In Olivier v. Olivier Builders, claimant, a self-employed carpenter, suffered a back injury while unloading a saw from his truck.  Following a dispute between claimant and his workers’ compensation insurer, LUBA Workers’ Compensation (“LUBA”), with respect to claimant’s entitlement to benefits, a hearing was held and claimant was awarded compensation benefits.  LUBA filed a motion to modify claimant’s benefits, asserting that he was no longer temporary and totally disabled because he was capable of light duty work.  Claimant objected arguing that LUBA could not meet its burden of demonstrating a change in circumstances and that the evidence presented by LUBA was no different than what was considered at the first hearing.  The workers’ compensation judge found that there was a change in circumstances, that claimant was able to return to work with restrictions, and ordered that any supplemental earnings benefits (“SEB”) he may be entitled to would be based on a zero earning capacity.  Claimant appealed, filing an exception of res judicata and arguing that LUBA had not met its burden of proof with regards to a change in circumstances.  The Third Circuit denied claimant’s exception, holding that workers’ compensation cases are not treated the same as judgments in other cases.  Specifically, a workers’ compensation judge retains jurisdiction over each case and has the authority to make modifications or changes to prior judgments as may be justified.  LUBA’s motion to modify was not precluded by res judicata as the Louisiana Workers’ Compensation Act contemplates the situation of a change in a claimant’s disability.  Additionally, the court affirmed the workers’ compensation judgment finding that claimant had been examined by multiple doctors and had testified regarding potentially strenuous physical activity he had engaged in since the first trial.

Olivier v. Olivier Builders