Stacie Bacon Versus Jefferson Parish Fire Department

STACIE BACON NO. 22-C-510

VERSUS FIFTH CIRCUIT

JEFFERSON PARISH FIRE DEPARTMENT COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE OFFICE OF
WORKERS' COMPENSATION, DISTRICT 7
STATE OF LOUISIANA, NO. 21-5454
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

December 19, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and Hans J. Liljeberg

REVERSED; REMANDED
SJW
RAC
HJL

COUNSEL FOR PLAINTIFF/RELATOR,
STACIE BACON
William R. Mustian, III

COUNSEL FOR DEFENDANT/RESPONDENT,
JEFFERSON PARISH FIRE DEPARTMENT
Michael F. Nolan

WINDHORST, J.

Relator/claimant, Stacie Bacon, seeks review of the trial court’s September

27, 2022 judgment granting in part, defendant Jefferson Parish Fire Department’s

motion for summary judgment, holding that COVID-19 is not covered under La.

R.S. 33:2581, the Heart and Lung Act (“the Act”), and “dismissing with prejudice

any claim of presumption of causation” under the Act. The trial court further ordered

that even though claimant’s COVID-19 death benefit claim under the Act is

dismissed with prejudice, claimant is “still permitted to pursue a COVID-19 death

benefit claim under the general occupational disease statute.” The trial court denied

in part, defendant’s motion for summary judgment, holding “that the dismissal of

the COVID-19 death benefit claim” under the Act “does not result in a complete

dismissal of all claims.” The judgment denied the motion “as to all other conditions

claimed to be responsible for the death of Eric Bacon.”1 The judgment also ordered

that it was “designated as a final and appealable judgment pursuant to Louisiana

Code of Civil Procedure Article 1915 only as to that portion of the Judgment

granting the Motion for Summary Judgment.” For the following reasons, we grant

relator’s writ application, reverse the trial court’s judgment granting in part

defendant’s motion for summary judgment, deny relator’s motion for summary

judgment, and remand for further proceedings.

JURISDICTION

Because the judgment was designated as final and appealable under La. C.C.P.

art. 1915 as to the trial court’s judgment granting in part the motion for summary

judgment, this court must determine if the judgment is subject to this court’s

appellate or supervisory jurisdiction.2 Relator contends that despite its designation,

1 The trial court’s September 27, 2022 judgment denying in part defendant’s motion for summary

judgment is subject to this court’s supervisory review under a separate writ application filed by
defendant in case number 22-C-512.
2 In its brief to this court, defendant did not address this jurisdictional issue.

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the September 27, 2022 judgment is interlocutory and subject to this court’s

supervisory jurisdiction because it “does not specify an express determination that

there is no just reason for delay” and the trial court “designated the judgment as

interlocutory on the judgment cover sheet.”

Here, although the judgment at issue granted in part the motion for summary

judgment and dismissed claimant’s COVID-19 death benefit claim under the Act, it

reserved to claimant an alternative theory of recovery as to this claim under the

general occupational disease statute, La. R.S. 23:1031.1. The judgment also denied

the motion as to claimant’s right to pursue “all other conditions” alleged to be

responsible for the death of Eric Bacon under the Act and/or the general occupational

disease statute. Consequently, the judgment does not determine the merits of all of

the claims pending in the case against defendant and thus, constitutes a partial

judgment that is appealable only if authorized by La. C.C.P. art. 1915.

La. C.C.P. art. 1915 provides in pertinent part:

A. A final judgment may be rendered and signed by the court, even
though it may not grant the successful party or parties all of the relief
prayed for, or may not adjudicate all of the issues in the case, when
the court:
(1) Dismisses the suit as to less than all of the parties, defendants,
third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by
Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles
966 through 969, but not including a summary judgment granted
pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand,
when the two have been tried separately, as provided by Article
1038.
(5) Signs a judgment on the issue of liability when that issue has
been tried separately by the court, or when, in a jury trial, the issue
of liability has been tried before a jury and the issue of damages is
to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191,
863, or 864 or Code of Evidence Article 510(G).

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B. (1) When a court renders a partial judgment or partial summary
judgment or sustains an exception in part, as to one or more but less
than all of the claims, demands, issues, or theories against a party,
whether in an original demand, reconventional demand, cross-
claim, third-party claim, or intervention, the judgment shall not
constitute a final judgment unless it is designated as a final judgment
by the court after an express determination that there is no just
reason for delay.
(2) In the absence of such a determination and designation, any
such order or decision shall not constitute a final judgment for
the purpose of an immediate appeal and may be revised at any time
prior to rendition of the judgment adjudicating all the claims and the
rights and liabilities of all the parties. [Emphasis added.]

La. C.C.P. art. 1915 A designates specific categories of partial judgments as

final judgments subject to immediate appeal without the necessity of any designation

of finality by the court. La. C.C.P. art. 1915 B provides that the trial court may

designate a partial judgment, partial motion for summary judgment, or exception in

part, as a final judgment after an express determination that there is no just reason

for delay.

The September 27, 2022 judgment is not a final judgment for purposes of an

immediate appeal under the provisions La. C.C.P. art. 1915 A(1), (2), (4), (5), & (6).

Further, while the judgment does partially grant defendant’s motion for summary

judgment, the judgment constitutes a summary judgment granted pursuant to La.

C.C.P. art. 966 E, which is specifically excluded as immediately appealable under

La. C.C.P. art. 1915 A(3).3

Therefore, this court’s appellate jurisdiction depends upon whether the

judgment was properly designated as a final judgment pursuant to La. C.C.P. art.

1915 B. In the current judgment, the trial court decided a theory of the case,

specifically, that COVID-19 is not covered under the Act. That finding did not

determine the merits of claimant’s COVID-19 death benefit claim under the general

3 La. C.C.P. art. 966 E permits the granting of a motion for summary judgment “dispositive of a

particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties,
even though the granting of the summary judgment does not dispose of the entire case as to that
party or parties.”

22-C-510 3

occupational disease statute and the trial court denied defendant’s summary

judgment as to claimant’s right to pursue “all other conditions” alleged to be

responsible for the death of Eric Bacon under the Act and/or the general occupational

disease statute. In order to be appealable, this interlocutory judgment must be

“designated as a final judgment by the court after an express determination that there

is no just reason for delay.” La. C.C.P. art. 1915 B. Although the trial court designated

the judgment as final in part, it did not expressly determine that there was no just

reason for delay as required by La. C.C.P. art. 1915 B.

To assist the appellate court in its review of designated final judgments, the

trial court should give explicit reasons, either oral or written, for its determination

that there is no just reason for delay. R.J. Messinger, Inc. v. Rosenblum, 04-1664

(La. 03/02/05), 894 So.2d 1113, 1122. If such reasons are given, the appellate court

should review the certification by applying the abuse of discretion standard. Id. If

no reasons are given but some justification is apparent from the record, the appellate

court should make a de novo determination of whether the certification was proper.

Id. An appellate court should evaluate whether the trial court properly certified a

judgment as appealable by considering the relationship between the adjudicated and

non-adjudicated claims; the possibility that the need for review may be mooted by

further developments; the possibility that the trial court may reconsider the same

issue; and various factors such as delay, economic and solvency considerations,

shortening trial, frivolity of claims, and expense. Id.

Here, in granting in part the motion for summary judgment, the trial court held

that COVID-19 is not covered under the Act, but reserved claimant’s right to pursue

a COVID-19 death benefit claim under the general occupational disease statute.

Additionally, the judgment did not result in a dismissal of all Stacie’s claims because

it also denied the motion for summary judgment “as to all other conditions claimed

to be responsible for the death of Eric Bacon.” This judgment neither grants relief

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nor terminates the ligation as to any party. Furthermore, this judgment would be

rendered moot if the trier of fact ultimately determines that claimant’s COVID-19

death benefit claim is covered under the general occupational disease statute.

Therefore, we find that the trial court improperly certified the partial summary

judgment as to claimant’s COVID-19 claim under the Act as final for immediate

appeal. Accordingly, we further find that the September 27, 2021 judgment granting

in part defendant’s motion for summary judgment is an interlocutory judgment that

is properly before this court under its supervisory jurisdiction.

PROCEDURAL HISTORY

Claimant, Stacie Bacon, (“claimant” or “Stacie”) individually and on behalf

of her deceased husband, Eric Bacon (“Eric”), filed a disputed claim for

compensation on October 7, 2021, against Jefferson Parish Fire Department.

Claimant stated that Eric, a fireman, developed a lung condition which caused his

death on December 29, 2020. She asserted that Eric’s condition and death are

covered by the Heart and Lung Act (“the Act”), and therefore, she is entitled to

workers compensation death benefits.

In response, defendant filed a motion for summary judgment, alleging that

Stacie’s claims are not covered by La. R.S. 33:2581, the Heart and Lung Act.

Defendant argued that it is undisputed that Eric died as a result of COVID-19, and

this viral illness is not compensable under either the Act or the general occupational

disease statute. Defendant contended that Stacie’s disputed claim stated that Eric

died of a “lung condition” but failed to reveal that this alleged lung condition was

COVID-19. Defendant asserted that the trial court knows that COVID-19 “is a

highly infectious and easily transmittable virus that triggered a global pandemic.”

Citing the Centers for Disease Control’s website (“CDC’s website”), defendant

noted the number of cases globally and deaths, as well as the number of cases

wherein the decedents were diagnosed with both COVID-19 and pneumonia.

22-C-510 5

Defendant stated that the legislative intent of the Act supports its motion for

summary judgment. Specifically, defendant asserted that the Act provides firemen

with the presumption that the disease or illness developed during employment and

was caused by and/or resulted from the nature of the work performed. Defendant

averred that for the Act to apply, the disease or illness must have some connexity to

a fireman’s work duties and work environment and “no legitimate argument can be

made to suggest that Eric was at a higher risk of contracting COVID-19 compared

to any other employee (or person for that matter) on the planet.” Again citing to the

CDC’s website, defendant contended that COVID-19 is “an airborne and extremely

contagious virus.” Defendant claimed that “although researchers cannot state with

certainty every conceivable way the virus can be contracted, their findings have

revealed three main means of transmission.” Defendant then explained each means

of transmission.

Defendant averred that the presumption in the Act only applies if the disease

or illness manifests after the first five years of employment. Defendant argued that

“long-term exposure is at the core of the statute, and contracting one of the most

highly contagious and transmissible viruses the world has ever seen clearly falls

outside of the intended purpose” of the Act. Defendant maintained that COVID-19

is not the type of lung illness that falls within the protections of the Act because of

the nature of COVID-19. Defendant argued that the other diagnoses listed on Eric’s

death certificate “are complications that contributed to his death,” and that the death

certificate listed “the immediate cause and final disease or condition resulting in

death as ‘COVID-19 initiated acute hypoxic respiratory failure.’” [Emphasis in

original.].

Defendant also averred that claimant cannot and has not argued that COVID-

19 is work-related. Defendant argued that “research and medical evidence has

revealed that while it is next to impossible to know exactly how a person contracts

22-C-510 6

COVID-19, the most likely sources are family members and close friends.”

Defendant conceded that “close contact with co-workers can be another source of

transmission,” but a fireman is no more susceptible to contracting COVID-19

compared to any employee in any other profession. Defendant claimed that since

claimant is either unwilling or unable to provide any support for this argument, the

“more probable than not explanation” as to how Eric contracted COVID-19 is that

he contracted it from his wife, Stacie, in their home. In support of this assertion,

defendant referred to Stacie’s deposition, wherein she admitted that she was

symptomatic and tested positive three days prior to Eric testing positive. Stacie

further conceded in her deposition that she did not know how Eric contracted

COVID-19.

Defendant further argued that Stacie’s claim is also not compensable under

the general occupational disease statute, La. R.S. 23:1031.1. Defendant averred that

under the general occupational disease statute, Stacie has the burden of proving that

Eric’s death was caused by an occupational disease “arising out of and in the course

of his employment.” Defendant asserted that because Stacie stated she does not

know how Eric contracted COVID-19, she is unable to show that her claim is

compensable under La. R.S. 23:1031.1.

In support of its motion, defendant cited to and relied on content from the

CDC’s website regarding COVID-19. Defendant also attached Stacie’s disputed

claim for compensation, Stacie’s answers to interrogatories, Eric’s death certificate,

and excerpts from Stacie’s deposition.

In opposition, Stacie contended that Eric’s death certificate listed four causes

of death: (a) COVID-19 initiated acute hypoxic respiratory failure; (b) pneumonia;

(c) septic shock; (d) acute pulmonary embolism. She argued that three of the four

causes of death are related to lung conditions. She asserted that because Eric was a

fireman for more than five years, his death was presumably caused by his

22-C-510 7

employment pursuant to the Act. Stacie averred that defendant did not present any

medical evidence regarding causation nor did defendant show that Eric did not

contract his illness or illnesses from his employment as a fireman. She asserted that

defendant improperly referred to the CDC’s website to support its “assumptions and

conclusions regarding the nature” of COVID-19 because the content on the website

is not proper summary judgment evidence. Stacie argued that defendant did not

submit sufficient evidence to rebut the strong presumption of causation under the

Act. In support of her opposition, she submitted the First Report of Injury, wherein

defendant stated that this is a Heart and Lung Act claim.

The trial court granted in part defendant’s motion for summary judgment,

holding that COVID-19 is not covered under La. R.S. 33:2581, the Heart and Lung

Act, and dismissed with prejudice any claim of presumption of causation under La.

R.S. 33:2581. However, the trial court found that “claimant is still permitted to

pursuant a COVID-19 death benefit claim under the general occupational disease

statute.” Relator filed the instant writ application as to the trial court’s rulings

granting in part defendant’s motion for summary judgment.

DISCUSSION

In this writ application, relator contends that the trial court erred in granting

in part defendant’s motion for summary judgment, holding that COVID-19 is not

covered under the Act.

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court's determination of whether summary judgment is

appropriate. O’Krepki v. O’Krepki, 16-50, 16-51 (La. App. 5 Cir. 05/26/16), 193

So.3d 574, 577, writ denied, 16-1202 (La. 10/10/16), 207 So.3d 406. A motion for

summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the mover

is entitled to judgment as a matter of law. La. C.C.P. art. 966 A(3). The burden of

22-C-510 8

proof rests with the mover. La. C.C.P. art. 966 D(1). However, if the mover will

not bear the burden of proof at trial on the issue before the trial court on the motion

for summary judgment, the mover is not required to negate all essential elements of

the plaintiff's claim, but is only required to point out the absence of factual support

for one or more elements essential to the plaintiff's claim. Id. The burden then shifts

to the plaintiff to produce factual support sufficient to show the existence of a

genuine issue of material fact or that the mover is not entitled to judgment as a matter

of law. Id.

Objection to Exhibits

In support of its motion for summary judgment and at the hearing, defendant

referred to the CDC’s website regarding information pertaining to COVID-19. In

the memorandum in opposition and at the hearing, relator’s counsel objected to

defendant’s reference to the CDC’s website as improper summary judgment

evidence. The trial court did not rule on relator’s objection.

On de novo review, this court reviews whether evidence submitted in support

of or in opposition to a motion for summary judgment is proper summary judgment

evidence. La. C.C.P. art. 966 A(4) provides the exclusive list of documents which

may be considered by the trial or reviewing courts:

A. (4) The only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda, affidavits,
depositions, answers to interrogatories, certified medical records,
written stipulations, and admissions.

Thus, introduction of documents which are not included in this exclusive list, such

as photographs, pictures, video images, or contracts, is not permitted unless they are

properly authenticated by an affidavit or the deposition to which they are attached.

Reed v. Landry, 21-589 (La. App. 5 Cir. 06/03/22), 343 So.3d 874, 881, citing Dye

v. LLOG Exploration Company, LLC, 20-441 (La. App. 5 Cir. 11/03/21), 330 So.3d

22-C-510 9

1222, 1224. La. C.C.P. arts. 966 and 967 do not permit a party to utilize unsworn

and unverified documents as summary judgment evidence. Id.

Furthermore, La. C.C.P. art. 966 D(2) provides:

(2) The court may consider only those documents filed in support of
or in opposition to the motion for summary judgment and shall
consider any documents to which no objection is made. Any
objection to a document shall be raised in a timely filed opposition
or reply memorandum. The court shall consider all objections
prior to rendering judgment. The court shall specifically state
on the record or in writing which documents, if any, it held to be
inadmissible or declined to consider. [Emphasis added.]

Relator raised an objection to the CDC’s website information, correctly

arguing that the website “is not competent evidence to support a Motion for

Summary Judgment.” The content relied on by defendant from the CDC’s website

was not verified or authenticated by an affidavit or deposition and therefore, it cannot

be considered by this court or the trial court in determining whether defendant is

entitled to summary judgment as a matter of law. Counsel for relator again objected

at the hearing. The court did not state, as required by La. C.C.P. art. 966 D(2), which

if any evidence had been excluded or not considered.

Upon de novo review, we agree with counsel for relator that reference to or

use of any content contained on the CDC’s website regarding COVID-19 is not

proper summary judgment evidence. Accordingly, to the extent the trial court relied

on the content from the CDC’s website in granting in part the motion for summary

judgment, we find the trial court erred.

Motion for summary judgment

Relator contends that the trial court erred in granting in part summary

judgment finding that “COVID-19 initiated acute hypoxic respiratory failure” was

not covered under the Act. She asserts that the death certificate listed four causes of

death and three of the four causes of death relate to lung conditions. Because he was

a fireman with over five years of employment, claimant asserts that she showed that

22-C-510 10

Eric’s death was presumably caused by his employment under the Act. Relator

argues that defendant did not submit any medical evidence regarding causation other

than the death certificate to support its assertion that “COVID-19 initiated acute

hypoxic respiratory failure” is not covered under the Act. She asserts that defendant

improperly relied on content from the CDC’s website to support its argument.

Therefore, relator claims the evidence submitted was insufficient to rebut the strong

presumption of causation under the statute.

The Act, La. R.S. 33:2581 provides

Any disease or infirmity of the heart or lungs which develops
during a period of employment in the classified fire service in the
state of Louisiana shall be classified as a disease or infirmity
connected with employment. The employee affected, or his
survivors, shall be entitled to all rights and benefits as granted by the
laws of the state of Louisiana to which one suffering an occupational
disease is entitled as service connected in the line of duty, regardless
of whether the fireman is on duty at the time he is stricken with the
disease or infirmity. Such disease or infirmity shall be presumed,
prima facie, to have developed during employment and shall be
presumed, prima facie, to have been caused by or to have resulted
from the nature of the work performed whenever same is
manifested at any time after the first five years of employment.
[Emphasis added.]

The Act creates a rebuttable presumption that the nature of a firefighter’s work

caused, contributed to, accelerated, or aggravated his heart or lungs condition if the

condition manifested itself after the first five years of employment. Miley v.

Bogalusa Fire Dept., 14-1113 (La. App. 1 Cir. 03/06/15), 166 So.3d 319, 322. Once

a claimant establishes that a covered disease or infirmity is at issue, and the

presumption applies, the burden shifts to the employer to prove that the disease or

infirmity was not caused by the firefighter’s employment. Id.

In this case, the following facts are undisputed. Eric was a fireman for more

than five years and he died on December 29, 2020. Eric’s death certificate listed

four causes of death: (1) COVID-19 initiated acute hypoxic respiratory failure; (2)

pneumonia; (3) septic shock; and (4) acute pulmonary embolism. Claimant filed a

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disputed claim for compensation contending that Eric died from a lung condition

covered under the Act.

Upon de novo review of the writ application, opposition, and exhibits attached

thereto, we find the trial court erred in granting in part, defendant’s motion for

summary judgment finding that “COVID-19 initiated acute hypoxic respiratory

failure” is not covered under the Act. Without any properly admissible summary

judgment evidence or expert testimony, medical or otherwise, the trial court

erroneously concluded that “COVID-19 initiated acute hypoxic respiratory failure”

is not covered under the Act. The only medical evidence submitted was the death

certificate, which is insufficient to conclude, without more, that “COVID-19

initiated acute hypoxic respiratory failure,” an infirmity involving the lungs, is not

covered under the Act. Therefore, on de novo review, we find genuine issues of

material fact exist as to whether “COVID-19 initiated acute hypoxic respiratory

failure” is covered under the Act.

DECREE

For the reasons stated herein, this writ application is granted, the trial court’s

judgment granting in part defendant’s motion for summary judgment is reversed,

defendant’s motion for summary judgment is denied, and this matter is remanded

for further proceedings.

REVERSED; REMANDED

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 19, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-510
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
WILLIAM R. MUSTIAN, III (RELATOR) MICHAEL F. NOLAN (RESPONDENT)

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