Elaine Mitchell v. Alliance Compressors

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-857

ELAINE MITCHELL

VERSUS

ALLIANCE COMPRESSORS

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF NATCHITOCHES, NO. 17-00135
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry,
Judges.

AFFIRMED.

George A. Flournoy
Flournoy Law Firm
1239 Jackson Street
Alexandria, Louisiana 71309
(318) 487-9858
Counsel for Plaintiff/Appellant:
Elaine Mitchell

Sam N. Poole, Jr.
M. Allison Johnson
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, Louisiana 71307-6188
(318) 445-6471
Counsel for Defendant/Appellee:
Alliance Compressors, LLC

KEATY, Judge.

In this workers’ compensation case, Elaine Mitchell appeals a judgment that

granted summary judgment in favor of her former employer, Alliance Compressors

(Alliance), and dismissed her claims against it. Finding that Alliance met its burden

of proving the absence of any genuine issues of material fact such that it was entitled

to judgment in its favor as a matter of law, we affirm.

PROCEDURAL HISTORY

Mitchell filed a Form 1008 Disputed Claim for Compensation (1008) against

Alliance on January 9, 2017, alleging that she sustained a workplace injury on

December 5, 2016, when her right hand got caught in a machine. In the 1008,

Mitchell listed the following items as being in “BONA-FIDE DISPUTE:”

a. Extent and duration of disability and entitlement to indemnity
benefits

b. Non-payment or incorrect or untimely payments of TTD benefits
and/or SEB

c. Failure to furnish and/or provide authorization for proper
medical treatment

d. Non-payment and/or untimely payment of medical and travel
related expenses

e. Failure to furnish copies of reports of employer selected
physicians within 30 days after written request therefor

f. Failure to provide vocational rehabilitation

g. Wages

h. Discontinuance of benefits

i. Penalties and attorney’s fees in accord with LSA 23:1201
and/or:1125 and/or:1142 as a result of b., c., d., e., f., or h.

j. Legal interest on all awards from appropriate date

After prior trial dates had been continued six times, without opposition, by both

Mitchell and Alliance, the matter was refixed for an August 9, 2018 trial. In advance

of the trial, Alliance filed a Motion for Summary Judgment on June 5, 2018, seeking

to have Mitchell’s claims against it dismissed. The workers’ compensation judge

(WCJ) scheduled Alliance’s motion for a July 5, 2018 hearing. On July 3, 2018, a

flurry of motions was filed. Mitchell filed a Motion to Continue or, Alternatively,

Motion to Refer to the Merits, which sought to require Alliance to show cause on

July 5, 2018, why Mitchell’s motion to continue should not be granted; the WCJ

signed the order submitted by Mitchell which resulted in her motion to continue

being set on the same day as the summary judgment hearing. Mitchell also attempted

to file a pleading titled Opposition to Motion Fo [sic] Summary Judgment. 1 In

response, Alliance filed a memorandum in opposition to Mitchell’s motion to

continue, as well as a response to Mitchell’s substantive opposition to its motion for

summary judgment.

Neither Mitchell nor her counsel appeared at the July 5, 2018 hearing. The

WCJ orally denied Mitchell’s motion to continue or refer to the merits, and granted

summary judgment in favor of Alliance, dismissing Mitchell’s claims against it with

prejudice. The WCJ signed a written judgment in conformity with its oral reasons

on July 13, 2018. Mitchell timely filed a motion for new trial which the WCJ,

following a hearing, denied by judgment dated August 23, 2018. Mitchell appealed,2

and is now before this court asserting that:

1 The WCJ abused his discretion in refusing to refer the summary
judgment motion to a trial on the merits that was only 35 days

1
As we will later explain, the WCJ refused to consider Mitchell’s opposition and,
apparently, did not allow it to be filed into the record. We note, however, that the first page of the
opposition appears in the record as Exhibit 5 to Alliance’s later filed Memorandum in Opposition
to Plaintiff’s Motion for New Trial, wherein Alliance describes Mitchell’s opposition as being one
and one-half pages in length and without any accompanying exhibits.
2
Mitchell devolutively appealed from the judgment of July 13, 2018, dismissing her claims
and the judgment of August 23, 2018, denying her motion for new trial. Her appellant brief does
not include an assignment of error or any argument addressing the denial of her new trial motion.
Accordingly, we will consider as abandoned Mitchell’s appeal of the August 23, 2018 judgment.
See Uniform Rules—Courts of Appeal, Rules 1–3 and 2–12.4; Lewis v. Albertson’s Inc., 41,234
(La.App. 2 Cir. 6/28/06), 935 So.2d 771, writ denied, 06-1943 (La. 11/9/06), 941 So.2d 42.
2

away when the motion to refer clearly delineated significant
factual material issues, which defendant did not dispute.

2 The WCJ erred in granting defendant’s motion for summary
judgment, failing to thoroughly review the documentary
evidence and dismissing plaintiff’s claim in its entirety. The
grant of summary judgment was erroneously based only on
excerpts of plaintiff’s deposition, incomplete medical records
and without any sworn testimony of plaintiff’s treating physician.

DISCUSSION

In order for an employee to recover benefits under the Worker’s
Compensation Statutes of the State of Louisiana he must show that he
received a personal injury by way of an accident arising out of and in
the course and scope of his employment, and said injury necessitated
medical treatment and/or rendered the employee either temporary
totally disabled, permanent totally disabled, entitled to supplemental
earning benefits, and/or permanent partially disabled. LSA–R.S.
23:1021; 1031; 1203; and 1221.

Alfred v. Mid-S. Mach., Inc., 594 So.2d 937, 939 (La.App. 3 Cir. 1992).

A claimant will not be entitled to temporary total disability
benefits for time she is employed. . . . A claimant must submit
objective medical evidence of the disabling condition to meet his
burden of proving entitlement to TTD benefits by clear and convincing
evidence.

In Fritz [v. Home Furniture-Lafayette], 95-1705, p. 3-4 [(La.App.
3 Cir. 7/24/96),] 677 So.2d [1132,] at 1134, we stated:

However, the issue of disability presents a legal not
purely a medical, question which must be determined after
considering all of the medical and lay testimony in the
record. Walker v. Halliburton Services, Inc., 93-722
(La.App. 3 Cir. 3/1/95); 654 So.2d 365, writ denied, 95-
1507 (La.9/22/95); 660 So.2d 481. In other words, the
hearing officer determines whether a claimant has met his
burden of proving disability only after weighing all the
medical and lay testimony.

Jones v. El Mesero Rest., 97-636, pp. 4-5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1133,

1135-36 (citations omitted). In Jones, this court found that the claimant, who

“continued working for a ten-month period [following her alleged on-the-job

accident,] maintaining her normal hours, in her preinjury position, until her

3

termination for unrelated reasons[,]” was not disabled and thus not entitled to

indemnity benefits. Id. at 1134.

“When appropriate under Articles 966 and 967, summary judgment is

available in workers’ compensation cases.” Craig v. Bantek W., Inc., 04-229, p. 5

(La.App. 1 Cir. 9/17/04), 885 So.2d 1241, 1244. See also Potier v. Acadian

Ambulance Serv., Inc., 13-914 (La.App. 3 Cir. 2/12/14), 153 So.3d 1082, writ denied,

14-527 (La. 4/25/14), 138 So.3d 647. “A defendant’s motion [for summary

judgment] may be filed at any time.” La.Code Civ.P. art. 966(A)(1). Louisiana

Code of Civil Procedure Article 966 further provides, in pertinent part:

A. (2) The summary judgment procedure is designed to secure
the just, speedy, and inexpensive determination of every action, except
those disallowed by Article 969. The procedure is favored and shall be
construed to accomplish these ends.

(3) 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 as to material
fact and that the mover is entitled to judgment as a matter of law.

....

B. Unless extended by the court and agreed to by all of the parties,
a motion for summary judgment shall be filed, opposed, or replied to in
accordance with the following provisions:

(1) A motion for summary judgment and all documents in
support of the motion shall be filed and served on all parties in
accordance with Article 1313 not less than sixty-five days prior to the
trial.

(2) Any opposition to the motion and all documents in support of
the opposition shall be filed and served in accordance with Article 1313
not less than fifteen days prior to the hearing on the motion.

....

C. (1) Unless otherwise agreed to by all of the parties and the court:

(a) A contradictory hearing on the motion for summary judgment
shall be set not less than thirty days after the filing and not less than
thirty days prior to the trial date.

4

....

(2) For good cause shown, the court may order a continuance of
the hearing.

Was the WCJ’s Denial of Mitchell’s Request to Refer Alliance’s Motion for
Summary Judgment to the Merits an Abuse of Discretion?

This court was recently called upon to review the propriety of a trial court’s

denial of a plaintiff’s motion to continue a hearing on a motion for summary

judgment filed against it by the defendant. See Miller v. Acadian Ambulance Serv.,

Inc., 17-1096 (La.App. 3 Cir. 5/23/18), 248 So.3d 469, writ denied, 18-1452 (La.

11/20/18), 256 So.3d 990. In finding no error in the trial court’s denial of the

plaintiff’s motion, we explained:

Louisiana Code of Civil Procedure Article 1601 provides that “[a]
continuance may be granted in any case if there is good ground therefor.”
Under La.Code Civ.P. art. 1602, a continuance must be granted if “the
party applying for the continuance shows that he has been unable, with
the exercise of due diligence, to obtain evidence material to his case; or
that a material witness has absented himself without the contrivance of
the party applying for the continuance.” The court in Suarez v. Acosta,
15-750, pp. 9-10 (La.App. 5 Cir. 3/16/16), 194 So.3d 626, 632 (citations
omitted) discussed the trial court’s discretion in granting or denying a
continuance and stated in pertinent part:

In determining whether to grant a continuance, the trial
court must consider the particular facts in each case. Some
factors to consider are diligence, good faith, and
reasonable grounds. The trial court may also weigh the
condition of the court docket, fairness to the parties and
other litigants before the court, and the need for orderly
and prompt administration of justice. A trial court has
great discretion in granting or denying a motion for a
continuance under La. C.C.P. art. 1601, and that discretion
will not be disturbed on appeal in the absence of clear
abuse of discretion.

Id. at 475-76 (emphasis added).

In her appellant brief, Mitchell asserts that the “WCJ was itching to grant

defendant’s motion for summary judgment [, a]nd, in doing so, he deprived plaintiff

of her day in court, which was only 35 days away.” Citing this court’s decision in

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Marpco, Inc. v. S. States Pipe & Supply, 377 So.2d 525, 528 (La.App. 3 Cir. 1979),

Mitchell claims that the WCJ’s denial of her motion to continue or refer to the merits

amounted to an abuse of its wide discretion.

Alliance points out that despite the fact that the hearing had been set since

early June, the request to continue the July 5, 2018 hearing was not made until just

two days before the hearing was set to take place. It directs this court’s attention to

the transcript of the July 5, 2018 hearing wherein the WCJ referenced a conference

it had conducted with both parties’ counsel of record on July 2, 2018, wherein the

WCJ stated that it would not grant Mitchell’s “late request” for a continuance.

According to the transcript, the WCJ explained that, after being presented with an

order filed by Mitchell’s counsel setting a hearing on the motion to continue or refer

to the merits to July 5,3 he signed the requested order, and his office faxed a copy of

the signed order to Mitchell’s counsel’s office. Pointing to La.Code Civ.P. art.

966(C)(1)(a) (emphasis added), which provides that “[u]nless otherwise agreed by

all of the parties and the court [a] contradictory hearing on the motion for summary

judgment shall be set not less than thirty days after the filing and not less than thirty

days prior to the trial date[,]” Alliance asserts that Louisiana law does not permit

motions for summary judgment to be “referred to the merits.”

Initially, we note that neither Alliance nor the WCJ agreed to continue the

summary judgment hearing. Given the fact that the hearing on Alliance’s motion

for summary judgment had been set since June 5, 2018, we cannot say that the WCJ

abused its great discretion in denying a motion to continue that was filed just two

days before the scheduled hearing. Moreover, even had Mitchell’s request for a

continuance been filed earlier, it was within the sound discretion of the WCJ to deny

3
The July 5, 2018 hearing date was pre-filled in by Mitchell’s counsel.
6

the request as Mitchell “did not allege any peremptory grounds for a continuance.”

Miller, 248 So.3d at 476. Mitchell’s first assigned error lacks merit.

Did Alliance Prove Its Entitlement to Summary Judgment?

An appellate court reviews a trial court’s granting of a motion for
summary judgment de novo. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.
11/29/06), 950 So.2d 544. Under this standard of review, the appellate
court uses the same criteria as the trial court in determining if summary
judgment is appropriate: whether there is a genuine issue of material
fact and whether the mover is entitled to judgment as a matter of law.
Id. “A fact is ‘material’ when its existence or nonexistence may be
essential to [a] plaintiff’s cause of action under the applicable theory of
recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27
(La. 7/5/94), 639 So.2d 730, 751. “[F]acts are material if they
potentially insure or preclude recovery, affect a litigant’s ultimate
success, or determine the outcome of the legal dispute.” Id. (quoting
S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir. 1991),
writs denied, 596 So.2d 211 (La.1992) ).

Louisiana Code of Civil Procedure Article 966(D)(1) discusses
the mover’s burden of proof on summary judgments, and states:

The burden of proof rests with the mover. Nevertheless,
if the mover will not bear the burden of proof at trial on
the issue 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 elements of the
adverse party’s claim, action, or defense, but rather to
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. The burden is on the adverse party to
produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law.

Miller, 248 So.3d at 475.

In her second assignment of error, Mitchell asserts that the WCJ’s “grant of

summary judgment was erroneously based only on excerpts of plaintiff’s deposition,

incomplete medical records and without any sworn testimony of plaintiff’s treating

physician.” We find no merit to Mitchell’s assertion, as it completely ignores the

fact that it was her burden to prove her entitlement to workers’ compensation

benefits.

7

Mitchell additionally asserts that the WCJ “fail[ed] to thoroughly review the

documentary evidence.” Given the directive that we perform a de novo review of

the trial court’s grant of summary judgment in favor of Alliance, what the WCJ did

or did not do is of no moment to our review of the appealed judgment. Nevertheless,

we point out that according to the July 5, 2017 transcript, the WCJ stated that he had

“read [Alliance’s] brief thoroughly and reviewed [Alliance’s] evidence as

submitted,” before noting that Mitchell’s 1008 “doesn’t really set forth any facts,

just mostly conclusions.” Thus, we find Mitchell’s assertion in this regard quite

disingenuous.

Alliance’s motion for summary judgment sought dismissal of all of Mitchell’s

claims for the reasons asserted in the attached memorandum and supporting

exhibits. 4 Alliance’s memorandum contained a twenty-two item Statement of

Uncontested Material Facts, each of which was supported by a reference to one or

4
In support of its motion for summary judgment, Alliance attached the following exhibits:
1) excerpts of Mitchell’s deposition; 2) excerpts of Mitchell’s certified medical records from
Natchitoches Regional Medical Center; 3) a work restriction for Mitchell dated December 5, 2016;
4) Mitchell’s certified medical records from Natchitoches Medical Specialists; 5) Mitchell’s
certified medical records from Dr. William Luster; 6) the June 1, 2018 affidavit of Michael Bridges,
an industrial nurse employed by Alliance; 7) the June 1, 2018 affidavit of Michelle Brundige,
Alliance’s human resources manager, with attachments G1 (Mitchell’s Payslips for periods
between September 26, 2016 and June 18, 2017), G2 (A Corrective Action Notice from Alliance
to Mitchell dated December 8, 2016, which gave her a Written Warning for a “Rule #22 Violation
of Established Safety Rules and Practices.” A Notice of Corrective Action dated March 14, 2017,
which stated that Mitchell had be given a Written Discussion for leaving early on January 1, 2017,
and for being unexcused on March 6 and 13, 2017. A Corrective Action Notice from Alliance to
Mitchell dated March 31, 2017, which stated that she had been given a Final Written Warning for
her Unsatisfactory Work Performance in violation of Job Performance Rule #2. A Notice of
Corrective Action dated April 10, 2017, which stated that Mitchell had be given a Written Warning
for leaving early on March 22, 2017 and being unexcused on April 6, 2017.) and G3 (Mitchell’s
June 14, 2017 Termination Notice); 8) the June 5, 2018 affidavit of Colleen Vosberg, a Liberty
Mutual Insurance Claim’s Manager who was assigned Mitchell’s workers’ compensation claim,
with attachments H1 (Mitchell’s Medical Cost Summary List) and H12 ( Mitchell’s Employee
Mileage Report); 9) the Motion to Continue Trial and to Deem Facts Admitted, with attachments,
filed by Alliance on September 6, 2017; 10) the order signed by the WCJ on September 6, 2017,
which ordered that Alliance’s “First Set of Requests for Admissions of Fact be and they are hereby
deemed admitted as a matter of law;” 11) excerpts of Mitchell’s certified medical records from Dr.
Michelle Ritter; and 12) Mitchell’s 1008.

8

more exhibits. Our review of the record revealed that the exhibits do, in fact, support

the uncontested facts attested to by Alliance. Those facts are (footnotes omitted):5

1. On December 5, 2016, plaintiff injured her right hand when she
reached around a plexiglass guard to clean the center of a running
machine — in violation of defendant’s safety rules.

2. Plaintiff first received medical treatment following the accident on
December 5, 2016, at the Natchitoches Regional Medical Center
emergency room. Michael Bridges, defendant’s industrial nurse, drove
plaintiff to the emergency room in his personal vehicle. There, plaintiff
saw Dr. William Zeichner, who diagnosed plaintiff with a crush injury
to her right hand and prescribed plaintiff various medications.
Dr. Zeichner restricted plaintiff from work until she had an opportunity
to follow up with an orthopedic specialist.

3. Plaintiff saw Dr. Steven Kautz, an orthopedic on December 6, 2016.
Bridges drove plaintiff to the appointment with Dr. Kautz in one of
defendant’s vehicles. Dr. Kautz released plaintiff to work without
restrictions.

4. Plaintiff asked to see another doctor on December 12, 2016. Plaintiff
saw Dr. William Luster, a family medicine physician, on December 16,
2016. Dr. Luster did not make any treatment recommendations, and
referred plaintiff to Dr. Bryan Picou. Dr. Luster did not issue any work
restrictions.

5. Plaintiff reportedly saw Dr. Bryan Picou on or about December 22,
2016. Dr. Picou instructed plaintiff to care for her wound by soaking it
in warm water, and reportedly suggested that plaintiff see a specialist.
Dr. Picou did not issue any work restrictions.

6. Between December 6, 2016 and January 5, 2017, plaintiff was
released to work without restrictions.

7. Even though plaintiff was released to work without restrictions
between December 6, 2016 and January 5, 2017, defendant
accommodated plaintiff by allowing her the opportunity to work a light
duty position, cleaning machines using only her non-injured left hand.
Plaintiff is left handed; thus, this accommodation allowed Plaintiff to
work exclusively with her dominant hand.

8. Between plaintiff’s accident and the filing of suit, plaintiff worked
her usual pre-accident hours, earning her same pre-accident hourly
wage rate of $14.09 per hour.

5
As we have verified that the exhibits cited by Alliance do support its assertions of
uncontested facts, we will not repeat those specific references.
9

9. On Thursday, January 5, 2017, Bridges met with plaintiff and
explained to her that she would have to return to her usual job duties on
Monday, January 9, 2017, as no medical provider had restricted
plaintiff from work in any way. Bridges explained to plaintiff that
Friday, January 6, 2017 was an overtime day and her attendance that
day would be optional. Plaintiff chose to take Friday, January 6th off.

10. After plaintiff was told that she would have to return to her regular
job duties, on account of no medical provider having restricted her from
work, she sought legal counsel and filed suit against defendant on
January 9, 2017.

11. Defendant took plaintiff’s deposition on March 6, 2017.

12. On January 13, 2017, defendant propounded its First Set of
Requests for Admissions of Fact, Interrogatories and Requests for
Production of Documents to plaintiff. After plaintiff failed to respond
to defendant’s written discovery requests, defendant conducted a Rule
10.1 conference. Plaintiff did not provide responses to the requests by
the agreed-upon date. Accordingly, defendant filed a Motion to
Compel responses. That matter was set for hearing before this Court[6]
on April 10, 2017. Prior to the hearing on defendant’s Motion to
Compel, the parties entered into a consent judgment, which ordered
plaintiff to provide responses to defendant’s discovery requests within
10 days of the signing of the judgment; this Court signed the judgment
on April 3, 2017. As of September 6, 2017, plaintiff still had not
responded to defendant’s written discovery requests. Defendant,
therefore, moved to have its First Set of Requests for Admissions of
Fact deemed admitted. This Court signed an Order granting
defendant’s requested relief, and deeming plaintiff’s Requests for
Admissions of Fact admitted on or about September 6, 2017.

13. Request for Admission Number 1, which asked: “Do you admit
that, as of January 9, 2017, you had received no work restrictions from
any medical provider for any injury you sustained on December 5,
2016?” has been deemed admitted by this Court.

14. Request for Admission Number 2, which asked, “Do you admit
that, as of January 9, 2017, Alliance had provided transportation for you
to any and all medical appointments you had as a result of the December
5, 2016 accident?” has been deemed admitted.

15. Request for Admission Number 3, which asked, “Do you admit
that January 9, 2017 was the first time that you or anyone acting on
your behalf requested copies of medical reports of physicians selected
by defendant?” has been deemed admitted.

6
Note: because we are repeating what Mitchell filed in the Office of Workers’
Compensation (OWC), all references therein to “this Court” refer to the OWC.
10

16. Request for Admission Number 4, which asked, “Do you admit
you are still employed by defendant at the same or greater hourly wage
that you received in the four full pay periods before December 5, 2016?”
has been deemed admitted by this Court.

17. When suit was filed on January 9, 2017, 60 days had not yet passed
from the December 5, 2016 accident.

18. Plaintiff requested to see Dr. Michelle Ritter, for the first time on
January 4, 2017. Plaintiff saw Dr. Ritter for an initial evaluation on
January 23, 2017.

19. As of the date suit was filed, plaintiff had not submitted any written
mileage reimbursement requests.

20. Plaintiff first made a request for the written reports of any
employer-selected physicians on January 9, 2017.

21. At the time the written request for the reports of employer-selected
physicians was submitted on January 9, 2017, no such reports were in
defendant’s possession.

22. Plaintiff has never requested vocational rehabilitation benefits
since the date of her accident.

In her motion to continue or refer to the merits, Mitchell made the following

allegations:

Multiple significant factual issues remain unresolved, e.g., nature and
extent of disability resulting from plaintiff’s crushing right hand
injury[;] non-reimbursement of medical travel to Dr. Luster and the
physical therapist, Dr. Wheat[;] non-reimbursement of medications
from the NPH-ER, Dr. Ritter and Dr. Luster[;] nonpayment of
indemnity benefits[;] untimely payments of work-related medical
expenses[;] plaintiff’s AWW[;] penalties and attorney fees.

In her appellant brief, Mitchell goes even further, asserting that Alliance “did not

argue that the factual issues set forth in her motion were, indeed, disputed[,]” nor did

Alliance “oppose the recitation of the disputed factual issues in the motion to refer

to the merits.”

As mentioned previously, Mitchell’s opposition was filed on July 3, 2018, just

two days before the scheduled hearing date for Alliance’s motion for summary

judgment. That same afternoon, Alliance filed a pleading titled Response to

11

Plaintiff’s Opposition to Motion for Summary Judgment in which it pointed out the

untimeliness of Mitchell’s opposition and requested that the trial court not consider

the opposition given the mandate in La.Code Civ.P. art. 966(B)(2) that “Any

opposition to the motion [for summary judgment] and all documents in support of

the opposition shall be filed and served in accordance with Article 1313 not less than

fifteen days prior to the hearing on the motion.” (Emphasis added by Mitchell). At

the start of the July 5, 2018 hearing, at which neither Mitchell nor her attorney was

present, the WCJ stated on the record that because Mitchell’s opposition was

“clearly untimely,” it would “not consider any opposition attempted to be filed” on

her behalf. In light of the preceding circumstances, we again find it extremely

disingenuous for Mitchell to assert that Alliance “did not oppose the recitation of the

disputed factual issues in the motion to refer to the merits” and that the “WCJ was

itching to grant defendant’s motion for summary judgment.” Suffice it to say that

we, too, conclude that Mitchell’s opposition to Alliance’s motion for summary

judgment was untimely and should not be considered.7

After having conducted a de novo review of the “motion, memorandum, and

supporting documents” that Alliance filed in support of its motion for summary

judgment, we find that Alliance overwhelmingly met its burden of proving “the

absence of factual support for one or more elements essential to [Mitchell’s] claim.”

See La.Code Civ.P. art. 966(D)(1). Accordingly, the burden shifted to Mitchell “to

produce factual support sufficient to establish the existence of a genuine issue of

material fact or that [Alliance] was not entitled to summary judgment as a matter of

law.” Id. She failed to do so. Thus, the record summary judgment evidence

indicates that Mitchell was released to work without restrictions since the day after

7
We note that to the extent Mitchell asserts arguments in her appellant brief in opposition
to the merits of Alliance’s motion for summary judgment, we are prohibited from considering such
arguments as they are not a part of the appellate record.
12

her December 5, 2016 injury; and that, between then and the January 9, 2017 filing

of her 1008, Mitchell worked her usual pre-accident hours, earning her same pre-

accident hourly wage, during which time Alliance accommodated Mitchell by

allowing her to work at light duty. Accordingly, we conclude that Alliance showed

the absence of any “genuine issue as to material fact,” regarding Mitchell’s

entitlement to workers’ compensation benefits, such that it was “entitled to judgment

as a matter of law.” La.Code Civ.P. art. 966(A)(3). Hence, we find that summary

judgment was properly rendered in Alliance’s favor.

DECREE

For the foregoing reasons, the judgment rendered by the WCJ in favor of

Alliance Compressors and against Elaine Mitchell is affirmed. Costs of this appeal

are assessed against Elaine Mitchell.

AFFIRMED.

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