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In re Burns5/11/2005
Before BROWN, PEATROSS & DREW, JJ.
Terry Burns ("Ms. Burns") filed a wrongful death suit on December 4, 2000, on behalf of her husband, who died in a work-related accident in June 2000. Apache Corporation, her husband's employer, and United States Fire Insurance Company (collectively, "Apache") its workers compensation carrier, intervened in the case, seeking reimbursement for workers' compensation payments made. The case was tried on October 8, 2002 in the U.S. District Court, Western District of Louisiana, and Ms. Burns was awarded $47,868.12 in damages.
After judgment was rendered, Ms. Burns filed a Notice of Application to Tax Costs and Memorandum in support thereof, asserting $7,700.48 in court costs. The issue was later settled for $2,000 and Ms. Burns paid $5,700.48 in costs (the difference between the actual costs and the settlement amount). Following payment of the judgment, Apache suspended workers' compensation benefits being paid to Ms. Burns after calculating future credit against such payments, due to her tort recovery, as provided in La. R.S. 23:1102. In doing so, Apache deducted Ms. Burns' attorney fees ($14,360.44) and court costs paid ($5,700.48) from her total recovery, leaving her with a credit against future benefits of $27,807.20.
Ms. Burns appealed the workers' compensation judge's ("WCJ") ruling on November 27, 2002, arguing that her expenses and expert witness fees should have also been deducted. See Burns v. Apache Corp., 37,396 (La. App. 2d Cir. 8/20/03), 853 So. 2d 708, writ denied, 03-2928 (La. 1/9/04), 862 So. 2d 990. On appeal, this court reversed and remanded to the trial court for "a determination under Allen v. Roadway Exp., Inc., 31,628 (La. App. 2d Cir. 2/24/99), 728 So. 2d 1015, of the appropriate amount of expert witness fees to be offset against the employer credit."
On June 10, 2003, Ms. Burns filed a disputed claim for reinstatement of workers' compensation death benefits with the Office of Workers' Compensation ("OWC"). The WCJ issued a written judgment ordering that Apache was entitled to a credit against future workers' compensation benefits.
On remand, the WCJ found that the "amount of expert witness fees and expenses had previously been stipulated." The WCJ further stated that the amount previously stipulated ($35,043.37) was to be used in the calculation of employer credit due. From this ruling, Apache filed a suspensive appeal. For the reasons set forth herein, we affirm.
DISCUSSION
We will address Apache's second assignment of error first in this opinion.
Assignment of Error Number Two (verbatim): The trial court erred in denying defendants Exception of Subject Matter Jurisdiction and should be reversed.
Apache argues that the WCJ erred in denying its Exception of Lack of Subject Matter Jurisdiction it filed with the OWC on October 23, 2003.
Ms. Burns responds, asserting that a plain reading of the jurisprudence cited by Apache "makes it clear that the arguments set forth by Appellants do not apply in this case."
Apache contends that this case is more proper before a district court judge. It points to La. R.S. 23:1310.3(e), which states:
Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the workers' compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers' compensation insurance coverage disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or w
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