Cox v. Roofing Supply, Inc.

825 So. 2d 1271, 2002 WL 1842981
CourtLouisiana Court of Appeal
DecidedAugust 14, 2002
Docket36,275-WCA
StatusPublished
Cited by6 cases

This text of 825 So. 2d 1271 (Cox v. Roofing Supply, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Roofing Supply, Inc., 825 So. 2d 1271, 2002 WL 1842981 (La. Ct. App. 2002).

Opinion

825 So.2d 1271 (2002)

Cecil H. COX, Plaintiff-Appellant
v.
ROOFING SUPPLY, INC., Defendant-Appellant.

No. 36,275-WCA.

Court of Appeal of Louisiana, Second Circuit.

August 14, 2002.

*1273 Donald J. Anzelmo, Monroe, for Defendant-Appellant.

Cecil H. Cox, for Plaintiff-Appellant.

Before NORRIS, WILLIAMS and CARAWAY, JJ.

NORRIS, Chief Judge.

The claimant, Cecil Cox ("Cox"), sued his employer, Roofing Supply, Inc. ("Roofing Supply"), for workers' compensation benefits arising from an occupational disease. The WCJ found that one day of symptoms were related to an occupational exposure but denied Cox's claims for temporary total disability benefits and medical benefits past the one day. The WCJ further found that Cox did not violate La. R.S. 23:1208. Both sides appeal. For the following reasons, we affirm.

Facts

In 1994, Cox began working at Roofing Supply. He performed various duties such as truck driving and working in the sheet metal shop. Roofing Supply's records reflect that he began performing some soldering work in August of 1997. Cox testified that he often complained about the working conditions and having a myriad and broad array of illnesses throughout his employment. However, Roofing Supply's owner and Cox's supervisor, Gerald Sayres, referred to him as a "constant complainer," perceiving his complaints as a way of trying to get out of doing work frequently. In November 1998, Cox read some warning labels on a shipment of lead and thereafter related all of his medical illnesses to soldering work.

Cox testified that shortly after arriving to work at Roofing Supply around 9:00 am on January 31, 2000, he was exposed to forklift exhaust fumes. He alleged that due to lack of ventilation in his work space area, he became "sick from the exhaust fumes." After informing Sayres of his malaise, he was sent home.

Instead of seeking immediate medical assistance, he bought some Gatorade and gum, then went to the drivers' license bureau and obtained his commercial driver's license around 10:30 am. Around 1:00 pm, he went for a DOT physical and drug screen, but this had been canceled by Sayres. He then went home and proceeded to drink, by his own estimate, about five beers. It was not until 3:40 pm later that afternoon that he sought medical attention from his general practitioner, Dr. Harrington, who noted that Cox had consumed a significant quantity of alcohol earlier that day. Dr. Harrington ultimately sent for an ambulance to pick up Cox due to his complaints of sharp left-sided chest pain and shortness of breath.

Cox was taken to Willis Knighton Bossier Hospital and seen by various physicians, including a neurologist and toxicologist, Dr. Mary McWilliams. Later that night, he was admitted into the hospital and remained for the following two days. During his hospitalization, he admitted to drinking a six-pack of beer a day.

Cox was discharged on February 2, 2000. Nine months later, in October 2000, he underwent a FCE ordered by Dr. Harrington *1274 which concluded that he was able to perform light to medium duty jobs. However, he has never attempted to go back to work since January 31, 2000.

Before and after the alleged exposure, Cox has undergone several other medical exams by a multitude of doctors to whom he complained of toxic exposure at work; none of these medical tests have ever conclusively determined that his symptoms are the result of any work related toxic exposure.

Procedural history

On February 25, 2000, Cox filed a disputed claim for compensation with the OWC. On May 3, 2000, Roofing Supply filed its answer denying all of Cox's claims. By amended answer of September 28, 2000, it alleged that Cox had forfeited his rights to workers' compensation pursuant to La. 23:1208 due to false statements or representations in furtherance of his claim for benefits.

On May 31, 2001, Cox's attorney, Charles Phillips, filed a motion to withdraw from representation. Less than a month later, Lacey Wallace, enrolled as Cox's new counsel. On the morning of trial on August 30, 2001, Cox filed a motion to terminate Wallace's legal services and to represent himself at trial.

In a pretrial statement, Cox asked Roofing Supply to stipulate that it had been fined by OSHA for safety violations pursuant to Cox's complaint. On August 30, 2001, Roofing Supply filed a motion in limine to exclude from evidence this report and any references to it. Prior to the trial, the WCJ held a hearing to consider the admissibility of the OSHA report. The WCJ excluded it from evidence as inadmissible hearsay under La. C.E. art. 803(8)(b)(iv) and because Cox had never listed it as an exhibit in his pretrial statement. At the trial on the merits, four witnesses testified. Cox called his wife, Sandra Cox, and Dr. Mary McWilliams; Roofing Supply called Gerald Sayres and Cox himself.

On December 7, 2001, the WCJ ruled orally that Cox's initial visit to the hospital on January 31, 2000 "was due to an alleged occupational exposure incurred while in the employment of Roofing Supply." She therefore awarded medical benefits for his hospitalization on that date, subject to credit for expenses covered by Cox's wife's health insurance carrier. The WCJ denied Cox's claim for temporary total disability benefits and medical expenses except for those incurred on January 31, 2000. The WCJ rejected Roofing Supply's claim for forfeiture of benefits, finding no evidence of a La. R.S. 23:1208 violation by Cox. Finally, the WCJ assessed all court costs against Roofing Supply, including Dr. McWilliams's expert fee of $450.00. Judgment in accordance with oral reasons was rendered on December 12, 2001.

Both sides have devolutively appealed. Roofing Supply asserts by two assignments that Cox failed to prove an occupational exposure on January 31, 2000 and that he made a willful misrepresentation to receive compensation benefits. Cox asserts that the WCJ failed to find that he was exposed to toxic fumes prior to January 31, 2000; he also raises a number of procedural claims.

Applicable law

An employee is entitled to compensation benefits if he receives a personal injury by accident "arising out of and in the course of his employment." La. R.S. 23:1031 A. A claimant asserting an occupational disease must prove by a preponderance of the evidence that he suffers a disability which is related to the employment-related disease, that he contracted the disease during the course of his employment, and that the disease is a result *1275 of the work performed. La. R.S. 23:1031.1 A; Billington v. General Motors Corp., 31,585 (La.App. 2 Cir. 2/24/99), 728 So.2d 966. The causal link between the employee's occupational disease and work-related duties must be established by a reasonable probability. Shields v. GNB Technologies, Inc., 33,911 (La.App. 2 Cir. 10/4/00), 768 So.2d 774. 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. Id.

In the event of a compensable injury, the employer is obligated to furnish all necessary medical expenses and any nonmedical treatment recognized by the laws of the State as legal. La. R.S. 23:1203 A. The claimant must prove by a reasonable preponderance of the evidence the necessity and the relationship of the treatment provided by the physician to the work-related accident. Billington v. General Motors Corp., supra.

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Bluebook (online)
825 So. 2d 1271, 2002 WL 1842981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-roofing-supply-inc-lactapp-2002.