partially pays for the continuing treatments, and Mr. Coleman pays the
remainder. He was given a prescription card by ESIS, however, the prescription
card was rejected when Mr. Coleman attempted to use it sometime in 2015 or
2016.
Mr. Coleman explained that after the settlement was completed in 2015, he
was no longer represented by counsel. He received no information about how to
assert his right to the continued medical coverage established in the settlement
agreement, and has had to navigate this matter on his own. Mr. Coleman testified
that he tried to return to Dr. Davis and Dr. Wolfson, but was told by ESIS that the
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case was closed and the cost of the treatment was not covered. Mr. Coleman was
able to obtain a new prescription card in 2018, but the card was rejected when he
attempted to use it.
Janell Forges, an attorney in the law office that represented Mr. Coleman in
his initial workers’ compensation claim, testified at the hearing. She stated that the
representation of their firm ended with the 2015 settlement, and the firm did not
reestablish an attorney/client relationship with Mr. Coleman after that. However,
when Mr. Coleman reached out to them for help in November of 2015 getting
medical treatment with other doctors who previously treated him, Ms. Forges
called Valencia Johnson, an adjuster with ESIS. Ms. Johnson would not return
phone calls or respond to emails.
Ms. Forges explained that when Mr. Coleman first called, she knew that he
was treating with Dr. Okoloise, however, she was not aware that workers’
compensation was not paying for that treatment. It wasn’t until sometime in 2016,
when Mr. Coleman called again, that Ms. Forges discovered Dr. Okoloise’s bills
were not being paid.
Ms. Forges again tried to contact Ms. Johnson or her supervisor at ESIS to
no avail. Subsequently, Ms. Forges discovered that there was a merger between
ESIS and CHUBB2. In December of 2017, after researching CHUBB on the
internet, Ms. Forges was able to speak with a customer service representative who
put her in touch with William Hubbard, a supervisor. Ms. Forges explained that
she was trying to get medical authorization for Mr. Coleman’s medical treatment in
accordance with the January 2015 agreement. Mr. Hubbard acknowledged there
were some problems with Ms. Johnson’s handling of claims and agreed to re-open
the claim. Mr. Hubbard also assured Ms. Forges that he would issue a new
2
The nature of CHUBB and the relationship agreement between ESIS and CHUBB is not clear from the
testimony or the record.
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prescription card, and requested that Ms. Forges forward to him any medical bills
or records that verified Mr. Coleman’s continued treatment. Ms. Forges provided
all of the bills and medical records requested. She denied giving any legal opinion
on the prescription issue.
At the hearing, claimant’s counsel introduced email correspondence between
Ms. Forges and Mr. Hubbard. These emails show that on February 12, 2018, Ms.
Forges sent Mr. Coleman’s medical records as requested. That same day, Mr.
Hubbard replied stating;
I apologize for the delay in this email. I have reopened the
claim and I am requesting a new RX card be sent. I’m going to try
and get a temporary one but since I just reopened the claim it will
probably not register in the system until tomorrow. I have set a
reminder tomorrow to review.
Ms. Forges forwarded this email to Mr. Nathan Schrantz, Mr. Coleman’s current
attorney. Shortly afterward a new prescription card was issued. Unfortunately, the
card was rejected upon attempted use. When Ms. Forges contacted ESIS, she was
told by an adjuster that no more medical payments would be made because the
claim had prescribed. No other explanation was given.
The defendants offered the deposition of William Hubbard. In that
deposition, Mr. Hubbard confirmed that he is an employee of ESIS, the third party
administrator for the workers’ compensation insurer. Mr. Hubbard was
supervising Mr. Coleman’s claim. He verified that, because of changes in staffing,
there was no adjuster on this file at various points in time. Mr. Hubbard stated that
during these times, a supervisor performed some of the functions necessary in
handling the claim. Mr. Hubbard also acknowledged there were problems with
Valencia Johnson, the adjuster assigned to Mr. Coleman’s claim in 2015. There
were instances when Ms. Johnson would not return phone calls from claimants and
attorneys. Ms. Johnson is no longer employed with ESIS, although Mr. Hubbard
gave no details regarding the time or circumstances of her departure. Mr. Hubbard
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verified that no notification was sent to Mr. Coleman regarding the change in
adjusters, nor was Mr. Coleman provided with new contact information.
In connection with his deposition, Mr. Hubbard produced documents to
show that the last medical payment made on Mr. Coleman’s behalf was on
December 17, 2014 to Advanced Pain Institute. Mr. Hubbard stated that ESIS did
not pay any of the costs of prescriptive medication directly or through
reimbursement since that time. Ultimately, Mr. Hubbard concluded that the claim
prescribed on December 17, 2017, three years from December 17, 2014, the date of
the last medical payment.
When he received the communication from Ms. Forges indicating that Mr.
Hubbard had been receiving continuing medical treatment, he reviewed the claim.
Mr. Hubbard acknowledged receiving medical bills from Ms. Forges in February
of 2018. Mr. Hubbard stated that Ms. Forges told him the claim was not
prescribed because of the ongoing treatment. Mr. Hubbard testified that he issued
the new prescription card based on Ms. Forges’ assertion that, legally the
prescriptive period starts at the end of treatment, not payment. Mr. Hubbard stated
that, had he known the correct law, and that issuance of a new prescription card
might interrupt prescription, he would not have issued the card.
Mr. Hubbard verified Mr. Coleman’s testimony that after the settlement in
2015, his company sent no information on the procedure for submission and
payment of any claim for medical treatment, although a claim packet would have
been mailed after the initial injury in 2011. When the claim was reopened in 2018,
it was assigned to a new adjuster. That adjuster denied medication requests made
through the newly issued prescription card because the medications were ordered
by Hope Medical and Dr. Okoloise, providers that were not in the system.
19-CA-305 5
ASSIGNMENTS OF ERROR
Claimant asserts the workers’ compensation court erred in sustaining the
defendants’ exception of prescription. Specifically, he assigns three errors:
1. The trial court erred as a matter of law by failing to find prescription was
renounced.
2. The trial court erred as a matter of law by failing to find the doctrine of
contra non valentem applied.
3. The trial court erred as a matter of law by failing to find the medical
claim was acknowledged and prescription interrupted.
LAW AND ANALYSIS
Standard of Review
The first issue raised by the claimant is the correct standard of review on
appeal. Claimant argues this Court should review the matter de novo because the
defendants’ exception involves the application of legal principals of renunciation,
contra non valentem and acknowledgment as related to legal prescription. We
disagree.
It is only when the trial court considers no properly admitted evidence prior
to its ruling that the de novo review standard is mandated. Prescription issues are
raised by a peremptory exception. La. C.C.P. art. 927. This Court explained the
correct standard of review of a peremptory exception in In re Med. Review Panel
of Gerard Lindquist, 18-444 (La. App. 5 Cir. 5/23/19), 274 So.3d 750.
At a hearing on a peremptory exception pleaded prior to trial,
evidence may be introduced to support or controvert the exception. In
the absence of evidence, a peremptory exception must be decided
upon the facts alleged in the petition with all of the allegations
accepted as true. Furthermore, when no evidence is introduced at the
hearing on the exception, the reviewing court simply determines
whether the trial court's finding was legally correct. In a case
involving no dispute regarding material facts, but only the
determination of a legal issue, a reviewing court must apply the de
novo standard of review, under which the trial court's legal
conclusions are not entitled to deference. (citations omitted) In re
Med. Review Panel of Gerard Lindquist, 274 So.3d at 754.
19-CA-305 6
In the matter before us, there was evidence presented and there are disputed facts,
therefore a de novo review is not appropriate in the consideration of the exception
of prescription in this instance.
In reviewing a peremptory exception of prescription, the standard of review
requires an appellate court to determine whether the trial court's finding of fact
was manifestly erroneous. Taranto v. Louisiana Citizens Property Ins. Corp., 10-
0105 (La. 3/15/11), 62 So.3d 721, 726. This Court cannot set aside a trial court’s
finding of fact in the absence of “manifest error,” or unless it is clearly wrong.
Stobart v. State, 617 So.2d 880, 882 (La. 1993). Although the factfinder is
afforded deference and the factual findings will not be set aside absent manifest
error or unless clearly wrong, appellate courts have a duty to review the
facts. State, Dept. of Transp. & Development v. Schwegmann Westside
Expressway, Inc., 95-261 (La. 3/1/96), 669 So.2d 1172, 1177. There is a two-part
test for reversal of a factfinder’s determinations; (1) the appellate court must find
from the record that a reasonable factual basis does not exist for the finding of the
trial court, and (2) the appellate court must further determine that the record
establishes that the finding is clearly wrong. Stobart, supra. We review the facts,
not to resolve whether the trial court was right or wrong, but whether the
conclusion was a reasonable one. Troxclair v. Liberty Pers. Ins. Co., 17-520 (La.
App. 5 Cir. 2/21/18), 239 So.3d 1067, 1069.
One fact that is not in dispute is that the last payment for medical benefits
was on December 17, 2014. Claimant filed this claim on April 4, 2018. La. R.S.
23:1209(C) provides that;
All claims for medical benefits payable pursuant to R.S.
23:1203 shall be forever barred unless within one year after the
accident or death the parties have agreed upon the payments to be
made under this Chapter, or unless within one year after the accident a
formal claim has been filed with the office as provided in this
Chapter. Where such payments have been made in any case, this
limitation shall not take effect until the expiration of three years
19-CA-305 7
from the time of making the last payment of medical benefits.
(emphasis added)
As a general rule, the exceptor bears the burden of proof at trial that the
matter has prescribed. In re Med. Review Panel of Gerard Lindquist, supra, 274
So.3d at 754. However, if prescription is evident on the face of the pleadings, the
burden shifts to the plaintiff to show that the action has not prescribed. Id. As an
inchoate right, prescription, may be renounced, interrupted, or suspended;
and contra non valentem applies as an exception to the statutory prescription
period where in fact and for good cause a plaintiff is unable to exercise his cause of
action when it accrues. Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291,
1298.
Here, the petition is prescribed on its face. Pursuant to La. R.S. 23:1209(C),
the claim prescribed on December 17, 2017, three years from the last payment for
medical benefits. Claimant presents three arguments to defeat the exception of
prescription. He argues that: (1) the claim was acknowledged by the insurer as late
as November of 2015 when it made payments for a Social Security verification and
a Medicare Set-Aside Cost Allocation (MSA); (2) prescription was renounced by
the transmission of the new prescription medication card in February of 2018; and
(3) the doctrine of contra non valentem is applicable.
Interruption by acknowledgment
“Prescription is interrupted when one acknowledges the right of the person
against whom he had commenced to prescribe.” La. C.C. art. 3464. The
recognition of the obligation or the creditor’s right halts the progress of
prescription before it has run its course. Gary v. Camden Fire Ins. Co., 96-0055
(La. 7/2/96), 676 So.2d 553, 556. An acknowledgement involves an admission of
liability, either through explicit recognition of a debt owed, or through actions of
the debtor that constitute a tacit acknowledgement. Id. A tacit acknowledgment
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arises from a debtor's acts of reparation or indemnity, unconditional offers or
payments, or actions which lead the creditor to believe that the debtor will not
contest liability. Estate of Ehrhardt v. Jefferson Par. Fire Dep't, 12-319 (La. App.
5 Cir. 1/30/13), 108 So.3d 1223, 1229, citing Gary v. Camden Fire Ins. Co., supra.Claimant argues that prescription was interrupted by the payment for the
MSA in November of 2015, and by the claim notes showing an ongoing review of
the claim including statements that if Mr. Coleman goes back to treatment the
claim will be reopened. Documentation in the record shows that ESIS paid PMSI
Settlement Solutions $95.00 on August 11, 2015 and $2,000.00 on November 13,
2015. Mr. Hubbard established through his testimony that the payments were for a
Social Security verification and an MSA, respectively. Mr. Hubbard explained
that these were necessary before any settlement could be considered. Mr. Hubbard
further testified that once the MSA was received, it was determined that a
settlement should not be pursued. The MSA was not provided to the claimant.
Claimant asserts that this is an acknowledgment of the debt sufficient to
interrupt prescription. We do not find claimant’s argument convincing. An
acknowledgment sufficient to interrupt prescription requires more than settlement
negotiations. Mullen v. Sears, Roebuck, & Co., 887 F.2d 615, 618 (5th Cir. 1989).
If the negotiations do not result in an agreement that the defendant is liable for the
plaintiff's injuries, there is no acknowledgment sufficient to interrupt prescription.
Id.According to Mr. Hubbard’s testimony, an MSA is traditionally done to
explore possible settlements. In Estate of Ehrhardt v. Jefferson Par. Fire Dep't,
supra, this Court found that an MSA that was not transmitted to claimant’s attorney
was insufficient to constitute an acknowledgement. The Ehrhardt Court
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distinguished a Second Circuit case3 in which the court ruled that an MSA,
transmitted to claimant’s attorney in settlement negotiations, was an
acknowledgement. We find that no acknowledgment sufficient to interrupt
prescription occurred in this case. While ESIS paid for an MSA and a Social
Security report, neither were transmitted to claimant. Further, there is no
indication that any settlement negotiations between the parties were discussed.
Renunciation
Once prescription has run, it may be renounced. La. C.C. art. 3449.
“Renunciation of prescription” is the technical term designating the abandonment
of rights derived from an accrual of prescription. Id. at comment (c). That
is, renunciation of prescription destroys the effect of prescription that has already
run. Neese v. Papa John's Pizza, 10-15 (La. App. 5 Cir. 6/29/10), 44 So.3d 321,
328. Renunciation of prescription may be express or tacit. La. C.C. art. 3450.
Effective renunciation of accrued prescription must be unequivocal, and only
occurs when the intent to renounce is clear, direct, absolute and manifested by
words or actions of the party in whose favor prescription has run. Queen v. W. &
W. Clarklift, Inc., 537 So.2d 1214, 1216 (La. 4 Cir. App. 1989).
In this case, the issuance of a new prescription card in 2018 is the basis for
claimant’s assertion that prescription was renounced. Claimant argues that act is a
new promise to pay sufficient to constitute a renunciation. We do not find that act
is a “clear, direct, absolute” renunciation of prescription. Mr. Hubbard testified
that he issued the card only because he was given incorrect legal information on
the onset of the prescriptive period by Ms. Forges. He specifically stated that he
would not have issued the card had he known the claim legally prescribed three
years from the date of the last payment, not the last treatment. Further, he testified
3
See Reed v. Mid–States Wood Preservers, Inc., 43,799 (La.App. 2 Cir. 12/3/08), 999 So.2d 189, writ
denied, 09–0009 (La .2/20/09), 1 So.3d 500.
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that he had no intention of interrupting or renouncing prescription. Additionally,
when the adjustor reviewed the matter and discovered the card was issued after the
prescriptive period had run, the card was rejected before Mr. Coleman was able to
use it. For these reasons, we find no manifest error in the OWC judge’s finding that
prescription was not renounced.
Contra non valentem
Claimant invokes the doctrine of contra non valentem to challenge the
exception of prescription. The doctrine of contra non valentem is a jurisprudential
doctrine which means that prescription does not run against a person who could not
bring his suit. Carter v. Haygood, 04–646 (La.1/19/05), 892 So.2d 1261, 1268.
The doctrine of contra non valentem was created as an exception to the general
rules of prescription. Richards v. Choice Hotels Int'l, Inc., 13-973 (La. App. 5 Cir.
5/21/14), 142 So.3d 249, 252. The doctrine is to be strictly construed and only
applicable in exceptional circumstances. Id.There are four situations in which the doctrine of contra non valentem can
be applied to suspend the running of prescription: (1) where there was some legal
cause which prevented courts or their officers from taking cognizance of or acting
on plaintiff's action; (2) where there was some condition coupled with contract or
connected with proceedings which prevented creditor from suing or acting; (3)
where defendant himself has done some act effectually to prevent plaintiff from
availing himself of his cause of action; and (4) where some cause of action is not
known or reasonably knowable by plaintiff, even though his ignorance is not
induced by defendant. Wells v. Zadeck, 11-1232 (La. 3/30/12), 89 So.3d 1145,
1150.
In the matter before us, claimant relies on the third and fourth situations,
arguing that ESIS did not provide him with any information about how to process
his medical claim or any new contact information for adjustors. Claimant argues
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he should not be penalized where the insurer knew of its ongoing obligation to pay
medical bills. He points out that he was not represented by counsel after the 2015
settlement and had difficulty contacting the adjuster.
In Giorlando v. Lowe's Home Centers, LLC, 16-262 (La. App. 5 Cir.
12/14/16), 209 So.3d 293, a factually similar case in which the parties had reached
a settlement on indemnity and the claim for medical payments remained open, the
claimant argued contra non valentem applied. In Giorlando, the claimant argued
that after the parties had reached the settlement on indemnity, there was an
ongoing discussion between his attorney and counsel for the employer regarding
the settlement of his future medical claims, which was dependent on the results of
the MSA. The claimant argued that the employer used the pending MSA to lure
him into inaction. The Giorlando claimant filed the disputed claim within one year
of notification that the MSA had been received and that the employer opted not to
settle the claim, but beyond three years from the last medical payment. The OWC
judge found that, while an email exchange discussed an MSA and a possible
settlement, it did not resolve the issue since there was no evidence that the
agreement to settle ever took place. This Court affirmed that ruling upon a finding
that the OWC judge was not clearly wrong. Id.In the matter before us, it is significant to note that claimant does not argue
there was some action by the insurer which prevented him from submitting a claim
or lulled him into believing his claims would be paid when submitted. Rather he
argues the insurer did not tell him how to submit a claim or help with the claims
process. Mr. Coleman’s testimony established that he chose Dr. Eldridge as his
pain management physician and that he attempted to schedule appointments with
other doctors, but was told they could not get approval for treatment. It is clear that
Mr. Coleman knew Dr. Okoloise did not take workers’ compensation insurance,
but preferred to treat with him. Under this factual scenario, we cannot find error in
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the OWC judge’s determination that the doctrine of contra non valentem is
inapplicable.
We find no merit in claimant’s assignments of error. Accordingly, the
judgment of the Office of Workers’ Compensation is affirmed.
AFFIRMED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 27, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-305
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
NATHAN L. SCHRANTZ (APPELLANT) CHARLES M. JARRELL (APPELLEE)
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