Marilyn H. McBride, Davy A. Dowdy, and Joey E. Miller v. Old Republic Insurance Company, John K. Woodard, David G. Brooks, Sr., and Enable Midstream Partners, LP

• Court: Louisiana Court of Appeal
• Decided: October 9, 2024
• Docket: 55,772-CA
• Status: Published

Opinion

Judgment rendered October 9, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,772-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

MARILYN H. MCBRIDE, DAVY A. Plaintiffs-Appellees DOWDY, AND JOEY E. MILLER

versus

OLD REPUBLIC INSURANCE Defendants-Appellants COMPANY, JOHN K. WOODARD, DAVID G. BROOKS, SR., AND ENABLE MIDSTREAM PARTNERS, LP

Appealed from the Thirty-Ninth Judicial District Court for the Parish of Red River, Louisiana Trial Court No. 37,445

Honorable Luke D. Mitchell, Judge

PATRICK R. JACKSON, APLC Counsel for Appellants, By: William Lee Stroud John K. Woodard, Enable Patrick Richmond Jackson Midstream Partners Ryan O. Goodwin

BRADLEY, MARCHISON, KELLY & Counsel for Appellees SHEA, LLC By: Joseph L. Shea, Jr. Joshua Steven Chevallier Matthew R. Lee Brandon G. Pang

Before PITMAN, ROBINSON, and HUNTER, JJ. ROBINSON, J.

Enable Midstream Partners, LP (“Enable”), appeals a judgment that

found it 90% at fault for a pressure-release rupture (“rupture”) which

occurred at its Magnolia natural gas treatment plant (“plant”) located in

Ringgold, Louisiana, and which awarded damages to an employee and an

independent contractor of White Oak Radiator Services, Inc. (“White Oak”),

an independent contractor. For the following reasons, we reverse the

judgment insofar as it awarded damages for the independent contractor’s

alleged lumbar injury. In all other respects, the judgment is affirmed.

FACTS

White Oak contracted with Enable to remove and replace amine and

glycol coolers during a turnaround affecting Magnolia 100, one of the three

“train” sections at its plant. The coolers had been fabricated by White Oak.

The agreement was memorialized through purchase orders created by

Enable. The purchase orders contained a link setting forth the general terms

and conditions.

The general terms and conditions stated, in part:

Seller is an independent contractor. . . . Except as otherwise provided in this Purchase Order, Seller will provide any and all labor, supervision, materials, and equipment necessary to provide the Materials, Services, or Work Product as set forth in this Order[.] Seller will control the means and manner of the providing of the Materials, Services or Work Product. Seller’s personnel will not be considered employees of Buyer[.]

The general terms and conditions further stated:

If Seller performs any work on Buyer’s Premises, Seller will comply with all safety and security rules and requirements of Buyer and take all precautions required to prevent injury to persons and property during such installations or work. . . . Seller shall adhere to Buyer’s Personal Protective Equipment (PPE) requirements and Contractor Safety requirements as defined in Contractor General PPE Requirements and Contractor Safety Handbook. Which can be found at [provided link].

Davy Dowdy provided welding services to White Oak as an

independent contractor. He executed an independent contractor release,

waiver of liability, and covenant not to sue.

John Hemus, who started at White Oak as a draftsman, was

responsible for overseeing the project. He made several site visits to the

plant, and Kepner Southerland from Enable made several visits to White

Oak’s facility.

White Oak was not the only contractor at the plant when Magnolia

100 was shut down to upgrade the coolers and for other maintenance work to

be performed. The 200 and 300 trains at the plant continued to operate

during the turnaround.

The turnaround began at 9:00 a.m. on June 5, 2018. The flow of gas

was stopped to Magnolia 100 and the system was depressurized. That night,

the system’s piping was blown out with compressed air and then valves were

opened to bleed any air that was trapped.

Enable’s policies and procedures were clear about who could conduct

the lockout/tagout at the plant. The “Control of Hazardous Energy Sources

(Lockout/Tagout)” policy and procedure stated that only an authorized

employee may perform lockout/tagout. It further stated that except for

isolation valves immediately upstream and downstream of rental

compression, only company authorized employees shall isolate energy for

lockout/tagout purposes.

2 White Oak’s personnel arrived at the plant on the morning of June 6,

2018. They underwent a site-specific orientation during which they watched

a video that focused on plant hazards. Marilyn McBride, White Oak’s safety

manager, conducted a Job Safety Analysis (“JSA”). No JSA was conducted

by Enable. Dowdy recalled that at the JSA, they discussed everything White

Oak was going to do that day.

Bryan Garrett, a lead operator at the plant, completed a lockout/tagout

form on June 6. He checked off flammable gas/liquids and hazardous

chemicals as the types of hazardous energy sources. Garrett wrote that three

areas were closed. Those areas were the glycol surge tank valve at the

boosters, the glycol booster pumps bypass, and the glycol hp suction block

valve.

White Oak’s original plan was to unbolt the glycol cooler so it could

be lifted out by a crane. However, after it was unbolted, there was not

enough clearance for the crane to lift the cooler because of the piping from

the cooler. The decision was made by White Oak to use an acetylene torch

to cut the piping.

A hot work permit, which ensures that all energy sources are blocked

off, was issued by Garrett on June 6 for 7:00 a.m. The permit allowed

cutting and grinding to cut the piping from the cooler. Garrett checked off

boxes stating that a lockout/tagout energy control procedure had been

followed to isolate energy sources and that flammable liquids and vapors

had been isolated or rendered safe.

Before approving the hot work permit, Garrett confirmed that

everything had been isolated. No gas or ethylene glycol was flowing in

3 plant 100. Garrett saw the open valves and air hoses that were still hooked

up to the pipes. He did not see any liquids that would have indicated that not

everything had been drained.

Garrett took a gas monitor and tested the work area, around the pipes,

and inside the pipe that he understood would be cut. He recorded

measurements of zero lower explosive limit (“LEL”). He wrote down his

reading on the hot work permit, had Hemus and the fire watch sign the

permit, signed it himself, and then gave a copy to Hemus. He told Hemus

that they could start, and then he went to work with other contractors.

The hot work permit stated that any person could stop a work activity

if, in their opinion, conditions are no longer safe. The “Hot Work Permits”

section of the contractor safety handbook provided, “Any person at any time

may stop work, if in their opinion, conditions are no longer safe. Hot work

shall cease immediately and the hot work permit suspended any time a

hazardous condition exists.” The introduction section of the contractor

safety handbook additionally provided that all employees and contractors

have the authority and responsibility to shut down or stop any activity due to

an unsafe or perceived unsafe condition.

On the morning of June 6, Dowdy went to Enable’s shop where he cut

“skillets,” which are used to block pipes. After he gave the skillets to

McBride, he began setting up his truck at the amine coolers. Once his area

was staged, he went to the glycol cooler where Colton Nickerson was

working. Nickerson was also an independent contractor welder for White

Oak.

4 Dowdy noticed that a dark liquid had spilled from a pipe and collected

on the ground under Nickerson’s ladder. The liquid changed the color of the

rocks. Dowdy told Nickerson that he would watch the liquid to ensure it did

not catch on fire.

Nickerson made a two-inch cut in the pipe with an acetylene torch,

then heard a hissing sound. He continued cutting and then the glycol surge

tank suddenly erupted. Its end cap blew off and a piece of metal insulation

struck White Oak’s owner in the leg. Joey Miller, a helper for White Oak,

put out the fire that had started in the tank.

Nickerson received first aid for lacerations to his face from McBride.

She also administered first aid to Miller for his finger.

Lawsuit

On May 31, 2019, McBride, Dowdy, and Miller filed suit against

Enable, Enable’s liability insurer, Old Republic Insurance Company, and

two Enable employees, John Woodard and David Brooks.

They alleged that prior to beginning the work, they were assured by

Enable’s lead operator at the plant, Woodard, that all the proper safety

protocols had been taken, that all lines and tanks had been properly and

safely purged of gas or other potentially explosive materials, and that

necessary valves and switches had been turned off and properly secured.

They also alleged that prior to beginning the work, they were assured by

Brooks that all proper safety protocols had been taken.

The plaintiffs alleged that Enable was directly liable for its failure to

take the required safety measures before allowing them to begin working.

5 They further alleged that Enable was vicariously liable for the negligent acts

and omissions of its employees.

Miller alleged he suffered severe injuries to his shoulder, back, and

finger as he attempted to climb down a ladder and clear the area. Dowdy

alleged that he suffered severe injuries to his neck and shoulder along with

hearing loss. McBride alleged that she suffered injuries to her hip and back

from getting knocked into some equipment as she walked toward the tank

when the rupture happened.

Motions for summary judgment

On May 20, 2022, Enable filed motions for summary judgment in

which it argued that the exclusive remedy for Dowdy, McBride, and Miller

against Enable was in workers’ compensation, not in tort.

The motions for summary judgment were denied on July 12, 2022.

On September 29, 2022, this court denied Enable’s writ application

concerning the denial of the three motions for summary judgment. McBride

v. Old Republic Ins. Co., 54,899 (La. App. 2 Cir 9/29/22). The supreme

court also denied the writ application. McBride v. Old Republic Ins. Co., 22-

01614 (La. 12/20/22), 352 So. 3d 85.

Trial

A bench trial was conducted over nine days in early 2023.

Joey Miller

Joey Miller testified that he worked as a helper for White Oak. He

was holding Nickerson’s ladder when the rupture happened. He was blown

to the ground by the rupture. He put out the fire because the fire watch guy

had run away.

6 Miller reported his injuries to McBride that day. Miller was taken to a

medical clinic by McBride the following day. He testified about the extent

of his injuries.

Marilyn McBride

Marilyn McBride, White Oak’s safety manager, testified that purging

of the glycol system was discussed when the plant was visited a couple of

months earlier. It was left up to Enable to decide which valves would be

opened or closed. She did not have the opportunity to walk with Garrett

while the lockout/tagout was being done. White Oak was trying to address

the lockout procedure when the issue came up concerning the lack of

clearance to lift the cooler.

McBride claimed that she was right around the corner and trying to

get to White Oak’s owner, John Mattingly, who was standing near the crane,

when the rupture occurred. The force threw her backward and nearly

knocked her to the ground.

McBride testified that Nickerson was bleeding profusely from his face

and that Miller complained that day about his injuries. She rendered first-aid

care to both of them. However, nobody needed emergency medical care.

She took Miller to a medical clinic the next day. She also testified about her

own injuries. She first sought treatment for her alleged injuries in July.

McBride was fired by White Oak in November of 2018. She testified

that John Hemus and Zeke Longaria from Enable did not care if she knew

about the project. She knew the general plan, but she never received a job

plan or the steps that White Oak planned to take to accomplish its goal. She

agreed that White Oak did not take safety seriously.

7 McBride never received Enable’s contractor safety handbook, and she

did not know if White Oak ever received it.

Davy Dowdy

Davy Dowdy, a welder by trade, testified that his welding truck and

equipment were totaled in a wreck on March 19, 2014. He worked as a shop

manager for Next Stream from 2016 until he acquired a new welding truck

in February of 2018. He then worked on one pipeline job before he began

working as an independent contractor welder for White Oak in May of 2018.

Dowdy testified that he never met with anyone to discuss the scope of

his assignment before he arrived at the plant on June 6. He just knew the

basic outline of the project. He testified that he took all his directions while

at the plant from White Oak personnel.

Dowdy asked Nickerson if he needed anything, then turned and spoke

to a crane rigger when the rupture happened. He felt the ground shake and

was knocked over without hitting the ground.

Dowdy agreed that it is a welder’s responsibility to stop the work if he

feels uncomfortable doing the work. He testified that he could not identify

the liquid on the ground. Later that day, he stopped work on an amine

cooler when he noticed a bigger spill at the amine cooler and was concerned

that natural gas was trapped.

Dowdy testified that he never reported any injuries to McBride that

day. He continued working for White Oak on the Magnolia project until it

was completed nine days later. He then worked for White Oak on another

job until he was let go in July of 2018.

8 Dowdy testified that he has worked an average of 30-35 hours per

week since the rupture, but his injuries from the rupture caused him to do

everything slower and he was exhausted by early afternoon. He worked

building pipe fencing and did some work for another company. He will

return to working on pipelines when his neck is repaired.

Dowdy’s alleged hearing loss and the medical treatment for his back

and neck from his accident in 2014 until after the rupture are discussed at

length in the section of this opinion pertaining to his awards of damages.

John Mattingly

John Mattingly is the owner of White Oak. Mattingly testified that

Enable was supposed to ensure the system was flushed, cleared, and locked

out. Enable had already purged the system before they got there on June 6,

and then he and McBride walked through that morning and checked the

lockout/tagout done by Enable.

Mattingly testified that McBride was supposed to be handling all the

safety factors on June 6. She, an Enable employee, and two safety guys

sniffed the area in and around the pipe where Nickerson was going to be

cutting. The readings inside the pipe showed no hazards.

Mattingly testified that he was the only person from White Oak who

was knocked to the ground. He also believed that he was closer to the tank

than Dowdy was when it ruptured.

Miller was the only person who reported injuries to Mattingly on June

6. Miller worked the rest of the week before having the weekend off as

previously planned. Dowdy worked at the plant for about two weeks until

the job was completed. Dowdy then worked a field job for White Oak in

9 Shreveport for a month. They worked 10-12 hours a day on the two jobs,

and Dowdy never complained to him about any injuries associated with the

rupture.

Mattingly believed that Enable did not purge the piping correctly. He

did not think that any action or inaction by White Oak caused the rupture.

Michael Roach

Michael Roach testified as an expert in the field of fitting and

dispensing hearing aids. He is a licensed fitter and dispenser of hearing aids

in Texas. He is not an audiologist, and he is not licensed to diagnose the

cause of hearing loss. All his hearing aid contracts contain the provision that

the client has been advised that an exam or representation made by a

licensed hearing aid dispenser is not an exam, diagnosis, or prescription by a

provider or surgeon, and must not be regarded as a medical opinion or

advice. Roach did not provide a medical diagnosis of Dowdy’s hearing loss

or opinion as to the cause of any alleged hearing loss.

Roach measures hearing by use of an audiometer. When Dowdy

brought his father-in-law in for an appointment on August 14, 2017, Roach

tested Dowdy’s hearing and found there was no loss. Although Roach’s

records showed a purchase agreement by Dowdy dated June 6, 2018, he

testified that he did not see Roach on that date. Testing conducted on June

18, 2018, showed that Dowdy had a high-frequency hearing loss on the right

and left. There was also a purchase order dated June 18, 2018. Dowdy

returned to Roach on July 10, 2018, when he was prescribed a different type

of hearing aid.

10 Dr. Milan Mody

Dr. Milan Mody testified as an expert in orthopedic surgery. He

examined Dowdy for the first time on January 26, 2021. Dr. Mody gave

estimated costs for a cervical fusion and a lumbar fusion. Dr. Mody’s

testimony is discussed in greater depth later in this opinion.

Jeff Caskey

Jeff Caskey, a process safety management coordinator at Enable,

conducted the investigation into the rupture. He arrived at the plant around

45 minutes after it happened. Bo Woodard had called him about the rupture.

As the accident investigator, his job was to determine the cause of the

rupture and try to prevent it from happening again. His investigation reports

were sent to Enable’s upper management.

McBride and Justin Vardeman, an operations manager from another

area, were on his investigative team. Caskey and Brandon Ivey, Enable’s

health and safety coordinator, conducted interviews. Caskey also looked at

the lockout/tagout form and the hot work permit. He learned that air had

been used to purge the system. He also learned that the glycol booster pump

discharge line that was to be cut had not been purged. He observed that

glycol remained in the booster pump discharge line in a dead-leg section of

the piping located at the discharge of the booster pumps. He assumed that

no readings were taken in the glycol surge tank or in the piping that was to

be cut because only one reading was documented. The only injury that he

was told about was the injury to Miller’s finger.

Caskey testified about Enable’s policies and procedures, which track

OSHA requirements. All contractors were to be provided with a copy of the

11 contractor safety handbook, but he found no documentation that White Oak

received one.

Caskey explained that a lockout/tagout procedure is designed to

isolate or eliminate potential energy sources. It is covered under Enable’s

“Control of Hazardous Energy Sources” policy and procedure. A primary

authorized individual (“PAI”) is responsible for ensuring adherence to

Enable’s lockout/tagout procedure. Garrett was the PAI at the time of the

rupture. According to Enable’s hot work permit policy and procedure,

Garrett was to conduct the atmospheric testing and monitoring. Caskey

explained the purpose of that was to clear the area prior to the hot work

starting.

Caskey determined there were two causal factors of the rupture. The

first was that the lockout/tagout had not been done in accordance with

Enable’s health and safety policies and procedures. The second causal

factor was that no LEL readings were taken inside the glycol surge tank or

the piping to be cut in accordance with Enable’s health and safety policies

and procedures.

Michael Sawyer

Michael Sawyer testified on behalf of the plaintiffs as an expert in

process safety. He was not asked to look at the cause or origin of the rupture

from a pure cause or origin standpoint, but he added that becomes a gray

issue when discussing what occurred concerning the isolation, the

lockout/tagout, and the clearing of the process of any hazardous materials.

In his opinion, the glycol system was not properly isolated. The

rupture would not have occurred if the piping had been cleared of hazardous

12 materials by using an inert gas like nitrogen. Sawyer did not believe that

glycol ignited because he thought the cut was made on a vertical pipe, and

glycol would not be present unless it “defied gravity.” Sawyer believed that

there was natural gas or another flammable material in the system when the

pipe was cut.

Sawyer testified that the entire reason for the isolation of hazardous

energy, the lockout/tagout, and the final hot work permit check was so

White Oak could rely on Enable to ensure that it was safe to work.

Sawyer explained that hot work is any work that could generate heat

or a spark. He also explained that Enable’s policies and procedures do not

allow the duties of a PAI or other authorized person to be delegated to a

third-party contractor. In addition, only Enable personnel can conduct the

lockout and tagout. That is because the plant owner or operator has superior

knowledge of the process. In Sawyer’s opinion, Enable failed to follow its

own policies and procedures and recognized industry standards regarding the

issuance of the hot work permit.

It was Enable’s responsibility to ensure that the process was cleared

and purged so that it was safe to cut the piping. The final check was the hot

work permit. Enable failed to do that adequately. Sawyer added that not

recording an LEL reading was a violation of Enable’s policies and

procedures and recognized industry standards.

Sawyer did not consider this to be a very complex case as it was

simply that Enable failed to render the process safe enough for the hot work

to proceed. He believed that Enable’s policies and procedures met OSHA

standards, but that Enable failed to follow its own policies and procedures.

13 Sawyer testified that in essence, Caskey found that Enable violated

OSHA standards because a process safety guideline is violated whenever

you have a rupture of a process vessel. He agreed with Caskey that Enable

violated its own safety policies and procedures.

Sawyer reviewed the deposition of defense expert Marshall

Krotenberg after issuing his report, but he did not see anything in it that

changed his opinion. He thought it was unnecessary to review any other

new depositions since the time that he had written his report.

After the plaintiffs rested, the court dismissed the claims against

Brooks and Old Republic.

John Hemus

John Hemus was the supervisor on the project for White Oak. He

testified that there were probably four to five site visits to the plant before

the project started. There were also two or three meetings. The purpose of

the first site visit, which took place two or three months before the project

began, was to obtain a general scope of the work. He met with Kepner

Southerland during that visit. They determined where the crane needed to

be, the size of the crane required, and what parts of the plant would be

isolated.

The second site visit was maybe a month before the project started,

and Southerland again participated. The purpose of that visit was to look at

what White Oak had bid on and to see if anything else needed to be included

to get the job done.

Hemus could not remember if it was during the second site visit or

later that he discussed with Southerland about the system being blown and

14 cleared. White Oak asks customers to use an inert gas to purge the system,

but customers do not always meet that request. A third meeting was held

about a week before the project began. The scope of the work for the

removal of the glycol cooler piping was not discussed until they got to the

plant on June 6.

Hemus testified that he and Nickerson traced back on the piping to see

what valves were open or closed. He mentioned to one of the operators that

there were some open valves going to the surge tank, but he was told that it

was not a problem and that everything had been locked out and blown down

like it should have been. Hemus and Nickerson were satisfied that the work

could be done safely based on the lockout/tagout that had been done. No

Enable employee was overseeing or directing the work that White Oak was

doing.

Hemus testified that in preparation for the hot work permit, air

samples were taken of the area and inside of any pipe that was open. They

also looked around on the ground for anything that could be flammable.

Hemus testified that he did not hear the rupture but felt it and saw a

white cloud. He was sitting in his truck about 60 feet away when the rupture

occurred. McBride was walking away from him toward a fence and was not

near any plant equipment.

Hemus recalled that Miller complained about his finger on June 6, but

he never heard any complaints from McBride that day. Hemus thought the

project at the plant involved nine consecutive 15-hour days of work and that

Dowdy worked the entire time without complaint.

15 Hemus did not think it was the sludge that ignited, but the gas trapped

within the surge tank above the sludge. He did not believe that White Oak

did anything wrong regarding the rupture.

Colton Nickerson

Colton Nickerson was not fond of White Oak’s practices. He testified

that White Oak did not know what it was getting into when a field job

required welding. Nickerson believed that White Oak did something wrong

regarding the rupture because they did not know how to perform the work in

the first place.

Nickerson recalled that when the plant job was still in the planning

stage, he and Mattingly discussed the piping and the easiest way to get the

cooler out. He testified that White Oak could have unbolted the spools of

pipe or even cold cut the pipe, but White Oak wanted to do it the hard way.

Nickerson was not involved in filling out the hot work permit, and he

did not speak with Hemus about getting it. He did not even know it was

being issued. He thought it was unusual that his name was not on it since he

was going to do the cutting. He regretted not walking through the lockout

with Enable employees during the lockout/tagout procedure. He just

assumed the Enable employees knew what to do to keep him safe.

Nickerson recalled that there were four gas monitors in the area, and

he had one attached to his chest. A sniffer was stuck inside the glycol cooler

and nothing was found where he was cutting. After the pipe was unbolted

from the cooler, a reading was taken inside the pipe about four feet from

where he was cutting, but nothing was measured.

16 Nickerson did not recall Dowdy complaining of any injuries or pains

when he worked with him following the rupture. While Dowdy did not

complain to him about his hearing a couple of days afterward, he did

remember Dowdy saying something about it a little later. He did not

remember Dowdy complaining about back problems.

Bryan Garrett

Bryan Garrett was the lead operator at the plant on June 6. He did not

participate in any meetings with White Oak, and his only contact with White

Oak after they arrived was to approve the hot work permit.

Garrett testified that when plant 100 was closed the night before, locks

were placed on motors, fans, and anything else that was an energy source,

and the glycol was blown out of the system.

Garrett did not personally do the lockout/tagout procedure. He agreed

that as the PAI that day, he was responsible for ensuring that the

lockout/tagout was done properly. He verified that the valves were closed as

shown on the lockout/tagout document.

Garrett explained that a hot work permit is issued for any cutting,

grinding, welding, or use of any spark-producing equipment within a certain

distance of the plant process. When White Oak asked for the permit, they

did not say where they were going to cut the pipe or how they were going to

do it. He did not ask how the pipe was going to be cut.

Garrett did not think there was any glycol in the pipe. When Garrett

was asked about natural gas entrained in the liquid glycol, he explained that

a glycol sample is tested monthly, and they have never found gas present in

it. Garrett also explained that when glycol goes through the system it is

17 referred to as “rich” because it is saturated with water, but it was “lean” at

the point in the piping where Nickerson cut. Garrett stated that before he

issued the hot work permit, he did the best he could to ensure there were no

flammable or combustible liquids present.

Garrett explained that the booster pumps were normally an energy

source between the surge tank and where they were cutting, but the pumps

were locked out and not an energy source at the time. The glycol needed to

be pumped in order to flow up the pipe. He also explained that if valves

were closed, then it isolated the pipe that they were cutting from the surge

tank. He believed the only energy source was the torch.

Garrett was unaware of any Enable policy or procedure that required

the PAI to remain in the area while the hot work was done. He was 50-60

yards away and walking under the pipe rack toward where White Oak was

working when the rupture happened. He ran to the area of the rupture and

saw nobody on the ground. No injuries were reported to him.

Garrett testified that Nickerson told him that he made a cut, heard a

hissing sound, tested the cutting area with a meter and did not measure

anything, cut again, and then the rupture happened. Garrett had left a meter

with them so he could check for gas periodically while making rounds. He

told Nickerson to shut it down if the meter went off and to find an Enable

employee so they could figure out where the gas was coming from.

Garrett testified that he did not take any readings inside of the glycol

surge tank. He also testified that he did not know what was in Enable’s

contractor safety handbook. He considered himself to be somewhat familiar

18 with Enable’s policies and procedures for hot work. However, he believed

that he followed all of Enable’s policies that day.

Garrett thought the purpose of a JSA is to identify possible hazards

and discuss them with the people who will be potentially exposed to them.

Enable did not have a JSA coordinator. He acknowledged that Enable’s JSA

policy and procedure states that the use of work permits does not replace the

need for a JSA.

Leslie Crissup

Leslie Crissup was a project engineer in Enable’s engineering and

construction group. She explained that another contractor, Torqsil, also

worked on the project installing helical piles for the coolers. She worked

with Zeke Longoria, a White Oak employee, about the replacement schedule

and the cost of installation. She caused the purchase orders to be issued.

Crissup explained that would-be contractors are given a safety score,

and if that safety score is acceptable to Enable, they may be invited to

become an approved contactor or vendor. White Oak was an approved

contractor and had a vendor number. Crissup also explained that in addition

to the link to the contractor safety handbook in the terms and conditions,

once a vendor number is generated, the vendor is sent additional

documentation about standards for construction and inspection requirements,

including the contractor safety handbook.

Crissup testified that after the purchase order is created, it is sent by

supply chain to the vendor or contractor, who then clicks on a link in the

purchase order to reach an Enable website. She thought that the link to the

contractor safety handbook was at the bottom of the website.

19 John Woodard

John Woodard was the Operations & Maintenance leader at Enable on

June 6, 2018. He was over the plant as well as pipelines and measurements

in the area. He explained that nobody held the title of plant manager at the

plant. He considered every Enable employee onsite to be a JSA coordinator.

Woodard was at a meeting in Bossier City when the rupture occurred.

He did not get to the plant until that evening. Five contractors and a third-

party safety group were at the plant on June 6. There were more operators

than usual at the plant on June 6 because it is normal for additional people to

come in and help with turnarounds. Woodard did not think it was important

for him to be present at the plant that day.

Woodard testified that work started on June 5 when the natural gas

was blown down, piping removed, and natural gas stopped coming in to

plant 100. All glycol was drained and pumped out of the glycol contactor

and piping, and the entire glycol skid was empty. Over 3,500 gallons of

glycol were removed.

Woodard explained the process at the plant. Amine is an aqueous

solution that is 50% water. Gas enters the amine tower, where hydrogen

sulfide and carbon dioxide are removed. The gas, which is now totally

saturated, then flows into the glycol contactor where the water is removed.

The glycol is considered “rich” at that point as it has absorbed the water

from the gas. They then strip the water from the glycol to make it “lean”

again. Monthly testing of the “rich” and “lean” glycol never shows the

presence of hydrocarbons.

20 Woodard testified that the cut was done on a horizontal section of pipe

at a weld. Glycol would not be in a vertical section of the pipe, but in the

horizontal section. There was no flow of glycol in the pipe at the time

because it was shut down. Any glycol in the vertical pipe would have settled

in the bottom of the pipe.

Woodard testified that there was no need to lock out the entire piece

of equipment since White Oak was going to do cold cutting. The problem

arose when White Oak decided to use a torch. The torch was the energy

source because there were no other energy sources. A single weld at the cap

gave way because the surge tank was not intended to be a pressure vessel.

Woodard believed that Garrett’s actions conformed to Enable’s

policies and procedures for the issuance of a hot work permit. Woodard

testified that Garrett should have shut down the hot work if he was aware the

welder was going to use a torch to cut the pipe. He did not think the

lockout/tagout procedure had anything to do with the rupture. Even if a

correct lockout/tagout had been done, it still could have caused a pressure

release somewhere else.

Marshall Krotenberg

Marshall Krotenberg testified on behalf of Enable as an expert in

workplace health and safety and regulatory standards of care. He explained

that workplace safety encompasses process safety management, but they are

not the same thing.

Krotenberg’s opinion was that the use of the cutting torch on a pipe

that contained ethylene glycol heated it to a boil and generated vapors which

ignited and caused an over-pressurization of the system culminating in a

21 blowout at one end of the surge tank. The tank was designed to contain a

liquid at ambient pressure, not to take the pressure that was delivered.

Krotenberg believed there was no methane in the pipe because testing

prior to the hot work did not identify any of it in the outside air or in the

piping. Furthermore, any methane in the pipe would have flashed right

away, which did not happen. Instead, there was an ignition of the vapor

generated by heating the glycol. Glycol is a combustible liquid that is very

difficult to burn, and it has a boiling point of 600°F. Krotenberg estimated

that the torch burned at 5,000°F.

Krotenberg did not believe that the failure to adhere to the

lockout/tagout procedure was the cause of the rupture. That was because his

understanding was there was no glycol in the system that could have flowed

to where they were cutting. Further, there was no unexpected release of

energy that would have been controlled by a lockout.

Krotenberg thought that Caskey’s conclusion that the rupture was

caused by the failure to measure gas within the pipe was factually inaccurate

and wrong. Gas was not the problem. He thought that putting the torch to

the pipe, not the glycol itself, was the hazard.

Krotenberg believed that White Oak’s employee training and policies

and procedures were inadequate in this particular case because its personnel

failed to recognize the significance of residual glycol in the piping and the

potential fire hazard even when it was flowing out.

Krotenberg opined that White Oak was a creating employer and an

exposing employer when it put the torch to the pipe. White Oak had the

responsibility to protect its employees and to control the hazard under

22 OSHA’s general duty clause as well as an OSHA regulation requiring that

an employer ensure that employees have knowledge of workplace hazards,

know how to avoid them, and know to stop if they encounter a hazard. If

White Oak employees could not control the hazard, they were to stop work

or ask for it to be controlled. Dowdy recognized the hazard when he saw the

liquid and was concerned about it catching fire.

Krotenberg offered other opinions: (1) Garrett did not consider the

potential hazard created by heating residual glycol; (2) Enable relied on

White Oak to have knowledge about glycol liquids and to do the work

safely; (3) the work area and piping were inspected and tested prior to

starting work; (4) White Oak failed to consider the potential hazard created

by heating residual glycol contained within the confined space of a pipe; (5)

Nickerson’s failure to verify safe conditions before performing hot work

caused the rupture; (6) White Oak exposed its workers to fire and over-

pressurization hazards caused by the heating and ignition of glycol; (7)

White Oak had an obligation to assess workplace hazards, correct identified

hazards, and either refuse to work or notify Enable of workplace hazards that

White Oak did not have authority to correct; and (8) because White Oak

performed hot work regularly and likely came across glycol when doing

demolition work, it should have known to ask what the material was and

whether it was combustible.

In Krotenberg’s view, White Oak should have chosen a different

method to separate the pipe or to ensure there was no residual glycol in the

pipe if they were going to heat it with a torch. Nickerson did hot work on

23 the piping without verifying that conditions were safe. He ignored or did not

fully appreciate the risk from the glycol.

Krotenberg thought it was incorrect to say that nothing done by either

Enable or White Oak could have prevented the rupture. It could have been

prevented by unbolting the pipe or using some cutting method that did not

create heat.

Krotenberg thought it was important for companies like Enable to

provide safety handbooks to contractors. Enable was a controlling employer

in this, but not an exposing employer because no Enable employee was

nearby at the time of the rupture. Enable was not a creating employer either

because none of its employees put a torch to the pipe. White Oak and

Enable were both correcting employers.

Krotenberg did not agree that an Enable supervisor had the

responsibility to convey anticipated chemical hazards to contractors because

that is too broad a responsibility. However, they should convey recognized

chemical hazards and what to do if there is a release. He thought Garrett

complied with 99% of Enable’s hot work authorization policy and

procedure. He did not know if Garrett failed to recognize the hazard

presented by glycol in the piping or if he was unsure about the cutting

method. He testified in his deposition that he thought Caskey’s report was

ridiculous.

Judgment

On March 29, 2023, the court rendered judgment finding that Enable

was 90% at fault and White Oak 10% at fault for the rupture. No other party

was found at fault. Enable’s negligence caused damage to Dowdy and

24 Miller, but not to McBride. Miller was awarded damages of $109,376.20.

Dowdy was awarded damages of $531,139.59. The damage awards

included a 10% reduction because of White Oak’s negligence, and in

Dowdy’s case, a 20% reduction because of his pre-existing lumbar and

cervical spine conditions.

Enable filed a suspensive appeal. The trial court’s written ruling

reads, in relevant parts:

LIABILITY: IT IS ORDERED, ADJUDGED AND DECREED, after considering the evidence and application of comparative fault, that Enable Midstream Partners, LP (hereinafter referred to as Enable) is ninety percent (90%) at fault/liable, White Oak Radiator Services (hereinafter referred to as White Oak) is ten percent (10%) at fault/liable, and John K. “Bo” Woodard is zero percent (0%) at fault/liable. Reasons for judgment are as follows:

Enable had full custody and control of the Magnolia Enable Plant. They had full knowledge and understanding of the day to day functions of the plant. It was their responsibility to properly purge, lock out and tag out the plant systems for the work at hand. There were questions at trial whether the work to be performed should have been cold work versus hot work. This confusion by Enable may have contributed to the manner in which Enable purged the plant. Ultimately, Enable issued a hot work permit authorizing White Oak employees to perform hot work in the area. While they did take some precautions, Enable failed to remove all the ethylene glycol from the area where hot work was being performed, thus resulting in a catastrophic event caused by the combustion of the ethylene glycol.

Further, Enable failed to ensure that White Oak was familiar with and trained in Enable’s policies and procedures for conducting work at the Magnolia Enable Plant. The policy and procedure manual was made available to White Oak through an overly burdensome online process through links hidden in the fine print of the bid process and electronic links of policy within policy. Enable did not provide White Oak with any safety training in conformity with Enable’s policies and procedures. They also failed to comply with their own policy and procedure by failing to have a copy of the policy and procedure manual on site at the Magnolia Enable Plant.

25 White Oak is apportioned some fault for two reasons. First, they failed to train and provide its employees with a copy of Enable’s policies and procedures. However, White Oak’s ability to provide such training and making Enable’s policy and procedure manual available to its employees was limited due to the fact that Enable’s electronic access to the policies and procedures was overly burdensome. Secondly, White Oak employees should have known there was a possibility of hazardous material near the hot work when they observed a liquid substance leaking from the glycol cooler at or near the hot work area while the hot work was being performed. White Oak employees should have stopped the hot work and notified Enable of their observation of a potential work hazard. However, White Oak was operating under the assumption that Enable was safe work conditions for the hot work that Enable authorized. .....

DAVY A. DOWDY:

As a result of the event at the Magnolia Enable Plant, Mr. Dowdy suffered permanent hearing loss, injuries to the cervical spine and injuries to the lumbar spine. Testimony and evidence were provided at trial that Mr. Dowdy did not have hearing loss prior to the event but did have some preexisting conditions to the lumbar and cervical spine. However, evidence was sufficient to show that medical treatment on all preexisting conditions had ceased prior to the event, and Mr. Dowdy was in relatively good health. After the event, both cervical and lumbar spine injuries were discovered to vertebrae that were not preexisting. Therefore, this court finds that the “Housley Presumption” applies in Mr. Dowdy’s case, related to those areas that did not exist prior to the event. Evidence was provided that Mr. Dowdy sought medical treatment for said injuries. Mr. Dowdy’s cervical and lumbar spine injuries will require both surgery and aftercare as a result of the event. There was no supporting evidence presented that Mr. Dowdy would require aftercare or future medical expenses for his hearing loss. Mr. Dowdy accumulated past medical expenses, and he is entitled to an award for those special damages in the amount of $58,955.10. For the permanent loss of hearing, past pain and suffering, and future pain and suffering, Mr. DOWDY is entitled to general damages in the amount of $100,000.00. For injuries to the cervical spine, past pain and suffering, and future pain and suffering, Mr. DOWDY is entitled to general damages in the amount of $100,000.00. For injuries to the lumbar spine, past pain and suffering, and future pain and suffering, Mr. DOWDY is entitled to general damages in the amount of $100,000.00. Mr. Dowdy is also entitled to general

26 damages for injuries to his cervical spine for future medical and aftercare in the amount of $209,000.00, and for injuries to the lumbar spine in the amount $130,000.00. All general damages related to injuries to the cervical spine and lumbar spine are reduced by one fifth (1/5) due to Mr. Dowdy’s preexisting conditions. Further, the total award is reduced by ten percent due to the comparative fault of White Oak.

DISCUSSION

Workers’ compensation

Enable argues on appeal that because Dowdy and Miller were

engaged in manual labor for Enable’s independent contractor at the time of

the rupture, their exclusive remedy is under the Louisiana Workers’

Compensation Act (“LWCA”).

La. R.S. 23:1021(7) states that independent contractors are “expressly

excluded from the provisions of this Chapter unless a substantial part of the

work time of an independent contractor is spent in manual labor by him in

carrying out the terms of the contract, in which case the independent

contractor is expressly covered by the provisions of this Chapter.” This is

known as the manual labor exception.

Enable contends that the trial court ruled incorrectly as a matter of law

that employees of independent contractors who are engaged in manual labor

at the time of their alleged injuries are not covered by the manual labor

exception in tort actions against the principal. It is Enable’s position that the

trial court mistakenly relied on the Erie-guess concerning the manual labor

exception that was made by the United States Fifth Circuit Court of Appeals

in Jorge-Chavelas v. Louisiana Farm Bureau Casualty Insurance Company,

917 F. 3d 847 (5th Cir. 2019).

27 Enable maintains that because it is undisputed that White Oak was

Enable’s independent contractor and that Dowdy and Miller were engaged in

manual labor for White Oak at the time of the rupture, the question before

this court is whether the manual labor exception applies to employees and

independent contractors of independent contractors. Enable contends that

the other appellate courts of this state have concluded it does.

A party seeking to avail itself of the immunity from tort liability

granted under the LWCA has the burden of proving entitlement to such

immunity. Champagne v. American Alternative Ins. Corp., 12-1697 (La.

3/19/13), 112 So. 3d 179.

Enable cites five cases in support of its position that the manual labor

exception applies to manual laborers performing work on behalf of

independent contractors. Those cases are: (i) Lumar v. Zappe Endeavors,

L.L.C., 06-317 (La. App. 5 Cir. 10/31/06), 946 So. 2d 188; (ii) Moss v.

Tommasi Const., Inc., 09-1419 (La. App. 3 Cir. 5/5/10), 37 So. 3d 492, writ

denied, 10-1243 (La. 9/17/10), 45 So. 3d 1054, and 10-1306 (La. 9/17/10),

45 So. 3d 1057; (iii) Courtney v. Fletcher Trucking, 12-0434 (La. App. 1

Cir. 12/21/12), 111 So. 3d 411; (iv) Orozco v. Filser Construction, 18-0274

(La. App. 4 Cir. 10/3/18), 318 So. 3d 99, writ denied, 18-1803 (La. 2/11/19),

263 So. 3d 898; and (v) Knox v. Elite Protection Solutions, 21-0419 (La.

App. 4 Cir. 10/13/21), 366 So. 3d 341.

In Lumar, supra, Zappe contracted with Aramark for cleaning

services at Zappe’s factory. Lumar, who was employed by Aramark, filed a

tort claim against Zappe after she was injured at Zappe’s factory when her

hand became caught in the conveyor belt of a machine that she was cleaning.

28 Zappe filed a motion for summary judgment in which it contended that

workers’ compensation was Lumar’s exclusive remedy because she was an

independent contractor performing manual labor. Lumar argued that she

was not an independent contractor, but an employee of an independent

contractor and not limited by the exclusivity provisions of the LWCA. The

trial court granted summary judgment, concluding that Lumar fell within the

class of independent contractors which perform manual labor. The appellate

court agreed with the trial court and concluded that the limitations applicable

to Aramark were also applicable to its employees. The court noted that La.

R.S. 23:1021(7) “does not state that it is not applicable to independent

contractors who are partnerships, corporations or other juridical persons, and

does not limit itself to independent contractors who are natural persons

only.” Id., 06-317 at pp. 5-6, 946 So. 2d at 191.

In Moss, supra, Shaw, who was building an apartment complex, hired

Darson to work as a subcontractor on the project. Moss, who was employed

by Darson, suffered injuries when he fell from a scaffold while working on

the project. The WCJ determined that Shaw was responsible for Moss’s

workers’ compensation benefits. The appellate court cited Zappe with

approval and concluded that because the factual relationship between Moss

and Shaw was identical to that between Lumar and Zappe, the analysis in

Zappe supported the WCJ’s conclusion.

In Courtney, supra, Maximum Leisure, which was building a

subdivision, hired Fletcher Trucking to perform work to develop the

property. Courtney, a laborer for Fletcher Trucking, was shot while

excavating dirt in the subdivision. The WCJ found that under the manual

29 labor exception, Courtney was an employee of Maximum Leisure at the time

he was shot and awarded benefits to him. The appellate court concluded that

both Maximum Leisure and Fletcher Truck owed benefits to Courtney.

Citing Lumar in a footnote, the first circuit stated that a finding that

Courtney was an employee of Fletcher Trucking and not an independent

contractor himself would not change the result because Fletcher Trucking

performed manual labor duties through its employees.

In Orozco, supra, Serna was working for Filser, a construction

company performing work for Aries, which was performing work for the

United States Navy. Serna was killed in an accident while moving trailers at

a Navy facility. A workers’ compensation claim asserted that Filser was

Serna’s employer and that Aries was his statutory employer. The WCJ

found that Serna was an independent contractor and that the manual labor

exception did not apply. The appellate court stated that the finding that

Serna was an independent contractor did not end the inquiry concerning his

employment status. It concluded that the WCJ’s finding that the claimants

failed to present sufficient evidence that the manual labor exception applied

was manifestly erroneous.

In Knox, supra, Knox was an independent contractor hired by Elite to

work as a security guard at various business locations, including a chicken

restaurant where Knox was shot in the neck while working. Knox filed a

workers’ compensation claim. The restaurant and its insurer filed a motion

for summary judgment in which they argued that Knox’s status as an

independent contractor meant that Knox was not entitled to workers’

compensation benefits. The WCJ denied the motion, concluding there was a

30 genuine issue of material fact surrounding whether the manual labor

exception applied. The appellate court reversed, finding that Knox could

only prove one of the four factors to establish the manual labor exception.

Enable takes exception to the case relied on by the trial court when

denying the motions for summary judgment. In Jorge-Chavelas v.

Louisiana Farm Bureau, supra, the plaintiffs were hired by Lowery to plant

sugarcane on a farm operated by one of Lowery’s clients, Harang Sugars.

They were injured when an employee of Harang drove into their cart and

crushed their legs.

The federal appellate court rejected the argument that the manual

labor exception applied to employees of independent contractors. The court

first turned to the language of La. R.S. 23:1021(7) and noted that while it

excluded most independent contractors but granted coverage to independent

contractors who spent a “substantial part” of their time providing “manual

labor,” in either situation the statute addressed only independent contractors.

Further, an independent contractor is one who contracts with the principal.

The plaintiffs were not Harang’s contractors as they never entered into an

express or implied agreement with Harang.

The Jorge-Chavelas court also considered additional language in La.

R.S. 23:1021(7) as confirmation that the statute refers to an independent

contractor in the ordinary sense of the term; that is, one who has a

contractual relationship with the principal. The manual labor exception only

applies to when “a substantial part of the work time of an independent

contractor is spent in manual labor by him in carrying out the terms of the

contract.” (Emphasis added). As the court noted, employees of an

31 independent contractor are usually not parties to the contract between the

principal and the contractor.

The court addressed the holdings in Lumar, Courtney, and Moss, and

remarked that “[t]hree decisions do not jurisprudence constante make.”

Jorge-Chavelas, 917 F. 3d at 853. It added that the court which first

addressed the rule in Lumar, the Louisiana Fifth Circuit, had since denied a

claim for workers’ compensation brought by an independent contractor’s

employee against the contractor’s principal. Daigle v. McGee Backhoe &

Dozer Service, 08-1183 (La. App. 5 Cir. 4/28/09), 16 So. 3d 4, writ denied,

09-1372 (La. 10/2/09), 18 So. 3d 113. The Jorge-Chavelas court also noted

that the majority in Daigle proposed that a contractor’s employee is eligible

for workers’ compensation against his employer’s principal, if at all, through

another statute, La. R.S. 23:1061, which defines “statutory employment.”

Further examining La. R.S. 23:1061, the Jorge-Chavelas court

explained:

That statute authorizes, in certain circumstances, a claim for workers’ compensation by a contractor’s employee against the contractor’s principal “as if he were [that] principal’s employee.” 13 H. Alston Johnson III, La. Civ. Law Treatise, Workers’ Compensation Law and Practice § 121 (5th ed. 2018) (emphasis in original).

Other Louisiana courts have likewise analyzed cases like this one through the lens of statutory employment, explaining that section 1061 “provides guidance as to when a contractor’s employee, rather than the contractor himself, may recover under the principal’s workers’ compensation liability.” Miller v. Higginbottom, 768 So. 2d 127, 132 (La. App. 2 Cir. 2000); see also Prejean v. Maint. Enters., Inc., 8 So. 3d 766, 770 (La. App. 4 Cir. 2009); Poirrier v. Cajun Insulation, Inc., 459 So. 2d 737, 738–39 (La. App. 4 Cir. 1984). Louisiana’s leading workers’ compensation treatise agrees that statutory employment is the proper framework for analyzing whether the employee of an independent contractor can recover workers’ compensation from the principal. See Johnson III, supra § 82

32 (noting the contractor’s pursuit of compensation would be analyzed under section 1021(7) while his employee “must seek compensation under the different test of [section] 1061”).

That makes sense as the terms of the statutory employment statute directly address the employee-of-an-independent- contractor situation we confront. When applicable, workers’ compensation is the exclusive remedy for a contractor’s employee against the principal. La. Rev. Stat. Ann. § 23:1061(A)(1). The catch is that the relationship must be formed by contract. Id. § 23:1061(A)(3). [FN 7] No such contract exists in this case, which explains why Farm Bureau does not seek section 1061’s help. But the existence of this express avenue for employees of contractors to seek workers’ compensation from a principal (and in turn for those principals to seek immunity) further supports limiting section 1021(7) to independent contractors themselves, not their employees. La. Civ. Code Ann. art. 13 (“Laws on the same subject matter must be interpreted in reference to each other.”); Fontenot v. Reddell Vidrine Water Dist., 836 So. 2d 14, 28 (La. 2003) (“It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, the statute specifically directed to the matter at issue must prevail as an exception to the more general statute.”).

Sections 1021(7) and 1061 are both deviations from typical workers’ compensation principles, but they serve different purposes. Section 1021(7) protects a specific class of independent contractors who would not otherwise be entitled to benefits. It was added because, when it came to manual laborers, the “distinction between contractor and employee had become so tenuous and so difficult to administer that the cases were in a state of almost hopeless confusion, and many injustices were apparent.” Johnson III, supra § 78. To settle the seemingly interminable debate, the Louisiana legislature resolved that those who contracted to do manual labor were entitled to benefits, no matter what a multifactor test said about their relationship to the principal. Id.

[FN 7] There is another way to create the statutory employment relationship known as the “two contract” theory, but it is not applicable to this case. La. Rev. Stat. Ann. § 23:1061(A)(2); see also Allen v. Ernest N. Morial-New Orleans Exhibition Hall Auth., 842 So. 2d 373, 379 (La. 2003).

Id., 917 F. 3d at 853-4.

In Miller v. Higginbottom, 33,594 (La. App. 2 Cir. 6/21/00), 768 So.

2d 127, writ denied, 00-2198 (La. 10/13/00), 771 So. 2d 652, the claimant

33 was the mother of Miller, who died after suffering injuries while working in

the dunking booth at the Louisiana State Fair. Miller was an employee of

Higginbottom, who was an independent contractor operating the dunking

booth. The WCJ denied the claim against the Fair for death benefits.

The mother maintained on appeal that the Fair was the statutory

employer of Higginbottom and Miller. She contended that the operation of

the dunking booth by Higginbottom was the performance of manual labor

under the manual labor exception. However, this court concluded that the

record failed to show that Higginbottom performed manual labor for the

Fair. This court stated that the manual labor exception was not applicable to

afford workers’ compensation benefits by the Fair to Higginbottom and his

employees. This court then turned its analysis to La. R.S. 23:1061, which

“provides guidance as to when a contractor’s employee, rather than the

contractor himself, may recover under the principal’s workers’

compensation liability.” Id., 33,594 at p. 7, 768 So. 2d at 132.

In Loflin v. International Paper Co., 34,976 (La. App. 2 Cir. 8/22/01),

793 So. 2d 533, International Paper contracted with Woods Tank to repair or

rebuild a tank at its mill in Bastrop. Loflin, who was a welder employed by

Woods Tank, was injured when water gushed from the tank and knocked

him from a ladder. Loflin filed a tort suit against International Paper, which

successfully moved for summary judgment on the grounds that Loflin was

its statutory employee under La. R.S. 23:1061. This court affirmed the

judgment.

We find the Erie-guess analysis in Jorge-Chavelas to be persuasive.

We are also mindful that because the workers’ compensation statutes are in

34 derogation of the universal right to sue for damages provided by La. C.C.

art. 2315, the immunity provisions must be strictly construed. French v.

Claiborne Parish Police Jury, 52,192 (La. App. 2 Cir. 6/27/18), 251 So. 3d

571, writ denied, 18-1470 (La. 11/20/18), 257 So. 3d 188. Therefore, we

conclude that the manual labor exception presented in La. R.S. 23:1021(7) is

limited to the independent contractor and not that independent contractor’s

employees or its independent contractors. We also note that La. R.S.

23:1061 is under Subpart C, which is titled, “Liability of Principal to

Employees of Independent Contractor.” Enable does not argue on appeal for

the application of La. R.S. 23:1061.

Superseding and intervening cause

Enable contends on appeal that the trial court erred in not applying the

doctrine of superseding and intervening cause to when Dowdy and White

Oak recognized the hazard presented by the liquid glycol in the pipe and

failed to stop the work. Enable contends that this failure to apply the

doctrine of superseding and intervening cause was a legal error that

interdicted the trial court’s determination that Enable and White Oak were

90% and 10% at fault respectively for the rupture, necessitating de novo

review.

In Johnson v. Morehouse General Hosp., 10-0387 (La. 5/10/11), pp.

43-44, 63 So. 3d 87, 116, the supreme court explained the doctrine of

superseding or intervening cause as follows:

A superseding or intervening cause is one which comes into play after the defendant’s negligent conduct has ceased, but before the plaintiff suffers injury. In situations in which there is an intervening force that comes into play to produce the plaintiff’s injury (or more than one cause of an accident), it has generally been held that the initial tortfeasor will not be relieved

35 of the consequences of his or her negligence unless the intervening cause superseded the original negligence and alone produced the injury. If the original tortfeasor could or should have reasonably foreseen that the accident might occur, he or she will be liable notwithstanding the intervening cause. In sum, foreseeable intervening forces are within the scope of the original risk, and hence of the original tortfeasor’s negligence.

Citations omitted.

Enable maintains that the trial court made specific factual findings

that White Oak caused the rupture. More particularly, the trial court found

that:

White Oak employees should have known there was a possibility of hazardous material near the hot work when they observed a liquid substance leaking from the glycol cooler at or near the hot work area while the hot work was being performed. White Oak employees should have stopped the hot work and notified Enable of their observation of a potential work hazard.

Enable emphasizes that the recognition of the hazard occurred after any

alleged negligence by Enable.

Enable argues that if White Oak and Dowdy had stopped work when

they saw and recognized the actual hazard, then the rupture would not have

occurred. Enable further argues that White Oak’s decision to use the torch

after seeing the presence of glycol in the pipe was unforeseeable by Enable.

While Dowdy noticed the liquid on the ground and watched it to

ensure that it did not catch on fire, the record is clear that the rupture would

not have occurred if Enable had properly purged the piping of any glycol

residue. In addition, it was certainly foreseeable to Enable what might occur

if it issued a hot work permit when liquid glycol remained in the pipe.

While Enable may not have known that Nickerson would use a torch to cut

the pipe, the use of a torch falls within the parameters of hot work. This

36 argument is without merit. The trial court was correct in not applying the

doctrine of superseding and intervening cause.

Asserted Legal Errors

A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. Evans v. Lungrin,

97-0541 (La. 2/6/98), 708 So. 2d 731; Rosell v. ESCO, 549 So. 2d 840 (La.

1989). However, where one or more legal errors interdict the factfinding

process, the manifest error standard is no longer applicable, and, if the

record is otherwise complete, the appellate court should make its own

independent de novo review of the record. Evans v. Lungrin, supra. A legal

error occurs when a trial court applies incorrect principles of law and such

errors are prejudicial. Id. Legal errors are prejudicial when they materially

affect the outcome and deprive a party of substantial rights. Id.

Enable contends that fault was allocated to it for failing to stop White

Oak from causing the rupture. Enable argues that it is entitled to de novo

review for this court to correct the allocation of fault because the factfinding

process was interdicted by three legal errors.

Enable first maintains that the trial court committed legal error when

it improperly imposed a duty on Enable to correct White Oak’s unsafe work

practices. We disagree with this assertion.

The trial court never imposed a duty on Enable to correct White Oak’s

work practices. In fact, the reasons for judgment list Enable’s

responsibilities, including to properly purge and lock out the plant systems,

to determine whether a hot work permit should be issued, to remove all

37 ethylene glycol from where the hot work was to be performed, and to ensure

that White Oak was familiar with and trained in its policies and procedures.

Enable contends the trial court relieved White Oak of liability and

imposed liability on Enable despite finding that: (1) White Oak failed to

properly train its employees; (2) White Oak saw and recognized the hazard

before using the torch; and (3) White Oak failed to stop the work. However,

those findings served as the basis for the trial court allocating some fault to

White Oak, although not to the percentage sought by Enable.

Enable next argues that the trial court erred in assigning fault to

Enable for White Oak’s negligence by misapplying the law governing a

principal’s liability for its independent contractor’s negligence. In general, a

principal is not liable for the offenses committed by an independent

contractor while performing its contractual duties. Thompson v. Winn-Dixie

Montgomery, Inc., 15-0477 (La. 10/14/15), 181 So. 3d 656. There are two

exceptions to this general rule: (1) when the work is ultra-hazardous; or (2)

when the principal reserves the right to supervise or control the work of the

independent contractor. Id. Enable contends that neither exception applies

to the work performed by White Oak at the plant.

Again, the trial court found both Enable and White Oak to be

negligent but to different degrees. The court recognized that Enable had full

custody and control over the plant, and that Enable failed to remove all the

ethylene glycol from the hot work area. The court also recognized that

Enable failed to ensure White Oak was familiar with and trained in Enable’s

policies and procedures and that Enable failed to provide any safety training

required by its policies and procedures. This argument is without merit.

38 Finally, Enable contends that the trial court erred in its application of

Louisiana law concerning contracts when it recognized that White Oak

failed to train and provide its employes with a copy of Enable’s policies and

procedures, but then relieved White Oak of fault in this regard by concluding

that White Oaks’ ability to do so was limited by Enable’s burdensome

electronic access to its policies and procedures. Enable argues that this led

the trial court to assign more fault to Enable than it otherwise would have.

Enable notes that it is a well-accepted practice that separate

documents may be incorporated into a contract by attachment or reference

thereto. Enable cites Action Finance Corp. v. Nichols, 180 So. 2d 81, 83

(La. App. 2 Cir. 1965), where this court stated, “[o]ther writings referred to

in an instrument, it has been uniformly held, become a part of the agreement

between the parties with the same force and effect as if the provisions had

been contained in the basic contract where the parties intended it to have

such effect.”

Enable maintains that the mention on the purchase order that terms

and conditions could be found elsewhere was sufficient to put White Oak on

notice that other terms and conditions were incorporated into the purchase

order.

We disagree with Enable on this contention. The trial court never

ruled that Enable’s policies and procedures were not incorporated into the

contract by reference. The court merely concluded that Enable’s electronic

access to its policies and procedures was overly burdensome, with which we

agree. The policies and procedures were available, but White Oak had to

take additional steps to obtain them. The purchase order contained a link to

39 its terms and conditions on Enable’s webpage. On that page was a link to

Enable’s contractor safety handbook. This is not the same as a separate

writing in paper form being provided to a party. Enable’s argument is

without merit.

Allocation of fault

Enable argues that if this court finds that White Oak’s negligence was

not a superseding and intervening cause of the accident, then the trial court

was clearly wrong in not assigning any fault to Dowdy, who recognized and

identified the hazard created by White Oak’s work, or in not allocating at

least 90% of fault to White Oak. In support of its argument, Enable cites

Malta v. Herbert S. Hiller Corporation, 21-00209 (La. 10/10/21), 333 So. 3d

384, and Gross v. Exxon Corp., 885 F. Supp. 899 (M.D. La. 1994).

In Malta, the plaintiff was injured when a cylinder that is part of a

fire-suppressant system discharged while the plaintiff was moving it after it

had been uploaded to an oil-production platform. The owner of the platform

was found to be not at fault. In Gross, the plant owner was determined to be

5% at fault for an explosion that occurred while Gross’s employer, an

independent contractor, was doing electrical work. The plant had been made

aware that Gross was engaged in an unsafe practice on its premises.

A trial court’s allocation of fault is a factual determination, and as

such, is subject to manifest error review. Criswell v. Kelley, 54,188 (La.

App. 2 Cir. 3/9/22), 335 So. 3d 483. The allocation of fault is not an exact

science or search for one precise ratio, but rather the search for an acceptable

range, and an allocation by the factfinder within that range cannot be clearly

wrong. Id.

40 An appellate court’s determination of whether the trial court was

clearly wrong in its allocation of fault is guided by the factors set forth in

Watson v. State Farm Fire and Cas. Ins. Co., 469 So. 2d 967 (La. 1985).

Hankton v. State, 20-00462 (La. 12/1/20), 315 So. 3d 1278. Those factors

are: (1) whether the conduct resulted from inadvertence or involved an

awareness of the danger; (2) how great a risk was created by the conduct; (3)

the significance of what was sought by the conduct; (4) the capacities of the

actor, whether superior or inferior; and (5) any extenuating circumstances

which might require the actor to proceed in haste, without proper thought.

Enable maintains that its only conduct possibly giving rise to liability

was the issuance of the hot work permit, which it did without knowledge

that White Oak was going to use a torch and before White Oak realized that

glycol remained in the pipe. However, this position ignores that Enable had

the duty before White Oak began work to ensure that no liquid glycol

remained in the pipe. In addition, because the permit was for hot work,

Enable should have contemplated that a torch could be used.

The trial court specifically found several failures on Enable’s part.

Despite its responsibility to properly purge the plant system, Enable failed to

remove all the ethylene glycol from the area where the hot work was to be

done. Enable failed to ensure that White Oak was familiar with and trained

in Enable’s policies and procedures for conducting work at the plant. Enable

failed to comply with its own policies and procedures by not having a copy

of the policies and procedures manual onsite. The court then found two

failures by White Oak. First, White Oak failed to train and provide its

employees with a copy of Enable’s policies and procedures. However, the

41 court recognized that White Oak’s ability to do so was hampered by

Enable’s overly burdensome electronic access to its policies and procedures.

Second, White Oak’s employees should have known there was the

possibility of hazardous material near the hot work when they saw a liquid

substance leaking in the area. They should have stopped the work and

notified Enable. However, they were operating under the assumption that

Enable presented safe work conditions for the hot work authorized by

Enable.

Considering these findings made by the trial court, assigning 90% of

fault to Enable was within the acceptable range. Any fault potentially

attributable to Dowdy was surely considered by the trial court when it

allocated 10% of fault for the rupture to White Oak. Although Dowdy first

saw the liquid, he made Nickerson aware of it, but Nickerson did not act

upon this information.

Dowdy’s injuries

Enable argues that Dowdy did not fall to the ground from the rupture,

did not report any injuries on the date of the rupture, did not treat for any

back or neck injuries allegedly related to it until September of 2018, and was

inconsistent in his testimony about the purchase of hearing aids.

Enable contends that the trial court erred in applying the Housley

presumption to Dowdy’s claims of back and neck injuries from the rupture

because the court was clearly wrong in finding that Dowdy was in relatively

good health before it even though his pre-existing back and neck injuries had

not resolved before the rupture. Enable points out that Dowdy received

treatment for injuries to his lumbar and cervical spines from 2012 and

42 through at least February of 2018, and stopped treatment then, not because

his pain had resolved, but because he no longer had health insurance.

Cervical spine surgery was also recommended following his 2014 motor

vehicle accident, but he never had the surgery because there were not

enough funds in his settlement from a lawsuit related to the auto accident.

Thus, according to Enable, the finding of causation based on the Housley

presumption was not supported by the record.

In a personal injury lawsuit, the plaintiff has the burden of proving by

a preponderance of the evidence a causal connection between the accident

and injuries. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.

2/20/95), 650 So. 2d 757; Davis v. Wheeler, 53,233 (La. App. 2 Cir. 3/4/20),

293 So. 3d 173, writ denied, 20-00781 (La. 10/14/20), 302 So. 3d 1124. The

plaintiff satisfies this burden by proving through medical and lay testimony

that it was more probable than not that the injury was caused by the accident.

Davis v. Wheeler, supra.

To obtain the benefit of the presumption of causation described in

Housley v. Cerise, 579 So. 2d 973 (La. 1991), a plaintiff must show: (1) that

he or she was in good health prior to the accident at issue; (2) that

subsequent to the accident, symptoms of the alleged injury appeared and

continuously manifested themselves afterward; and (3) through evidence,

either medical, circumstantial or common knowledge, a reasonable

possibility of causation between the accident and the claimed injury.

Zimmerman v. Progressive Sec. Ins. Co., 49,982 (La. App. 2 Cir. 8/12/15),

174 So. 3d 1230, writ denied, 15-1955 (La. 11/30/15), 184 So. 3d 36. If a

plaintiff can show these three elements, then she is entitled to a presumption

43 of causation and the burden of proof shifts to the defendant to prove some

other particular incident could have caused the injury of which the plaintiff

complains. Goldsby v. Blocker Through Dept. of Transp. & Dev., 51,584

(La. App. 2 Cir. 9/27/17), 244 So. 3d 703.

Whether an accident caused a person’s injuries is a question of fact,

and an appellate court may not set aside a finding of fact made by a judge or

jury in the absence of manifest error or unless it is clearly wrong. Davis v.

Wheeler, supra.

Dowdy went to Care First on March 21, 2014, following his auto

accident. He complained of pain in the cervical, thoracic, and lumbar spine,

left chest, and left shoulder region. He reported that he was nauseated that

morning because he was in so much pain. He was positive for pain in the

cervical, thoracic, and lumbar spine, left chest, and left shoulder. His active

range of motion in the cervical spine was decreased in all planes with pain at

the end range. Two years before his auto accident, Dowdy had given a

history of back pain when he sought medical treatment.

Dowdy returned to Care First on April 16, 2014, to review MRI

results from a day earlier. The MRI of the cervical spine showed: (1) at the

C4-C5 level there was a mild diffuse annular disc protrusion, and

uncovertebral arthrosis was noted with mild right neural foraminal stenosis;

(2) disc degenerative narrowing at C5-6 with a broad-based mild diffuse

annular disc bulge; (3) mild central acquired spinal stenosis, and mild

bilateral neural foraminal stenosis secondary to the mild annular disc

protrusion, as well as uncovertebral arthrosis; and (4) broad-based mild

annular disc protrusion at C6-C7 with mild central acquired spinal stenosis.

44 The MRI of the lumbar spine showed: (1) disc degenerative narrowing at

L5-S1 with a broad-based mild diffuse annular disc protrusion, facet

hypertrophy/arthrosis with mild left neural foraminal stenosis, but no

evidence of severe central spinal canal stenosis; (2) no evidence of disc

protrusion or herniation at the T12-L1, L1-L2, L2-L3, L3-L4, or L4-L5

levels; and (3) mild facet hypertrophy at L4-L5 and L3-L4.

Dowdy was seen as a new patient by Dr. Charles Gordon on May 1,

2014. He complained of neck pain, occipital head pain, right scapular pain,

numbness, and tingling paresthesia in his left arm and hand. He also had

severe low back pain off to the left of the midline. He gave a past medical

history of arthritis. He also gave a history of some neck pain and back pain

before the accident, but it had been significantly worse since the accident.

When Dr. Gordon reviewed the April 2014 MRI images, he saw

degenerative and spondylytic changes at C4-C5, C5-C6, and C6-C7 with

some disc disruption-type changes. There was disc protrusion at C6-C7 that

indented the anterior thecal sac and caused some canal and foraminal

narrowing. Dr. Gordon thought his lumbar spine looked quite good except

for at what appeared to be the L5-S1 level. He also thought Dowdy had a

transitional segment. L5-S1 had severe degenerative disc changes, disc

disruption changes, endplate edema, and central disc protrusion indenting

the anterior thecal sac with minimal canal stenosis. There was some

bilateral foraminal narrowing. He appeared to have a small annular tear at

L5-S1.

Dr. Gordon wrote that he would consider surgery on the cervical spine

once Dowdy was healed from his lumbar spine surgery. He thought Dowdy

45 clearly would have to have the C6-C7 level addressed. The C4-C5 and C5-

C6 levels also looked suspicious to Dr. Gordon.

Dowdy returned to Dr. Gordon on June 5, 2014. Dowdy complained

that his back was bothering him more than his neck. He told Dr. Gordon

that he had pre-existing neck and back pain before the accident and had had

treatment for it, but the accident converted his pain from tolerable to

intolerable. Dr. Gordon was able to review a cervical spine MRI from April

12, 2010. It showed mild degenerative changes at C4-C5 and C5-C6 and a

minimal bulge at C6-C7. Dr. Gordon noted that his films from after the

accident looked substantially different at every level, particularly at the C6-

C7 level where he saw some edema in the endplates.

Regarding the lumbar spine MRI from April 15, 2014, Dr. Gordon

noted there was a transitional segment with a broad-based bulge at L5-S1.

That appeared to him to be a combination of degenerative and traumatic

forces in that there was a posterior disc bulge and edema at the L5-S1 level.

Dr. Gordon suspected that Dowdy had some pre-existing degenerative

disease that was aggravated substantially at the time of the accident

commensurate with his history.

Dr. Gordon performed the fusion surgery at L5-S1 on June 13, 2014.

Dowdy returned to Care First on April 25, 2017. He complained of

neck pain that was causing headaches. He stated that his pain had been

getting worse since his 2014 accident. He had received several injections

with temporary relief. He reported that he had been told by Dr. Gordon that

his C6-C7 disc was bulging and possibly leaking, but there was not enough

funding in the case to do the surgery. Dowdy stated that his lumbar pain

46 started after the accident, he had fusion surgery, and the pain has continued.

Dowdy felt like the pain radiated down into the bilateral lower extremities,

and was worse at night. His pain was located in the area of the surgery.

Dowdy returned to Care First on May 11, 2017. He reported

intermittent neck pain and aching back pain. He was diagnosed with

cervicalgia and cervical radiculitis. He had decreased flexion and extension

in his neck. He also had lumbar pain and lumbosacral radiculitis, and his

range of motion in his lumbar spine was abnormal.

Dowdy went to Care First on June 7, 2017. He complained of neck

pain and lower back pain. He was referred for cervical and lumbar spine

MRIs.

A cervical spine MRI was done on June 9, 2017. At C4-C5, the

radiologist found broad-based disc protrusion, mild canal and mild bilateral

foraminal stenosis with the right worse than the left. At C5-C6, the

radiologist found disc protrusion eccentric to the right with mild canal

stenosis proximal right foraminal narrowing. The radiologist’s impression

was multilevel degenerative spondylosis of the cervical spine.

A lumbar spine MRI was also done on June 9, 2017. At L4-L5, the

radiologist found minimal disc protrusion, mild facet arthrosis, and no canal

or foraminal stenosis. There was no detrimental change following surgery at

L5-S1. The radiologist’s impression was spondylosis at L4-L5, and post-

surgery changes at L5-S1.

Dowdy went to Care First on July 6, 2017. He requested a lumbar

injection. He said his neck was doing a lot better, but he had neck pain

radiating to his left arm. He had an abnormal range of motion in his neck.

47 He had back pain, radiating pain that comes and goes to both legs, and an

abnormal lumbar range of motion.

On July 10, 2017, Dowdy received four medial branch injections at

L4-L5 and L5-S1 at Care First.

On August 3, 2017, Dowdy returned to Care First. He reported neck

and lower back pain. His neck pain radiated to his left arm. He had good

relief from injections. His lower back pain was located in the area of his

surgery. Injections provided no relief for his lower back. The frequency of

the lower back pain was always.

On September 8, 2017, Dowdy was treated at Care First. His chief

complaints were neck pain and lower back pain. He said a spot on his lower

back had been hurting since the injections. His left arm hurt when he lifted

or rotated it. Dowdy stated he wanted to continue to manage the pain. He

had a feeling of knots and tightness in his neck area, he had a history of

injections, and the neck pain radiated to his left arm. He described his lower

back pain as chronic, and it was aggravated by bending and lying down.

Dowdy said he had been working out and it helped, but he had a sore spot in

his back that was constant. The pain was not getting better or worse, but just

presented a constant feeling of soreness.

On October 13, 2017, Dowdy returned to Care First. He indicated

that being busy at work caused on-and-off pain. He felt he was doing okay

on that day, but he struggled mostly upon awakening and at night. He

described aching neck pain that radiated into his left arm. He had aching

lower back pain that was aggravated by bending. He was diagnosed with

chronic pain syndrome.

48 On November 10, 2017, Dowdy was treated at Care First. He

complained of constant neck pain, which triggered migraines. His neck pain

radiated to his left arm. He also complained of constant lower back pain.

On December 14, 2017, Dowdy reported constant lower back pain

when he went to Care First. On the objective tests, he still had neck pain

and abnormal range of motion in his neck.

On January 23, 2018, Dowdy’s chief complaint was lower back pain

when he went to Care First. He reported that he aggravated his back from

doing some work over the weekend. His pain scale was 6/10.

On February 22, 2018, Dowdy’s chief complaint was lower back pain

when he went to Care First. He said he was in constant pain. His history

included cervical pain that was ongoing.

Dowdy agreed that he was in consistent pain management care for his

neck and back pain with Care First from April 25, 2017, until February of

2018. The pain medications that he received allowed him to continue

working. He received a cervical epidural steroid injection on June 19, 2017,

and medial branch blocks in his lower back on July 10, 2017.

Dowdy testified that he stopped receiving pain management care in

February of 2018 after he left Next Stream and lost his medical insurance.

He acknowledged that his pain did not stop in February of 2018, but he just

stopped getting treated for it.

Dowdy testified that he continued to have low back pain after his

fusion surgery. He described his low back pain as becoming progressively

worse after the rupture. He testified that he has dealt with neck pain since

the automobile wreck, and that he was still having neck issues before the

49 rupture, but he was able to return to pipelining. His neck pain after the

rupture was in different areas and was a different type of pain. He

explained that he had pain in the upper part of his neck before the rupture,

but since then he has experienced pain in his shoulder blade areas and into

both arms.

Dowdy testified that he first went to Care First for treatment following

the rupture in September of 2018. He explained that his lawyer had tried

setting up appointments for him.

A lumbar spine CT scan was done on September 9, 2019. At L3-4,

the radiologist found a minimal annular disc bulge that did not produce

spinal stenosis. At L4-5, the radiologist found mild diffuse disc bulging,

short facet and ligamentous hypertrophy mildly attenuate to the central

canal. At L5-S1, the radiologist found no obvious spinal stenosis and no

neural foramina narrowing.

Dowdy was first treated by Dr. Mody on January 26, 2021. Dowdy

reported having an anterior lumbar interbody fusion in 2014 for back pain.

He told Dr. Mody that his low back felt 100% before the rupture, and he was

symptom-free in his neck for at least one year before the rupture.

Dr. Mody reviewed a cervical spine MRI done on December 8, 2018,

and found it showed moderate to severe stenosis at multiple levels, C4-5 and

C5-6 mainly. He reviewed the lumbar CT scan from September 9, 2019,

and found it showed a disc bulge at the level above his fusion. Dr. Mody’s

diagnoses were cervical stenosis, cervical radiculopathy, cervical

spondylosis, cervicalgia, lumbar radiculopathy, lumbago, and lumbar

spondylosis with radiculopathy. Dr. Mody ordered a lumbar MRI and discs

50 of the MRIs to review. He considered Dowdy to be a candidate for an

anterior cervical discectomy and fusion (“ACDF”).

A lumbar spine MRI done on February 8, 2021, showed the fusion at

L5-S1 and a broad-based disc bulge at L4-5. A cervical spine MRI done on

March 24, 2021, showed moderate to severe stenosis at multiple levels,

mainly at C4-5, C5-6, C6-7, and C7-T1.

On April 21, 2021, Dowdy told Dr. Mody that his low back pain was

equal to his neck pain, and he wanted to proceed with medial branch blocks

for his low back pain. At the time, Dr. Mody considered Dowdy to be a

candidate for lumbar surgery and cervical surgery.

Dr. Mody next treated Dowdy on June 16, 2021. Dowdy reported that

the medial branch blocks at L3, L4, and L5 that he received on June 8

continued to give him relief. Dowdy also reported that he still had

significant pain in his neck and weakness in his left arm. Dowdy remained a

candidate for an anterior posterior decompression and fusion (“APDF”) at

L4-5, which was at the level above his prior surgery, and an ACDF at C4-

7/T1.

Dowdy reported to Dr. Mody on October 6, 2021, that his neck was

worse than his low back. A radiofrequency ablation on September 16, 2021,

provided complete relief in his low back for two weeks. He recommended

that Dowdy continue to treat with Dr. Adair. Dowdy was still a candidate

for lumbar surgery. He also recommended that Dowdy have the ACDF

because of his moderate to severe cervical stenosis and the failure for time

and conservative measures to help him.

51 Dowdy testified that the radiofrequency ablation treatment kept the

pain down so he could work but eventually the pain returned.

Dr. Mody last saw Dowdy on January 25, 2022. Dowdy reported no

relief from left and right cervical injections administered by Dr. Adair. At

that point, Dr. Mody recommended the cervical surgery because of the

stenosis and because the injections failed to help much. Dowdy was having

some relief from lumbar injections, but was a candidate for lumbar surgery.

Based upon his examination of the MRIs, CT scans, and radiology

studies, Dr. Mody believed there were changes in Dowdy’s cervical and

lumbar spines since the rupture. He agreed the rupture caused or

exacerbated his cervical condition requiring an ACDF at C4 through C7-T1.

Dr. Mody thought Dowdy injured his neck at C6-C7 in the 2014 car

accident. He also agreed the rupture caused or exacerbated his lumbar

condition requiring an APDF at L4-L5.

Dr. Mody believed that Dowdy appeared honest. His objective

studies and physical exam supported his pain complaints.

Dr. Mody testified that Dowdy reported not having back and neck

symptoms before the rupture. Dr. Mody relied on the fact that Dowdy was

asymptomatic for at least one year before the rupture to reach his opinion

that Dowdy’s pre-existing conditions were exacerbated. He asks his patients

if they had chronic treatment or were symptomatic for six months to a year

before their injury. Dr. Mody acknowledged that he did not have the benefit

of any of Dowdy’s prior medical records when treating him, but he stated

that he did not think those records would have changed the treatment plan.

52 Dowdy brought MRI reports to his first visit with Dr. Mody, but Dr. Mody

did not have access to the images at that time.

Dr. Mody noted that a disc bulge at C4-C5 was shown on the MRI

taken on April 16, 2014. There was also degenerative narrowing and disc

bulge at C5-C6, and disc bulge at C6-C7 with mild central acquired spinal

stenosis. These indicated degenerative changes in the cervical spine that

predated the 2014 accident, which would have worsened all the degenerative

changes. Degenerative arthritis was seen at L3-L4 and L4-L5. Dr. Mody

added that Dowdy’s job as a welder would contribute to continued

degeneration of his cervical and lumbar spines.

Dr. Mody noted that Dr. Gordon thought Dowdy would have to have

the C6-C7 level addressed once he recovered from his lumbar surgery. Dr.

Mody acknowledged that C4-C5 and C5-C6, which are two of the levels that

he recommended for surgery, looked suspicious to Dr. Gordon and were

areas that would likely have continued degenerative changes after 2014.

According to Dr. Mody, continued long-term degenerative changes were

shown on the cervical MRI done in June of 2017.

Dr. Mody also acknowledged that adjacent segment degeneration may

occur next to a prior lumbar fusion surgery, which was done at L5-S1. It

would likely reveal itself as a disc issue, such as the minimal disc protrusion

at L4-L5 shown on the 2017 MRI. Dr. Mody thought that the spondylosis at

L4-L5 was a degenerative disc change that existed before the rupture. He

also thought the radiologist alluded to no significant changes at L4-L5 on the

February 2021 MRI.

53 Dr. Mody testified that the medial branch injections received at L4-L5

and L5-S1 were the same injections that he recommended in January of

2021, and were targeting the same types of pain that existed before the

Dr. Mody agreed that Dowdy complained of constant back pain as

recently as February of 2018. This was inconsistent with what Dowdy

reported to Dr. Mody on his first visit. He relied on what Dowdy told him

for his determination that the rupture exacerbated his symptoms.

Dr. Mody testified that his opinion is affected to some degree by

Dowdy’s inaccurate reporting of his prior treatment. He thought toward the

end of 2017 and early in 2018, Dowdy’s chief complaints were low back

pain and not so much the neck symptoms. He thought Dowdy said he was

symptom-free in his neck for a year before the rupture but never really said

for how long in his lower back. He only said his back felt 100% prior to the

Dr. Mody believed that Dowdy’s stenosis was clearly more significant

on his MRIs following the rupture, with moderate to severe stenosis at C4-5,

5-6, 6-7, and 7-1, while previously Dr. Gordon only saw it at C6-7. Dr.

Mody thought that Dr. Gordon recommended an ACDF at C6-7 because that

was where the herniation and stenosis were, but there was no stenosis at C4-

5 and C5-6 in his report and assessment. Dr. Gordon only noted

degenerative disc changes at C4-5 and C5-6, but not stenosis.

Dr. Mody agreed that patients with prior surgery will have adjacent

segment degeneration. The MRI from February of 2021 showed disc bulge

with mild stenosis at L4-L5, which is at the segment immediately above the

54 fusion site. Those same degenerative changes were shown on the MRI from

June of 2017. In fact, Dr. Mody testified that it was noted on the 2021 MRI

report that there were no significant changes in the lower back from 2017.

Dr. Mody agreed that he had no independent medical evidence of a new

injury to Dowdy’s lower back from the rupture.

The trial court’s finding that Dowdy was in relatively good health

before the rupture was clearly wrong as he had an extensive and recent

medical history involving his lower back and his neck. Thus, the trial court

erred in applying the Housley presumption to his claims involving his neck

and lower back. We now conduct a de novo review of those claims.

We find that Dowdy presented evidence proving that it was more

probable than not that the rupture caused or exacerbated his cervical

condition requiring an ACDF at C4 through C7-T1. Dr. Mody explained

that stenosis in Dowdy’s cervical spine was clearly more significant on his

MRIs after the rupture. He had moderate to severe stenosis at C4-5, 5-6, 6-

7, and 7-1, while Dr. Gordon only saw it at C6-7. Dr. Gordon only noted

degenerative disc changes at C4-5 and C5-6, not stenosis. We emphasize

that there was no expert medical testimony contradicting Dr. Mody’s

testimony.

However, we find that Dowdy failed to prove that it was more

probable than not that the rupture caused or exacerbated his lumbar

condition. Dr. Mody thought that Dowdy needed a APDF at L4-5.

However, he acknowledged that he had no independent medical evidence of

a new injury to Dowdy’s lower back from the rupture. Moreover, Dr. Mody

55 agreed that patients with prior surgery may have adjacent segment

degeneration. L4-5 is the segment immediately above the fusion site.

Finally, regarding Dowdy’s hearing loss claim, Enable argues that the

trial court erred in applying the Housley presumption when there was no

medical diagnostic or causation evidence of his hearing loss. Enable cites

Harig v. State, Bd. of Elementary & Secondary Educ., 25,702 (La. App. 2

Cir. 3/30/94), 635 So. 2d 485, where the trial court rejected a claim for past

expenses for hearing aids. While the plaintiff in Harig met the first step to

apply the Housley presumption, this court noted the absence of medical

evidence linking the accident and the disability. Enable contends there is no

medical evidence in the record concerning the existence or cause of any

hearing loss.

Dowdy testified that he did not notice that he had any hearing issues

until he got home from the Magnolia job. His claim of hearing loss is

somewhat corroborated by other witnesses. Miller testified that he

remembered that Dowdy was talking funny after the rupture and said he

could not hear Miller. McBride testified that Dowdy had his earplugs in.

She described the rupture, at a couple of points, as making a deafening

sound. She testified that Dowdy complained to her about his ears and his

back immediately after the explosion. While Dowdy did not complain to

Nickerson about his hearing for the couple of days following the rupture,

Nickerson remembered Dowdy saying something about it a little later,

although he was not certain when.

Dowdy had no idea why Roach’s invoice showed the hearing aids

as being sold on June 6, 2018. He assumed Roach had the dates confused.

56 In August of 2017, Roach had tested his father-in-law and then asked if he

wanted to be tested. Roach told him that his hearing was good. He never

saw Roach again before the rupture and had never used hearing aids before.

Audiogram results from testing conducted on June 18, 2018, showed that

Dowdy had a high-frequency hearing loss on the right and left.

Based upon the evidence at trial, the court properly applied the

Housley presumption to Dowdy’s claim of hearing loss.

CONCLUSION

We reverse the part of the judgment awarding damages to Dowdy for

injuries to his lumbar spine that were allegedly caused by the rupture. We

remand this matter to the trial court to reduce the award of special damages

for past medical expenses by those amounts attributable to his lumbar spine

treatment. In all other respects, the judgment is affirmed. Costs are assessed

against Enable.

REVERSED IN PART, AFFIRMED IN PART, AND

REMANDED.