DUANE G. TOWER
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
A. Filo Cox, Cox, Filo Camel & Wilson, L.L.C. Counsel for
Plaintiff/Respondent: Duane G. Tower
composed of John D. Saunders, Billy H. Ezell, and Jonathan W.
JONATHAN W. PERRY JUDGE
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.
AND PROCEDURAL HISTORY
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
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.
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.
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).
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