LISA MIDDLEBROOKS O/B/O MARK A. MIDDLEBROOKS Plaintiff-Appellant
CITY OF BASTROP Defendant-Appellee
from the Office of Workers' Compensation, District 1 East
Parish of Ouachita, Louisiana Trial Court No. 0501789 Brenza
Irving Jones Workers' Compensation Judge
BROUSSARD, HALCOMB & VIZZIER By: Daniel E. Broussard, Jr.
Counsel for Appellant.
HUDSON, POTTS & BERNSTEIN, LLP By: Johnny R. Huckabay, II
Counsel for Appellee.
BROWN, MOORE, and PITMAN, JJ.
Middlebrooks was a fireman with the City of Bastrop Fire
Department for 19 years and seven months. On May 10, 2014,
when he was returning home from work, he blacked out.
Middlebrooks began having seizures two or three times a day
and was subsequently diagnosed with a brain tumor, Grade III
astrocytoma. He sought workers' compensation benefits for
a service-connected occupational disease as set forth under
La. R.S. 33:2011, the Cancer Act. The Workers'
Compensation Judge ("WCJ") denied the claim and
Middlebrooks's wife has appealed. For the following
reasons, we reverse and remand.
tumor was removed by neurosurgeon Dr. Bernie McHugh on July
3, 2014. After the surgery, Middlebrooks was treated by
oncologist Dr. Scott Barron. Middlebrooks was completely
disabled from engaging in any employment at the time of the
trial and was drawing Social Security disability benefits.
Middlebrooks testified that his work with the Bastrop Fire
Department exposed him to heat, smoke, fumes, and
sought workers' compensation benefits under La. R.S.
33:2011, which affords firemen diagnosed with certain types
of cancer who have completed ten or more years of service the
benefit of a presumption of causation. The statute states
that the cancer is presumed to have been caused by a
fireman's work. The statute also states that the
presumption is rebuttable by evidence meeting judicial
embodies the social policy of the state which recognizes that
firemen are subjected during their career to the hazards of
smoke, heat, and nauseous fumes from all kinds of toxic
chemicals. The legislature recognized that this exposure
could cause a fireman to become the victim of cancer (in this
case, one originating in the brain) based upon a
claimant's occupation as a firefighter, and the
presumption relieves the claimant from the necessity of
proving an occupational causation of the disease. The
presumption switches the burden of proof from the claimant to
the employer and may be overcome by evidence meeting judicial
standards that the disease neither developed during nor was
caused by the employment. Rothell v. City of
Shreveport, 626 So.2d 763 (La.App. 2d Cir. 1993),
writ denied, 93-3191 (La. 02/11/94), 634 So.2d 379.
Whether the presumption has been rebutted is a question of
fact and the WCJ's finding will not be disturbed in the
absence of manifest error. Coats v. City of Bossier
City, 31, 164 (La.App. 2d Cir. 10/30/98), 720 So.2d
1283, writ denied, 99-0019 (La. 02/12/99), 738 So.2d
not disputed that Middlebrooks, who worked in the service,
was entitled to the presumption. Evidence presented by
defendant to rebut the presumption at trial included only a
questionnaire sent from the City of Bastrop, through its
third party administrator, to Dr. McHugh, the neurosurgeon
who removed Middlebrooks' tumor. One of the questions
asked, "Do you believe medically, that this condition is
related in any way, to his being a firefighter?" It
provided two spaces, one for "YES" and the other
for "NO." The space for "NO" was checked.
No evidence was submitted to show that Dr. McHugh was given a
description of Middlebrooks' duties as a firefighter or
what substances or conditions Middlebrooks was exposed to
during his employment. No one sought to question Dr. McHugh
further to determine the reasons for this conclusion.
objected to this questionnaire based on lack of foundation,
hearsay, and that it was not a medical record. The WCJ
overruled Middlebrooks' objection and allowed the written
question and Dr. McHugh's check mark to be admitted.
submitted the medical records of Dr. Barron, his treating
oncologist. Dr. Barron said of the type of cancer
Middlebrooks had, "Etiology of such tumors (Grade
III astrocytoma) is unknown, idiopathic, but there may
be a genetic component as well as an increase incidence in
patients with previous head trauma."
determined that the check marked answer of "NO" to
the one sentence question was sufficient to rebut the
presumption of causation and then, referring to Dr.
Barron's statement that "etiology of such tumors
(Grade III astrocytoma) is unknown, idiopathic,
" found that Middlebrooks was not able to show that his
cancer was caused by his employment as a firefighter. The WCJ
dismissed the ...