FROM THE OFFICE OF WORKERS' COMPENSATION NO. 16-00143,
DISTRICT "EIGHT" Honorable Robert Varnado,
Workers' Compensation Judge
Douglas Sunseri NICAUD & SUNSERI, L.L.C. COUNSEL FOR
Bramlett Wood Lynda A. Tafaro McCRANIE, SISTRUNK ANZELMO,
HARDY, McDANIEL & WELCH, LLC COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Daniel L. Dysart
L. Dysart Judge
worker's compensation matter, appellant, Steven Frederick
Washington, appeals the workers' compensation judgment
granting summary judgment in favor of Mr. Washington's
employer, Gallo Mechanical Contractors, L.L.C.
("Gallo"). For the reasons that follow, we affirm.
AND FACTUAL BACKGROUND
Washington initiated this matter by filing a Disputed Claim
for Compensation ("Claim") with the Office of
Workers' Compensation ("OWC") on January 8,
2016. In his Claim, Mr. Washington alleged that, on December
7, 2015, while driving a shuttle for Gallo for a work-related
project, he was assaulted by an employee of Savard Labor and
Marine Personnel,  which resulted in injuries to Mr.
Washington's head, neck, back and shoulders. In response,
Gallo and its insurer, Creative Risk Solutions
("CRS")(hereafter, collectively referred to as
"defendants") filed an answer, admitting that no
wage benefits or costs for medical treatment had been paid.
As affirmative defenses, Gallo and CRS alleged:
According to defendant's [sic] investigation, an employee
of Gallo Mechanical, Steven Washington, was operating a
shuttle at the time of this incident. He serves as the
initial aggressor as he called the other person involved a
"homosexual, " and then stating "do you know
what I could do to you that I learned in the pen?" Thus,
Mr. Washington antagonized Mr. Rogers causing this
altercation. Furthermore, this fight was not work-related.
Because this incident involved fighting that is considered an
intentional act and excluded by the Louisiana Workers'
Compensation Act, there exists no coverage under the Act for
Mr. Washington's aggressive behavior, the altercation,
and the resulting injury.
February 11, 2016, Defendants filed a Motion for Summary
Judgment ("Motion") seeking a dismissal of the
Claim on the basis that the injuries claimed by Mr.
Washington did not occur "in the course of" and did
not "ar[i]se out of" his employment. A hearing was
scheduled for March 10, 2016 and Mr. Washington filed his
opposition memorandum on March 3, 2016 (the certificate of
service reflects that it was served on opposing counsel by
mailing it on March 1, 2016). Defendants moved to strike Mr.
Washington's opposition memorandum as untimely and the
attachment to it (excerpts of a February 11, 2016 hearing on
Mr. Washington's Expedited Motion for Medical
Authorization) because it is not considered to be
competent evidence under La. C.C.P. art. 966.
March 10, 2016 hearing on defendants' Motion, counsel for
Mr. Washington sought to file into the record an affidavit
from Mr. Washington. After hearing argument of counsel, the
OWC judge granted defendants' motion to strike and their
Motion. A written judgment was then issued on March 18, 2016
in favor of defendants, striking Mr. Washington's
opposition memorandum (and attachments) as untimely, and
dismissing Mr. Washington's claims against defendants.
Mr. Washington then moved for a new trial which was denied
after a hearing and by judgment dated June 29, 2016. Mr.
Washington timely filed this devolutive appeal.
of review; Motions for Summary Judgment
Court recently reiterated the well-settled rule that a
"summary judgment is reviewed on appeal de
novo, with the appellate court using the same criteria
that govern the trial court's determination 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." Vise v. Olivier House Prop. Mgmt., LLC,
16-0741 (La.App. 4 Cir. 4/12/17), ___So.3d___, ___, 2017 WL
1365316 at *2, quoting Samaha v. Rau, 07-1726, pp.
3-4 (La. 2/26/08), 977 So.2d 880, 882-83.
Code of Civil Procedure article 966 A(3) indicates that
"a motion for summary judgment shall be granted if the
motion, memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover is
entitled to judgment as a matter of law." This is in
keeping with the purpose of the summary judgment procedure,
which is "to secure the just, speedy, and inexpensive
determination of every action…." La. C.C.P. art.
966 A(2). This "procedure is favored and shall be
construed to accomplish these ends." Id.
La. C.C.P. art. 966(D)(1), "if the mover will not bear
the burden of proof at trial on the matter that is before the
court on the motion for summary judgment, the mover'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 burden of proof at trial,
there is no genuine issue of material fact. La. C.C.P. art.
instant matter, defendants do not carry the burden of proof
for trial; accordingly, they need only point out an absence
of factual support for one or more elements of Mr.
Washington's claim. Defendants contend that Mr.
Washington cannot meet his burden in proving that the
incident resulting in his alleged injuries arose out of his
employment, an essential element of any workers'
compensation claim under La. R.S. 23:1031. After our de
novo review of the record, we agree.
outset, we address Mr. Washington's argument that the
trial court erred in refusing to allow the transcript of the
February 11, 2016 evidentiary hearing in opposition to
defendants' Motion and in failing to take judicial notice
of Mr. Washington's sworn testimony from that hearing. We
note that, in his reasons for judgment issued on July 25,
2016, the OWC judge found, inter alia, that Mr.
Washington's opposition memorandum, served on March 1,
2016 [and filed in the record on March 3, 2016], was