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Adams v. Georgia Gulf Lake Charles, LLC

Court of Appeals of Louisiana, Third Circuit

June 27, 2018

JOSEPH ADAMS
v.
GEORGIA GULF LAKE CHARLES, LLC, ET AL.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - District No. 3 PARISH OF CALCASIEU, NO. 15-03654 DIANNE MAYO, WORKERS' COMPENSATION JUDGE

          Thomas A. Filo Cox, Cox, Filo Camel & Wilson, LLC COUNSEL FOR PLAINTIFF-APPELLEE: Joseph Adams, Jr.

          H. Alston Johnson, III Gregory T. Stevens J. Alan Harrell Phelps Dunbar, LLP COUNSEL FOR DEFENDANTS-APPELLANTS: Liberty Mutual Insurance Co. Georgia Gulf Lake Charles, LLC

          Court composed of John D. Saunders, Billy H. Ezell, John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE.

         This is a workers' compensation claim for indemnity benefits based on an alleged occupational hearing loss. Georgia Gulf Lake Charles, LLC and its insurer, Liberty Mutual Insurance Company (hereinafter collectively referred to as "Georgia Gulf"), appeal the decision of the workers' compensation judge ("WCJ") awarding Joseph Adams supplemental earnings benefits ("SEB"), penalties, and attorney fees for hearing loss caused by his employment. Mr. Adams answered the appeal seeking additional attorney fees for work done on the appeal. For the following reasons, we amend the judgment to limit Mr. Adams' SEB payments to 104 weeks, and affirm as amended. Additionally, we render an attorney fee award of $5, 000.00 in favor of Mr. Adams and against Georgia Gulf Lake Charles, LLC and Liberty Mutual Insurance Company, jointly, severally and in solido, for work done on this appeal.

         FACTS:

         Mr. Adams was employed for forty years by Georgia Gulf from February of 1971 until his retirement in January of 2011. While employed at Georgia Gulf's facility, Mr. Adams worked as a Construction Worker, Boilermaker, and Crane Operator. Mr. Adams claims he began to notice some degree of hearing loss in his left ear in the mid-1980s and in his right ear in 1997. Mr. Adams testified that he believes his left ear experienced hearing loss much more than his right ear because he would often remove his left earplug an average of five or six times a day in order to communicate with his co-workers in the plant environment.

         In January 2010, Mr. Adams had back surgery. Although Mr. Adams testified that he had planned to work at Georgia Gulf until the age of seventy, he chose to retire in January of 2011, at the age of sixty-five, after being informed by Georgia Gulf that it was retiring him. In his supplemental appellee brief, Mr. Adams concedes that "the record does establish that Mr. Adams has not sought employment since his retirement from Georgia Gulf and that he now considers himself retired."

         In December 2011, Mr. Adams filed a tort claim alleging occupational noise-induced hearing loss as a result of his employment with Georgia Gulf. In 2015, the Louisiana Supreme Court held, in Arrant v. Graphic Packing International, Inc., 13-2878, 13-2981 (La. 5/15/15) 169 So.3d 296, that occupational noise-induced hearing loss is an occupational disease under the Louisiana Workers' Compensation Act ("LWCA"). Thereafter, on June 12, 2015, Mr. Adams filed the current workers' compensation claim, seeking SEB as a result of his alleged occupational hearing loss.

         A bench trial was held on February 7-8, 2017. On May 9, 2017, the WCJ signed a judgment finding that Mr. Adams established entitlement to workers' compensation medical and indemnity benefits due to occupational hearing loss; Mr. Adams is entitled to SEB at the maximum compensation rate of $579 per week from January 1, 2011, with interest; Georgia Gulf shall continue to pay this rate until it either finds or offers a job to Mr. Adams paying at least ninety percent of his average weekly wage; said job must be within the restrictions placed on Mr. Adams by Dr. Donna Breen ("Dr. Breen"); Mr. Adams was entitled to a penalty of $8, 000.00 and attorney fees of $25, 000.00 for Georgia Gulf's failure to investigate the claim and the arbitrary and capricious handling of the claim; and ordered Georgia Gulf to pay medical benefits as needed by Mr. Adams.

         On appeal, Georgia Gulf asserts the following four assignments of error: (1) the WCJ erred in determining that Mr. Adams' claim had not prescribed; (2) the WCJ erred in concluding that Mr. Adams established a causal connection between his hearing loss and employment at Georgia Gulf, and the corresponding entitlement to medical and indemnity benefits; (3) the WCJ erred in determining that Mr. Adams was entitled to SEB; and (4) the WCJ erred in awarding penalties and attorney fees. Mr. Adams answered Georgia Gulf's appeal, seeking additional attorney fees for work done on this appeal.

         STANDARD OF REVIEW:

         Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. As the Louisiana Supreme Court stated in Stobart v. State, Through Department of Transportation & Development, 617 So.2d 880, 882 (La.1993) (internal citations and quotation marks omitted):

[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Nonetheless, this Court has emphasized that the reviewing court must always keep in mind that if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

         DISCUSSION:

         Prescription

         The first issue to address is whether the WCJ correctly determined that Mr. Adams' workers' compensation claim had not prescribed. Georgia Gulf argues that Mr. Adams was clearly aware that he had occupational hearing loss as early as the 1990s but did not file his tort suit until 2011. Thus, Georgia Gulf alleges that Mr. Adams' workers' compensation claim prescribed because his untimely tort suit cannot toll the prescriptive period.

         Conversely, Mr. Adams argues that there are special prescription rules for an occupational illness under La.R.S. 23:1031.1(E), which states that a claim must be filed "within one year of the dates that: (1) [t]he disease manifested itself[, ] (2) [t]he employee is disabled from working as a result of the disease[, ] [and] (3) [t]he employee knows or has reasonable grounds to believe that the disease is occupationally related." Accordingly, Mr. Adams alleges that because his employment with Georgia Gulf did not terminate until January 1, 2011, his claim could not have prescribed given that his tort suit was filed in December 2011, and it was pending at the time of the instant workers' compensation claim. We agree.

         Louisiana Civil Code Article 3462 provides that prescription is interrupted "when the obligee commences action against the obligor, in a court of competent jurisdiction and venue." The "interruption of prescription resulting from the filing of suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending." La.Civ.Code art. 3463. Louisiana jurisprudence holds that where a tort suit was filed prior to the workers' compensation claim, courts have found that the employee's filing of a tort suit against his employer interrupted prescription as to a subsequently-filed workers' compensation claim by the employee against the employer. Bruce v. Becnel, 98-1349 (La.App. 5 Cir. 10/13/99), 747 So.2d 647, writ denied, 99-3250 (La. 1/28/00), 753 So.2d 830; Cryer v. Tenneco Oil Co., 615 So.2d 1070, (La.App. 4 Cir. 1993); Burrier v. Malmac Energy Corp., 592 So.2d 1370, (La.App. 2 Cir. 1992).

         In this case, Mr. Adams' tort suit against Georgia Gulf was filed in a court of competent jurisdiction and proper venue within one year of his termination of employment. In the petition, Mr. Adams alleged occupational induced hearing loss. Thus, both the tort claim and workers' compensation claim against Georgia Gulf were based on the same illness, which was Mr. Adams' occupational noise-induced hearing loss. For these reasons, we find no error in the WCJ's factual conclusion that the timely-filed tort action interrupted prescription as to Mr. Adams' subsequent workers' compensation claim against Georgia Gulf.

         Causation

         The second issue to address is whether the WCJ properly determined that Mr. Adams met his burden of proving that he suffered hearing loss as a result of the noise levels associated with his employment at Georgia Gulf. Georgia Gulf contends Mr. Adams has age-induced hearing loss, whereas Mr. Adams alleges that he has an occupationally induced hearing loss as a result of his employment with Georgia Gulf for over forty years.

         Louisiana Revised Statutes 23:1031.1 governs workers' compensation claims for an occupational disease and defines an occupational disease as a "disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." "A plaintiff bears the burden of proving, by a preponderance of the evidence, that the disease at issue was contracted during the course of her employment and that the disease was the result of the nature of the work performed." Mitchell v. All Compressors, 05-1186, p. 4 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 131-32. As stated in Comeaux v. Star Enterprise/Motiva Enterprise, 02-24, p. 8 (La.App. 1 Cir. 12/20/02), 836 So.2d 359, 364 (citations omitted):

The causal link between his illness and work-related duties must be established by a reasonable probability. The claimant will fail if he shows only a possibility that the employment caused the disease, or that other causes not related to the employment are just as likely to have caused the disease.

         The record contains the testimony of four expert witnesses on this issue: Dr. Breen, a board certified otolaryngologist; Dr. Robert Dobie, a board certified otolaryngologist; Dr. Steven Madix, board certified in speech pathology and audiology; and Dennis Driscoll, the President of Associates in Acoustics, Inc., a professional consulting firm in noise control and hearing conservation. Plaintiff's expert, Dr. Breen, testified that she first saw Mr. Adams for hearing difficulties on June 21, 2016. At that time, she performed an audiogram that "showed a deeply sloping sensorineural hearing loss, bilateral and symmetric above 2000 Hz. He was [sic] tinnitus matched in both ears for 4000 Hz. This type of precipitous loss in the high frequencies is indicative of acoustic trauma." Dr. Breen testified that "this type of hearing pattern is often seen with noise exposure in an industrial environment" and that Mr. Adams has "objective indications of sensorineural hearing loss due to acoustic trauma and chronic tinnitus as well."

         On July 27, 2016, Dr. Breen supplemented her report to include working restrictions based on the results of Mr. Adams' hearing tests. Specifically, the report stated, in pertinent part:

It is my understanding that this patient was working in the refinery units with high levels of noise exposure from compressors and pumps and other heavy equipment. Based on the results of his audiogram, I would recommend that the patient work in a less noisy environment such as in an office or warehouse without this high level of noise exposure. It is medically necessary to intervene when presented with high frequency hearing loss of this type by simply changing the environment to a less noisy workplace exposure. In taking these precautions, it would avoid more severe hearing loss.

         On October 12, 2016, Dr. Breen disagreed with Georgia Gulf's expert, Dr. Dobie, who attributed Mr. Adams' hearing loss to age-related hearing loss. After reviewing Mr. Adams' older audiograms from 1978 and 1979, a time in which hearing protection was seldom worn, Dr. Breen found that Mr. Adams began having hearing loss at thirty-three ...


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