Comeaux v. Star Enterprise/Motiva Enterprise

836 So. 2d 359, 2002 La.App. 1 Cir. 0024, 2002 La. App. LEXIS 3971, 2002 WL 31894805
CourtLouisiana Court of Appeal
DecidedDecember 20, 2002
DocketNo. 2002 CA 0024
StatusPublished
Cited by5 cases

This text of 836 So. 2d 359 (Comeaux v. Star Enterprise/Motiva Enterprise) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comeaux v. Star Enterprise/Motiva Enterprise, 836 So. 2d 359, 2002 La.App. 1 Cir. 0024, 2002 La. App. LEXIS 3971, 2002 WL 31894805 (La. Ct. App. 2002).

Opinion

| ?.JAMES, Judge Pro Tem.

In this workers’ compensation case, plaintiff, Welmon Comeaux, appeals a summary judgment rendered by the Office of Workers’ Compensation Administration (the OWC)3 in favor of defendant, Star Enterprise/Motiva Enterprise (Star).

FACTS AND PROCEDURAL HISTORY

Plaintiff filed a disputed claim for compensation, averring that bacteria found in industrial dust entered into his body causing an occupational disease, nocardiosis. It is plaintiffs contention that during the 26 years he worked for Star, he was exposed to open-storage containers of crude oil and high volumes of contaminated dust. Plaintiff also contends that he may have inhaled the bacteria during two fires at the refinery in 1996 and 1997. Star and its insurer, The Continental Insurance Group, denied that plaintiff contracted an occupational disease and that plaintiffs medical problems were employment related.

In due course, Star filed a motion for summary judgment alleging that there was no support for plaintiffs claim that he contracted a work-related occupational disease. Star correctly asserted that in order to prevail on his claims, plaintiff would have to prove, by a preponderance of the evidence, (1) that he suffers from a disability; (2) that the disability is related to an employment-related disease; (3) that he contracted the disease during the course and scope of his employment; and (4) that the disease is a result of the work performed. Star argued that plaintiff could not produce evidence that would prove [361]*361those elements at trial and offered the deposition testimony of two physicians to show that the bacteria that caused plaintiffs illness is not specific to his work environment.

|3In opposition to the motion, plaintiff filed a memorandum including excerpts from various publications. He also offered his own affidavit and that of his sister, as well as other correspondence and documents exchanged with his employer. However, plaintiff produced no affidavits or depositions of medical experts to prove that it was more probable than not that his exposure to the bacteria that caused his illness was work related.

After a hearing on the matter, the workers’ compensation judge (WCJ) granted Star’s motion for summary judgment, being convinced that there was no evidence of a causal connection between the alleged disease and the conditions of plaintiffs employment.

On appeal, plaintiff assigns two related errors for our review. First, he contends that disputed facts exist regarding nocar-diosis such that a summary judgment should not have been granted. Secondly, he argues that the WCJ erred in relying on the testimony of the physicians whose depositions were submitted in support of Star’s motion for summary judgment.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine issue of material fact. It should only be granted 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 the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966; Zeringue v. Karl Ott Poles & Pilings, 2000-0522, p. 3 (La.App. 1st Cir.5/11/01), 808 So.2d 628, 630.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Because it is the applicable substantive law that determines [4materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Zeringue, 2000-0522 at p. 4, 808 So.2d at 631. To prevail on his claims, plaintiff must prove by a preponderance of the evidence that he suffers from a disability related to an employment-related disease that was contracted during the course of his employment as a result of work performed. See Price v. City of New Orleans, 95-1851, p. 8 (La.App. 4th Cir.3/27/96), 672 So.2d 1045, 1049, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360; see also La. R.S. 23:1031.1.

Summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party’s claim. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La.Code Civ. P. art. 966C(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966C(2) & 967; Zeringue, 2000-0522 at pp. 3-4, 808 So.2d at 630-631.

[362]*362Star will not bear the burden of proof at trial; therefore, its burden on the motion for summary judgment does not require it to negate all essential elements of plaintiffs claim. La.Code Civ. P. art. 966C(2). Rather, Star’s burden on the motion for summary judgment is to point out to the court that there is an absence of factual support for one or more elements essential to plaintiffs claim. La. Code Civ. P. art. 966C(2); Babin v. Winn-Dixie Louisiana, Inc., 2000-0078, p. 4 (La.6/30/00), 764 So.2d 37, 39. Thereafter, if plaintiff cannot provide factual evidence | insufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. art. 966C(2).

COMEAUX’S CLAIM

In support of its motion for summary judgment, Star introduced into evidence the deposition of Dr. Cullen Hebert, plaintiffs treating physician. Dr. Hebert is board certified in the specialties of internal medicine and pulmonary medicine. He first treated plaintiff in 1997 for sarcoido-sis, a different disease from the one at issue in this case. Plaintiff was treated with steroids from April through November 1998 for complaints of shortness of breath, decreased appetite, and fatigue. In July 1998, plaintiff was hospitalized for a fainting episode, and it was discovered that he had lesions that, when cultured, showed his body was harboring a bacteria known as nocardiosis. He was placed on antibiotics through November 1999 to treat that condition. By November, he had recovered, and Dr. Hebert felt that it was unlikely that he would be subject to a relapse.

Dr. Hebert testified that he has a high population of patients with sarcoidosis and that the cause of that condition is unknown.4 He has seen two cases of nocar-diosis and testified that he was unable to say that it was related to plaintiffs work environment. Nocardiosis is a bacteria that is common in the environment, in soil and vegetables. Dr. Hebert specifically indicated that he did not believe plaintiff would have picked up this bacteria from a fire at a refinery because he did not believe the bacteria could live through a fire. In his view, nocardiosis is an opportunistic bacterium that takes advantage of a situation where someone’s immune system is unable to fight off its effects. Dr.

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Bluebook (online)
836 So. 2d 359, 2002 La.App. 1 Cir. 0024, 2002 La. App. LEXIS 3971, 2002 WL 31894805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comeaux-v-star-enterprisemotiva-enterprise-lactapp-2002.