Opinion
Civil Action No. 99-1618 Section "K"(4).
April 11, 2000.
ORDER AND REASONS
Before the court is defendant's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This case was stayed, pending a decision of the Louisiana Supreme Court, and reopened by order of April 6, 2000. For the reasons explained below, the court finds that defendant's motion should be denied.
1. Background
Frederick Ross ("Ross"), his wife, and their three daughters brought this action against Ross' employer Tate Lyle North American Sugars, Inc. ("Tate Lyle"). This case arises out of an alleged heart attack which Ross suffered while at work. Plaintiffs seek to recover for Ross' loss of earnings, loss of earning capacity, medical expenses, disability, and emotional distress of Ross and his family.
Ross began his employment with Tate Lyle as a laborer in 1990 and was promoted to the position of forklift operator in 1993. In August of 1997, Ross was diagnosed with hypertension, unstable angina, and coronary artery disease, which required surgical implantation of a stent. He returned to work under a doctor's restriction that he not lift heavy weights, and this restriction was communicated to his employer, supervisors, and co-workers.
Ross continued working as a forklift operator until May of 1998, when the position was eliminated. Ross was reassigned to the kilo line, where sacks are filled with fifty kilograms of sugar and sewn shut for shipping. Ross was concerned about the heavy lifting which would be required of him on the kilo line and Ross expressed his concern to his supervisor, George Pound ("Pound"). Pound allegedly assured Ross that allowances would be made so that he would not be required to do heavy lifting. After Ross had worked on the kilo line for one week, the sewing machine malfunctioned, requiring the kilo-line staff to lift the bags of sugar onto the conveyor for a second pass though the sewing machine.
Despite Ross' protests, his immediate supervisor, Paul Boudreaux ("Boudreaux") allegedly ordered Ross to lift the bags or "hit the gate." Ross complied with Boudreaux's order and began lifting the bags. In the course of the lifting, Ross collapsed and was taken to the hospital where he underwent coronary bypass surgery.
Plaintiffs allege in their complaint that the defendant was aware of Ross' preexisting medical condition and required him to lift 110-pound bags of sugar nonetheless. Thus, plaintiffs contend that defendant committed intentional infliction of emotional distress and intentionally misrepresented the conditions on the kilo line in order to induce Ross to work there. In addition, plaintiffs claim that defendant acted negligently in failing to provide Ross with a safe place to work and failing to take appropriate steps through its employees to provide for Ross' safety.
Plaintiffs has also filed a claim for workers' compensation in the Louisiana Office of Workers' Compensation Administration. The Louisiana Workers' Compensation Act (LWCA), however, provides that no benefits are owed an employee who suffers a heart attack on the job, absent a showing that extraordinary work stress was the predominant cause of the heart attack. La. R.S. 23:1021(7)(e). Ross further argues to this court that this heightened burden of proof for heart attacks, strokes, and other perivascular illnesses violates the equal protection clauses of the United States and Louisiana constitutions.
Lastly, in their Amended Complaint, plaintiffs added a claim under the Americans With Disabilities Act ("ADA"). However, plaintiffs admit that the ADA claim is barred because Ross did not exhaust his administrative remedies by filing a claim with the EEOC.
Defendant contends in its Motion to Dismiss that it did not commit an intentional tort and that plaintiff's exclusive remedy is workers' compensation. Defendant further argues that the enhanced burden of proof for persons who suffer heart attacks on the job is constitutional. In support of its Motion to Dismiss, defendant has submitted the following as exhibits: 1) Ross' Disputed Claim form for worker's compensation (defendant's exhibit 1), 2) "Preventing Cardiovascular Disease: Addressing the Nation's Leading Killer" from the National Center for Chronic Disease Prevention and Health Promotion (defendant's exhibit 2), and 3) the affidavit of Paul Boudreaux regarding the events surrounding Ross' collapse at work on May 29, 1999 (defendant's exhibit 3).
In their Opposition to the Motion to Dismiss, plaintiffs first contend that summary judgment is premature and that the question of intent should be reserved for trial. Plaintiffs also argue that because the LWCA excludes heart attacks from coverage, they may proceed against defendant in tort. Alternatively, plaintiffs contend that if they may not proceed in tort, then the LWCA provision excluding heart attacks is unconstitutional.
Plaintiffs have attached as exhibits to their Opposition copies of the following: 1) Plaintiffs' Complaint (plaintiffs' exhibit 1); and 2) Kyle Steenland, "Epidemiology of Occupation and Coronary Heart Disease: Research Agenda," American Journal of Industrial Medicine 30:495-499 (1996); Mittleman, et al., "Triggering of Acute Myocardial Infarction by Heavy Physical Exertion" New England Journal of Medicine, v. 329, 23:1677-1690 (1993); Lars Alfredsson and Töres Theorell, "Job Characteristics of Occupations and Myocardial Infarction Risk: Effect of Possible Confounding Factors, Soc. Sci. Med., v. 17, 20:1497-1503 (1983) (plaintiffs' exhibit 2).
2. Standard of Review
Because this Motion to Dismiss is supported by matters outside the pleadings, the motion to dismiss will be treated as one for summary judgment and disposed of as provided in Rule 56. Fed.R.Civ.P. 12(b)(6). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 656 (5th Cir. 1996). When the moving party has carried its burden under Rule 56(c), the adverse party must set forth "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). "Facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3. Disposition of this Motion for Summary Judgment is Not Premature
A court may deny a motion for summary judgment, grant a continuance or make other such order as is just if a party opposing the motion cannot present facts essential to justify opposition. Fed.R.Civ.P. 56(f). To obtain a continuance in accordance with Rule 56(f), a party must specifically explain both why it is currently unable to present evidence creating a genuine issue of fact and how a continuance would enable the party to present such evidence, Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 931 (5th Cir. 1995).
Plaintiffs not only suggest that summary judgment is premature, but that it has not had time to conduct discovery that would create a fact issue as to whether defendant intentionally caused Ross to suffer cardiac arrest. Considering the length of time this case has been pending (since May 1999) and the fact that plaintiffs have propounded no discovery, this contention is not persuasive. Moreover, because the court is convinced on the basis of the evidence presented that plaintiffs will be unable to prove that defendant intentionally caused him to suffer a heart attack, the court finds no reason to delay its disposition of this motion.
4. Analysis
Plaintiffs oppose dismissal of this tort action for two reasons. First, plaintiffs allege that the defendant acted intentionally in placing Ross on the kilo line and ordering him to lift the sacks of sugar. Second, plaintiffs contend that because Ross may be excluded from recovery of worker's compensation benefits, he is entitled to maintain this action against the defendant under general tort principles. Alternatively, plaintiffs asks this court to find that La.R.S.23:1021(7)(e) is unconstitutional.
Louisiana Revised Statute 23:1021(7)(e) provides:
(e) Heart-related or perivascular. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it si demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress and exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preextisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.
In opposition, plaintiffs contend that they are entitled to maintain this tort action against Ross' employer because the LWCA imposes a heightened burden of proof on victims of heart-related injuries who seek worker's compensation benefits. For this proposition plaintiffs' cite Charles v. Traveler's Ins. Co., 627 So.2d 1366 (La. 1993).
In Charles, the plaintiff began experiencing severe headaches and slurred speech while at work. When he later went to the hospital, he was diagnosed with acute hypertensive encephalopathy, and his condition worsened over the next few days. Several days later, plaintiff was released from the hospital after it was determined that he had suffered a stroke. The plaintiff was denied benefits by the employer's workers' compensation insurer and subsequently filed a claim for temporary total disability benefits with the Office of Workers' Compensation.
Both the insurer and the Office of Workers' Compensation denied the plaintiff's claims after determining that a stroke was a "perivascular injury" within the meaning of La.R.S. 23:1021 (7)(e). The Third Circuit Court of Appeal likewise concluded that plaintiff did not meet the standard of proof set forth in the LWCA for perivascular injuries, and the Louisiana Supreme Court affirmed.
The issue of whether the Charles plaintiff would have had a tort remedy was not presented to the court. However, in footnote 17, the court suggested that by enacting the provision regarding perivascular injuries, the legislature may have inadvertently exposed employers to a "more financially harsh tort liability for those heart attacks and strokes now excluded from compensation coverage. . . ." Charles, 627 So.2d at 1372, n. 17.
In this case, the plaintiffs ask the court to follow the dicta in footnote 17 of the Charles opinion. Plaintiffs also cite several cases from lower courts, which allowed the plaintiff to assert a tort claim against his employer when he could not meet the burden of proof set forth in La.R.S. 23:1021(7)(e). See Hunt v. Womack, 616 So.2d 759 (La.App. 1st Cir. 1993), writ denied, 623 So.2d 1309 (La. 1993); Ellis v. Normal Life of Louisiana, 638 So.2d 422 (La.App. 5th Cir. 1994); Tomas v. Conoco Food Distributors, 702 So.2d 944 (La.App. 3d Cir. 1996).
On the other hand, defendant cites a recent Louisiana Supreme Court case, which seems to contradict the cases cited by plaintiffs. In O'Regan v. Preferred Enterprises, Inc., 737 So.2d 31 (La. 1999), the plaintiff was denied workers' compensation benefits pursuant to La.R.S. 23:1031.1(D), which heightens the burden of proof required for a short term employee to demonstrate that an occupational disease was caused by the employment. The court held that failure to meet the heightened burden of proof did not entitle plaintiff to bring a tort action against the employer.
In O'Regan, the plaintiff argued that since she failed to carry the burden of proof; she was not "entitled" to benefits and not covered by the LWCA. Therefore, reasoned the plaintiff, the LWCA could not be her exclusive remedy. The court rejected this argument and noted that "[e]ntitlement to a remedy under the [LWCA] is not synonymous with ultimate success on the merits in an individual case." O'Regan, 737 So.2d at 36. The court quoted Larson's Workers' Compensation Law § 65.40 (1999) and noted the distinction between an injury that does not come within the fundamental coverage of the act and an injury that is covered, but for which, under the facts of a particular case, no compensation is payable. In the first instance, the employee may bring a tort action against the employer. See, e.g., Holliday v. State of Louisiana, 1999 WL 1268877 (La.App. 1 Cir. 1999). In the latter case, the employee may not recover in tort. Regan 737 So.2d at 36.
On rehearing, Justice Knoll, writing for the Court, put the issue to rest. O'Regan v. Preferred Enterprises, Inc., 2000 WL 300725. The Court held that because the Legislature imposed a heightened burden of proof on short-term employees with occupational diseases, the Legislature presumptively eliminated those employees from receiving Workers' Compensation benefits. They are therefore entitled to maintain tort actions against their employers. Among other classes of employees listed by the Court as presumptively excluded are those with heart related and perivascular illnesses. Id. at **6.
The LWCA provision at issue in O'Regan is analogous to the one before this court, and the rationale by which O'Regan was decided is equally applicable here. The LWCA's heightened burden of proof for perivascular injuries and illnesses presumptively eliminates the Workers' Compensation remedy for Ross, and he is entitled to maintain this action against Tate Lyle. The court need not address plaintiffs' argument regarding the constitutionality of the La.R.S. 23:1021(7)(e) nor plaintiffs' argument that defendant acted intentionally. Accordingly,
IT IS ORDERED that defendant's Motion for Summary Judgment is hereby DENIED.
IT IS FURTHER ORDERED that the courtroom deputy shall immediately reschedule a Preliminary Pre-Trial Conference with the, parties to set deadlines and a trial date.
New Orleans, Louisiana, this 10th day of April, 2000.