FROM THE OFFICE OF WORKERS' COMPENSATION NO. 16-00027,
DISTRICT "08" Honorable Catrice Johnson-Reid, The
Office of Workers' Compensation
P. Sondes COUNSEL FOR PLAINTIFF/APPELLANT
Rene' S. Paysse, Jr. Alejandro Rodriguez JOHNSON
UACOUBIAN & PAYSSE COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Tiffany G. Chase
ROSEMARY LEDET, JUDGE.
a workers' compensation case. The claimant, Denisia
Allen, on behalf of her minor child, Michael Mack, Jr.
("Ms. Allen"), appeals the June 30, 2017 judgment
of the Office of Workers' Compensation ("OWC"),
granting the motion for summary judgment filed by the
employer, Blind Pelican, and dismissing Ms. Allen's claim
for death benefits under La. R.S. 23:1231. For the reasons
that follow, we reverse and remand.
AND PROCEDURAL BACKGROUND
December 26, 2015, Michael Mack, Sr. ("Mr. Mack")
was employed as a prep cook by Blind Pelican, a restaurant.
On that date, he worked his shift. At some point, he went
into Blind Pelican's bathroom, where he suffered an
apparent heart attack. He was transported by ambulance to
Touro Hospital, where he died later that night. An autopsy
revealed that the cause of death was "[h]emorrhagic
infarct of the left basal ganglia with herniation"-a
stroke or brain aneurysm. At the time of his death, Mr. Mack
was thirty-three years old.
January 4, 2016, Ms. Allen filed a disputed claim for
compensation (Form 1008), seeking death benefits. On the Form
1008, the accident or injury was described as
"[a]pparent heart attack while on the job on December
26, 2015" and the details were noted as "[d]ecedent
was found dead on floor in bathroom." The only medical
data listed on the Form 1008 was the "New Orleans
Coroner." Blind Pelican answered, denying Ms.
Allen's claim to death benefits. In its answer, Blind
Pelican raised as a defense, among other things, that Ms.
Allen lacked procedural capacity to sue on the minor's
January 30, 2017, Blind Pelican filed a motion for summary
judgment, claiming that Ms. Allen could not show by clear and
convincing evidence that the decedent's death was
"an injury by accident arising out of and in the course
of employment" pursuant to R.S. 23:1021
(8)(e). On April 10, 2017, the hearing on the
motion for summary judgment was held. Following the hearing,
the OWC granted Blind Pelican's motion and dismissed Ms.
Allen's claim. This appeal followed.
sole issue presented is whether the OWC erred in granting
Blind Pelican's motion for summary judgment. An appellate
court reviews an OWC's decision to grant a motion for
summary judgment de novo, using the same criteria
that govern the OWC's consideration of whether summary
judgment is appropriate. Abney v. Gates Unlimited,
L.L.C., 11-1242, p. 4 (La.App. 1 Cir. 5/4/12), 92 So.3d
addition to deciding whether there is no genuine issue of
material fact making summary judgment appropriate (as decided
by the OWC here), this case also presents the issue of
whether the claimant, Ms. Allen, had adequate time for
discovery before the rendition of summary judgment. The
OWC's decision to not continue the motion for summary
judgment to allow additional discovery is reviewed under an
abuse of discretion standard. Baker Ready Mix, LLC v.
Crown Roofing Servs., Inc., 15-0565, pp. 6-7 (La.App. 4
Cir. 12/16/15), 183 So.3d 622, 626 (quoting Simoneaux v.
E.I. du Pont de Nemours and Co., 483 So.2d 908, 912 (La.
1986)); Roadrunner Trans. Sys. v. Brown, 17-0040, p.
11 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272 (observing
that "[w]hen discovery is alleged to be incomplete, a
trial court has the discretion either to hear the summary
judgment motion or to grant a continuance to allow further
discovery"). Because we find the prematurity issue
dispositive, we limit our analysis to that issue.
governing statutory provision, La. C.C.P. art. 966, provides
that a motion for summary judgment shall be granted if,
"[a]fter an opportunity for adequate discovery, "
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."
La. C.C.P. art. 966(A)(3). This statutory provision further
provides that "[f]or good cause shown, the court may
order a continuance of the hearing." La. C.C.P. art.
966(C)(2). In determining whether "good cause"
exists for granting a continuance, the jurisprudence has
identified the following factors to be considered: due
diligence, good faith, reasonable grounds, fairness to both