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Allen v. Graphic Packaging International, Inc.

Court of Appeals of Louisiana, Second Circuit

January 11, 2017

MICHAEL W. ALLEN Plaintiff-Appellee

         Appealed from the Office of Workers' Compensation, District 1-East Parish of Ouachita, Louisiana Trial Court No. 1404632 Brenza Irving Jones, Workers' Compensation Judge

          JUGE, NAPOLITANO, GUILBEAU, RULI & FRIEMAN By: Keith E. Pittman John V. Quaglino Counsel for Appellant.

          STREET & STREET By: C. Daniel Street Counsel for Appellee.

          Before MOORE, GARRETT, and CARAWAY (ad hoc), JJ.

          CARAWAY (AD HOC), J.

         The workers' compensation judge ("WCJ") awarded benefits to the employee after finding that he had succeeded in his burden of proving that a work-related mosquito bite infected him with the West Nile virus which resulted in total and permanent disability. The defendant attempted to show that the large outbreak of the West Nile virus at the time demonstrated that plaintiff could not prove a work-related injury. For the following reasons, we affirm in part and reverse in part.


         Appellee Michael Allen worked as an assistant operator at Graphic Packaging International, Inc.'s ("Graphic") packaging plant in Monroe, Louisiana. Pursuant to his duties an assistant operator, Allen assisted in the operation of a "roll-back" machine that produced cardboard beer cartons. On August 9, 2013, Allen was sitting in the break room of the plant when he recalls being bitten by a mosquito on his left leg. On August 11, Allen began displaying fatigue and fever-related symptoms. On August 12, Allen sought medical treatment and was eventually diagnosed with West Nile Encephalitis ("West Nile"). As a result, Allen is no longer able to work.

         On July 14, 2014, Allen filed a disputed claim for compensation. In its answer, Graphic asserted that the injury did not occur within the course and scope of Allen's employment. At trial, Graphic did not dispute that Allen contracted West Nile. Graphic disputed whether Allen's West Nile was the result of the single mosquito bite he allegedly sustained while sitting in the break room on August 9, 2013.

         Allen testified that on August 9, 2013, he was in an enclosed break room of plant 70 between the hours of 10:00 a.m. and 1:00 p.m. when he specifically remembers being bitten on his left leg by a mosquito. Allen was wearing shorts on the day in question. He testified that he received two 10-minute breaks during the day but does not recall during which of those breaks he was bitten. He further testified that his coworker, Juvelle Williams, was in the break room during one of the breaks when Allen sustained the mosquito bite. However, it was shown during the cross-examination of Williams and from the introduction of his employee timecard that Williams was not at work on August 9. Nevertheless, Allen maintained that he was bitten on August 9 in the break room. There were, however, no eyewitnesses to observe the alleged isolated mosquito bite. Allen's employee time card shows that during the workweek of August 5-9, he worked 12-hour days at the plant, with the exception of Friday, August 9, when he worked eight hours.

         Eddie Wilhite, a machine operator for Graphic, testified that he was familiar with the general work area of the plant and had seen many mosquitos flying in the area. He reported that he knew of a number of complaints from other coworkers about mosquitos. Despite the prevalence of mosquitos in the general work area, he testified on cross-examination that he had never seen a mosquito in the break room. Lastly, he testified that a month after Allen's release from the hospital, Allen told him that the mosquito bite that hospitalized him had occurred at Graphic.

         Kimmey Ray Adams, a Graphic employee and a first cousin to the claimant, testified that he noticed mosquitos in the work area and has, at times, seen a "mosquito or two" in the break room. However, he also testified that he had never seen swarms of mosquitos at Graphic. He further testified that he visited Allen several times in the hospital and during one of those visits, Allen told him that he was bitten by a mosquito at work.

         Allen's supervisor, Olu Fasheyide, testified that, at times, there are mosquitos "everywhere" throughout the plant and insect repellant is provided to employees. Fasheyide noted that during the summer months, the plant is exposed to the outdoors. He explained that the plant's large factory doors remain open while fans blow continuously throughout to keep the inside of the unair-conditioned plant from becoming too warm. He also reported that he had seen two or three mosquitos every now and then in the break room, noting that it was nothing out of the ordinary.

         Juvelle Williams testified on behalf of the claimant. Williams was a coworker and regularly interacted with Allen. Williams also contracted West Nile in 2013, which he attributes to a bite he sustained at work. Although, similar to Allen, Williams testified that he does not know the particular mosquito which resulted in West Nile.

         On direct examination of Williams, Allen's attorney made no reference to Allen's break room bite on August 9, 2013. Instead, claimant's attorney elicited testimony regarding Williams's general familiarity with the shared break room and work area, the primary focus being to establish a connection between his West Nile diagnosis and Allen's. On cross-examination there was testimony from Williams about the specific day of the alleged bite. During cross-examination, Williams admitted that he was not working on the day he claimed to have been in the break room with Allen. In fact, the record reveals that Williams did not work from August 6 to August 9. As such, his last day of work for that week was on Monday, August 5. Williams never testified about any details regarding a specific mosquito bite of Allen and therefore Williams did not corroborate the specific incident in question.

         Karen Collins testified as a fact witness for Graphic. She testified that she is the former girlfriend of Allen and was dating him at the time he contracted West Nile. She testified that when Allen returned home from work on August 9, 2013, he told her that he was going to cut his grass, presumably exposing himself to a higher risk of mosquitos. She further noted transporting Allen to the hospital on August 14. She provided admission information on behalf of Allen because he was unable to do so. The intake report from Glenwood Medical Center states that the chief complaint was a fever. The report also contains a statement made by Collins that "[h]is friend states that he was out in the yard two days ago and may have gotten overheated." Collins testified that Allen was out in his yard cutting his grass two days earlier. The report further contains a statement suggesting that Allen had gone to a restaurant shortly before his hospitalization. Collins also testified that months after his release from the hospital, claimant had told her that "he had heard that someone else at the job had gotten bitten [sic]" and believed that he "could have gotten bitten also." In addition, Collins testified that Allen told her that he believed he had been bitten by the same mosquito.

         Allen was called on redirect to testify as to the allegations made by Collins. Allen asserted that he had not told Collins that he would mow his yard and, additionally, that his yard, and hers, had been mowed by a Mr. Brown.

         The director of the Ouachita Parish Mosquito Abatement District, Shannon Rider, testified for the claimant in reference to the prevalence of mosquitos in Ouachita Parish during the summer of 2013. Notably, she provided no opinion as to how Allen contracted West Nile other than to say that one is more likely to contract West Nile during the early morning or early evening hours. As director of the program, it was her job to oversee, among other things, the control of mosquitos and related diseases throughout the parish. Rider testified that her Department places mosquito traps at random locations throughout Ouachita Parish. Mosquitos are collected in these traps and are tested for the presence of West Nile. Much testimony was elicited in reference to the location and the function of the mosquito traps. Specifically, there were traps in locations near both the Graphic ...

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