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Allen v. Pelican

Court of Appeals of Louisiana, Fourth Circuit

March 14, 2018

DENISIA ALLEN (MICHAEL MACK, SR.)
v.
BLIND PELICAN

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 16-00027, DISTRICT "08" Honorable Catrice Johnson-Reid, The Office of Workers' Compensation

          Brian P. Sondes COUNSEL FOR PLAINTIFF/APPELLANT

          Rene' S. Paysse, Jr. Alejandro Rodriguez JOHNSON UACOUBIAN & PAYSSE COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase

          ROSEMARY LEDET, JUDGE.

         This is 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         On 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 behalf.

         On 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).[1] 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.

         DISCUSSION

         The 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 1068, 1070.

         In 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.

         The 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 ...


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