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Ekere v. DuPont Chemical Plant2/16/2000
AFFIRMED
Claimant, Ini Okon Ekere, appeals a judgment rendered by a hearing officer in the Workers' Compensation Administration granting defendant Dupont Chemical Plant's (hereafter Dupont) motion for summary judgment. The hearing officer found that claimant was not entitled to death benefits because he was not dependent on his decedent wife, Pamela Sanders, at the time that she was allegedly exposed to various carcinogens related to her cancer. For the following reasons, we affirm.
On December 28, 1998, claimant filed a Disputed Claim for Compensation for death benefits, alleging that Ms. Sanders died on October 23, 1998 from cancer related to her exposure to various chemicals while employed as an operator for Dupont. The record reflects that Ms. Sanders was employed by Dupont from 1980 until 1989.
Shortly after Ms. Sanders terminated her employment with Dupont, she moved to Atlanta, Georgia. In 1993, claimant met Ms. Sanders in Atlanta. In December of 1997, Ms. Sanders began experiencing symptoms that were later identified as related to cancer. Claimant and Ms. Sanders were married on May 7, 1998, and Ms. Sanders passed away on October 23, 1998.
It is well settled that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, 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. Nevertheless, summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized. Tonubbee v. River Parishes Guide, 97-440 (La. App. 5 Cir. 10/28/97), 702 So.2d 971, 974, writ denied, 97-3012 (La. 2/13/98), 709 So.2d 747. Under the recently-amended version of La. C.C.P. art. 966, the initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Tonubbee, 702 So.2d 971, 975.
Appellate courts review summary judgments de novo under the same criteria that govern the trial court's determination of whether a summary judgment is appropriate. 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. Sanders v. Ashland Oil, Inc., 96-1751 (La. App. 1 Cir.6/20/97) 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.
Claimant argues that compensation for an occupational disease is not treated in the same matter as a traumatic injury under LSA-R.S. 23:1254. Claimant further argues that the language of the worker 's compensation statute permits recovery on "disability," not simply on the occurrence of the "injury" or "accident." Claimant argues, therefore, that his right to recovery of periodic benefit payments is not triggered until impairment is manifest.
Dupont responds that it is entitled to summary judgment as a matter of law because claimant was not married nor dependant on Ms. Sanders at the time of her alleged exposure to the carcinogens. Dupont further responds that the date of the injury-producing event determines the time at which the occupati
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