Brett Owen Bourque v. Transit Mix Concrete & Materials Co.

• Court: Louisiana Court of Appeal
• Decided: May 7, 2014
• Docket: WCA-0013-1390
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-1390

BRETT OWEN BOURQUE

VERSUS

TRANSIT MIX/TRINITY IND.

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APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION – DISTRICT 4 PARISH OF LAFAYETTE, NO. 12-06201 ADAM JOHNSON, WORKERS’ COMPENSATION JUDGE

JIMMIE C. PETERS JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell, Judges.

REVERSED AND REMANDED.

Karl W. Bengtson Bengtson Law Firm, LLC P.O. Drawer 51147-1147 Lafayette, LA 70505-1147 (337) 291-9119 COUNSEL FOR PLAINTIFF/APPELLANT: Brett Owen Bourque

Stephen E. Broyles Glusman, Broyles & Glusman P.O. Box 2711 Baton Rouge, LA 70821 (225) 387-5551 COUNSEL FOR DEFENDANT/APPELLEE: Transit Mix Concrete & Materials Company PETERS, J.

The plaintiff, Brett Owen Bourque, appeals from a judgment by the workers’

compensation judge (WCJ) granting a partial summary judgment in favor of the

defendant, Transit Mix Concrete & Materials, Company (Transit Mix), limiting its

liability for medical treatment received by Mr. Bourque to $750.00. For the

following reasons, we reverse and remand for further proceedings.

DISCUSSION OF THE RECORD

Mr. Bourque suffered a work-related injury to his back on February 3, 1998,

while employed as a truck driver by Transit Mix, a Lafayette, Louisiana business.

This appeal stems from a September 11, 2012 disputed claim filed by Mr. Bourque

based on Transit Mix’s failure to authorize medical treatment recommended by Dr.

Arnold Feldman, a Baton Rouge, Louisiana pain management physician, and its

refusal to reimburse him after the procedure was performed.1

Transit Mix, after answering the petition, moved for a partial summary

judgment, seeking to limit its liability for the $10,786.12 procedure performed by

Dr. Feldman to $750.00 pursuant to La.R.S. 23:1142(B). Following a hearing on

the motion, the WCJ took the matter under advisement. On April 22, 2013, the

WCJ, in oral reasons, granted the partial motion for summary judgment in favor of

Transit Mix, limiting its liability for the nerve procedure to $750.00.

Mr. Bourque perfected this appeal from the WCJ’s judgment, raising two

assignments of error:

1. The Trial Court erred in failing to approve the full reimbursement of medical expenses despite claimant’s request for review of “already performed” treatment pursuant [to] RS 1 In his disputed claim, Mr. Bourque further alleged that Transit Mix failed to timely authorize medication, failed to pay medical-related mileage, and interfered with his medical treatment in order to force him to settle his claims under adverse terms. However, these claims are not before us on appeal. 23:1291 (B)(10) and the director’s failure to consider the request.

2. The Trial Court erred in failing to require defendant to sustain its motion for summary judgment by establishing that there was no factual issue that it had complied with RS 23:1203 E and with LAC 40 § 2751 E-1.

OPINION

Louisiana Code of Civil Procedure Article 966, which governs summary

judgment proceedings, has been significantly amended in both the 2012 and 2013

legislative sessions. While the procedure is still favored, and while the goal set

forth in La.Code Civ.P. art. 966(A)(2) remains the “just, speedy, and inexpensive

determination of every action except those disallowed by Article 969[,]” the

requirements of proof have significantly changed. Prior to August 1, 2012, the

evidentiary burden in summary judgment matters was set forth in La.Code Civ.P.

art. 966(B) (emphasis added), as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

However, by 2012 La. Acts No. 257, § 1, the Louisiana Legislature

significantly changed La.Code Civ.P. art. 966, and one of those changes included

amending and restructuring La.Code Civ.P. art. 966(B).2 The language cited above

was moved to a new subparagraph designated as La.Code Civ.P. art. 966(B)(2), but

without the words “on file.” To emphasize the significance of the deletion of these

two words, the legislature added a subparagraph designated as La.Code Civ.P. art.

2 We note that the Louisiana Legislature’s amendment to La.Code Civ.P. art. 966 by 2013 La. Acts No. 391, § 1, again affected the burden of proof elements of the Article. However, the 2012 version of La.Code Civ.P. art. 966 was in effect from August 1, 2012 through July 31, 2013; thus, it governs the summary judgment hearing in April of 2013.

2 966(E)(2) (emphasis added), which provided that “[o]nly evidence admitted for

purposes of the motion for summary judgment shall be considered by the court in

its ruling on the motion.” Still, the 2012 amendment did not change the burden of

proof applicable to a motion for summary judgment.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material of fact.

La.Code Civ.P. art. 966(C)(2).

It is well-settled that “[a]ppellate review of the granting of a motion for

summary judgment is de novo, using the identical criteria that govern the trial

court’s consideration of whether summary judgment is appropriate.” Smitko v.

Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

Without addressing the merits of Mr. Bourque’s appeal, we note that Transit

Mix introduced no evidence into the record at the April 11, 2013 hearing on the

motion. Although counsel for Transit Mix indicated that it was introducing and

filing into evidence the exhibits attached to its motion for partial summary

judgment and the April 11, 2013 court minutes indicated that Transit Mix’s

counsel offered the exhibits into evidence, the WCJ never actually admitted the

seven exhibits into evidence.

Although the technical rules of evidence and procedure are relaxed in

workers’ compensation hearings, an appellate court is bound by the record before it

on appeal. Williams Law Firm v. Bd. of Supervisors of La. State Univ., 03-79

3 (La.App. 1 Cir. 4/2/04), 878 So.2d 557. Pursuant to La.Code Civ.P. art. 966, as

amended in 2013, we can only consider that evidence which is offered, introduced,

and admitted into the record for the express purpose of the summary-judgment

hearing. See Franklin v. Enterprise Rent-A-Car, 12-555 (La.App. 3 Cir. 12/5/12),

104 So.3d 720, writ denied, 13-399 (La. 4/1/13), 110 So.3d 557. Based on a lack

of such evidence, we are left with nothing on which to base a finding as to the

correctness of the WCJ’s judgment. Accordingly, the WCJ’s judgment granting a

partial summary judgment in favor of Transit Mix is reversed and the matter is

remanded for further proceedings.

DISPOSITION

For the foregoing reasons, the judgment of the WCJ is reversed and the

matter is remanded for further proceedings. The costs of this appeal are assessed

to the defendant, Transit Mix Concrete & Materials, Company.