Jacob Kibodeaux v. Jan's Construction Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-454

JACOB KIBODEAUX

VERSUS

JAN'S CONSTRUCTION COMPANY, INC.

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WRIT FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 22-04048
MELISSA A. ST. MARY, WORKERS COMPENSATION JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Shannon J. Gremillion, D. Kent Savoie, Candyce G. Perret, Gary
J. Ortego, and Wilbur L. Stiles, Judges.

REVERSED AND RENDERED.

Savoie, J. concurs and assigns written reasons.
Perret, J. dissents and would affirm.

William H. Parker, III
Allen & Gooch
2000 Kaliste Saloom Rd., #400
Lafayette, LA 70508
(337) 291-1000
COUNSEL FOR DEFENDANT APPLICANT:
Jan's Construction Company, Inc.

Robert Mark Martina
Gallow & Jeffcoat, LLP
P. O. Box 61550
Lafayette, LA 70596
(337) 984-8020
COUNSEL FOR PLAINTIFF RESPONDENT:
Jacob Kibodeaux

ORTEGO, Judge.

Employer seeks supervisory writs from the judgment of the workers’

compensation judge (“WCJ”), which denied its motion for summary judgment. We

called this writ up for briefing and oral arguments. For the reasons discussed below,

the writ is granted and made peremptory, reversing the WCJ’s judgment and render

judgment dismissing the claimant’s case against his employer.

FACTS AND PROCEDURAL HISTORY

Claimant, Jacob Kibodeaux (Kibodeaux), worked as a surveyor for Jan’s

Construction Company, Inc. (Jan’s), an oilfield company. Although Kibodeaux was

hired in Louisiana, as part of his job, he was required to travel out of state for contract

jobs, and he was on-call 24 hours per day. On September 2, 2021, Kibodeaux was

sent to a job in Kilgore, Texas, and stayed at a Comfort Inn Suites Hotel. On

September 10, 2021, Kibodeaux began feeling ill, experiencing symptoms of fever,

sweats, nausea, and vomiting. Kibodeaux reported his illness to his supervisor and

made an appointment to see a doctor. Initially, Kibodeaux was diagnosed with

pneumonia, but he was subsequently diagnosed with the Coronavirus Disease 2019

(COVID-19). Kibodeaux underwent a lengthy treatment, which included being

hospitalized in the critical care unit from September 15, 2021 to November 30, 2021.

Due to resulting permanent disabilities, Kibodeaux has not been able to return to work

since September 2021.

Kibodeaux filed a workers’ compensation claim against Jan’s, alleging that he

contracted COVID-19 on the job and that COVID-19 is a compensable occupational

disease. Seeking dismissal of Kibodeaux’s claim, Jan’s filed a motion for summary

judgment asserting that COVID-19 does not constitute a compensable occupational

disease under the Louisiana Workers’ Compensation Act (LWCA), La.R.S. 23:1021,

et seq. Following a hearing, the trial court denied the motion for summary judgment,

and Jan’s sought review of that ruling. This court, pursuant to La.Code Civ.P. art.

966(H), granted this writ for the limited purpose of briefing and oral argument.

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 (citations omitted), writ

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

STANDARD OF REVIEW

The Louisiana Supreme Court, in Hogg v. Chevron USA, Inc., 09-2632, pp.

5-6 (La. 7/6/10), 45 So.3d 991, 996-997, relayed the following:

Appellate courts review summary judgments de novo, using the
same criteria that govern the district court’s consideration of whether
summary judgment is appropriate. Schroeder v. Board of Supervisors
of Louisiana State University, 591 So.2d 342 (La.1991). A court must
grant a motion for summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to material fact,
and that mover is entitled to judgment as a matter of law.” LSA-C.C.P.
art. 966(B). The summary judgment procedure, which is designed to
secure the just, speedy, and inexpensive determination of civil actions,
is now favored in our law. LSA-C.C.P. art. 966(A)(2). Pursuant to that
procedure:

The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof
at trial on the matter that is before the court on the motion
for summary judgment, the movant’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 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

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burden of proof at trial, there is no genuine issue of
material fact.

LSA-C.C.P. art. 966(C)(2). As this court has explained, a “genuine
issue” is a “triable issue,” or one as to which reasonable persons could
disagree. Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d
773, 777. A “material fact” is a fact, the existence or non-existence of
which may be essential to a cause of action under the applicable theory
of recovery. Id.

LAW AND DISCUSSION

On appeal, Jan’s argues the trial court should have granted its motion for

summary judgment because there are no genuine issues of material fact as to its

entitlement to have Kibodeaux’s case dismissed.

Louisiana Revised Statutes 23:1031.1(B) (emphasis added) provides as

follows:

An occupational disease means only that disease or illness which is due
to causes and conditions characteristic of and peculiar to the particular
trade, occupation, process, or employment in which the employee is
exposed to such disease. Occupational disease shall include injuries due
to work-related carpal tunnel syndrome. Degenerative disc disease,
spinal stenosis, arthritis of any type, mental illness, and heart-related or
perivascular disease are specifically excluded from the classification of
an occupational disease for the purpose of this Section.

In Glover v. Fid. & Cas. Co., 10 So.2d 255, 257-258 (La.App. 2 Cir.1942),

our sister court detailed relevant consideration as to whether an illness fits the

definition of an occupational disease stating:

Occupational disease has been defined as one wherein the cumulative
effect of the employee’s continued absorption of deleterious substances
from his environment ultimately results in manifest pathology. In
occupational disease any one exposure is inconsequential in itself, but
the continued absorption is the factor which brings on the disease. It
has also been defined as happening drop by drop, little by little, day
after day, for weeks and months, and finally enough is accumulated to
produce symptoms. It has its inception in the occupation and develops
over a long period of time from the nature of the occupation.

.....

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To connect a disease with the occupation or trade of an
employee, it must be that the exposure that brings about the disease is
generally and usually present whenever and wherever he is following
his occupation or trade and cannot be so considered when the exposure
which might cause the disease is for a limited time on a job under
conditions which are unusual for one engaged in his occupation or trade
and when brought about by an emergency.

The claimant bears the burden of proving, by a preponderance of the evidence,

that the disease at issue is an occupational disease, if it was contracted during the

course of his employment and was the result of the nature of the work performed.

Mitchell v. Alliance Compressors, 05-1186 (La.App. 3 Cir. 4/5/06), 926 So.2d 127.

Jan’s argues that pursuant to La.R.S. 23:1031.1(B), Kibodeaux’s case is

fatally flawed because he cannot satisfy the requirement that COVID-19 is a

compensable occupational disease that is “characteristic of or peculiar to” the

claimant’s employment. As such, the burden shifts from Jan’s, as the movant, to

Kibodeaux, as claimant, to show he can carry his burden of proof at trial that his

COVID-19 illness meets the definition of an occupational disease under La.R.S.

23:1031.1(B). Thus, for this summary judgment, pursuant to La.Code Civ.P. art.

966(C)(2), the burden is on Kibodeaux to show he can carry the evidentiary burden

of proof at trial that COVID-19 is an occupational disease particular to his

employment with Jan’s.

Kibodeaux asserts that he contracted COVID-19 as a result of being required

to travel out of state for work, be on call 24 hours a day, and stay in hotels near

jobsites. Kibodeaux contends that these factors caused him to have a greater risk of

exposure to COVID-19. Kibodeaux argues that although COVID-19 is not listed as

a compensable occupational disease pursuant to the statute, certain jurisprudence

supports his assertion that he contracted COVID-19 on the job and that COVID-19

claims fall under the general occupational disease statute, La.R.S. 23:1031.1.

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One of the cases Kibodeaux relies on in support of his position is Bacon v.

Jefferson Par. Fire Dep’t, 22-510 (La.App. 5 Cir. 12/19/22), 356 So.3d 1128, writ

denied, 23-70 (La. 3/28/23), 358 So.3d 507. In ruling on a motion for summary

judgment in that case, the trial court found that while a deceased fireman’s death

from COVID-19 was not covered under the Heart and Lung Act, La. R.S. 33:2581,

the fireman’s widow could proceed with her alternative COVID-19 death benefit

claim under the occupational disease statute (La.R.S. 23:1031.1) under the LWCA.

However, the part of the court’s ruling that allowed the COVID-19 death claim to

proceed under the occupational disease statute in Bacon, that court did not directly

address La.R.S. 23:1031.1. Thus, we find Bacon distinguishable, and afford it little

weight.

Kibodeaux cites and states that in Lucas v. Ins. Co. of N. Am., 342 So.2d 591,

596 (La.1977), the Louisiana Supreme Court held that “[a] claimant’s disability is

presumed to have resulted from an accident, if before the accident the injured person

was in good health, but commencing with the accident the symptoms of the disabling

condition appear and continuously manifest themselves afterwards [. . . .]”

Kibodeaux argues that he has met the three-tier test set forth in Lucas, 342 So.2d

591, and discussed by this court in Winch v. Double M, Inc., 99-1793 (La.App. 3

Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La. 6/16/00), 765 So.2d 339.

Kibodeaux contends that he is entitled to the presumption of causation because: 1)

he was well before he started working for Jan’s on September 2, 2021; 2) the

symptoms of his disabling disease appeared and continuously got worse during his

employment in September [2021]; and 3) medical records and testimony will show

that there is a reasonable possibility that his disability was caused by his

employment.

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We find the factual circumstances before us are distinguishable from those in

Lucas and Winch. Lucas clearly references a workers’ compensation case wherein

an accident occurred and not a disease. In Lucas, the Louisiana Supreme Court

found a truck driver’s disabled left hand was the result of injuries which he sustained

in an accident while handling heavy pipe as part of his job. Workers’ compensation

cases wherein an accident occurs are not analogous with cases dealing with an

occupational disease such as the one before us. Thus, Kibodeaux’s reliance on Lucas

is misguided.

In Winch, this court reversed the WCJ for giving greater weight to a claimant’s

treating physician than to the defendant’s physician. The claimant’s treating

physician in Winch opined that the claimant’s illness was from exposure to a toxin

or an allergic reaction to substances while at work. Thus, in Winch, medical opinion

evidence existed that related the illness to specific events, i.e., exposure to toxins or

substances to which the claimant was allergic while he was at work. Moreover, the

Winch decision cited Lucas noting language in Lucas related to the presumption of

disability having resulted from an accident. Additionally, this court, in Floyd v. La.

Dept. of Public Safety, 08-899 (La.App. 3 Cir. 2/4/09), 3 So.3d 657, addressed Winch

as asserting that events occurring at the workplace lead to the resultant condition.

Thus, we find Lucas and Winch distinguishable from the case before us. Here,

Kibodeaux has not asserted that he contracted COVID-19 from an accident, event,

or incident occurring at the workplace. A review of this record shows Kibodeaux

presented no evidence of any specific occurrence that caused him to contract

COVID-19. Specifically, Kibodeaux testified that he had no idea of any incident

where he was exposed to COVID-19 or from what person, if any, he may have

contracted the virus. He further testified that no person on his crew or anyone he

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came in contact with at work had COVID-19 before or after he contracted COVID-

19 that could have exposed him to the virus.

While Kibodeaux asserts he was on call for 24 hours a day, this assertion,

alone, is not sufficient to prove any event(s) occurring at the workplace, hotel,

restaurant, or other occurrence which may have led to his contracting COVID-19.

Regardless, jurisprudence clearly states that in determining whether the disease at

issue is an occupational disease requires that the claimant prove it was contracted

during the course of claimant’s employment, and that the disease was the result of

the particular nature of the work performed. We find that Kibodeaux has failed to

provide any evidence as such.

This court acknowledges that there are no Louisiana appellate cases which

directly address whether COVID-19 constitutes an occupational disease. However,

the Louisiana Fourth Circuit Court of Appeal has held that “[i]njuries and illnesses

resulting from mold exposure in a clerical job do not fall under the definition of La.

R.S. 23:1031.1.” Ruffin v. Poland Enter., L.L.C., 06-0244, p. 9 (La.App. 4 Cir.

12/13/06), 946 So.2d 695, 700, writ denied, 07-0314 (La. 4/20/07), 954 So.2d 163.

In that case, the fourth circuit concluded that it could “find no basis in the statutory

language or reasonable explanation as to why exposure to mold and mold spores

could be considered ‘characteristic of and peculiar to’ clerical work.” Id.

Here, there is no evidence, and we find no basis in the statutory language or

reasonable explanation that COVID-19 was caused by an occurrence or condition

that is “characteristic of and peculiar to” an outdoor oilfield surveyor’s job. As to

the specific facts of this case, there is simply nothing about COVID-19 specifically

to, particular to, or peculiar to Kibodeaux’s job as a surveyor for an oilfield company.

On the contrary, the ubiquity of this virus precludes us from such a finding. As

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discussed, even if COVID-19 could be found to be an occupational disease in certain

cases, this is not such a case as Kibodeaux does not know where or from whom he

contracted this illness. Accordingly, we find that pursuant to La.Code Civ.P. art.

966(C)(2), Kibodeaux cannot carry his evidentiary burden of proof at trial that the

COVID-19 virus he contracted meets the definition of an occupational disease

pursuant to La.R.S. 23:1031.1(B).

WRIT GRANTED, RENDERED AND MADE PEREMPEMPTORY:
The writ is granted, rendered, and made peremptory, reversing the WCJ’s judgment
denying Realtor, Jan’s Construction Company’s motion for summary judgment, and
the Realtor’s motion for summary judgment is granted dismissing the claimant,
Jacob Kibodeaux’s case against his employer, with prejudice.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-454

JACOB KIBODEAUX

VERSUS

JAN’S CONSTRUCTION COMPANY, INC.

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SAVOIE, J. concurs and assigns written reasons.

I agree with the majority opinion based on the facts and circumstances of this

particular case. However, there may be a situation in which Covid-19 is considered

an occupational disease for the purposes of La.R.S. 23:1031.1(B). As such, it is my

position that while the facts of this case do not give rise to an occupational disease

claim, it does not mean that Covid-19 may never be found to be an occupational

disease pursuant to La.R.S. 23:1031.1(B).