
    Diane Alice BURAS v. SCHWEGMANN GIANT SUPERMARKETS, INC.
    No. 88-CA-1833.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 1989.
    Writ Denied April 7, 1989.
    Fernand L. Laudumiey, III, Howard, Laudumiey and Mann, New Orleans, for appellee.
    Richard S. Vale, Blue, Williams & Buckley, Metairie, for appellant.
    Before GARRISON and CIACCIO, JJ., and PRESTON H. HUFFT, J. Pro Tern.
   GARRISON, Judge.

This appeal arises from the granting of a motion for summary judgment in favor of the plaintiff-appellee, Diane Alice Buras, against the defendant-appellant, Schweg-mann Giant Supermarkets, Inc. for workers compensation benefits and related medical expenses.

The appellee allegedly injured her neck and shoulders on September 15, 1987 while lifting boxes as an employee of the appellant. She requested compensation benefits from her employer. These benefits were denied by her employer where by she submitted a claim to the Louisiana Office of Workers’ Compensation (OWC) which issued a recommendation favorable to the appellee on the 11th of December, 1987. Neither party rejected this recommendation and the OWC issued a certificate on January 26, 1988 stating that both parties were presumed to have accepted the recommendation. The appellant however, did not pay the stipulated compensation and the appel-lee brought this action. Subsequently, she filed and was granted a motion for summary judgment.

Schwegmann Giant Supermarkets has appealed that decision contending that the trial court erred in concluding that an employer must seek a new recommendation from the OWC before terminating benefits when the employer has a reasonable belief that the employee is no longer eligible for benefits and, in determining that the amount, duration, and cause of plaintiff’s disability were not material facts in dispute.

The OWC recommendation stated as follows:

“It is the recommendation of this Office that temporary total benefits be paid to Diane Alice Buras from October 2, 1987 until she is physically able to return to any self-employment or gainful occupation for wages.”

According to the Worker’s Compensation Act, a party has 30 days to reject the OWC recommendation. Schwegmann did not reject OWC’s recommendation and it did not pay the appellee. It reasoned that based on appellee’s physician’s report on her wellness and ability to work, combined with its offer of a job within her own doctor’s guidelines, no payment was due under the wording of the above recommendation.

The appellee cited R.S. 23:1331 which states that a failure to reject a recommendation requires a party to abide by the recommendation for at least 6 months. The trial court found no issue as to material fact and granted summary judgment, reasoning that OWC had made a recommendation for appellant to pay the appellee a certain sum, and the appellant in effect had agreed. We concur with this finding which takes the stance that the appellant did not adhere to the language of the agreement, or LSA-R.S. 23:1331. It is apparent that the appellant failed to follow the OWC’s recommendation. The trial court was correct in granting the appellee’s motion for summary judgment.

AFFIRMED.

CIACCIO, Judge,

concurring.

La.R.S.Ann. Sec. 23:1331(C) (West 1985) permits a party who has accepted the recommendation of the Office of Workers’ Compensation (OWC), either expressly or tacitly, to cause a review of that recommendation by the Director of the OWC at any time after six months from the date of such acceptance, by submitting an application for modification of the initial OWC recommendation. See also 14 W. Malone and H. Johnson, Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice Section 381.5 (Supp.1987); Johnson, Bound in Shallows and Miseries: The 1983 Amendments to the Workers’ Compensation Statute, 44 La.L.Rev. 669 (1984). Within thirty days of receipt of the application by the OWC, the agency is required by La.R.S.Ann. Section 23:1310.1 (West Supp.1987) to issue a recommendation. Each party is allowed thirty days from the date of receipt of the recommendation to notify OWC of its acceptance or rejection of the recommendation. Failure to notify OWC of acceptance or rejection gives rise to a conclusive presumption of acceptance of the recommendation and this again bars further action on the claim for a period of six months. La.R.S.Ann. Section 23:1310.1 (West Supp.1987); 1311 (West 1985). See Disotell v. Wadsworth Golf Const. Co., 500 So.2d 371 (La.1987).

Brock v. Schwegmann Giant Supermarkets, 520 So.2d 711, 713 (La.1988)

... tacit acceptance prevents] any further action by either party for a period of six months from the date of the presumed acceptance.

Brock, at 714.

La.R.S. Section 23:1331 merely provides that a six month delay is necessary after the parties have accepted an initial recommendation of the Director before either party will be allowed to present their claim to the agency for a modification of the initial recommendation.

Brock, at 715.

By failing to reject the recommendation of the OWC, appellant bound itself to abide by the recommendation for at least six months. Six months after acceptance of the recommendation appellant could present a claim to the agency for a modification of the recommendation. The use in the recommendation of language providing for an indefinite duration of benefits did not allow appellant to unilaterally interpret the duration of benefits; appellant must pay benefits as recommended until a modified recommendation provides for termination of benefits or until a judicial decision terminates benefits after either of the parties rejects a recommendation and pursues relief in court. Any other procedure makes meaningless the administrative, informal dispute resolution scheme established by the Legislature for resolving disputes concerning claims for worker’s compensation. The system will not work if an accepted recommendation which says that benefits are due can be interpreted unilaterally by the employer to mean that benefits need not be paid, requiring the employee to go to court to enforce the recommendation.

In the current procedural posture, this case contains no unresolved, material issues of fact, and plaintiff is entitled to judgment as a matter of law. Appellant must pay benefits under the recommendation it accepted until that recommendation is properly modified, administratively or judicially, and benefits are terminated. The district court properly granted summary judgment against appellant.  