Duane G. Tower v. Conocophillips Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
19-81

DUANE G. TOWER

VERSUS

CONOCOPHILLIPS COMPANY

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ON APPLICATION FOR SUPERVISORY WRIT FROM
THE OFFICE OF WORKER’S COMPENSATION,
DISTRICT 3, NO. 18-00019
HONORABLE DIANNE MAYO, PRESIDING

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JONATHAN W. PERRY
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

WRIT DENIED.

Deborah D. Kuchler
Michele Hale DeShazo
Mark E. Best
Katherine B. Wells
Kuchler Polk Weiner, L.L.C.
1615 Poydras Street, Suite 1300
New Orleans, LA 70112
(504) 592-0691
Counsel for Defendant/Relator:
ConocoPhillips Company

Thomas A. Filo
Cox, Cox, Filo Camel & Wilson, L.L.C.
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
Counsel for Plaintiff/Respondent:
Duane G. Tower

PERRY, Judge.
Relator, ConocoPhillips Company (“ConocoPhillips”), seeks a supervisory

writ from the judgment of the Workers’ Compensation Judge (WCJ) which denied

ConocoPhillips’s motion for partial summary judgment on the issue of prescription.

We called up the writ and heard oral argument. We affirm the judgment of the OWC.

FACTS AND PROCEDURAL HISTORY

Respondent, Duane Tower (“Tower”), alleges that from February 1969 to

January 2008, ConocoPhillips employed him as a utility helper, machinist, and tool

room attendant at ConocoPhillips’s Lake Charles refinery before he voluntarily

retired on January 1, 2008. On January 2, 2018, Tower filed a disputed claim for

workers’ compensation benefits under the Louisiana Workers’ Compensation Act

(LWCA), La.R.S. 23:1021, et seq., alleging that he had sustained a gradual

occupational noise-induced hearing loss. Tower makes claims for supplemental

earnings benefits (SEB) and medical benefits, as well as a claim for penalties and

attorney fees for the arbitrary and capricious handling of his claims for benefits.

Although ConocoPhillips disputed Tower’s cause of action and the timeliness of his

claim, ConocoPhillips tendered payment to Tower for his medical expenses.

ConocoPhillips filed a motion for summary judgment seeking dismissal of

Tower’s claims for SEB on the grounds that there was no evidence that his alleged

hearing loss rendered him disabled or unable to earn at least ninety percent of his

prior wages, and that his claims are prescribed under La.R.S. 23:1031.1(E), which

governs prescription for occupational illness and disease claims. The WCJ denied

both aspects of ConocoPhillips’s motion for summary judgment.

In its argument to this court, ConocoPhillips only seeks review of that aspect

of the WCJ’s judgment which denied its claim that Tower’s claim was prescribed.

SUPERVISORY RELIEF

The jurisprudence has held that “the denial [of] a motion for summary

judgment or partial summary judgment is an interlocutory judgment reviewable only

on an application for a supervisory review from an appellate court.” Smith v.

Tsatsoulis, 14-742, pp. 1-2 (La.App. 4 Cir. 9/3/14), 161 So.3d 783, 784, writ denied,

14-2018 (La. 10/9/14), 150 So.3d 889 (citations omitted).

As a preliminary matter, Tower argues that the exercise of this court’s

supervisory jurisdiction is not warranted because a reversal of the trial court’s ruling

denying ConocoPhillips’s motion for summary judgment will not totally terminate

the litigation. See Herlitz Constr. Co., Inc. v. Hotel Inv’rs of New Iberia, Inc., 396

So.2d 878 (La.1981). In that regard, Tower contends that although ConocoPhillips

identifies its pleading as a motion for summary judgment seeking the dismissal of

“all claims,” its pleading is actually a motion for partial summary judgment because

it does not address any aspect of Tower’s claim for penalties and attorney fees arising

out of ConocoPhillips’s alleged arbitrary and capricious handing of his claim. While

Tower may be correct in his assertion that a reversal of the WCJ’s ruling on

ConocoPhillips’s motion for summary judgment may not terminate the entire

litigation, an appellate court’s exercise of its supervisory jurisdiction is

discretionary. Further, we find that the resolution of the question of whether Tower’s

claim for SEB has prescribed serves to clarify which issues may properly proceed to

trial in the present case and may have an impact on the resolution of the prescription

issues for various other pending cases which involve claims for occupationally-

induced hearing loss. Accordingly, we find it appropriate to address the issues

ConocoPhillips raises.

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STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no

genuine issue of material fact for all or part of the relief prayed for by a litigant.

Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544. It is well

accepted that an appellate court reviews a motion for summary judgment de novo,

using the identical criteria that govern the trial court’s consideration of whether

summary judgment is appropriate, i.e., whether there is any genuine issue of material

fact and whether the movant is entitled to judgment as a matter of law. Wright v.

Louisiana Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058. A fact is material

if it potentially ensures or precludes recovery, affects a litigant’s ultimate success,

or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La.

6/25/04), 876 So.2d 764. “A genuine issue is one as to which reasonable persons

could disagree; if reasonable persons could reach only one conclusion, there is no

need for a trial on that issue and summary judgment is appropriate.” Larson v. XYZ

Ins. Co., 16-0745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416. “Damage is sustained,

within the meaning of prescription, only when it has manifested itself with sufficient

certainty to support the accrual of a cause of action.” Cole v. Celotex Corp., 620

So.2d 1154 (La.1993). The damages suffered must at least be actual and appreciable

in quality. Labbe Serv. Garage, Inc. v. LBM Distribs, Inc., 94–1043 (La.App. 3 Cir.

2/1/95), 650 So.2d 824.

The burden of proof remains with the mover to show that no material issues

of fact exist. La.Code Civ.P. art. 966(D). The mover must present supportive

evidence that the motion for summary judgment should be granted. Robicheaux v.

Adly, 00-1207 (La.App. 3 Cir. 1/31/01), 779 So.2d 1048. Once the mover has made

a prima facie showing that the motion for summary judgment should be granted, the

burden of proof shifts to the nonmoving party to present evidence demonstrating the

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existence of issues of material fact which preclude summary judgment. Hayes v.

Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281

(La.3/14/97), 690 So.2d 41.

From the outset, we observe that instead of filing a peremptory exception of

prescription to challenge the timeliness of Tower’s claim, ConocoPhillips raised the

prescription issue via a motion for summary judgment. This court has stated that

“[a]lthough typically asserted through the procedural vehicle of the peremptory

exception, the defense of prescription may also be raised by motion for summary

judgment.” Trahan v. BP Am. Prod. Co., 16-267, p. 3, (La.App. 3 Cir. 12/7/16), 209

So.3d 166, 170, writ denied, 17-0022 (La. 3/24/17), 216 So.3d. 815 (citation

omitted).

In Labbe, 650 So.2d at 829 (citation omitted), this court further noted:

[T]he filing of a motion for summary judgment based on the plea of
prescription practically subjects the movers to a higher burden of proof
than if the movers had filed only the peremptory exception of
prescription. The burden of proof on the movers for summary judgment
. . . is particularly exacting in that they are required to prove, based
solely on documentary evidence and without the benefit of testimony
at a hearing, that there is no genuine material factual issue in dispute
regarding the day upon which plaintiff acquired or should have
acquired knowledge of the damage. On the other hand, pleading
prescription alone subjects the exceptor to proving, by a preponderance
of the evidence, that the plaintiff’s claim has prescribed. Additionally,
if on the face of the petition it appears that prescription has run, the
burden shifts to the plaintiff to prove an interruption or suspension of
the prescriptive period. At a hearing on the exception of prescription,
the parties are allowed to call witnesses to testify and the factfinder is
allowed to weigh credibility. On summary judgment, this is prohibited.

See also, Hogg v. Chevron USA, Inc., 09-2632, 09-2635 (La. 7/6/10), 45 So.3d 991.

PRESCRIPTION: OCCUPATIONAL DISEASES

The Louisiana Supreme Court has held that “plaintiffs’ gradual noise-induced

hearing loss as a result of their exposure to hazardous levels of noise in the course

and scope of their employment constitutes an ‘occupational disease’ within the

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meaning of the LWCA.” Arrant v. Graphic Packaging Intern., Inc., 13-2878, pp.19-

20 (La. 5/5/15), 169 So.3d 296, 308. With regard to the prescriptive period for

claims arising out of an occupational disease, La.R.S. 23:1031.1(E) provides as

follows:

All claims for disability arising from an occupational disease are barred
unless the employee files a claim as provided in this Chapter within one
year of the date that:

(1) The disease manifested itself.

(2) The employee is disabled from working as a result of the
disease.

(3) The employee knows or has reasonable grounds to believe
that the disease is occupationally related.

Although this court has held that La.R.S. 23:1031.1(E) does not use a conjunction

between the three paragraphs in that statute, this court has followed the jurisprudence

that has interpreted La.R.S. 23:1031.1(E) to mean that prescription does not begin

to run until all three of the conditions listed in that statue have been met. See

Hawkins v. Pilgrim’s Pride Corp., 10-402 (La.App. 3 Cir. 11/3/10), 49 So.3d 1069,

writ denied, 10-2675 (La. 1/28/11), 56 So.3d 958.

ON THE MERITS

ConocoPhillips asserts that the workers’ compensation court should have

granted its motion for summary judgment and dismissed Tower’s hearing loss claims

as prescribed. ConocoPhillips points out that Tower filed his workers’ compensation

claim more than ten years after he retired from the workforce. ConocoPhillips

asserts that all three of the conditions set forth in La.R.S. 23:1031.1(E) were met by

Tower’s retirement date of January 1, 2008. In that regard, ConocoPhillips contends

that Tower’s hearing loss manifested itself in the 1980s and that by the time that

Tower retired, he believed that his work at ConocoPhillips’s refinery caused his

hearing loss. ConocoPhillips argues that if Tower’s occupational, noise-induced

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hearing loss was so significant that it rendered him disabled, he became disabled no

later than on his retirement date of January 1, 2008. ConocoPhillips takes the

position that because Tower’s claim was not filed within one year of that date, his

claim is prescribed.

In his opposition to the writ application, Tower asserts that the three

conditions set forth in La.R.S. 23:1031.1(E) for the commencement of the running

of prescription for occupational disease claims can occur during the claimant’s

employment, after the employment has ended, or both during and after employment.

Tower does not dispute that the disease first manifested itself and that he had

reasonable grounds to believe that the disease was occupationally related before he

retired on January 1, 2008.

Nevertheless, Tower contends that although he voluntarily retired on January

1, 2008, the second requirement under La.R.S. 23:1031.1(E), i.e., that the employee

becomes disabled as a result of the disease, was not satisfied until 2018 when Dr.

Brad LeBert, an ear, nose, and throat specialist, restricted Tower from working in

high decibel work environments. In fact, Tower contends that Dr. LeBert did not

make the restrictions on his ability to work until after he had already filed his Form

1008 to claim workers’ compensation benefits. Citing Quigley v. Harbor Seafood

& Oyster Bar, 14-332 (La.App. 5 Cir. 10/15/14), 182 So.3d 47, Tower asserts that a

claim for SEB, such as the one he has made, does not accrue until the claimant

receives a work restriction from a physician. Consequently, Tower argues that

prescription could not possibly have started running until Dr. LeBert issued the work

restriction in 2018. Tower further points out that his Form 1008 does not contain

any dates pertaining to the three events necessary for the commencement of the

running of prescription under La.R.S. 23:1031.1(E). As a result, Tower argues that

ConocoPhillips was required to prove the triggering dates on which prescription

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commenced to run and that ConocoPhillips has offered no evidence to show when

Tower became disabled from working.

Louisiana Code of Civil Procedure Article 927(A)(1) provides for the

objection of prescription by peremptory exception. While the exceptor ordinarily

bears the burden of proof on such an exception, if prescription is evident on the face

of the petition, the burden shifts to the plaintiff to demonstrate that prescription has

been suspended or interrupted. Rizer v. American Sur. & Fid. Ins. Co., 95-1200 (La.

3/8/96), 669 So.2d 387.

A review of the record shows that in his disputed claim form Tower alleged

that he was entitled to SEB as well as penalties and attorney fees. He further alleged

in general terms, without being date specific, that he suffered an occupationally

induced hearing loss while he was in the employ of ConocoPhillips, that the onset

of his hearing loss was gradual, that no wage benefits had been paid, and that as of

the date of filing, ConocoPhillips had not authorized medical treatment. These

allegations do not show that prescription was evident on the face of the petition.

Thus, in accord with well established jurisprudence and in conformity with the law

of summary judgment, ConocoPhillips, as the mover on the motion for summary

judgment, had the burden of proving Tower’s SEB claim arising out of an

occupational disease was prescribed. La.Code Civ.P. art. 966(D)(1).

From the outset, we find it important to note that under the procedural posture

of this case, the issue of disability is as equally important to Tower as it is to

ConocoPhillips. In somewhat an unusual manner for purposes of the determination

of the peremptory exception of prescription under La.R.S. 23:1031.1(E), it was the

burden of ConocoPhillips to establish that Tower was disabled—disabled at the time

of his retirement. To evaluate that burden for purposes of summary judgment, it is

necessary to refer to the statutory basis for and the jurisprudential treatment of

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disability under the Workers’ Compensation Act, particularly that of occupational

diseases or illnesses.

Whether a plaintiff is disabled as a result of an occupational disease or illness

is a question of fact. Stutes v. Koch Services, Inc., 94-782 (La.App. 3 Cir. 12/7/94),

649 So.2d 987, writ denied, 95-846 (La. 5/5/95), 654 So.2d 335; Jones v. Universal

Fabricators, 99-1370 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742

(La. 5/12/00), 762 So.2d 13; Williams v. Pilgrim’s Pride Corp., 11-59 (La.App. 3

Cir. 6/1/11), 68 So.3d 616, writs denied, 11-1793, 11-1794 (La. 10/21/11), 73 So.3d

384. It is equally well settled that the employee must establish that his illness is

disabling to receive compensation for an occupational disease. Coats v. American

Tel. & Tel. Co., 95-2670 (La. 10/25/96), 681 So.2d 1243. Moreover, disability

marks the time from which it is clear that the employee is no longer able to perform

the duties of his employment in a satisfactory manner. Swearingen v. Air Prod. &

Chem. Inc., 481 So.2d 122 (La.1986); Starks v. Universal Life Ins. Co., 95-1003

(La.App. 1 Cir. 12/15/95), 666 So.2d 387, writ denied, 96-113 (La. 3/8/96), 669

So.2d 400.

Our independent review of ConocoPhillips’s motion for summary judgment,

and its supporting documents establish the following: (1) Towers had no problems

performing his job duties at the time of his retirement; (2) his hearing loss did not

affect his job performance; (3) he was never advised by anyone, even as late as when

he first filed his disputed claim in 2018, that he was disabled or could not work as a

result of a hearing loss; and (5) he did not return to wage-earning work in 2008

because he voluntarily retired.

Based upon the foregoing, it is evident that ConocoPhillips failed to carry its

burden of proving Tower’s SEB claim arising from an occupational disease was

prescribed; thus, the burden of proving otherwise never shifted to Tower. Clearly,

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the issue of Tower’s disability is a genuine issue of material fact. As stated in Arrant,

169 So.3d at 310, “[t]hat the injured worker may or may not be able to continue his

employment to be entitled to temporary or total disability benefits, or to

supplemental earnings benefits, is a matter of proof at trial.” Whether this applies

to proving Tower’s claim was prescribed or whether it is applied to Tower’s proof

of entitlement to SEB, such a determination necessarily requires a trial on the merits.

Furthermore, a finding that prescription has not run on Tower’s claim is in accord

with the Louisiana Supreme Court’s holding that “prescriptive statutes are strictly

construed against prescription and in favor of the obligation sought to be

extinguished.” Carter v. Haygood, 04-646, p. 10 (La. 1/19/05), 892 So.2d 1261,

1268.

WRIT DENIED.

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