FROM THE OFFICE OF WORKERS' COMPENSATION - District No. 3
PARISH OF CALCASIEU, NO. 15-03654 DIANNE MAYO, WORKERS'
A. Filo Cox, Cox, Filo Camel & Wilson, LLC COUNSEL FOR
PLAINTIFF-APPELLEE: Joseph Adams, Jr.
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
composed of John D. Saunders, Billy H. Ezell, John E. Conery,
Van H. Kyzar, and Candyce G. Perret, Judges.
CANDYCE G. PERRET JUDGE.
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.
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.
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."
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.
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.
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
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
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.
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.
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).
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.
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
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.
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."
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
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.
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 ...