Michael Glass v. Lowe's Home Center, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-147

MICHAEL GLASS

VERSUS

LOWE’S HOME CENTER, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 09-05918
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and David E. Chatelain,* Judges.

Thibodeaux, Chief Judge, concurs in the result and assigns written reasons.

REVERSED AND REMANDED.

Patrick Fox Robinson
Taylor, Wellons, Politz & Duhe
7924 Wrenwood Blvd., Suite C
Baton Rouge, LA 70809
(225) 387-9888
Counsel for Defendant/Appellant:
Lowe's Home Center, Inc.

Candace Wells-Losavio
Losavio Law Office, LLC
P. O. Box 12420
Alexandria, LA 71315-2420
(318) 767-9033
Counsel for Plaintiff/Appellee:
Michael Glass

*
Honorable David E. Chatelain participates as Judge Pro Tempore by appointment of the
Louisiana Supreme Court.

GREMILLION, Judge.

Defendant/appellant, Lowe’s Home Center, Inc. (Lowe’s), appeals summary

judgment in favor of plaintiff/appellee, Michael Glass, awarding him medical

expenses relating to his left knee and lower back, mileage, temporary total disability

indemnity, penalties of $4,000, and attorney fees of $5,500. Glass answers the

appeal, seeking additional attorney fees for defending the appeal. We reverse and

remand for further proceedings.

FACTS

On July 16, 2009, Glass filed a Disputed Claim for Compensation with the

Office of Workers’ Compensation in which he asserted that he injured his back and

knee on April 24, 2009 and May 19, 2009. Specifically, plaintiff alleged that:

On 4/24/09, claimant was standing, operating a forklift that moves
merchandise from shelves to the floor, when he injured his left knee and
low back as he was lifting a dishwasher off an upper shelf onto the
forklift platform. On 5/19/09, claimant aggravated his previous back
injury of 4/24/09 while performing job related activities.

Lowe’s filed responsive pleadings on August 6, 2009. On September 21, 2009, Glass

filed a First Amending and Supplemental Petition, alleging his entitlement to

reimbursement for mileage and unpaid medical expenses, as well as attorney fees and

penalties. That same date, he also filed a motion for summary judgment.

Glass’s motion for summary judgment was accompanied by his affidavit,

certified copies of medical records from Christus St. Francis Cabrini Hospital,

uncertified medical records of Dr. James Wallace, certified medical records from

Leglue Physical Medicine Clinic, the affidavit of Dr. Gerald Leglue, Jr., and the

affidavit of Glass’s attorney attesting to her timed devoted to his representation.

The hearing on the motion for summary judgment was fixed for October 5,

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2009, by order of the Workers’ Compensation Judge (WCJ) dated September 22,

2009.

On September 24, 2009, Glass filed a motion seeking leave of the WCJ to

propound written discovery in excess of the limits imposed by La.Code Civ.P. art.

1457(B). Leave of court was granted that day.

The hearing on Glass’s motion for summary judgment was refixed in open

court on October 5, 2009, for October 19, 2009. On October 8, 2009, the WCJ signed

the order refixing the motion for summary judgment for hearing on October 19, 2009.

That order also fixed for hearing on the same day a motion by Glass to compel

responses to discovery.

Lowe’s filed its opposition to the motion for summary judgment on October 16,

2009. In its opposition, Lowe’s maintained that summary judgment was not ripe

because additional discovery was needed and that a genuine issue of material fact

existed given Glass’s statement to the personnel at Christus St. Francis Cabrini

Hospital that he did not recall any on-the-job accident but awoke on May 19 in pain.

Lowe’s also isolated several other references from medical records that it contended

created genuine issues of material fact with regard to the causal relationship between

the events of the two dates in question and the conditions for which Glass sought

treatment. To its opposition, Lowe’s annexed certified copies of the medical records

generated by Mid-State Orthopaedic and Sports Medicine Center of Alexandria and

Louisiana Physical Therapy Centers of Pineville.

Glass responded to Lowe’s opposition, asserting that it should not be

considered by the WCJ as it was not timely filed in accordance with La.Code Civ.P.

art. 966(B) and Uniform Rules—District Courts, Rule 9.9, both of which require the

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opposition be served at least eight days prior to the date of hearing.

The hearing on Glass’s motions was held on October 19 as ordered. At the

hearing, Glass reiterated his objection to the opposition filed by Lowe’s. However,

Lowe’s sought to introduce the records of Mid-State Orthopaedic and Louisiana

Physical Therapy. Glass’s counsel was specifically asked whether she objected to the

introduction, which she declined to do, given that the records were certified. It is not

clear from the WCJ’s ruling from the bench whether he was allowing the filing of the

opposition or was simply allowing Lowe’s counsel the opportunity to present oral

argument;1 however, the introduction of the certified medical records without

objection rendered Glass’s opposition to the late filing moot.

The WCJ ruled from the bench that, the medical records of Christus St. Francis

Cabrini Hospital notwithstanding, he found no genuine issue of material fact for trial,

as the medical records of Dr. Rajinder Verma, a physician in Ball, Louisiana, to

whom Glass had been referred by Lowe’s, documented that Glass complained of pain

in his low back and knee on April 24, 2009. It is again unclear from the WCJ’s ruling

whether he even considered the opposition filed by Lowe’s because at one point he

states, “That’s not the case here, we have no opposition, we have no opposing

medical information whatsoever. We have no factual information from the employer

to oppose the evidence presented on behalf of Mr. Glass in support of the Motion for

Summary Judgment.” The summary judgment was granted.

ASSIGNMENTS OF ERROR

Lowe’s assigns the following errors:

1
There was apparently considerable confusion at the commencement of the hearing. The
WCJ had brought to the bench exhibits that he had already reviewed. Those were removed from the
bench by someone, and new copies had to be made by the WCJ’s staff.

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A. The trial judge committed manifest error in finding that there are no
genuine issues of material fact;

B. The trial judge committed manifest error in granting summary judgment
without allowing the defendant “adequate discovery” as required under
[La.Code Civ.P.] art. 966;

C. The trial judge committed legal error in granting summary judgment
before Lowe’s answered the plaintiff’s “First Amending and
Supplemental Petition.”

ANALYSIS

An appellate court reviews a grant of summary judgment de novo, applying the

same standards as would a trial court. Schroeder v. Bd. of Sup’rs of La. State Univ.,

591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts.

966 and 967. Article 966, as amended by Act 483 of 1997, provides that while the

burden of proving entitlement to summary judgment rests with the mover, if the

mover will not bear the burden of proof at trial on the matter that is before the court

on the motion for summary judgment, the mover’s burden on the motion does not

require him to negate all essential facts of the adverse party’s claim, action, or

defense, but rather to point out to the court that there is an absence of factual support

for one or more elements essential to the adverse party’s claim, action or defense.

Thereafter, if the adverse party fails to produce factual support sufficient to establish

that he will be able to satisfy his evidentiary burden of proof at trial, there is no

genuine issue of material fact. Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So. 2d 606.

A fact is “material” if it potentially ensures or precludes recovery, affects a litigant’s

ultimate success, or determines the outcome of a legal dispute. Smith v. Our Lady of

the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. A genuine issue is one on

which reasonable persons could disagree. Id. Thus, it is only when, based upon the

evidence presented, reasonable persons could reach but one conclusion that summary

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judgment is appropriate. Id.

The recovery of benefits in workers’ compensation for personal injury is

predicated upon a finding that the employee has received personal injury by accident

arising out of and in the course and scope of his employment. La.R.S. 23:1031(A).

An “accident” is defined as, “an unexpected or unforeseen actual, identifiable,

precipitous event happening suddenly or violently, with or without human fault, and

directly producing at the time objective findings of an injury which is more than

simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

Applying the precepts of La.Code Civ.P. art. 966 to the requirements of La.R.S.

23:1031, it is incumbent upon the court to find that no reasonable person could

disagree that Glass was injured in an unexpected, unforeseen actual, precipitous event

happening suddenly or violently that directly produced at the time objective findings

of an injury that is more than simply a gradual deterioration or progressive

degeneration. Smith, 639 So.2d 730. To determine this, we look to the admissible

evidence presented in support of and in opposition to Glass’s motion.

Glass presented to Dr. Verma on April 24, 2009, complaining that he injured

his left knee and low back at work. Dr. Verma found effusion (fluid on his knee),

tenderness, and swelling in Glass’s left knee. Effusion and swelling both represent

findings that an independent observer could detect without any response from the

claimant. They are, therefore, objective findings of injury. On his only follow-up

visit with Glass, Dr. Verma found that Glass’s knee and back were either improved

or improving and returned Glass to work effective May 6, 2009.2

2
It is not possible to tell from the record whether Dr. Verma found that Glass had improved
or was improving. We find this distinction important, given the fact that Glass alleges he had two
accidents.

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Glass did return to work, according to his affidavit. However, “on May 19,

2009, while performing regular job duties,” Glass attested that his back and knee pain

increased. The record discloses no attempt by Glass to seek medical attention until

May 26, 2009, when he presented to the emergency room at Christus St. Francis

Cabrini Hospital in Alexandria. The hosptial’s intake data sheet indicates that Glass

stated his back had been hurting for four days, that he was unsure about having

sustained an injury, and that he awoke in pain. Radiographic studies of Glass’s back

and knee were ordered. The back studies showed rather advanced multilevel

degenerative changes, most severe at the L4-5 and L5-S1 levels. Glass had mild

spondylolisthesis at the L4-5 of seven to eight millimeters. At the T12 level, Glass

demonstrated evidence of an old compression fracture of the vertebra. The knee

study showed moderate degenerative changes and spurring about the knee cap. There

was no joint effusion or fracture.

Glass returned to the hospital on May 29, 2009, for MRI studies of his back

and knee. The knee study revealed a degenerative tear of the medial meniscus, a

partial tear of the popliteus tendon, a partial tear of the proximal fibular collateral

ligament, chronic-appearing patellar and quadriceps tendonitis, “chronic signal” in

the mid portion of the posterior cruciate ligament, fairly advanced degenerative

changes in the medial joint compartment with chondromalacia, variances in the

medial knee soft tissues, and a ganglion cyst about the proximal tibiofibular joint.

The study of Glass’s back revealed either an extruded disc fragment or a

Schwannoma or neurofibroma of the nerve that appeared to displace the thecal sac at

the L3-4 level; a mild broad-based disc bulge at the same level with moderately

severe degenerative facet arthropathy and bilateral foraminal stenosis; a moderate

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disc bulge at L4-5 with severe degenerative arthropathy; and a mild to moderate disc

bulge and protrusion with moderate to severe bilateral facet arthropathy.

Thereafter, Glass saw his primary care physician, Dr. James Wallace. Shortly

thereafter, Glass came under the care of Dr. Gerald Leglue, a physical medicine and

rehabilitation specialist in Alexandria. Dr. Leglue obtained an extensive personal

history from Glass on a pre-generated form that Glass completed by hand. In

response to the question, “How long have you had back pain?” Glass responded,

“From 4/24/09.” Glass’s further responses indicate that his knee and back improved

slightly. He did inform Dr. Leglue that he had attempted to return to work but that

his knee and back pain had gotten worse. Dr. Leglue attested in his affidavit that, in

his opinion, Glass’s low back and knee injuries were causally related to the April 24,

2009 accident.

Based upon the evidence presented, we find that reasonable minds could differ

over whether there is a causal relationship between the April 24, 2009 accident and

Glass’s complaints after May 19, 2009. Following the April 24 accident, Glass gave

a detailed description of the manner in which he was injured. He was treated and

released to return to work. When he presented to the emergency room on May 26, a

full week after he maintained that he re-injured or aggravated his knee and back,

Glass reported that he did not recall any injury but woke up in pain four days earlier

(which also conflicts with his claim of having aggravated his conditions on May 19).

His objective findings after May 19 all appear to represent degenerative conditions

except the possibility of ligament damage to the left knee. We are unable to

determine from the record whether the left knee conditions are related to April 24’s

events, May 19’s events, or are degenerative in nature. Lastly, when Glass did relate

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May 19’s events both in his affidavit and elsewhere, he merely described them in the

nebulous terms of, “while performing job related activities.” No more detailed

descriptions have been provided in the record.

In the context of a trial, “findings based on determinations regarding the

credibility of witnesses” demand “great deference to the trier of fact's findings.”

Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992), quoting Rosell v. Esco,

549 So.2d 840, 844 (La.1989). “[O]nly the factfinder can be aware of the variations

in demeanor and tone of voice that bear so heavily on the listener's understanding and

belief in what is said.” Id. In the context of summary judgment, though, such

findings based upon credibility are afforded no deference whatsoever, because such

findings have no place in summary judgment. The trier of fact’s task in deciding

summary judgment is solely to determine whether there exists a genuine issue of

material fact. “A fact is ‘at issue’ if there exists any reasonable doubt as to its

existence.” Dinger v. Shea, 96-448, p. 4 (La.App. 3 Cir. 12/11/96), 685 So.2d 485,

488.

When faced with internally inconsistent accounts of a claimant’s medical

history that directly bear upon two elements of a workers’ compensation claim, 1) the

occurrence of an “accident,” and 2) the causal relationship between the accident and

the injuries sustained, a WCJ who grants summary judgment is necessarily making

a credibility determination. Such a determination cannot survive review on appeal.

In our view, there exist material issues of fact regarding: 1) whether Glass had

recovered from the April 24 incident, in which case any injuries from the May 19

incident must be shown to have resulted from an “accident” on May 19 or at some

other time; 2) whether Glass was involved in an unwitnessed “accident” on May 19

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or at some other time; and 3) whether Glass’s conditions represent injuries that are

more than simply gradual deterioration or progressive degeneration. In light of these

considerations, the WCJ erred in granting Glass’s motion for summary judgment.

The decision to allow a party additional time for discovery before entertaining

a motion for summary judgment lies within the discretion of the trial court and will

not be reversed absent a showing that the trial court abused that discretion in not

allowing additional time. Simoneaux v. E.I. duPont de Nemours and Co., Inc., 483

So.2d 908 (La.1986). Given our finding that the WCJ erred in granting summary

judgment because of the existence of genuine issues of material facts, we need not

address whether the WCJ abused his discretion in refusing defendant additional time.

We also note that the motion was heard before Lowe’s filed an answer to

Glass’s First Supplemental and Amending Petition. Louisiana Code of Civil

Procedure article 966(A)(1) provides that a plaintiff’s motion for summary judgment

may be filed any time after the answer has been filed. It was improper for the motion

for summary judgment to have been heard prior to Lowe’s filing an answer. And, we

note, the requirement that a motion for summary judgment only be filed after answer

is quite logical, because before an answer is filed, a plaintiff’s opportunity to obtain

an expedited ruling on the merits is to obtain a default judgment.

CONCLUSION

The Workers’ Compensation Judge’s grant of summary judgment in favor of

plaintiff/appellee, Michael Glass, is reversed. Genuine issues of material fact exist

as to the occurrence of a May 19, 2009 accident and any causal relationship between

said accident and his complaints. Further, the motion should not have been heard

prior to Lowe’s filing responsive pleadings to Glass’s First Supplemental and

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Amending Petition. Appellee is cast with all costs of this appeal, and his demand for

additional attorney fees related to this appeal is denied.

REVERSED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-147

MICHAEL GLASS

VERSUS

LOWE’S HOME CENTER, INC.

THIBODEAUX, Chief Judge, concurring.

I concur in reversing the judgment of the trial court only because

La.Code Civ.P. art. 966 (A)(1) requires the submission of an answer prior to the

plaintiff’s motion being made. Our jurisprudence is replete with cases demonstrating

that this is mandatory.

I disagree with the majority concerning the existence of genuine issues

of material facts. The claimant, as the moving party, carried his burden in

demonstrating a prima facie case on the occurrence of the accident and causation.

The defendant, as the trial court observed, submitted no factual or opposing medical

evidence whatsoever. None. Pointing to inconsistencies in the medical records and

in the plaintiff’s narrative do not amount to the creation of genuine issues of material

facts. No reasonable person could conclude that the defendant could carry its burden

of lack of causation at trial.

I reluctantly agree to reversal because of the procedural posture of this

case.