Appealing a Workers Comp Ruling

Appealing a District Court Judgment in Louisiana Workers Compensation

After the workers compensation Judge renders an order, decision, or award, either party may appeal to the proper circuit court of appeal for that judicial district.

The party wishing to appeal must file a motion for an order of appeal with the OWC district office (where the trial was held), which will then prepare the record for the appellate court.

Louisiana has five Circuit Courts of Appeal, and these courts have appellate jurisdiction over workers compensation claims, meaning that these Courts of Appeal can overturn that district’s workers compensation Judge.

Appeals from decisions of the Office of Workers Compensation Judges are filed in the Circuit Court of Appeal that has jurisdiction over the workers compensation district.

The Uniform Rules of the Courts of Appeal and the local rules for each Circuit Court of Appeal provide the rules for practicing before these courts.

A party must request oral argument before Louisiana’s Courts of Appeal, if it desires oral argument, because oral argument is no longer automatic. Generally speaking, appellants usually want oral argument, while appellees usually do not; but even if one party requests oral argument, both sides get the chance to argue. 

Expedited Workers Compensation Appeals

Last, a workers compensation insurance company who appeals a decision of a workers compensation Judge must secure a bond, and an order for physical therapy or a work hardening program shall not be suspended while an appeal is pending.

In fact, regardless of whether the judgment of the workers compensation Judge is in favor of the employer or the employee, when the Judge finds that further delay for surgery would, more likely than not, result in death, permanent disability, or irreparable injury to the employee, any appeal of the judgment shall be entitled to preference and priority and handled on an expedited basis.

Essentially, this means that the record shall be prepared and filed within 15 days of the granting of the order of appeal and the court of appeal shall hear the case within 30 days after the filing of the appellee’s brief.

Standards of Review for An Appeal in A Louisiana Workers Compensation

Appeals from judgments of the workers􏰋 compensation Judges are taken on the record – which means that no additional evidence may be submitted.

Also, appellate courts review OWCA decisions using a “manifest error – clearly wrong” standard of review.

In other words, the Courts of Appeal will only overturn the workers compensation district Judge if the findings are clearly wrong.

And that also means that when there is conflict in the testimony, the Courts of Appeal will not substitute its own evaluations or inferences if the trial court’s evaluations of credibility and inferences of fact are reasonable.

So that means that if two witnesses at trial are testifying to facts that are incompatible against each other, the Court of Appeal will not just decide that it would have believed the party which the workers compensation District Judge did not believe.

And it also means that if two experts witnesses at trial are testifying to different conclusions, the Court of Appeal will not just decide that it would have believed the expert witness that the workers compensation District Judge did not believe.

Therefore, questions of credibility and believability are left to the workers compensation district Judge, not the Court of Appeal.

Again, the Courts of Appeal will only overturn the workers compensation district Judge if the findings are clearly wrong, not when they would have made a different judgment call.

However, if when there are legal errors made by the workers compensation district Judge, then the Courts of Appeal are not bound by the “manifest error – clearly wrong” standard, and they will make their own independent review of the case from scratch and determine the outcome based on a preponderance of the evidence.

Time Limits for Filing an Appeal in A Louisiana Workers Compensation Claim

The time limits for filing an appeal in a Louisiana workers Compensation Claim are either 30 days or 60 days, depending on what type of appeal is filed.

There are two types of types of appeals in Louisiana – a suspensive appeal and a devolutive appeal.

The time limit for filing a suspensive appeal is 30 days, and the time limit for filing a devolutive appeal is 60 days.

Basically, a suspensive appeal is an appeal that seeks to suspend the judgment from being executed until after the appeal is complete. So in a suspensive appeal, the judgment does not need to be paid until after the appeal is complete.

And basically, a devolutive appeal is an appeal that allows the party who received the judgment to collect on the judgment while the appeal is occurring. So in a devolutive appeal, the judgment can be paid before the appeal is complete.

But, a suspensive appeal requires obtaining an appeal bond, while a devolutive appeal requires that the judgment be paid in full while the appeal is considered.

Also, the time limit for filing an appeal starts to run on the day after the judgment of the workers compensation district Judge was signed, or on the day after the district office has mailed the notice of judgment, whichever is later.

So, in other words, an appeal that seeks to suspend the judgment from being executed until after the appeal is complete must be filed within 30 days from the later of:

1. The day after the judgment was signed; and
2. The day after the notice of judgment is mailed.

Appeals to The Louisiana Supreme Court in Louisiana Workers Compensation

Appeals from the Circuit Courts of Appeal are heard by the Louisiana Supreme Court. 

However, parties do not have a right of appeal to the Louisiana Supreme Court; instead, a party seeking review by the Louisiana Supreme Court must file a Writ of Certiorari to the Louisiana Supreme Court, and the Louisiana Supreme Court may or may not hear or consider the appeal.

Louisiana Supreme Court Rules list the following considerations employed by the Louisiana Supreme Court in deciding whether or not to grant a writ application:

1. Whether the decision of a Court of Appeal conflicts with a decision of another Court of Appeal, the Louisiana Supreme Court, or the United States Supreme Court on the same legal issue;
2. Whether the Court of Appeal has decided a significant issue of law which has not been but should be resolved by the Louisiana Supreme Court;
3. Whether the controlling precedents relied upon below should be overruled or substantially modified;
4. Whether the Court of Appeal has erroneously interpreted or applied the Constitution or laws of Louisiana or the United States in a manner that will cause material injustice or significantly affect the public interest; and
5. Whether the Court of Appeal has so far departed from proper judicial proceedings or so abused its powers as to call for an exercise of the Louisiana Supreme Court􏰋’s supervisory authority.

All writ applications should address which of these factors are present because if none of these writ grant considerations are genuinely present in a case, the Louisiana Supreme Court will almost certainly decline to hear the case.

In fact, as a court of discretionary jurisdiction (meaning it does not have to hear a case), the Louisiana Supreme Court does not necessarily ensure that justice is served in every particular case, but instead focuses on settling the law and resolving 􏰐splits among the circuits.􏰑

So the Louisiana Supreme Court may either deny a writ application (which is usually what happens) or grant a writ application. Usually, the Louisiana Supreme Court will deny a writ application, which means that it will not hear the case.

But if the Louisiana Supreme Court grants a writ application, the court will usually set the case for further written and oral argument, and therefore will, in fact, hear the case and rule on it. And in some very rare cases, the Louisiana Supreme Court will grant the writ and, at the same time, issue a decision ruling on the case in its entirety.

Modification of Judgments in Louisiana Workers Compensation

Once an injured employee has exhausted all his or her appeals, a judgment that denies benefits to the employee is final and can not be pursued any further by the employee.

However, for any other type of workers compensation judgment, the workers compensation Judge has continuing jurisdiction, which means that the Judge can make modifications or changes to that judgment.

In order to have a judgment modified, an injured employee (or even the workers compensation insurance company) must motion the workers compensation court to have a contradictory hearing to decide on a modification, and such a hearing is required to modify a judgment.

Modifications or changes to judgments awarding benefits can occur whenever the Judge finds that those modifications or changes are justified and legal.

But typically, a Judgment will be modified based on a change of conditions or circumstances with the employee or the employee’s medical situation, and this modification will result in the increase, decrease, or termination of the benefits previously awarded.

Modifications versus Appeals

Though a modification action􏰑 is not an appeal and was never meant to be a substitute for an appeal, sometimes it can make more sense for an injured employee to attempt a modification of a judgment once there is a change in circumstances, rather than an appeal.

For example, if an injured employee’s condition worsens so that he or she is no longer able to perform work found at an initial trial to serve as the wage-earning capacity basis for an award of SEBs, this would be the type of scenario where a modification action would seem the better choice over appeal the trial judge’s verdict.

Typical changes in circumstances for modification actions include something that is subject to change or alteration over time, such as:

1. An increase or decrease in the disability of the injured employee as his or her medical condition deteriorates or improves;
2. An increase in skills and abilities to perform additional jobs through additional education or vocational training; and
3. An increase or decrease in suitable jobs available in the community.

Though a modification action􏰑 will have a delay for allowing for a change in circumstances, a modification action􏰑 may typically have a better chance of success than an appeal, and will usually be less expensive than an appeal.

When Does It Make Sense to File an Appeal in A Louisiana Workers Compensation Claim?

In deciding whether to take an appeal, the first thing an injured employee (or hopefully the employee’s attorney) should do is analyze why the employee lost the claim, which can usually be done by reviewing the written judgment, the written reasons for that judgment, and any transcript of the Judge’s oral reasons for the decision.

If the Judge does not issue written reasons or dictate oral reasons that are transcribed, the employee may request written reasons but must do so within ten days of the date of the signing of the judgment.

Typically, the employee should request written reasons when there are no transcribed oral reasons for judgment or when the Judge does not issue written reasons on his or her own because it is even more difficult to overturn a judgment without the Judge’s written reasons since it is much easier to attack the judgment if the appellant can point to a specific flaw or error in the reasoning actually used by the Judge.

Issues for Review, Standards of Review, and Possible Relief

After reviewing the written reasons for the judgment and assessing reasons for the loss, the injured employee (or, again, ideally the employee’s attorney) must determine the issues can be presented for appellate review (including the standards for appellate review on each such issue) and the relief that can be granted.

Basically, there are two types of issues that can be appealed:

1. Issues of Law (which is the application by the trial court of the correct law to the facts); and
2. Issues of Fact (which concern the actual facts of the case).

Issues of law are reviewed de novo, which means the Court of Appeal does not even consider the trial court’s judgment and considers the case “anew” or from scratch. So if the Court of Appeal finds that the trial court incorrectly interpreted or applied the law, the Court of Appeal must apply the correct legal standard and review the case from scratch in order to make factual findings under the correct legal standard.

But issues of fact are reviewed under the manifest error or clearly wrong standard of appellate review, which means that the Court of Appeal must not determine not whether the trial court was right or wrong, but whether the trial court’s conclusion was a reasonable one. So when there are two permissible views of the evidence, a trial court’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the trial court’s􏰠 findings are reasonable, the Court of Appeal may not reverse the trial court, even the Court of Appeal is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Issues of Law Are Easier to Win on Than Issues of Fact

An injured employee stands a far better chance of winning on appeal if the employee can show a legal error rather than implicitly acknowledging that the Judge understood the law but nonetheless got the facts wrong.

For example, an injured employee stands a far better chance of getting a reversal and a de novo examination by the Court of Appeal on an ability to return to work issue by arguing that failure to consider certain evidence is legal error than by arguing that the facts demonstrate that the claimant could not return to work and the Judge erred by finding to the contrary.

If the employee can convince the Court of Appeal that the trial Judge made a legal error (i.e., applied the wrong legal standard), then the Court of Appeal will make its own factual determination, and apply the correct law, on what the evidence shows without considering the trial court’s decision.

But, if the employee simply argues that the evidence shows that trial court erred in making its factual determination on return to work, then􏰝 the evidence is viewed through the lens of upholding the trial court􏰋s determination, and if there is a view of the evidence as whole that plausibly supports that decision, even if the Court of Appeal believes it would have decided the issue differently on that evidence.

Of course, this does means that an obvious factual error will not be overturned by the Court of Appeal.

For example, if the trial Judge concluded that no accident occurred and the evidence fully showed that an accident occurred, then the Court of Appeal will reverse the trial court if that factual conclusion is unsupportable on the record as a whole.

But factual determinations usually involve the weighing of evidence, the resolution of conflicts in the evidence, and the deciding of what is more likely, or who is more believable.

And the Court of Appeal simply will not overturn cases due to credibility determinations based on a trial court􏰋’s assessment of witness demeanor.

Odds of A Reversal and A Successful Outcome

In deciding whether to appeal, an injured employee (or hopefully the employee’s attorney) should assess the odds of a reversal and a favorable outcome on appeal under the standard of review that is likely going to be applied, and weigh that against the costs of appeal and the value of what can be gained if, in fact, the employee does win on appeal.

The employee should objectively evaluate the following:

1. The chances of a favorable outcome on appeal;
2. The value of that outcome;
3. The expenses that the employee will incur; and
4. The consequences of leaving the unfavorable ruling intact.

So an employee should consider the time and money he or she has already invested in the case, and whether an appeal would, in effect, be throwing good money after bad.

Other Options and Remedies

When deciding on whether to appeal, an injured employee (or hopefully the employee’s attorney) should see if there are any other options or remedies available.

For example, if a workers􏰋 compensation Judge found that there was no work-related injury or illness for which compensation can be obtained, then that ruling may allow for a claim for the employee under a benefits plan for non-occupational injuries or illnesses.

In fact, an employee can often recover more money under such 􏰐Short Term Disability􏰑 and 􏰐Long Term Disability􏰑 plans, which typically exclude injuries and illnesses covered by workers􏰋 compensation, than what the employee might recover through workers􏰋 compensation.

So, in some cases, pursuing benefits under such 􏰐Short Term Disability􏰑 and 􏰐Long Term Disability􏰑 plans may make more sense than appealing of the loss in a workers􏰋 compensation case.

The Louisiana Statutes for Appeals in Louisiana workers Compensation

The primary Louisiana statutes regarding appeals of district court judgments are La. R.S. 23:1310.5 and La. R.S. 23:1310.8, which read as follows:
§1310.5. Hearing and appellate procedures; reported opinions

A.(1) Insofar as may be possible, all the evidence pertaining to each case, except as to noncontested matters, shall be heard by the workers compensation judge initially assigned to the case. Upon the completion of such hearing or hearings, the workers compensation judge shall make such order, decision, or award as is proper, just, and equitable in the matter.

(2) Either party feeling aggrieved by such order, decision, or award shall, after receipt by certified mail of the order, decision, or award, have the right to take an appeal to the circuit court of appeal for the judicial district elected by the claimant upon the filing of the petition. The motion and order for appeal shall be filed with the district office assigned to handle the claim, which shall be responsible for preparation of the record for the appellate court.

B. The decision of the workers compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal. An appeal which suspends the effect or execution of an appealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution of an appealable judgment or order must be filed within sixty days. The delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter. The delay for filing an appeal when a motion for new trial has been filed shall be governed by the Louisiana Code of Civil Procedure.

C. When there has been an award of benefits by the workers compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the workers compensation judge as to the amount of the bond fixed in accordance with law.

D. When the only controverted issue in a death claim is the determination of proper beneficiaries entitled to receive death benefits, and the competing beneficiaries appeal the decision of the workers compensation judge, the employer or insurance carrier may pay the proceeds, as they accrue, to the assistant secretary. The assistant secretary shall hold the proceeds in trust in an interest-bearing account during the appellate period and shall distribute the proceeds and interest to the beneficiaries designated in final award or judgment. The employer or insurance carrier shall not be taxed interest or cost on the order of the death claim if payments have been made to the assistant secretary as they accrue.

E.(1) An order for physical therapy or a work hardening program shall not be suspended during the pendency of any appeal.

(2) Regardless of whether the judgment rendered by the workers compensation judge is in favor of the employer or the employee, when the workers compensation judge has made a specific finding that further delay for surgery would, more likely than not, result in death, permanent disability, or irreparable injury to the claimant, any appeal of the judgment shall be entitled to preference and priority and handled on an expedited basis. In such cases, the record shall be prepared and filed within fifteen days of the granting of the order of appeal. The court of appeal shall hear the case within thirty days after the filing of the appellee’s brief.

F. All workers compensation decisions of the circuit courts of appeal shall be published opinions. The published opinions in any reporter shall identify the office of workers compensation district from which the appeal was taken and the identity of the workers compensation judge who rendered the judgment or award that is the subject of appeal.

Acts 1988, No. 938, §2, eff. July 1, 1989; Acts 1989, No. 26, §1; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §9, eff. Jan. 1, 1990; Acts 1995, No. 246, §1, eff. June 14, 1995; Acts 1995, No. 348, §1, eff. June 16, 1995; Acts 1995, No. 396, §1; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2001, No. 361, §1; Acts 2001, No. 593, §1; Acts 2003, No. 485, §1; Acts 2003, No. 709, §1.

§1310.8. Jurisdiction continuing; determining as to final settlement

A.(1) The power and jurisdiction of the workers compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Workers Compensation Act, a workers compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers compensation cases.

(2) The workers compensation judge may have a full hearing on the petition, and take testimony of physicians and others relating to the permanency or probable permanency of the injury, and take such other testimony relevant to the subject matter of such petition as the workers compensation judge may require. The workers compensation judge may consider such petition and dismiss the same without a hearing if in his judgment the same shall not be set for a hearing.

(3) The expenses of such hearing or investigation, including necessary medical examinations, shall be paid by the employer or insurance carrier, and such expenses may be included in the final award. If the workers compensation judge decides it is in the best interest of both parties to said petition that a final award be made, a decision shall be rendered accordingly and the workers compensation judge may make an award that shall be final as to the rights of all parties to said petition and thereafter the workers compensation judge shall have no jurisdiction over any claim for the injury or any results arising from same. If the workers compensation judge should decide the case should not be finally settled at the time of the hearing, the petition shall be dismissed without prejudice to either party, and the workers compensation judge shall have the same jurisdiction over the matter as if said petition had not been filed.

B. Upon the motion of any party in interest, on the ground of a change in conditions, the workers compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers Compensation Act, and shall state his conclusions of fact and rulings of law, and the assistant secretary shall immediately send to the parties a copy of the award.

C. This Section shall not apply to the calculation of the monthly benefit amount pursuant to R.S. 23:1221(3).

D. A petition to modify a judgment awarding benefits shall be subject to the prescriptive limitations established in R.S. 23:1209.

E. A judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal.

F. An award of temporary total disability benefits may be modified by the filing of a motion for modification with the same court that awarded the benefits and under the same caption and docket number without the necessity of filing a new dispute and appearing at a mediation conference. The court shall expedite the hearing on the modification proceedings in accordance with the procedure established in R.S. 23:1124(B).

Acts 1988, No. 938, §2, eff. July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §9, eff. Jan. 1, 1990; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 1999, No. 323, §1; Acts 2001, No. 1189, §1, eff. June 29, 2001; Acts 2013, No. 337, §1.