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Tower v. Conocophillips Co.

Court of Appeals of Louisiana, Third Circuit

November 6, 2019

DUANE G. TOWER
v.
CONOCOPHILLIPS COMPANY

          ON APPLICATION FOR SUPERVISORY WRIT FROM THE OFFICE OF WORKER'S COMPENSATION, DISTRICT 3, NO. 18-00019 HONORABLE DIANNE MAYO, PRESIDING

          Deborah D. Kuchler Michele Hale DeShazo Mark E. Best Katherine B. Wells Kuchler Polk Weiner, L.L.C. Counsel for Defendant/Relator: ConocoPhillips Company

          Thomas A. Filo Cox, Cox, Filo Camel & Wilson, L.L.C. Counsel for Plaintiff/Respondent: Duane G. Tower

          Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY JUDGE

         Relator, ConocoPhillips Company ("ConocoPhillips"), seeks a supervisory writ from the judgment of the Workers' Compensation Judge (WCJ) which denied ConocoPhillips's motion for partial summary judgment on the issue of prescription. We called up the writ and heard oral argument. We affirm the judgment of the OWC.

         FACTS AND PROCEDURAL HISTORY

         Respondent, Duane Tower ("Tower"), alleges that from February 1969 to January 2008, ConocoPhillips employed him as a utility helper, machinist, and tool room attendant at ConocoPhillips's Lake Charles refinery before he voluntarily retired on January 1, 2008. On January 2, 2018, Tower filed a disputed claim for workers' compensation benefits under the Louisiana Workers' Compensation Act (LWCA), La.R.S. 23:1021, et seq., alleging that he had sustained a gradual occupational noise-induced hearing loss. Tower makes claims for supplemental earnings benefits (SEB) and medical benefits, as well as a claim for penalties and attorney fees for the arbitrary and capricious handling of his claims for benefits. Although ConocoPhillips disputed Tower's cause of action and the timeliness of his claim, ConocoPhillips tendered payment to Tower for his medical expenses.

         ConocoPhillips filed a motion for summary judgment seeking dismissal of Tower's claims for SEB on the grounds that there was no evidence that his alleged hearing loss rendered him disabled or unable to earn at least ninety percent of his prior wages, and that his claims are prescribed under La.R.S. 23:1031.1(E), which governs prescription for occupational illness and disease claims. The WCJ denied both aspects of ConocoPhillips's motion for summary judgment.

         In its argument to this court, ConocoPhillips only seeks review of that aspect of the WCJ's judgment which denied its claim that Tower's claim was prescribed.

         SUPERVISORY RELIEF

         The jurisprudence has held that "the denial [of] a motion for summary judgment or partial summary judgment is an interlocutory judgment reviewable only on an application for a supervisory review from an appellate court." Smith v. Tsatsoulis, 14-742, pp. 1-2 (La.App. 4 Cir. 9/3/14), 161 So.3d 783, 784, writ denied, 14-2018 (La. 10/9/14), 150 So.3d 889 (citations omitted).

         As a preliminary matter, Tower argues that the exercise of this court's supervisory jurisdiction is not warranted because a reversal of the trial court's ruling denying ConocoPhillips's motion for summary judgment will not totally terminate the litigation. See Herlitz Constr. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc., 396 So.2d 878 (La.1981). In that regard, Tower contends that although ConocoPhillips identifies its pleading as a motion for summary judgment seeking the dismissal of "all claims," its pleading is actually a motion for partial summary judgment because it does not address any aspect of Tower's claim for penalties and attorney fees arising out of ConocoPhillips's alleged arbitrary and capricious handing of his claim. While Tower may be correct in his assertion that a reversal of the WCJ's ruling on ConocoPhillips's motion for summary judgment may not terminate the entire litigation, an appellate court's exercise of its supervisory jurisdiction is discretionary. Further, we find that the resolution of the question of whether Tower's claim for SEB has prescribed serves to clarify which issues may properly proceed to trial in the present case and may have an impact on the resolution of the prescription issues for various other pending cases which involve claims for occupationally-induced hearing loss. Accordingly, we find it appropriate to address the issues ConocoPhillips raises.

         STANDARD ...


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