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Dejean v. St. Charles Gaming Co.5/4/2005
AFFIRMED.
The defendant, St. Charles Gaming Company, Inc., d/b/a Isle of Capri Casino-Lake Charles (St. Charles Gaming), appeals the trial court's grant of a partial summary judgment ordering that it reinstate the payment of maintenance and cure benefits to the plaintiff, Carol Dejean, effective April 14, 2004. For the following reasons, we affirm the trial court's judgment in all respects.
DISCUSSION OF THE RECORD
The underlying facts giving rise to this appeal are not in dispute. On July 14, 1999, Carol Dejean sustained an injury while in the course and scope of her employment with St. Charles Gaming. At the time of her injury, she was an American seaman and a member of the crew of the M/V GRAND PALAIS, a gaming vessel in navigation, owned by St. Charles Gaming and physically located in Calcasieu Parish, Louisiana. After sustaining her injury, she filed a Jones Act and general maritime claim against St. Charles Gaming. The claim also included a demand for maintenance and cure due under the general maritime law.
St. Charles Gaming initially paid maintenance and cure, but ceased doing so on April 14, 2004. Additionally, St. Charles Gaming refused to pay for Botox injections for Ms. Dejean that were recommended by Dr. Frank Lopez, a physical medicine and rehabilitation specialist and Ms. Dejean's treating physician. Thereafter, on June 9, 2004, Ms. Dejean filed a motion for partial summary judgment, seeking reinstatement of maintenance and cure benefits, an order authorizing certain treatments recommended by her physician, and attorney fees for the prosecution of the motion. After the July 8, 2004 hearing on the motion, the trial court granted Ms. Dejean's request for reinstatement of maintenance and cure retroactive to April 14, 2004; granted her request to have St. Charles Gaming authorize and pay for the medical treatment recommended by Dr. Lopez; and granted her request to have St. Charles Gaming reimburse her for all medical expenses incurred and paid in connection with her treatment after April 14, 2004. The trial court rejected Ms. Dejean's request for attorney fees. Additionally, the trial court rejected St. Charles Gaming's motion for new trial. Thereafter, the trial court granted St. Charles Gaming's request to certify the partial summary judgment as a final, appealable judgment pursuant to La.Code Civ.P. art. 1915(B) and granted St. Charles Gaming's motion for a suspensive appeal.
ASSIGNMENTS OF ERROR
St. Charles Gaming assigns three errors, as follows:
I. The trial court erred in granting plaintiff's Motion for Partial Summary Judgment to Reinstate Maintenance and Cure where plaintiff's treating physician testified that the only treatment being provided and recommended to plaintiff was for the purpose of attempting to alleviate pain.
II. In the alternative, the trial court erred in failing to find that material issues of fact relating to whether plaintiff had reached maximum medical improvement precluded the granting of plaintiff's Motion for Partial Summary Judgment to Reinstate Maintenance and Cure.
III. The trial court erred in failing to grant defendant's Motion for New Trial where the trial court's order granting plaintiff's Motion for Partial Summary Judgment to Reinstate Maintenance and Cure encompassed cure obligations beyond the treatment contained in plaintiff's motion and made known to the court and defense counsel.
OPINION
Scope of Review and Applicable Law "Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Ross v. Conoco, Inc.,
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