Louisiana Record

Wednesday, October 23, 2019

OWC ruling on worker's claim against Dover Construction upheld in part

By Sandra Lane | May 1, 2018

BATON ROUGE — The Louisiana 1st Circuit Court of Appeal on April 11 upheld in part a default judgment issued by the Office of Workers' Compensation in favor of a man who said he sustained severe injuries while working on a roofing project for Dover Construction USA. 

Noberto Zavala claimed that Dover Construction owner, Hadir Naoum, had refused to assume any liability for the incident. 

In addition to upholding OWC’s approval of Zavala's workers' compensation claim, Judge Mitchell R. Theriot, who wrote the opinion with Judges Page McLendon and Jewel E. Welch concurring, affirmed OWC’s denial of a motion for a new trial filed by Naoum. However, Theriot vacated and remanded the issue of whether Dover and Naoum should have been allowed a hearing on whether a default judgment against them should have been nullified. He wrote that “dismissal of the nullity action without a hearing is without authority under the law.” 

This issue was over the spelling of defendant’s name. The owner of Dover Construction said he was never served with the amended complaint, which stated his name as "Nadir Haoum," not "Hadir Naoum."  He claimed that for this reason, he was never named or served as a defendant.

The basis for the workers' compensation claim, according to the appeals court ruling, was an injury Zavala said occurred Feb. 14, 2014. Zavala said that he was sanding the roof of a home in Metairie while standing on stilts. He fell and injured his lower back, hips and buttocks, according to the ruling. He said that he had reported this accident to the owner of Dover, but Naoum refused to approve of any disability or medical treatment.

Although notice of the disability claim was served to Naoum, he made no reply. On April 27, 2015, Zavala filed a motion for preliminary default since neither Dover Construction nor Naoum had filed an answer, according to the ruling. OWC granted the motion.  

After Zavala testified before the OWC about the injury, it rendered judgment against Naoum for the total amount of benefits, penalties, attorney fees and court costs and sent a certified notice of that action to him on Aug. 19, 2016.

Dover and Naoum made their first appearance on Aug. 25, 2016, by filing a motion and order to enroll as counsel of record. Five days later, Naoum filed a motion to nullify the judgment and moved for a new trial. Naoum claimed that Zavala was never one of his employees nor were the co-workers who testified for Zavala at the OWC hearing. He also said that he never saw the amended complaint naming him as a defendant until he received the notice of judgment.

In his ruling, Theriot said, “The only issues before us are whether Mr. Zavala made a prima facie case in his prayer for a default judgment, whether Mr. Naoum's motion for a new trial was properly denied, and whether the default judgment contains any vices of  form.”

Requirements for presenting a prima facie case were discussed. 

“When reviewing a default judgment, the court of appeal is restricted to determining whether the record contains sufficient evidence to prove a prima facie case,” Theriot wrote. “Mr.  Zavala further presented medical records and medical bills to corroborate his witnesses' testimony. We find the evidence established a prima facie case proving that Mr. Zavala was injured during the scope of his employment with Mr. Naoum, as the final judgment reflects.”  

The judge affirmed the trial court’s denial of a new trial as requested by Dover and Naoum.  

“In reviewing a decision of the trial court on a petition for nullity, the issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court's conclusions were reasonable.”  

He said OWC did not abuse its discretion when it denied Naoum's motion for a new trial, and record did not reveal any good grounds for granting a new trial. 

Theriot remanded the issue of allowing Dover and Naoum a hearing on whether a default judgment should have been nullified. “The order to deny the motion to nullify the judgment filed by Hadir Naoum is vacated and remanded for further proceedings in conformity with this opinion," Theriot wrote.

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