D'Marrio Kendrick Versus Brown and Root

D'MARRIO KENDRICK NO. 24-CA-361

VERSUS FIFTH CIRCUIT

BROWN AND ROOT COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION
DISTRICT 7
STATE OF LOUISIANA
NO. 23-2043
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

February 26, 2025

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and John J. Molaison, Jr.

REVERSED AND REMANDED
SJW
SMC
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
D'MARRIO KENDRICK
Larry M. Aisola, Jr.

COUNSEL FOR DEFENDANT/APPELLEE,
BROWN & ROOT
John J. Rabalais
Matthew D. Crumhorn

WINDHORST, J.

Claimant/employee, D’Marrio Kendrick, seeks review of the Office of

Workers’ Compensation’s (“OWC”) May 1, 2024 judgment, granting summary

judgment in favor of defendant/employer, Brown & Root Industrial Services

(“Brown & Root”), dismissing his indemnity benefits claim with prejudice. For the

following reasons, we reverse and remand for further proceedings.

FACTS and PROCEDURAL HISTORY

On July 7, 2022, while in the course and scope of his employment for Brown

& Root, claimant was involved in an automobile accident. Claimant was driving a

Brown & Root vehicle across railroad tracks on property owned by Cornerstone.

While crossing the tracks, claimant’s Brown & Root vehicle was involved in a

collision with a train. As a result of the incident, claimant sustained injuries.

On April 27, 2023, claimant filed a disputed claim for compensation alleging

injuries to his neck, back, and leg. Claimant asserted Brown & Root failed to pay

him indemnity benefits. Brown & Root filed an answer on May 8, 2023, admitting

claimant was involved in an accident during the course and scope of his employment.

However, Brown & Root denied claimant is disabled in any capacity from an injury

sustained in the course and scope of his employment.

On February 21, 2024, Brown & Root filed a motion for summary judgment

arguing claimant cannot meet his burden of proving entitlement to indemnity

benefits from the date of the accident, July 7, 2022, until he was placed on benefits

after his surgery on June 29, 2023. Brown & Root stated there is no dispute that the

collision occurred and claimant was immediately provided medical treatment.

However, Brown & Root contended claimant cannot establish through objective

medical evidence that he was disabled and could not engage in any employment

through this time period (i.e., from the date of the accident until he started receiving

benefits after his surgery) to be entitled to Temporary Total Disability (TTD)

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benefits. Moreover, Brown & Root argued claimant cannot meet his burden of

proving a disability or loss of earning capacity to be entitled to Supplemental

Earnings Benefits (SEBs).

Brown & Root asserted claimant’s medical records established that claimant

was not restricted from work from the date of the accident until his surgery.

Claimant received medical treatment immediately after the work accident with Gulf

Coast Occupational Medicine (“Gulf Coast”). Gulf Coast diagnosed claimant with

low back pain and strain of muscle, fascia, and tendon of lower back and released

claimant to regular duty work as tolerated. Shortly thereafter, claimant selected and

was approved to treat with his choice of physician, Dr. Joseph Boucree, who

diagnosed claimant with cervical myelopathy, radiculopathy, spondylosis of the

cervical region, lumbar radiculopathy, and strains, and claimant was “permitted

work-release.” Dr. Boucree saw claimant several times and either “permitted work-

release” or did not change claimant’s disability status. Claimant subsequently had a

surgery in Florida with Dr. Stefan Prada, on June 29, 2023. Once Brown & Root

learned claimant elected to undergo surgery with Dr. Prada, he was placed on

retroactive TTD benefits to the date of his surgery (i.e., June 29, 2023). Brown &

Root asserted that these TTD benefits retroactive to surgery, and his disability and

entitlement to indemnity benefits after the surgery are not in dispute or at issue in

the motion for summary judgment.

Thus, based on claimant’s medical records, Brown & Root argued that

claimant cannot establish by clear and convincing objective medical evidence that

he could not engage in any employment during the period of time from the date of

the accident to the date of the surgery (i.e., July 7, 2022 through June 29, 2023)

because plaintiff’s own treating physician allowed him “permitted work-release.”

Additionally, Brown & Root asserted claimant cannot prove by a preponderance of

evidence that he would be entitled to SEBs during that time period. In support of its

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motion, Brown & Root attached certified medical records from Gulf Coast and Dr.

Boucree.

In opposition, claimant argued multiple disputed issues of fact precluded

summary judgment. Namely, claimant contended the following genuine issues of

material fact existed: (1) whether he was injured in the accident; (2) whether he

received proper treatment by Gulf Coast; (3) whether he received disability status

from Dr. Boucree; and (4) whether he had an opportunity to return to work. Claimant

contended that throughout the Gulf Coast evaluation, the tests were inconsistent and

the report stated certain tests needed to be repeated but those tests were not

performed. Claimant also averred defendant did not at any time request him to return

to work; in fact, he was informed not to return to the work site. As to Dr. Boucree’s

medical records stating “permitted work-release,” claimant contended Dr. Boucree’s

medical records also stated “Re-assess work status with follow-up patient encounter”

after completion of certain diagnostic studies or next evaluation. In support of his

opposition, claimant submitted his own affidavit, attesting that “no one from Brown

& Root has contacted me about my employment. I was informed after the accident

not to return to work.” He also attached an affidavit by Dr. Boucree, clarifying and

explaining his statement “permitted work-release” as follows:

A review of my medical records on behalf of D’Marrio Kendrick
provides a phrase of the following “‘Patient permitted work-release’ re-
assess work status with follow-up.” In essence, I am stating that
D’Marrio Kendrick’s work status is temporary disability until the next
evaluation. As such, D’Marrio Kendrick was temporary disable [sic]
until the next office evaluation.

In reply, Brown & Root objected to the two affidavits attached to claimant’s

opposition. Brown & Root contended claimant’s own affidavit was: (1) irrelevant

to the material facts before the trial court in the motion for summary judgment; and

(2) claimant’s statement “I was informed after the accident not to return to work” is

24-CA-361 3

misleading and not a complete report of the facts.1 Thus, Brown & Root argued

claimant’s own affidavit should be excluded. As to Dr. Boucree’s affidavit, Brown

& Root asserted that (1) the information in the affidavit had not been authenticated,

it was based on speculation, and was incomplete; (2) Dr. Boucree was making

assumptions by using the words “in essence” and attempting to change his medical

opinion retroactively, despite the medical records reflecting otherwise; and (3) his

affidavit was an attempt to defeat the motion for summary judgment. Brown & Root

also asserted that Dr. Boucree’s affidavit did not outline how or why claimant would

be considered disabled, what restrictions would be placed on claimant, and the

affidavit directly contradicted Dr. Boucree’s opinion that was provided after each

examination. Therefore, Brown & Root contended that Dr. Boucree’s affidavit was

not valid and should be excluded.

On May 1, 2024, at the conclusion of the hearing on the motion for summary

judgment and objections to claimant’s affidavits, the OWC judge took the matter

under advisement. On the same day, the OWC judge issued two judgments. In an

interlocutory judgment, the OWC judge overruled Brown & Root’s objections to the

affidavits attached to claimant’s opposition, finding the affidavits “are allowed.”

Nevertheless, the judgment further provided:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
affidavit of D’Marrio Kendrick is a self-serving affidavit procured only
after the Motion for Summary Judgment was filed and for the sole
purpose of defeating summary judgment. No evidence was provided to
support Claimant’s contention that he was instructed not to return to
work. Additionally, the affidavit of Dr. Boucree was a self-serving
affidavit submitted only after the Motion for Summary Judgment was
filed. The affidavit was inconsistent with Dr. Boucree’s medical
records and there is no explanation for the inconsistency.

In a second and final judgment rendered on May 1, 2024, the OWC judge

rendered judgment in favor of Brown & Root and against claimant, granting the

1 Counsel for Brown & Root stated claimant was asked not to return a third party, not Brown & Root.
However, there is no evidence to support this assertion.

24-CA-361 4

motion for summary judgment as it relates to indemnity benefits from “July 8,2 2022

through June 29, 2023.” The OWC judge found “claimant cannot meet his burden

to show that he is disabled from work during that period as a result of injuries

sustained in the work accident,” and dismissed claimant’s claims with prejudice.

The OWC judge issued written reasons the same day, finding that claimant did not

meet his burden in establishing entitlement to TTD benefits or SEBs.

This appeal followed.

LEGAL ANALYSIS

On appeal, claimant argues the OWC judge erred in granting Brown & Root’s

motion for summary judgment. In deciding a motion for summary judgment,

claimant avers a trial court cannot make credibility determinations and must assume

all affiants are credible. Claimant contends his own affidavit stated he was involved

in an accident that required treatment and surgeries, he was informed not to return

to work, and he was not informed of the availability of work. Claimant asserts his

own affidavit did not contain “mere allegations or self-serving conclusory” facts as

it is undisputed he had surgery due to injuries sustained as a result of the July 7, 2022

accident and is receiving benefits from the date of the surgery. Claimant contends

these facts indicated he was temporary totally disabled from the period of time prior

to the surgery (i.e., July 7, 2022 through June 29, 2023), and his affidavit was

sufficient to create a genuine issue of material fact.

Claimant also contends Dr. Boucree’s affidavit provided clarity as to Dr.

Boucree’s own medical records. Dr. Boucree’s affidavit stated he was temporary

totally disabled until the next evaluation. Claimant contends it was improper for the

trial court to make credibility determinations as to Dr. Boucree’s affidavit, his

2 Based on a review of the record, the date of claimant’s accident was July 7, 2022, not July 8, 2022.

24-CA-361 5

affidavit created a genuine issue of material fact, and therefore, the trial court erred

in granting the motion for summary judgment.

An appellate court reviews an OWC judge’s decision to grant a motion for

summary judgment in a workers’ compensation cases de novo, using the same

criteria that govern the OWC’s consideration of whether summary judgment is

appropriate. Rodriguez v. Nola Motor Club, L.L.C., 19-447 (La. App. 5 Cir.

10/05/20), 304 So.3d 147, 149, writ denied, 20-1432 (La. 02/17/21), 310 So.3d 1154.

In determining whether an issue of fact is genuine, as necessary for it to preclude

summary judgment, courts cannot consider the merits, make credibility

determinations, evaluate testimony, or weigh conflicting evidence. Varrecchio v.

Lemoine Company, L.L.C., 23-603 (La. App. 5 Cir. 01/31/24), 381 So.3d 210, 215;

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 07/05/94), 639 So.2d 730,

751.

An affidavit is considered self-serving, and therefore may not be used to

defeat a motion for summary judgment, when: (1) it is inconsistent with previous

sworn depositions and there is no explanation for the inconsistencies; (2) is offered

after the motion for summary judgment was filed; and (3) claims to create an issue

of material fact. Hardison v. Byrne, 15-111 (La. App. 4 Cir. 12/09/15), 182 So.3d

1110, 1116; Thibodeaux v. Shoppers Value Foods, 22-745 (La. App. 3 Cir.

08/16/23), 370 So.3d 177, 183; Dean v. De La Salle of New Orleans, Inc., 21-388

(La. App. 4 Cir. 12/21/21), 334 So.3d 425, 431. This is to avoid the “thwarting of

summary judgment procedure by the mere filing of an affidavit contradicting

inconvenient statements found in previous deposition testimony when the mover has

no opportunity to cross-examine the witness concerning the inconsistencies and the

trial court is prevented from weighing evidence by the rules of summary judgment.”

George v. Dover Elevator Co., 02-821 (La. App. 4 Cir. 09/25/02), 828 So.2d 1194,

1197 [emphasis added]; Thibodeaux, 370 So.3d at 183.

24-CA-361 6

For a claimant to establish entitlement to TTD benefits, he must prove by clear

and convincing evidence that he is physically unable to engage in any employment

or self-employment due to his injury. La. R.S. 23:1221(1)(c); Burga v. American

Remediation Group, LLC, 23-26 (La. App. 5 Cir. 12/06/23), 378 So.3d 165, 170,

writ not considered, 24-47 (La. 06/05/24), 385 So.3d 1156; Summers v. Ritz-Carlton

New Orleans, 14-800 (La. App. 5 Cir. 05/28/15), 171 So.3d 329, 342, writ denied,

15-1256 (La. 09/25/15), 178 So.3d 569. A claimant must present objective medical

evidence to prove by clear and convincing evidence that he is unable to engage in

any type of employment. Burga, 378 So.3d at 171; Summers, 171 So.3d at 343.

An employee who is not entitled to TTD benefits may be entitled to SEBs.

An employee is entitled to SEBs if the employee sustains a work-related injury that

results in the inability to earn ninety percent (90%) or more of his average pre-injury

wage. La. R.S. 23:1221(3)(a). The initial burden is on the employee to establish by

a preponderance of the evidence that the injury caused his inability to earn ninety

percent (90%) or more of his average pre-injury wage. Clay v. Our Lady of Lourdes

Regional Medical Center, Inc., 11-1897 (La. 05/08/12), 93 So.3d 536, 539. Once

the employee meets his burden, the burden shifts to the employer who, in order to

defeat the employee’s claim for SEBs, must prove by a preponderance of the

evidence that the employee is physically able to perform a certain job, and that the

job was offered or was available to the employee in his or the employer’s community

or reasonable geographic region. Clay, 93 So.3d at 539; La. R.S. 23:1221(3)(c)(i).

If the employer meets its burden, then the burden shifts back to the employee to

show by clear and convincing evidence that he cannot engage in any employment.

La. R.S. 23:1221(3)(c)(ii).

In the instant case, the OWC judge found Dr. Boucree’s affidavit was allowed

under La. C.C.P. art. 966 but ultimately found his affidavit to be self-serving and it

was excluded. Upon de novo review, we find the trial court erred in finding Dr.

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Boucree’s affidavit to be self-serving. Dr. Boucree is claimant’s personal treating

physician, has personal knowledge of the contents of his own medical records, and

clearly submitted the affidavit based on his personal knowledge. Dr. Boucree is in

the best position to clarify and/or explain unsworn statements regarding his

treatment of claimant made in his own medical records. Here, Brown & Root did

not argue nor show that Dr. Boucree’s affidavit was inconsistent with prior sworn

deposition testimony. Nevertheless, the OWC judge improperly made credibility

determinations, evaluated testimony, and weighed the statements made in Dr.

Boucree’s affidavit, concluding that the statements were inconsistent, without an

explanation, with the statements made by Dr. Boucree in his medical records. We

disagree and find that Dr. Boucree’s affidavit does not meet the definition of self-

serving. Because his affidavit is not self-serving, Dr. Boucree’s affidavit is

admissible and is sufficient to create a genuine issue of material fact as to whether

claimant was unable to engage in any type of employment from the date of the

accident until his surgery. Accordingly, the OWC judge erred in granting the motion

for summary judgment.

Because the OWC judge erred in finding Dr. Boucree’s affidavit to be self-

serving, requiring this court to reverse the judgment, we pretermit discussion of

claimant’s assignment of error regarding whether the OWC judge erred in finding

claimant’s own affidavit to be self-serving.

DECREE

Accordingly, for the reasons stated herein we reverse, deny summary

judgment, and remand for further proceedings.

REVERSED AND REMANDED

24-CA-361 8

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-361
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
LARRY M. AISOLA, JR. (APPELLANT) MATTHEW D. CRUMHORN (APPELLEE)

MAILED
MEGAN C. GLADNER (APPELLEE) JOHN J. RABALAIS (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW
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