Kevin R. Scott v. Performance Contractors, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2019 CA 1225

KEVIN R. SCOTT

VERSUS

PERFORMANCE CONTRACTORS, INC.

Judgment rendered AUG 0 6 2020

On Appeal from the
Office of Workers' Compensation, District 5
State of Louisiana
No. 17- 04016

The Honorable Jason Ourso, Workers' Compensation Judge Presiding

Kevin R. Scott Pro Se

Phillip E. Foco Attorneys for Defendant/ Appellee
Patrick H. Hunt Performance Contractors, Inc.
Colin P. O' Rourke
Baton Rouge, Louisiana

BEFORE: MeCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

In this workers' compensation case, Kevin R. Scott, Sr. appeals a summary

judgment rendered in favor of Performance Contractors, Inc. We affirm.

BACKGROUND

On July 3, 2017, Mr. Scott filed this disputed claim in the Office of

Workers' Compensation ( OWC) seeking to recover wage and medical benefits

from his former employer, Performance Contractors, Inc ( Performance). Mr.

Scott claimed that on March 17, 2017, he was exposed to a chemical while

working as a laborer for Performance at Dow Chemical' s facility in Plaquemine,

Louisiana. Mr. Scott alleged that he sustained injuries to his head and neck as a

result of this chemical exposure.

Performance filed a motion for summary judgment in which it asserted that

Mr. Scott could meet his burden of proving that his injuries were caused by the

alleged exposure on March 17, 2017. In support of the motion, Performance

offered the following evidence:- ( 1) the disputed claim for compensation; ( 2) Mr.

Scott' s deposition testimony; ( 3) the deposition testimony of one of Mr. Scott' s

treating physicians; ( 4) a choice of physician form executed by Mr. Scott

identifying Dr. Douglas Swift as his designated physician; and 5) Dr. Swift' s

clinical notes.

Mr. Scott testified that around 5: 00 a.m. on the morning in question, while

using a portable bathroom, a bad smell came through the vents of the bathroom,

which " almost took the wind" out of him. Although Mr. Scott was unable to

identify the source of the smell, he stated that his eyes began to water, his head

started hurting, and he became dizzy. Mr. Scott reported the incident to Dow

safety personnel and a Performance worker. At approximately 6: 00 a. m., Mr. Scott

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had a meeting with Dow and Performance personnel during which he was told that

the area in question was checked and nothing was found.

Later that day, Mr. Scott went to a Dow trailer and wrote a statement, then

he went to see an on- site medical professional. Mr. Scott reported that he had

been exposed to chemicals, had a headache, and was dizzy. He returned to work

that day and the following day, but did not return to work on March 20, 2017, his

next scheduled work day, and left his job with Performance on March 22, 2017.

Mr. Scott stated that he could not work with Performance because he had

headaches and was dizzy all of the time. He also stated that he had not worked any

other jobs since the exposure incident. Mr. Scott testified that he did not

experience headaches prior to the March 17, 2017 exposure incident.

Following the incident, Mr. Scott was treated for headaches by his primary

care physician, who referred Mr. Scott to Dr. Dariusz Gawronski, a neurologist.

Dr. Gawronski first saw Mr. Scott on April 18, 2017, at which time Mr. Scott' s

chief complaints were headaches and neck pain. Dr. Gawronski conducted

neurological tests on Mr. Scott; none of those tests were abnormal. An MRI of

Mr. Scott' s brain revealed white matter changes. Dr. Gawronski admitted that he

was unable to relate the changes in Mr. Scott' s brain to a limited chemical

exposure. However, he was able to state firmly that the types of changes reflected

on Mr. Scott' s scan occur very frequently in unexposed persons over the age of 60.

X-rays of Mr. Scott' s neck showed some spondylosis throughout his cervical spine,

which Dr. Gawronski stated is probably a result of age- related degenerative

changes and not very likely to be related to environmental exposures. Dr.

Gawronski could not causally relate Mr. Scott' s chronic headaches to a chemical

exposure, admitting he does not know if the headaches are, more probably than.

not, related to any chemical exposure. Dr. Gawronski stated he would defer to a

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different expert to make that decision, and his office referred Mr. Scott to a

toxicologist, Dr. Douglas Swift.

On May 14, 2018, Mr. Scott chose Dr. Swift as his treating physician.

According to Dr. Swift' s July 3, 2018 clinical notes, Dr. Swift conducted an

overall evaluation of Mr. Scott, during which he performed a physical examination

and reviewed Mr. Scott' s history and medical records. Dr. Swift' s records indicate

Mr. Scott' s chief complaints related to the claimed chemical exposure were daily

headaches regular medication, dizziness, and the inability to tolerate heat, causing

headaches and dizziness with any heat exposure. After reviewing Mr. Scott' s

history, medical records, and conducting an examination of Mr. Scott, Dr. Swift

concluded that it was " difficult to say one way or the other" whether Mr. Scott' s

headaches and dizziness were caused by a chemical exposure as there was no agent

identified in the documents he was given to review. He further noted that Mr.

Scott' s pattern of intractable headaches for the past fifteen months with minimal

improvement did not fit a toxicological pattern, that is, a dose response relationship

in which one would expect diminution of symptoms once removed from exposure.

Dr. Swift concluded that at the present time, he was unable to relate Mr. Scott' s

current complaints to his reported exposure incident at a level of probability of

more likely than not. He indicated that Mr. Smith provided him with an incident

report of a release at the Dow facility occurring on March 17, 2017, and that he

would try to get more information as to the exact nature of the possible chemical in

question and inquire whether the reported release from that date was from a unit

near the area where Mr. Scott' s claimed exposure occurred.

On October 18, 2018, Mr. Scott' s attorney withdrew from the case.

Following that date, a series of letters written by Mr. Scott were filed into the

record in the OWC, some of which were written to the Workers' Compensation

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Judge ( WCJ) assigned to the case. In the letters, Mr. Scott offered details

surrounding his claimed chemical exposure. The record also contains two pictures

of numerous medication bottles. Additionally, Mr. Scott submitted the Louisiana

Department of Environmental Quality Incident Report referred to by Dr. Swift in

his clinic notes. This report detailed an incident at the Dow Chemical facility on

March 17, 2017 at 12: 41, described as a mild plant upset at a hydrocarbons plant,

during which a valve failure caused the plant to vent to a ` BH" flare. The report

stated that there was no chemical release and everything went to the flare. Mr.

Scott also filed into the record the deposition testimony of Dr. Gawronski and a list

of witnesses.

On December 13, 2018, a hearing on Performance' s motion for summary

judgment was held, during which Mr. Scott represented himself. Performance

urged that Mr. Scott could not prove the causation element of his claim.

Performance offered the exhibits originally attached to its motion for summary into

evidence. The WCJ went over the documents filed by Mr. Scott into the record to

ensure that due consideration was being given to any evidence Mr. Scott may have

to support his claim. The WCJ specifically inquired whether Mr. Scott had any

medical records to support his claim; Mr. Scott replied that he did but that the

doctor did not want to put his job at risk. Mr. Scott did not offer any medical

evidence in support of his claim that he suffered injuries as a result of a work -place

chemical exposure occurring during the course and scope of his employment with

Performance

At the conclusion of the hearing, the WCJ granted Performance' s motion for

summary judgment. A judgment was signed on January 10, 2019, granting the

motion for summary judgment and dismissing all of Mr. Scott' s claims with

prejudice. This appeal, taken by Mr. Scott, followed.

E

SUMMARY JUDGMENT

The determination of motions for summary judgment in the OWC is

governed by the same standards used in ordinary civil actions. Wainwright v.

American Multi -Cinema, Inc., 2019- 0019 ( La. App. 1St Cir. 9/ 27/ 19), 291 So. 3d

1080, 1082. An appellate court reviews a WCFs decision on a motion for

summary judgment de novo, using the same criteria that governs the WCFs

consideration of whether summary judgment is appropriate. Id. After an

opportunity for adequate discovery, a motion for summary judgment shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue of material fact and that the mover is entitled to judgment as a

matter of law. La. C. C. P. art. 966A( 3).

The Code of Civil Procedure places the burden of proof on the party filing a

motion for summary judgment. La. C. C. P. art. 966D( 1). The mover can meet this

burden by filing supporting documentary evidence consisting of pleadings,

affidavits, depositions, answers to interrogatories, certified medical records,

written stipulations, and admissions with the motion for summary judgment. La.

C. C. P. art. 966A( 4). The mover' s supporting documents must prove the essential

facts necessary to carry the mover' s burden. Thus, in deciding a summary

judgment motion, it must first be determined whether the supporting documents

presented by the mover are sufficient to resolve all material fact issues. Van

Cleave v. Temple, 2018- 1353 ( La. App. 1St Cir. 5/ 31/ 19), 278 So. 3d 1005, 1011;

Crockerham v. Louisiana Medical Mutual Insurance Company, 2017- 1590

La. App. 1St Cir. 6/ 21/ 18), 255 So. 3d 604, 608.

Once the mover properly establishes the material facts by its supporting

documents, the mover does not have to negate all of the essential elements of the

adverse party' s claims, actions, or defenses. La. C. C. P. art. 966D( 1). The moving

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party must point out to the court the absence of factual support for one or more

elements essential to the adverse party' s claim, action, or defense. La. C. C. P. art.

9661)( 1). The burden then shifts to the non-moving party to produce factual

support, through the use of proper documentary evidence attached to its opposition,

which establishes the existence of a genuine issue of material fact or that the mover

is not entitled to judgment as a matter of law. La. C. C. P. art. 9661)( 1). If the non-

moving party fails to produce sufficient factual support in its opposition which

proves the existence of a genuine issue of material fact, Article 9661)( 1) mandates

the granting of the motion for summary judgment. Babin v. Winn-Dixie

Louisiana, Inc., 2000- 0078 ( La. 6/ 30/ 00), 764 So. 2d 37, 40.

In order to recover workers' compensation benefits, an employee must

prove: ( 1) a work-related accident; ( 2) the accident caused an injury, and ( 3) the

injury caused a disability. La. R.S. 23: 1031A; Roussell v. St. Tammany Parish

School Board, 2004- 2622 ( La. App. 1St Cir. 8/ 23/ 06), 943 So. 2d 449, 457. The

employee must also establish a causal connection between the accident and the

resulting disability by a preponderance of the evidence. Welborn v. Thompson

Construction, 2015- 1217 ( La. App. 1St Cir. 2/ 26/ 16), 191 So. 3d 1086, 1088.

Causation is not necessarily and exclusively a medical conclusion, but is usually

the ultimate fact to be found by the factfinder based on all credible evidence. Id.

In this case, Performance supported its motion with evidence showing that

two of Mr. Scott' s treating physicians were unable to relate Mr. Scott' s alleged

injuries to the alleged workplace exposure. Thus, Performance satisfied its burden

on the motion by demonstrating the absence of factual support for the causation

element of Mr. Scott' s claim. The burden then shifted to Mr. Scott to produce

factual support to establish the existence of a genuine issue of material fact on the

causation element of his claim. The evidence offered by Mr. Scott in opposition

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to the motion did not establish that he could demonstrate a causal connection

between the alleged exposure incident and his claimed long-term disability with

any reasonable probability. Dr. Gawronski' s deposition testimony establishes that

he lacked the expertise necessary to relate Mr. Scott' s claimed chemical exposure

to Mr. Scott' s complaints of head and neck pain. Further, while there was

evidence of an " incident"
at the Dow facility on the day in question, the incident

report states there was no release of any chemical into the atmosphere, and there is

no evidence relating that incident to the time and place of Mr. Scott' s claimed

exposure.

Following our de novo review of the evidence, we conclude that Mr. Scott

failed to produce sufficient factual support demonstrating the existence of a

genuine issue of material fact on the question of whether his claimed injuries were

caused by a chemical exposure at the Dow facility. Therefore, summary judgment

in favor of Performance was mandated by the Code of Civil Procedure, and the

trial court correctly granted Performance' s motion for summary judgment.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All

costs of this appeal are assessed to appellant, Kevin R. Scott, Sr.

AFFIRMED.