
    Kenneth LeBAS, Plaintiff-Appellant, v. UNION TANK COMPANY, Defendant-Appellee.
    No. 99-679.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 1999.
    Jonathan C. Vidrine, Ville Platte, Louisiana, for Kenneth LeBas.
    Stephen H. Vogt, Baton Rouge, Louisiana, for Union Tank Co.
    Before YELVERTON, SAUNDERS, and GREMILLION, Judges.
   | .GREMILLION, Judge.

The issue on appeal is whether the workers’ compensation judge correctly denied the Motion for Reconsideration and Modification filed by the plaintiff, Kenneth LeBas. The workers’ compensation judge held that LeBas could not seek modification of a judgment denying benefits when La.R.S. 23:1310.8(B) requires a prior award of benefits. We agree with this finding and affirm.

FACTS

LeBas was employed by Union Tank Company in September 1993, when he suffered an injury during the course and scope of his employment. After seeking medical treatment, LeBas was hospitalized and subsequently declared unable to work for several months. Despite this declaration, he returned to light-duty work and was involved in another work-related accident on February 22, 1994. Dr. Douglas 1 aMcKay, an orthopedic surgeon, performed a percutaneous disectomy on Le-Bas afer an MRI revealed a herniated disc and several bulging discs. LeBas returned to light-duty and sedentary work in November 1994, as a flagman/crossing guard. He reinjured his back while performing these duties on December 2, 1994. Dr. McKay instructed him to discontinue working.

On January 22,1996, the Office of Workers’ Compensation denied LeBas’ request for disability benefits. He appealed to this court and we affirmed the workers’ compensation judge’s judgment in an unpublished opinion. Lebas v. Union Tank Car Company, 96-631 (La.App. 3 Cir. 11/6/96); 681 So.2d 1320.

Asserting that his condition had deteriorated to the point of disability, LeBas filed a new claim for workers’ compensation benefits based on his December 1994 rein-jury. On September 4, 1997, the workers’ compensation judge dismissed LeBas’ claim and maintained Union Tank’s exception of res judicata, however, she reserved his right, if any, to file a motion for modification of the 1996 judgment in accordance with La.R.S. 23:1310.8(B). In October 1997, LeBas filed a Motion for Reconsideration and Modification of Judgment seeking modification of the 1996 judgment. The workers’ compensation judge dismissed this claim stating that “claimants cannot seek modifications of adverse judgments denying benefits, since the statute clearly requires a prior award of compensation.” LeBas appeals this ruling.

ISSUE

On appeal, LeBas argues that the workers’ compensation judge erred in denying his Motion for Reconsideration and Modification of Judgment based on res _yudicata, prescription, and La.R.S. 23:1310.8.

MODIFICATION OF PRIOR JUDGMENT

La.R.S. 23:1310.8(B) provides:

Upon the application of any party in interest, on the ground of a change in conditions, the hearing officer 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 director shall immediately send to the parties a copy of the award.

LeBas claims that the workers’ compensation judge has the power to modify and/or revise her prior judgment because Union Tank voluntarily paid compensation benefits to him prior to terminating them. He argues that Union Tank is relying on cases where no benefits were paid to the claimant prior to a hearing and then benefits were denied at the hearing because disability was denied and/or the occurrence of a work-related accident was not proven.

However, in the consolidated cases of Matthews v. Farley Industries, Inc. and Martin v. Texaco, Inc., 95-1387, 95-1796 (La.2/28/96); 668 So.2d 1144, cited by Union Tank, both claimants were voluntarily paid compensation benefits, their benefits were terminated by their employers, resulting in subsequent suits for compensation. In both cases, the claimants were denied benefits and later filed motions alleging a change in circumstances and seeking a modification of their prior adverse judgments.

In finding that the workers’ compensation judge lacked jurisdiction to modify the previous adverse judgments, the supreme court stated, “Under Section B, the hearing officer may review any award and end, diminish or increase the |ficompensation previously awarded. The language clearly requires a prior award of compensation.” Id. at p. 5; 668 So.2d 1146. Further, in Jackson v. Iberia Parish Government, 98-1810, p. 4 (La.4/16/99); 732 So.2d 517, 521, the supreme court reiterated its prior holding by stating, “Matthews determined that the word ‘award’ found in Section 1310.8(B) contemplates that the plaintiff has received a judgment awarding compensation.”

In the September 1997 judgment, the workers’ compensation judge dismissed LeBas’ suit with prejudice, reserving to him “his rights, if any, to file a'motion for modification of the said prior judgment under the terms of La.R.S. 23:1310.8(B).” The “said prior judgment,” the January 22, 1996 judgment, held that LeBas failed to prove that, solely as a result of substantial pain, he was unable to perform light duty positions offered to him by Union Tank and granted judgment in its favor. Since La.R.S. 23:1310(B) requires a prior award of compensation before a judgment may be modified, the 1997 judgment basically reserved nothing to LeBas. Accordingly, we affirm the judgment of the workers’ compensation judge granting Union Tank’s exception of res judicata. Our holding renders moot the question of prescription, thus, we need not address that issue.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Kenneth LeBas.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

ItSAUNDERS, Judge,

dissenting.

The first assignment of error is that the workers’ compensation judge was manifestly erroneous in denying Claimant’s claim based on an exception of res judica-ta. La.R.S. 23:1310.8(B) states:

B. Upon the application of any party in interest, on the ground of a change in conditions, the hearing officer 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 director shall immediately send to the parties a copy of the award.

(Emphasis added).

The workers’ compensation judge based her ruling on the holding in Matthews v. Farley Industries, Inc., 95-1387, 95-1796 (La.2/28/96); 668 So.2d 1144. In Matthews, the supreme court resolved a conflict between the First and Third Circuits. See Matthews v. Farley Indus., 95-49 (La. App. 3 Cir. 5/3/95); 657 So.2d 191 and Martin v. Texaco Inc., 94-2412 (La.App. 1 Cir. 5/5/95); 655 So.2d 549. The supreme court held that a workers’ compensation judgment is not subject to reconsideration Lor modification if there was no previous award. The supreme court in Matthews focused on the language of the statute which refers to “an award.”

The case sub judice is distinguishable from both Matthews and Martin where formal decrees denied both medical and indemnity benefits. However, in the case before us, the workers’ compensation judge’s September 4, 1997 judgment states:

Wherefore, it is ordered, adjudged and decreed that Plaintiffs suit, as captioned above, be and the same hereby dismissed with prejudice, and at his cost, reserving unto Plaintiff his right, if any to file a motion for modification of the said prior judgment under the terms of La.R.S. 23:1310.8(b).

(Emphasis added).

In Matthews, the supreme court emphasizes that La.R.S. 23:1310.8(B) requires a prior award. However, the supreme court and La.R.S. 23:1201 fail to define the term “award.” La.Civ.Code art. 11, in pertinent part, states that “[t]he words of a law must be given their general and prevailing meaning.” According to WebsteR’s ThiRD International Dictionary, 152 (3d ed.1993), an award is a “judgment, sentence, or final decision.” Similarly, Black’s Law Dictionary, 125 (5th ed.1979), defines an award as “the decision or determination rendered by arbitrators or commissioners, or other private or extrajudicial deciders upon a controversy submitted to them.... ” The general and prevailing meaning of the term “award” is a judgment and/or decision. However, in Matthews, the supreme court construed this term to include the giving of “something.” Thus, an award could be a judgment/decision giving indemnity benefits, medical benefits, or, as in this case, a reservation of rights. Considering the general and prevailing meaning of “award,” I would hold that the term “award” is inclusive of a reservation of rights.

Since a reservation of rights is an award, this case is clearly distinguishable from Matthews. In the instant case, Union does not dispute the fact that Claimant was injured during the course and scope of employment. Moreover, Claimant’s injury has 13required continual medical care from the date of the accident until the present. The workers’ compensation judge recognized these continuing medical needs and the possibility that Claimant’s condition could deteriorate. Thus, she awarded Claimant the right to modify the September 4 judgment. Therefore, I would hold that Claimant received an award and is entitled to a modification hearing. See La.R.S. 23:1310.8(B) and Matthews, 657 So.2d 191.

The supreme court, in Matthews, failed to set forth the policy behind the harsh and narrow interpretation of La.R.S. 23:1310.8(B). Presumably, the interpretation is to preclude subsequent suits on the same issue. Under the new res judicata statute, La.R.S. 13:4231, the second action is barred if it arises out of the same transaction or occurrence that was the subject matter of the litigation. However, La.R.S. 13:4232(3) states that a judgment does not bar another action by the plaintiff when the judgment reserved the right of the plaintiff to bring a separate action. Several workers’ compensation cases have exemplified this rule. Prudhomme v. Iberville Insulations, 93-778 (La.App. 3 Cir. 3/2/94); 633 So.2d 380; Howard v. Trebles, 95-0227 (La.App. 1 Cir. 2/23/96); 669 So.2d 605; writ denied, 96-0712 (La.5/3/96); 672 So.2d 690, Thibodeaux v. Aetna Cas. and Sur. Co., 454 So.2d 1141 (La.App. 1 Cir. 1984). For example, in Howard, 669 So.2d at 608, the First Circuit states:

We agree that a dismissal with prejudice has the effect of a final judgment of absolute dismissal after trial; however, we recognize that this general rule has an exception. When plaintiffs right to pursue other claims arising out of the same cause of action is reserved in the transaction or judgment, then the judgment is not final as to the reserved claims.

(Citations omitted; Emphasis added.)

This court recognizes the purpose of the res judicata doctrine. However, in the instant case, the issue of Claimant’s disability was not final. In the September 4, 1997 judgment, the workers’ compensation judge reserved to Claimant the right to Rmodify pursuant to La.R.S. 23:1310.8. Additionally, Claimant’s medical benefits were not terminated and Union was aware of Claimant’s continuing medical needs. The combination of these facts placed Union on notice that the issue of Claimant’s disability was not settled.

The majority does not reach the issue prescription. I would and would find that the workers’ compensation judge was manifestly erroneous in sustaining Union’s exception of prescription. Union asserts that even if Claimant had a right to modification and/or reconsideration, his claim has prescribed in accordance with La.R.S. 23:1209. This court has been consistent in holding that La.R.S. 23:1209 is not applicable if an employee files a claim to modify a previous judgment or if the workers’ compensation judge intended to leave the record open for additional evidence. Montgomery v. Lafayette Parish Sch. Bd., 95-1613 (La.App. 3 Cir. 7/3/96); 677 So.2d 162, writ denied, 96-2035 (La.11/8/96); 683 So.2d 274; Townsend v. PPG Indus. Inc., 628 So.2d 1204 (La.App. 3 Cir.1993), writ denied, 94-0052 (La.3/18/94); 634 So.2d 852.

In Townsend, the employee filed suit to modify a judgment awarding him permanent partial disability benefits, alleging he was totally disabled. Relying upon La. R.S. 23:1209, the workers’ compensation judge sustained the employer’s exception of prescription. This court reversed and stated:

Therefore, confronted here not with a claimant who initiates his claim for permanent total disability anew but with one who seeks a change in status, the lower court erred in its application of LSA-R.S. 23:1209 instead of LSA-R.S. 23:1331, which enables either party to apply for modification (in this case, a change in status) any time the claimants incapacity increases or decreases after rendition of judgment.

Id. at 1206 (Citations omitted).

| ¡¡Considering Montgomery and Townsend, I feel that the workers’ compensation judge in the instant case erred because La.R.S. 23:1310.8, not La.R.S. 23:1209, governs Claimant’s modification. Thus, Claimant’s right to modify has not prescribed.

For the reasons set forth, I respectfully dissent. I would reverse the workers’ compensation judge’s judgment maintaining the exceptions of res judicata and prescription and would remand this case to determine the issue of disability. 
      
      . La.R.S. 23:1331 has been changed to La. os. 23:1310.8.
     