Joseph Toussaint v. Union Tank Car Company

• Court: Louisiana Court of Appeal
• Decided: March 2, 2005
• Docket: WCA-0004-1461
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-1461

JOSEPH TOUSSAINT

VERSUS

UNION TANK CAR COMPANY

************

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2, PARISH OF RAPIDES, NO. 02-08703, HONORABLE JASON OURSO WORKERS’ COMPENSATION JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Ulysses Gene Thibodeaux, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED.

Janice H. Barber The Janice Hebert Barber Law Corporation 313 North Church Street Carencro, LA 70520 (337) 896-5420 COUNSEL FOR PLAINTIFF/APPELLANT: Joseph Toussaint

Stephen H. Vogt Thibaut, Thibaut & Vogt, L.L.P. Post Office Box 36 Baton Rouge, LA 70809 (225) 923-3200 COUNSEL FOR DEFENDANT/APPELLEE: Union Tank Car Company PETERS, J.

SUMMARY DISPOSITION

In this workers’ compensation case, the only issue on appeal is whether the

workers’ compensation judge (WCJ) erred in failing to grant the claimant a

continuance, which he requested on the day of trial, in connection with his late receipt

of evidence which he sought to present regarding the issue of causation.

Specifically, Joseph Toussaint alleged that on November 30, 2001, during the

course of his employment with Union Tank Car Company (Union), he sustained

various injuries from a trip-and-fall accident as well as headaches from toulene

exposure. Union did not pay any benefits to Toussaint, and the matter proceeded to

trial on June 14, 2004.

At trial, Toussaint moved for a continuance on the basis that he had received

a report on the afternoon before trial from a clinical psychologist who linked his

headaches to the chemical exposure. He also sought to introduce the report into

evidence. According to Toussaint, this report was the only piece of evidence that tied

his headaches to the chemical exposure.

The WCJ denied Toussaint’s request for a continuance and refused to admit the

report. Following the trial on the merits of Toussaint’s claim, the WCJ found that the

only injury Toussaint sustained was “a limited accident of chemical inhalation,”

which the WCJ found produced “brief symptoms on that particular day.” Thus, the

WCJ awarded only medical expenses incurred on the date of the inhalation. The WCJ

rejected the claim regarding other alleged injuries. Toussaint appeals only the denial

of his motion for a continuance.

Office of Workers’ Compensation Hearing Rule 6103(1) provides that

“[c]ontinuances shall be as provided in Code of Civil Procedure Articles 1601, et seq.” Under the Louisiana Code of Civil Procedure, “[a] continuance may be granted

on either peremptory or discretionary grounds.” Brown v. Brown, 01-0157, p. 4

(La.App. 3 Cir. 9/12/01), 801 So.2d 1116, 1120. Louisiana Code of Civil Procedure

Article 1602 provides for a continuance on peremptory grounds as follows: “A

continuance shall be granted if at the time a case is to be tried, the party applying for

the continuance shows that he has been unable, with the exercise of due diligence, to

obtain evidence material to his case; or that a material witness has absented himself

without the contrivance of the party applying for the continuance.” Toussaint made

no showing that he exercised due diligence and was still unable to obtain the report

at issue in advance of trial.

Louisiana Code of Civil Procedure Article 1601 provides for a continuance on

discretionary grounds as follows: “A continuance may be granted in any case if there

is good ground therefor.” In deciding whether to grant or deny a continuance, the

WCJ must consider the particular facts in the case at issue. Brown, 801 So.2d 1116.

Some of the factors to consider are diligence, good faith, and reasonable grounds as

well as the exceptor’s right to have his case heard as soon as is practicable, the

condition of the court docket, fairness to the litigants, and the need for orderly and

prompt administration of justice. Id. In granting or denying a continuance under

La.Code Civ.P. art. 1601, the WCJ is vested with wide discretion, and we will not

disturb his ruling in the absence of clear abuse of that discretion. Id.

In denying the motion for continuance and refusing to admit the report into

evidence, the WCJ stated that the attempt to “spring a report up today, the day of trial,

is a little bit too late.” The WCJ noted that Toussaint’s treatment with the

psychologist began in September of 2003 and that he had been seen by the

2 psychologist on at least six occasions since that time. The WCJ also noted that the

trial had already been continued during that time frame (at Toussaint’s request).

Additionally, the WCJ referenced his scheduling order, which had “been standing in

this case for sometime,” to the effect that a completed exhibit list was required to be

filed at least one week prior to trial.

On appeal, in evaluating the WCJ’s ruling, Toussaint would have us balance

the “injustice” to him against the lack of prejudice to Union. Even assuming that

there was no prejudice to Union and that the standard of evaluation proposed by

Toussaint comported with the Louisiana Code of Civil Procedure, any injustice

suffered by Toussaint was self-imposed. While Toussaint did not receive the report

until the afternoon before trial, he had begun seeing the psychologist nine months

before trial and thus had ample opportunity, well in advance of trial, to obtain a report

as to the psychologist’s findings. The record contains no evidence as to why

Toussaint did not obtain the report during that nine-month period. Simply put, the

record supports a glaring lack of diligent effort in obtaining the report, although not

necessarily on the part of Toussaint’s attorney, as well as a direct violation of the

WCJ’s scheduling order. The record does not support reasonable grounds for or good

faith in the delay. Accordingly, we find no abuse of discretion in the WCJ’s ruling,

and, therefore, we will not disturb the WCJ’s ruling.

DISPOSITION

For the foregoing reasons, we affirm the judgment below and assess costs of

this appeal to Joseph Toussaint.

We affirm the judgment below in accordance with Uniform Rules—Courts of Appeal, Rule 2-16.2(A)(5), (6), and (7).