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Bellard v. Seale Guest House10/30/2002
s Hearing Officer Rule 2139(4), was in conflict with La.R.S. 23:1209(D) when presented with these facts. The claimant in Clark was injured on May 22, 1991. Notwithstanding his receipt of indemnity benefits through July 12, 1993, he filed a disputed claim in the Office of Workers' Compensation in July of 1992. On October 29, 1992, that claim was "administratively closed" or "dismissed" for reasons not readily apparent from the record. The claimant filed a second disputed claim on August 10, 1994, some thirteen months after the receipt of his last payment of benefits and after he had been released from prison. The supreme court would ultimately reject the claimant's argument that prescription was suspended during his incarceration, but the court remanded the case to consider whether prescription had been interrupted by his 1992 petition. Clark v. Mrs. Fields Cookies, 97-397 (La. 1/21/98); 707 So.2d 17. In the meantime, the claimant had filed for reinstatement of his 1992 claim on July 15, 1995, two years and nine months after its dismissal, arguing that a workers' compensation claim could not be dismissed for failure to prosecute until five years had elapsed under La.R.S. 23:1209(D). The workers' compensation judge agreed, ruling that La.R.S. 23:1209(D) superseded Hearing Rule 5705(4). Because five years had not elapsed between the 1992 dismissal and the filing of the motion to reinstate in 1995, the workers' compensation judge found that the claim had not been abandoned, despite the earlier "dismissal," and that the second petition of 1994 related back to the original petition of 1992.
On appeal, the fourth circuit did not reach the correctness of that ruling because the parties disputed whether the 1992 dismissal was based upon the failure to attend a pre-trial conference per Rule 5705(4) or upon prematurity, as the claimant was receiving some benefits when the claim was filed. After concluding that this factual dispute could be not resolved without a judgment of dismissal, written reasons, or a docket entry indicating the reason for the dismissal, the fourth circuit remanded the case to establish a complete record for appeal.
The parties in the present case agree that Mr. Bellard's claim was dismissed in May of 1998 for failure to attend a pre-trial conference, but we are unable to determine from the record whether that conference was "properly noticed," as required by Hearing Rule 5705(4). Additionally, the record does not contain the petition filed in 1997. Hence, we are unable to identify the original Defendant(s) or to determine whether the petitions naming the later-added Defendants "relate back" to the original filing under La.Code Civ.P. art. 1153, should that issue arise. Accordingly, we will remand the case for clarification of the record and for consideration of the concerns expressed herein and in Clark, 809 So.2d 514.
Decree
For the above reasons, the judgment maintaining the exceptions of prescription filed by Defendants, Mark Seale and Jennifer Seale, is reversed, and the case is remanded to the Office of Workers' Compensation for further proceedings consistent with this opinion. Costs of this appeal are assessed to Mark Seale and Jennifer Seale.
REVERSED AND REMANDED.
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