WINKLER v. WADLEIGH OFFSHORE INC (2001)

This is an appeal by the employer-defendant in a worker's compensation case.   The claimant made a number of claims including a claim for temporary total disability benefits.   As part of the October 8, 1999 judgment appealed from, the Worker's Compensation Judge held “that the medical records dated July 13, 1998 established that the claimant was disabled, but the evidence did not show the duration of the disability” and “an evidentiary hearing will be conducted to determine the duration of the disability.”   Thus, it is clear that the appealed from October 8, 1999 judgment does not completely adjudicate the claim for temporary total disability benefits (i.e. It did not adjudicate duration/quantum) and so the judgment “adjudicates fewer than all claims” and, thus, “shall not constitute a final judgment for the purpose of an immediate appeal.”  La.Code Civ. Proc. art. 1915(B)(2).   Thus, we are required to dismiss the appeal.  City of New Orleans v. Howenstine, 98-2157 (La.App. 4 Cir. 5/5/99), 737 So.2d 197;  Narcise v. Jo Ellen Smith Hosp., 98-0918, 98-2417 (La.App. 4 Cir. 3/10/99), 729 So.2d 748, writ denied, 99-0953 (La.5/28/99), 743 So.2d 679;  Deal v. Housing Authority of New Orleans, 98-1530 (La.App. 4 Cir. 2/17/99), 735 So.2d 685, writ denied, 99-0728  La.6/18/99), 745 So.2d 21;  Jackson v. America's Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060.

For the foregoing reasons, this appeal is dismissed without prejudice.   The Notice of Judgment dated October 8, 1999 is vacated.   The issues which the appellant sought to raise in this suspensive appeal may be raised in a suspensive appeal from a final, appealable judgment.

DISMISSED WITHOUT PREJUDICE.

While I agree with the majority's determination that this appeal must be dismissed as premature, I would rely upon the decision in Smith v. UNR Home Products, 614 So.2d 54 (La.1993), rather than upon Civil Procedure article 1915.   As the Supreme Court noted in UNR Home Products:

LSA-R.S. 23:1310.5 contemplates an appeal from a final decision by the hearing officer upon completion of the required evidentiary hearing or hearings.   Piecemeal appeals go counter to the new worker's compensation procedures which are designed to allow the hearing officer to “decide the merits of the controversy as equitably, summarily and simply as may be.”   LSA-R.S. 23:1317(A).

Id. at 54-55.   See also Volion v. Baker Heritage, Inc., 97-92 (La.App. 5th Cir.5/28/97), 695 So.2d 1038 (workers' compensation judgment that fails to determine extent of disability or amount of benefits due is not appealable).

 ARMSTRONG, Judge.

MURRAY, J., concurs with reasons.