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Middlebrooks v. City of Bastrop

Court of Appeals of Louisiana, Second Circuit

January 11, 2017

LISA MIDDLEBROOKS O/B/O MARK A. MIDDLEBROOKS Plaintiff-Appellant
v.
CITY OF BASTROP Defendant-Appellee

         Appealed 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.

          Before BROWN, MOORE, and PITMAN, JJ.

          BROWN, CHIEF JUDGE.

         Mark 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[1] has appealed. For the following reasons, we reverse and remand.

         Discussion

         Middlebrooks' 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 carcinogenic substances.

         Middlebrooks 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 standards.[2]

         The Act 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 581.

         It is 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.

         Middlebrooks 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.

         Middlebrooks 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."

         The WCJ 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 ...


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