November 2013 Newsletter - Taylor, Wellons, Politz & Duhe

November 2013 Newsletter - Taylor, Wellons, Politz & Duhe

MISS: PETITION TO CONTROVERT FILED MORE THANTWO YEARS AFTER FIREFIGHTER’S LUNG CONDITIONBECAME OCCUPATIONALLY DISABLING WAS FOUND TOBE TIMELYIn a mesothelioma case, theMississippi Court of Appealsupheld the timeliness of a petitionto controvert that was filed fiveyears after the claimant was firsttreated for breathing problems.The claimant worked for theJackson Fire Department from1985 until July 2006. Claimantworked in all but one fire stationin Jackson, many of whichcontained asbestos and wereclosed for asbestos removal.Additionally, he testified that hehas been exposed to asbestosfighting fires in warehouses andolder homes. According to thedecision, the first time theclaimant was treated forbreathing problems was in 2002due to smoke inhalation. Apulmonologist found that theclaimant’s pulmonary functionindicated severe restrictive lungdisease, but the cause wasunclear. The claimant’s conditionworsened, and in 2006 hispulmonologist diagnosed him withpleural effusion and diagnosticsurgery was performed. Then, inJuly of 2006, the claimant wasagain treated for smoke inhalationand his pulmonologist found thatclaimant’s condition wasoccupationally disabling. Theclaimant never returned to work.In February 2007, thepulmonologist opined that theclaimant’s lung ailments weretypical of asbestosis, but testingrevealed no mesothelioma. Theclaimant filed a petition tocontrovert in November 2007 dueto asbestos related lung disease.The City of Jackson asserted thatthe claimant’s petition was barredby the two-year statute oflimitations, arguing that the claimaccrued in July 2002 when theclaimant went to the emergencyroom with breathing difficulties.But the Court of Appeals upheldthe AJ, the Commission, and theCircuit Court of Hinds County,holding that the claimant’s diseasewas latent and therefore was onlycompensable once it wasreasonably apparent. Under thefacts of this case, the Court ofAppeals held that the claimaccrued in February 2007 at theearliest, and thus the claimant’spetition was found to be timelyand the grant of benefits wasaffirmed. City of Jackson v.Sandifer, 2012-WC-00197-COA(Miss. Ct. App. Oct. 22, 2013)LA: PROCEDURE FORAPPEALING MEDICALDIRECTOR DECISIONSUNDER MEDICALTREATMENT GUIDELINESWITHSTANDSJURISDICTIONAL ATTACKAfter a denial of treatment by the OWCMedical Director pursuant to a Form1009 appeal, claimant filed a 1008Disputed Claim with the court seekingreversal of the Medical Director’sdecision. After a trial on the merits,which included evidence which had notbeen provided to the Medical Director,the OWC Judge affirmed the MedicalDirector decision. Claimant appealed tothe 3 rd Circuit Court of Appeal andargued that because the Workers’Compensation Judge’s review was onlyon appeal of the Medical Directors’decision of medical necessity, andbecause the burden of proof to overturnthat decision is by clear and convincingevidence, the worker’s compensationcourt was improperly divested ofjurisdiction to determine medicalnecessity. The Court of Appeal foundthat because the law does allow a Judgeto overturn a Medical Director decision,upon proper proof, the court was notdivested of jurisdiction over a medicalnecessity determination. As a result, thecourt sustained the workers’compensation judge’s decision. Usie v.Lafayette Parish School System, 2013-294 (La. App. 3 Cir. 10/9/13).{}

{}LA: SHABBY VOCATIONAL REHAB CAUSES COURT TO REINSTATE BENEFITSEVEN THOUGH JOBS WERE APPROVED BY THE DOCTORThis case highlights the importance of making sure your vocational rehab counselor has fully complied with the jurisprudential guidelines governingvoc rehab before benefits are terminated are switched to SEB. The claimant, a manual laborer his whole life, injured his back and it was recommendedhe have a discectomy surgery, and possible fusion. However, a heart condition prevented claimant from being cleared for surgery. Until he could getcleared for surgery, the neurosurgeon stated that claimant could work sedentary duty. Vocational rehabilitation was assigned and an initial interviewwas conducted, with no testing. A labor market survey was obtained and ten jobs were presented to the neurosurgeon, at a time when the doctor hadnot seen the claimant for 11 months. The physician approved nine of the ten jobs which paid at least 90% of the claimant’s AWW. Accordingly,benefits were terminated. Claimant filed suit. The OWC Judge found that of the nine jobs approved, only one met the criteria for suitableemployment. For example, three of the jobs were already filled when presented to claimant, two of the jobs called for lifting of fifty pounds, whichwas beyond the limits of the sedentary release, one was not suitable because of the educational requirements claimant did not possess, and one wasnot suitable due to requirement of computer skills, which was not verified by the voc counselor. Because of the one apparently suitable job, the OWCJudge dismissed the suit. The 3 rd Circuit Court of Appeal reversed on grounds that the voc rehab counselor was not able to submit sufficient evidencethat the one job found suitable by the trial judge, a job at a home improvement store, met the standard required to prove earning capacity. Initially,the court mentioned the questionable reliance on the doctor approvals because many of the approved jobs were clearly beyond the “sedentary” dutyrelease. The home improvement job was listed as “light,” which also exceeded “sedentary.” Further, the voc counselor did not know whetherclaimant could operate a forklift, run a cash register, or operate a computer, all of which could be required by the home improvement store job. Next,regarding availability of the job, the counselor could not confirm he followed up to make sure the job remained available when presented to claimant.Finally, regarding wage rate, the counselor could not dispute that the posted wage rate was conditioned on the applicant’s experience level, andclaimant had no experience in a home improvement store. Roy v. Shilling Distribution Co., Inc., 2013-242 (La. App. 3 Cir. 10/16/13).LA: PROLONGED NOISE-INDUCED HEARING LOSS IS AN OCCUPATIONAL DISEASEAND THUS THE EMPLOYER HAS TORT IMMUNITYPlaintiffs were long time employees of manufacturing plant and filed a tort suit for damages alleging they sustained noise-induced hearing loss (NIHL)because of high noise levels at the plant. The employer asserted the affirmative defense of tort immunity as granted under the Louisiana Workers’Compensation Act, and stated if proved, the employees’ exclusive remedy for the damages alleged would be workers’ compensation benefits as anoccupational disease. After a fourteen day trial, the lower court found that the evidence established that the daily, constant exposure of plaintiffs todecades of hazardous levels of industrial noise was a substantial and significant cause of their hearing loss. The plaintiffs were each awarded$50,000.00 in damages. On appeal, the 2 nd Circuit Court of Appeal noted that an occupational disease is a “disease or illness which is due to causes andconditions characteristic of and peculiar to the particular trade, occupation, process or employment in which the employee is exposed to suchdisease.” The court further noted that an occupational disease has been defined as the result of “a series of events, often imperceptible in nature,which are eventually evidenced in the manifestation of a disability.” In this case, plaintiffs suffered NIHL, which, as shown by the evidence, resultedfrom the cumulative damages or stress upon the ear caused by constant exposure to excessively loud noises. “While the constant roar of noise of asingle day at Defendant’s facility cannot be said to cause a personal injury by accident under the LWCA, every minute loss of hearing caused by thenoise of the workplace every day for years accumulated to cause NIHL.” The court noted that the evidence presented was sufficient to meet therequirements that gradual hearing loss caused by excessive noise is an occupational disease under 23:1031.1(B). Lastly, the court stated that “hearingloss caused by constant exposure to excessive occupational noise is exactly the kind of ‘occupational disease’ covered by the LWCA.” Arrant v.Graphic Packaging Intern., Inc. 48,197 (La. App. 2 Cir. 9/25/13).

{}LA: COURT HOLDS THAT STROKE WAS CAUSED BY “EXTRAORDINARY AND UNUSUAL” STRESS,NOT BECAUSE OF WORK DUTY BEING PERFORMED,BUT BECAUSE OF “UNUSUAL” NUMBER OF DAYS WORKED IN A ROWClaimant suffered a stroke at work. The workers’ compensation judge ruled the stroke was NOT compensable, but the 5 th Court of AppealREVERSED and awarded benefits. The law provides that a stroke suffered at work is not compensable unless the claimant proves by “clear andconvincing” evidence it was caused by physical work stress that was “extraordinary and unusual” as compared to stress experienced by theaverage employee in the same occupation, and that the physical work stress and not some other stress or condition was the predominant andmajor cause of the stroke. The evidence showed the claimant, a 36 year old boilermaker, had worked a stretch of 39 days with only one day off,working on average an 11.5 hour shift. However, all but the last two weeks of this period involved a plant “turnaround,” and testimony revealedit was not uncommon for the average boilermaker to work up to a month with no day off. Claimant worked for 33 days straight without a day off,and without incident. About a week of this time extended past the end of the turnaround, at which time claimant was back on normal shifts. Hethen took a day off to go to the doctor due to arm pain, which the doctor diagnosed as resulting from a cervical strain. Claimant returned thenext day on light duty, and worked another week on his usual shift before suffering the stroke. Thus, the stroke occurred during a normal shiftapproximately two weeks after the turnaround ended, and a week after a day off. Further, the evidence revealed that claimant was going to agym and working out with weights several nights a week in the five week interim during and after the turnaround. In fact, rather than restingafter his work shift, claimant had gone to the gym three consecutive nights before the day of the stroke. The trial Judge found that the evidencewas not clear and convincing evidence that claimant underwent extraordinary and unusual physical work stress for the average boilermaker. The5 th Circuit reversed, based primarily on the fact that claimant worked one stretch of 33 days without a day off, in light of testimony that onemonth was usually the longest consecutive work schedule for a boilermaker during a turnaround. The court was not impressed by evidenceshowing that claimant had only worked 7 days in a row at the time of the stroke, was not working the more strenuous turnaround shifts, and haddone exhausting weight workouts three nights in a row after work before the day of the stroke. As to the causation element, only the claimant’streating doctor testified, and the court noted that there was no evidence of a pre-existing condition or other stress that was the predominant andmajor cause of the stroke. Gordon v. Turner Industries Group, LLC, 2013-196 (La. App. 5 Cir. 10/9/13). NOTE: THE EMPLOYER IN THIS CASE ISSEEKING REVIEW OF THE 5 TH CIRCUIT DECISION FROM THE LOUISIANA SUPREME COURT. STAY TUNED FOR FURTHER UPDATES.LONGSHORE CASE: 5 th CIRCUIT REVERSES BOARD DECISION THAT CLAIMANT MET THE“OTHER ADJOINING AREA” SITUS TEST OF COVERAGEBPU Management Inc./Sherwin Alumina Co. employed David Martin as a dockworker at its waterside ore processing facility. The facility storedraw bauxite unloaded from vessels via overhead conveyor system, and transported and stored it across a street that separated the dock from theprocessing facility. When bauxite was later needed for processing, it would fall through a trap door into an underground area where it passedthrough a feeder, dropped onto a cross-tunnel conveyor belt approximately 25-30 feet underground. In the process some bauxite would spill offthe cross-tunnel conveyor onto the floor, requiring workers to intermittently shovel the bauxite back onto the conveyor belt. In this case, theclaimant, whose primary duty was to ensure that ships were properly docked and loaded or unloaded, was injured in this underground oretransport tunnel when he was shoveling fallen bauxite back onto the conveyor. The Benefits Review Board concluded because the cross-tunnelhad a functional relationship with navigable waters, it was an LHWCA-covered situs. Accordingly, the BRB ordered the employer to pay benefitsunder the LHWCA. The employer petitioned the 5 th Circuit for review of that order. Granting the petition for review, the Fifth Circuit disagreedwith the BRB. Referring to its recent en banc decision in New Orleans Depot Services, Inc. v. DOWCP—(reported in our recent newsletter)—theCourt cited the portion of that decision that explained in detail what the LHWCA’s ‘other-adjoining-area’ situs provision requires: “[A]n ‘otheradjoining area’ must satisfy two distinct situs components: (1) a geographic component (the area must adjoin navigable waters) and (2) afunctional component (the area must be ‘customarily used by an employer in loading [or] unloading a vessel’).” Because in this case theemployer’s entire facility, including the location where claimant was injured, adjoined navigable water, the Court determined that the employeehad satisfied the geographic prong of the situs test. In analyzing the functional prong, however, the Court did not agree that the underground oretransport tunnel where claimant sustained his injury had a functional relationship to navigable waters. The Court, guided by Supreme Courtjurisprudence, concluded that the surrender of cargo for land transport marks the end of the maritime unloading process because it is the pointwhere the longshoreman’s duty to unload and move cargo ceases. The Court further explained that the operational layout of the employer’sbauxite processing system in this case reinforced its conclusion that the vessel-unloading process was complete long before bauxite reached thecross-tunnels. Because the delivery of shipped cargo into the employer’s storage area was the functional equivalent of surrendering the cargo to areceiving land carrier, the Court concluded that this is where the vessel ended. Thus, the Court remanded to the BRB to enter an order dismissingthe employee’s claim for benefits under the LHWCA. BPU Management Inc./Sherwin Alumina Co. v. Director, Office of Workers’ CompensationPrograms, No. 12-60289, 10/08/13.

{}Paula Wellons Linnette Goodly lgoodly@twpdlaw.comPaul Politz David Harpole dharpole@twpdlaw.comCharles Duhe Rachel Kovach rkovach@twpdlaw.comScott Cowart Michelle Maraist mmaraist@twpdlaw.comScott Rainwater Jill Miller jmiller@twpdlaw.comDaryl Daigle Angela O’Brien aobrien@twpdlaw.comDesiree Adams Marvin Olinde molinde@twpdlaw.comDominic Amato Stephen Perkins sperkins@twpdlaw.comGerald Arceneaux Leah Rhodes lrhodes@twpdlaw.comJason Bone Sam Rosamond srosamond@twpdlaw.comChris Caswell Heidel Schneider hschneider@twpdlaw.comGina Cursain Brent Steier bsteier@twpdlaw.comJared Davidson Madison Taylor mtaylor@twpdlaw.comAdam deMahy ademahy Ashbrook Tullis atullis@twpdlaw.comColin Feazell Ryan Zumo rzumo@twpdlaw.comOUR SERVICE IS THE PRACTICE OF LAW …… FOR TODAY, AND THE FUTURETAYLOR, WELLONS, POLITZ & DUHE, APLC.All rights reserved. Thesematerials may not bereproduced in any waywithout the writtenpermission of Taylor,Wellons, Politz & Duhe,APLC. This newsletter isdesigned to provide generalinformation on generalliability. Although thisnewsletter is prepared byprofessionals, it should notbe used as a substitute forprofessional services. If legalor other professional adviceis required, please contactus.Before citing any case,statute or regulation cited inthe newsletter, we suggestyou verify the accuracy ofthe information relied on byconfirming that the decisionhas not been overruled ormodified, or the statute orregulation amended,subsequent to the time thenewsletter was published.WorkersCompensationNewsletterNovember 2013 Edition1515 Poydras Street, Ste. 1900 7924 Wrenwood Blvd., Ste. C 232 Market StreetNew Orleans, LA 70112 Baton Rouge, LA 70809 Flowood, MS 39232504.525.9888 ph 225.387.9888 ph 601.914.7444 ph504.525.9899 fax 225.387.9886 fax 601.914.7201 faxPLEASE VISIT US ON THE WEB ATWWW.TWPDLAW.COM

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