Galliano v. CB & I, LLC

• Decision Date: 10 April 2019
• Docket Number: NO. 2018 CA 0844,2018 CA 0844
• Citation: Galliano v. CB & I, LLC, 275 So.3d 906 (La. App. 2019)
• Court: Court of Appeal of Louisiana
• Parties: Felton GALLIANO v. CB & I, LLC and Broadspire Services, LLC

275 So.3d 906

Felton GALLIANO

v.CB & I, LLC and Broadspire Services, LLC

NO. 2018 CA 0844

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: APRIL 10, 2019

Kiana M. Mitchell, Craig B. Mitchell, David M. Williams, New Orleans, LA, Attorneys for Claimant-Appellant, Felton Galliano

John Rabalais, Janice Unland, Matthew Crumhorn, Covington, LA, Attorneys for Defendant-Appellee, CB & I, LLC

BEFORE: McCLENDON, WELCH, AND HIGGINBOTHAM, JJ.

HIGGINBOTHAM, J.

Claimant-employee appealed from the decision of the Office of Workers' Compensation, granting summary judgment in favor of his employer and finding the employee's workers' compensation benefits were forfeited for his failure to answer truthfully his employer's questions concerning prior injuries, and terminating the employee's benefits pursuant to La.R.S. 23:1208.1.

FACTS AND PROCEDURAL HISTORY

On May 16, 2016, claimant, Felton Galliano, was hired by CB & I, as an electrician's helper.In completing the paperwork for his employment, Mr. Galliano filled out the Louisiana Office of Workers' Compensation Second Injury Board Knowledge Questionnaire(SIF questionnaire).The SIF questionnaire is used to provide CB & I with knowledge about any pre-existing medical condition or disability of Mr. Galliano which might entitle CB & I to reimbursement from the Louisiana Workers' Compensation Second Injury Board in the event Mr. Galliano suffers an on-the-job injury.

On July 29, 2016, while working for CB & I, Mr. Galliano was installing cable.While picking up the slack in the cable, he felt a pain in his back that radiated into his groin, buttocks, and down his right leg.Initially, CB & I accepted Mr. Galliano's workers' compensation claim from the July 29, 2016 accident as compensable and paid for Mr. Galliano's treatment.However, after an investigation into Mr. Galliano's claims, wherein CB & I asserts it discovered that Mr. Galliano failed to answer truthfully questions about prior injuries on the SIF questionnaire, CB & I terminated his benefits.CB & I notified Mr. Galliano that his benefits were being terminated on February 10, 2017.

Thereafter, on June 13, 2017, Mr. Galliano filed a Disputed Claim for Compensation with the Office of Workers' Compensation against CB & I. CB & I answered contending that Mr. Galliano forfeited his rights to workers' compensation benefits of any kind as a result of his failure to truthfully answer questions regarding prior similar injuries, disabilities, or other medical conditions in direct violation of La.R.S. 23:2801.1.CB & I also filed a reconventional demand seeking restitution for all expenses and benefits it incurred.

On November 29, 2017, CB & I filed a motion for summary judgment contending that there are no genuine issues of material fact with respect to whether Mr. Galliano forfeited his right to workers' compensation benefits as a result of his failure to truthfully answer questions in violation of La.R.S. 23:1208.1.In support of its motion for summary judgment, CB & I attached, among other items: (1) Mr. Galliano's disputed claim for compensation (exhibit A); (2) Mr. Galliano's certified personnel records from his time at CB & I and his prior employers (exhibits B and H); (3) Mr. Galliano's certified medical records (exhibits D and E); (3) Mr. Galliano's deposition (exhibit F); (4) the medical opinion of Dr. Alan Schroeder(exhibit I); and (5) Dr. Schroeder's deposition (exhibit J).The deposition of Mr. Galliano, exhibit F, listed three exhibits in the index that included the SIF questionnaire.However, the documents were not attached to the deposition.

In opposition to CB & I's motion for summary judgment, Mr. Galliano objected to the introduction of exhibits B¹ and H, his personnel records from CB & I and prior employers.Mr. Galliano pointed out that neither of the exhibits qualified as pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, or admissions as required by La. Code Civ. P. art. 966(A)(4).

CB & I's motion for summary judgment came before the Workers' Compensation Judge (WCJ) on January 8, 2018.During the hearing, the WCJ excluded exhibits B and H, finding that the record certification was not the same as an affidavit, and therefore, not proper summary judgment evidence under La. Code Civ. P. art. 966.

Also, on the day of the hearing, CB & I's attorney acknowledged that three documents, including the SIF questionnaire, were inadvertently left off of Mr. Galliano's deposition by his office, and he asked the court to supplement exhibit F with the documents.Additionally, CB & I offered into evidence on the day of the hearing the affidavit of Blake Alphonso, the attorney who took Mr. Galliano's deposition, explaining why the SIF questionnaire was not attached to the original motion for summary judgment.Mr. Galliano objected, pointing out that La. Code Civ. P. art. 966 does not allow for filing additional documents on the day of the hearing.The trial court left the record open for Mr. Galliano's attorney to review the supplementation to determine if he saw the documents at the deposition.In reviewing the documents, Mr. Galliano's attorney did not contest the authenticity of the documents, but continued to object based on La. Code Civ. P. art. 966.In deciding to allow admission of the exhibits as a supplement to exhibit F, the WCJ pointed out that "there is no prejudice to the opposing side" because Mr. Galliano had a copy of the SIF questionnaire, he was part of the deposition, and the SIF questionnaire was included as part of exhibit B, which was attached to CB & I's motion for summary judgment.

After the hearing, the WCJ signed a judgment on April 9, 2018, granting CB & I's motion for summary judgment as well as CB & I's reconventional demand.It is from this judgment that Mr. Galliano appeals.

STANDARD OF REVIEW

When reviewing summary judgments, appellate courts conduct a de novo review of the evidence, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate.Boudreaux v. Vankerkhove, 2007-2555(La. App. 1st Cir.8/11/08), 993 So.2d 725, 729-30.After an opportunity for adequate discovery, a motion for summary judgment shall be granted if 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. Code Civ. P. art. 966(A)(3).The burden of proof is on the mover.La. Code Civ. P. art. 966(D)(1).Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.The Shaw Group v. Kulick, 2004-0697(La. App. 1st Cir.4/8/05), 915 So.2d 796, 800, writ denied, 2005-1205 (La....