Judgment Rendered APR Appealed from the Nineteenth Judicial District Court. In and for the Parish of East Baton Rouge

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1 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 0424 MARION L ALLRED ET AL VERSUS GEORGIA PACIFIC CORPORATION Judgment Rendered APR Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana f Suit Number Honorable Kay Bates Judge Frank Tomeny III Catherine L Plauche Baton Rouge LA Counsel for PlaintiffsAppellants Marion L Allred et al Harry T Lemmon New Orleans LA Kelly N Reddell Dallas TX EB Dittmer II Mandeville LA H Alston Johnston I1 J Alan Harrell Baton Rouge LA Counsel for Defendant Appellee Georgia Pacific Corporation John P Manard Jr S Ault Hootsell III New Orleans LA BEFORE CARTER GUIDRY AND GAIDRY JJ

2 GUIDRY J In this class action lawsuit brought by over seventy past and current employees of the Georgia Pacific Corporation GP plant located in Port Hudson Louisiana the plaintiffs appeal a summary judgment rendered in favor of GP dismissing their tort suit based on the exclusivity provisions of the Louisiana Workers Compensation Act LWCA La RS et seq For the reasons that follow we reverse and remand this matter to the trial court for further proceedings PROCEDURAL HISTORY In their original petition for damages the plaintiffs alleged the following the Plaintiffs were At various times between 1945 to present employed as direct employees at GP s facility owned and operated by GP in E Baton Rouge Parish Louisiana During their employment at GP s facility Plaintiffs were occupationally exposed to hazardous levels of industrial noise As a result Plaintiffs have suffered hearing loss It is specifically plead that the hearing loss suffered by Plaintiffs was gradual and as a result of continuous long term hazardous noise exposure at GP s facility and not an accident The plaintiffs later filed a first supplemental petition in which they added Timothy H Crawford as an executive officer with GP as defendant in the suit Plaintiffs then filed three more supplemental and amending petitions simply adding additional plaintiffs to the suit As the matter proceeded to trial the parties agreed to select eight plaintiffs referred to as firstflight trial plaintiffs as representatives for a first trial grouping Once the firstflight trial plaintiffs were selected GP and Mr Crawford filed a peremptory exception urging the objection of prescription as to the claims of the firstflight trial plaintiffs and then filed a motion for summary judgment alleging that the claims of the first flight trial plaintiffs were subject to the In arguments presented below GP points out that the Port Hudson facility did not begin operating until the late 1960s and that the earliest date of employment for any plaintiff at the facility was approximately in the year 1968 which the plaintiffs conceded 2

3 exclusive remedy of workers compensation The plaintiffs filed a cross motion for summary judgment seeking a ruling that their claims were not subject to the exclusive remedy of workers compensation Following a hearing on the exception and cross motions for summary judgment the trial court sustained the peremptory exception granted GP and Mr Crawford smotion for summary judgment and denied the plaintiffs cross motion Judgment was then rendered dismissing the claims of the first flight trial plaintiffs with prejudice Thereafter the plaintiffs filed a motion for new trial and GP and Mr Crawford filed another motion for summary judgment seeking dismissal of the claims of the remaining plaintiffs on the ground that their exclusive remedy was workers compensation Following a hearing on these subsequent pleadings the trial court denied as untimely the motion for new trial filed by the plaintiffs and granted the motion for summary judgment filed by GP and Mr Crawford Accordingly the trial court dismissed the claims of all the remaining plaintiffs against GP and Mr Crawford It is from this judgment that the plaintiffs appeal ASSIGNMENTS OF ERROR 1 The district court erred by granting summary judgment for Appellee on its affirmative defense under the LWCA where Appellee failed to meet its burden to prove when each Appellant s cause of action accrued for purposes of determining what law applies 2 The district court erred by granting summary judgment where Appellee failed to meet its burden to prove that each Appellant s gradual hearing loss was ever an accident as defined by any version of the LWCA 3 The district court erred by granting summary judgment where Appellee failed to meet its burden to prove that each 2 In that judgment signed September the trial court expressly found that Mr Crawford was immune from suit due to the 1976 amendment to the LWCA and therefore the court dismissed the plaintiffs claims against Mr Crawford with prejudice The judgment further denied as moot a motion previously filed by the plaintiffs in which they sought dismissal of their claims against Mr Crawford without prejudice In their appellate brief the plaintiffs observe that the trial court had previously signed an order on September granting their motion to dismiss their claims against Mr Crawford without prejudice but acknowledged that the judgment in favor of Mr Crawford is not at issue in this appeal 3

4 Appellant s hearing loss was ever an occupational disease as defined by any version of the LWCA 4 The district court erred by granting summary judgment where Appellee failed to meet its burden to prove that Appellant s injuries were compensable as explicitly required by the exclusivity provision of the LWCA STANDARD OF REVIEW A motion for summary judgment is a proc dural device used to avoid a full scale trial when there is no genuine issue of material fact Johnson v Evan Hall Sugar Cooperative Inc p 3 La App Ist Cir So 2d Summary judgment is properly granted if the pleadings depositions answers to interrogatories and admissions 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 LaCP art 966 B2 An appellate court reviews a trial court s decision to grant a motion for summary judgment de novo using the same criteria that govern the trial court s consideration of whether summary judgment is appropriate George S May International Company v Arrowpoint Capital Corporation p 4 La App 1st Cir So 3d The mover bears the burden of proving that he is entitled to summary judgment La CP art 966 C2 However if the mover will not bear the burden of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his opponent s claim action or defense LaCP art 966 C2If on the other hand the mover will bear the burden of proof at trial that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial Hines v Garrett p 3 La So 2d Such an affirmative showing will then shift the burden of production to the party opposing the motion requiring the opposing party either to produce 4

5 evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery FIines at p So 2d at An employer seeking to avail itself of toil immunity bears the burden of proving its entitlement to immunity Furthermore immunity statutes must be strictly construed against the party claiming the immunity Mitchell v Southern Scrap RecyclingLC pp 78 La App 1st Cir So 3d writ denied La So 3d 47 DISCUSSION At issue in this case is whether the LWCA provides coverage for the plaintiffs hearing loss claims such that the exclusivity provisions of the LWCA would bar their tort action A motion for summary judgment is an appropriate vehicle within which to raise the issue of the exclusive remedy provisions of the LWCA See Lee v State ex rel Department ofpublic Safety and Corrections p 7 La App 3d Cir So 3d writ not considered La So 3d 1030 InORegan v Preferred Enterprises Inc p 14 La So 2d the Louisiana Supreme Court recognized that the Legislature cannot completely deprive citizens of the right to seek a remedy either under the LWCA or under our general law Emphasis added The Court further held that a conceptual distinction must be made between injuries which do not come within the LWCA s coverage provisions and injuries which are covered but for which no compensation is payable ORegan at p So 2d at 137 If the claim is not covered under the LWCA then the exclusivity provision does 3 See La Hand La RS

6 not apply There has been no quid pro quo and thus the claimant has not lost the right to sue in tortoregan at p So 2d at 138 In its reasons for judgment the trial court expressly found that the claim of occupational noise exposure is precisely the type of claim that is covered by the LWCA either under the pre 1990 definition of personal injury by accident or by the post1975 general coverage of occupational diseases The pre1990 definitions of accident injury and personal injury contained in La RS provided Accident means an unexpected or unforeseen event happening suddenly or violently with or without human fault and producing at the time objective symptoms of an injury Injury and personal injuries include141 only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom These terms shall in no case be construed to include any other form of disease or derangement however caused of contracted GP successfully argued to the trial court that the plaintiffs gradual hearing loss claims arising before 1990 should be classified as accidents under the LWCA in accordance with jurisprudence holding progressively developing injuries fell within the pre1990 statutory definition of accident Those cases largely held that when the performance of the usual and customary duties of a workman cause orcontribute to a physical breakdown the statutory requirements for an accidental injury are present See eg Parks v Insurance Company of North America 340 So 2d La 1976 Notably in the cases representing the foregoing principle the workers were found to be disabled by the injury and there was an acute onset of the injury to support the finding of accidental injury As explained by this court in Geist v Martin Decker CoM 313 So 2d 1 4 La App 1st Cir 1975 an accident can be 4 In 1975 the definition of injury and personal injuries was only slightly changed with respect to changing the spelling of personal injuries from being capitalized to all lowercase and to change includes to include 6

7 satisfied by the unexpected appearance of symptoms of pain or disability or an unexpected change in the employee s physical condition caused by routine working conditions Thus an acute condition which occurs suddenly and unexpectedly which results from an employee s working conditions which causes damage to or disruption of a bodily organ or component and which disables the employee is a compensable injury within the definition of the term injury Geist 313 So 2d at 5 emphasis added Moreover in explaining the difference between an injury that would be deemed an accident as opposed to an occupational disease this court pointed out that where an employee suffers a gradual health impairment produced by working conditions over a protracted period of time the resulting disability is classified as an occupational disease but where the onset of the disease is sudden due to its acuteness the condition constitutes an accident Geist 313 So 2d at 4 5 emphasis added According to the evidence presented in support of GP s motion for summary judgment there is no showing of a sudden or acute onset of the plaintiffs hearing loss that would justify finding that their hearing loss claims would fall within the pre1990 definitions of accident injury and personal injuries Thus we find merit in the plaintiffs second assignment of error alleging that the trial court erred in holding that the plaintiffs claims of hearing loss would be covered under the LWCA spre 1990 definition of accident Nevertheless as previously stated the trial court additionally found that the plaintiffs claims of occupational noise exposure are also precisely the type of claim that is covered by the LWCA by the post1975 general coverage of occupational diseases The Louisiana Legislature first added a provision for occupational disease claims in 1952 however the coverage provided was only for a schedule of diseases which did not include hearing loss See Rando v Anco Insulations 7

8 Inc pp 1213 La So 3d Then in 1975 instead of continuing to simply provide a schedule of diseases that would be deemed occupational if contracted by an employee in the course and scope of his employment and therefore covered as an occupational disease under the LWCA the Louisiana Legislature specifically provided the following definition of occupational disease in La RS B An occupational disease shall mean 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 51 Emphasis added Thus to constitute an occupational disease a causal link between the plaintiffs hearing loss and their work related duties must be established by a reasonable probability See Seal v Gaylord Container Corporation p 6 La So 2d In other words it must be shown that the disease was contracted during the course of employment and that the disease was the result of the nature of the employment Carmean v Enterprise Products Partners p 7 La App 1st Cir So 2d writ denied La So 2d 1092 More importantly however expert testimony in the form of certified reports depositions or oral examination in open court is required to support a finding of an occupational disease Fite v Louisiana Title Company La So 2d see also LAC 40 L6209 Thus the mere fact that the plaintiffs allege that their gradual hearing loss occurred as a result of employment with GP is not sufficient to establish that their gradual hearing loss is due to causes and conditions characteristic of and peculiar to the plaintiffs particular trade occupation process or employment with GP 5 The current definition remains virtually the same with the only change being that means only was substituted for shall mean only by a 1989 amendment of the statute 8

9 Typically the worker bears the burden of proving the contraction of an occupational disease however if the employee pursues a claim in tort initially and the employer seeks to avail itself of tort immunity under the LWCA the employer has the burden of proving entitlement to immunity ORepan at p 25n So 2d at 140n20 In the tnatter before us the plaintiffs pursued a tort suit and according to the record have not pursued any workers compensation claims such that burden of proof would fall on them to show that their claims are not occupationally related See ORegan at pp So 2d at Thus the burden ofproof lay with GP At the combined hearing on the exception urging prescription filed by GP and on the parties cross motions for summary judgment regarding the applicability of exclusivity provisions of the LWCA GP submitted the depositions of the firstflight trial plaintiffs6 In their depositions the firstflight trial plaintiffs testified regarding hearing examinations they had received but no direct evidence from any expert was presented by GP in regards to the plaintiffs alleged hearing loss and their work for GP at the Port Hudson facility As such evidence is required to establish that the plaintiffs hearing loss claims would constitute an occupational disease and none was presented by GP we likewise find merit in the plaintiffs third assignment of error asserting that the trial court erred in holding that the plaintiffs claims of hearing loss would be covered under the LWCA s post1975 definition of occupational disease As a result of our finding merit in the plaintiffs second and third assignments of error we will pretermit discussion of the plaintiffs first and fourth assignments oferror and reverse the summary judgment appealed herein 6 GP also submitted copies of the plaintiffs original and supplemental petitions filed in this matter the petition in another case and two rulings from other courts in umelated cases Although this evidence was submitted in conjunction with the prior summary judgment wherein the claims of the firstflight trial plaintiffs were dismissed the trial court stated that its ruling on the summary judgment appealed herein was based on the same reasons it found GP was immune from the firstflight trial plaintiffs suit in the first summary judgment proceedings 9

10 ONCLUSION For the foregoing reasons we find that the trial court improperly found that the plaintiffs claims of hearing loss are subject to the exclusivity provisions of the Louisiana Workers Compensation Act We therefore reverse the summary judgment rendered by the trial court and remand this matter for further proceedings All costs of this appeal are cast to the defendant GeorgiaPacific Corporation REVERSED AND REMANDED 10

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