Lucius v. HB Zachry Co.

673 So. 2d 1357, 1996 WL 230792
CourtLouisiana Court of Appeal
DecidedMay 8, 1996
Docket95-1667
StatusPublished
Cited by5 cases

This text of 673 So. 2d 1357 (Lucius v. HB Zachry Co.) 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
Lucius v. HB Zachry Co., 673 So. 2d 1357, 1996 WL 230792 (La. Ct. App. 1996).

Opinion

673 So.2d 1357 (1996)

Samuel LUCIUS, Plaintiff-Appellant/Appellee,
v.
H.B. ZACHRY COMPANY, Defendant-Appellee/Appellant.

No. 95-1667.

Court of Appeal of Louisiana, Third Circuit.

May 8, 1996.

*1358 Randall Scott Iles, Lafayette, for Samuel Lucius.

Frank Meredith Walker, for H.B. Zachry Company.

Before YELVERTON, KNOLL and COOKS, JJ.

YELVERTON, Judge.

In this worker's compensation case, Samuel Lucius sued his former employer, H.B. Zachry Company (Zachry), and its compensation insurer, Insurance Company of North America, for injuries from exposure to fumes from coal tar epoxy. The Administrative Hearing Officer found that claimant's preexisting chronic obstructive pulmonary disease was aggravated by his exposure to coal tar epoxy, and his dermatitis was caused by his exposure to such irritants. She determined that both of these conditions were work-related but that neither rendered claimant *1359 disabled. Defendants were ordered to pay medical bills for treatment for the pulmonary disease and dermatitis through January 5, 1995 and January 23, 1995, respectively. The hearing officer denied indemnity benefits as well as penalties and attorney's fees.

Lucius appeals and contends that the hearing officer erred:

(1) in failing to award him temporary total disability benefits;
(2) by establishing an arbitrary cut off period for medical treatment associated with the injuries sustained in the accident;
(3) in failing to find that defendant's denial of medical and disability benefits was arbitrary and capricious and thus liable for penalties and attorney's fees.

Zachry and his insurer answered the appeal contending error in the finding that Lucius had suffered an accident or injury within the contemplation of those terms in the Louisiana Worker's Compensation Act.

FACTS

Lucius worked for Zachry as a welder in a papermill in Natchitoches Parish. He welded braces on a water clarifying tank coated with coal tar epoxy. Welding on the metal caused the coal tar epoxy to smolder and emit fumes. At trial, Lucius testified that after the first day of welding, his arms started burning, swelling, and breaking out. A report was filed with the company foreman on June 20, 1994. At this point, Lucius believed it was an allergic reaction to welding on galvanized metal. He continued welding on the assigned project, experiencing more skin irritation, along with difficulty breathing, dizziness, headaches, and shaking. On August 20, 1994, Lucius was laid off. At the time of the accident, he was 58 years old. Zachry and its insurer provided no medical treatment for his injuries.

Lucius' symptoms persisted. On September 19, 1994, he was treated by Dr. Leonard D. Shockey, his family physician at the Pineland Rural Health Clinic, for rashes on both arms and complaints of recurring headaches. He was given various medications. After several visits, Dr. Shockey recommended that he see a specialist. The medical records also show that Lucius had been treated previously at the same clinic for hypertension and impotency.

On December 13, 1994, Lucius saw a Lafayette occupational medicine specialist, Dr. Ray Boyer. He saw Dr. Boyer only once. According to this specialist's deposition, Lucius had a fairly extensive rash on his face and arms, and he was also short of breath. He noted that Lucius had smoked one to two packs of cigarettes a day for 30 to 40 years. Dr. Boyer ordered a pulmonary function test and referred him to two other specialists, Dr. Gary Guidry in pulmonary medicine, and Dr. Daniel Dupree in dermatology.

Lucius saw Dr. Guidry on December 21, 1994. Based on previous medical reports and the lung function test conducted in December of 1994, together with an earlier test done in June of 1993, Dr. Guidry found a decrease in lung function. Lucius was diagnosed as having chronic obstructive pulmonary disease. He opined that Lucius had this problem long before June of 1994 and that breathing fumes from the coal tar epoxy exacerbated this pulmonary disease. On January 4, 1995, a cardiopulmonary stress test was performed which revealed that Lucius had a moderate to severe exercise limitation. It was recommended that he quit smoking. Lucius was also given bronchodilators and anti-inflammatory medications. Lucius remained under Dr. Guidry's care until January 5, 1995.

Also on December 21, 1994, Lucius saw the dermatologist, Dr. Dupree. Extensive dry rashes were noted on both arms and the facial area, including the right side of the neck, which Lucius complained was itching and burning. Dr. Dupree diagnosed Lucius as having subacute to chronic dermatitis. Lucius was given soap recommendations and bathing instructions. He was also given topical ointments to apply to the affected areas and a shot of cortisone for inflammation. A skin biopsy confirmed Dr. Dupree's diagnosis.

Lucius saw Dr. Dupree again on January 4, 1995. His dermatitis was better and had begun to clear. However, Dr. Dupree noted an allergic reaction to an ointment (polysporin) *1360 used on the area where the skin biopsy was performed. An allergy patch test revealed that Lucius was allergic to neomycin sulfate, paraphenylene diamine, and mercapto mix. Several more visits followed during which more allergy patch tests were performed. Lucius was provided a list of products containing these substances which he was advised to avoid. In his deposition, Dr. Dupree opined that although Lucius' condition could have been caused by any of the above named substances, it was a reasonable possibility that his dermatitis was caused by his exposure to coal tar epoxy. Dr. Dupree last saw Lucius on January 23, 1995, during which he noted that the dermatitis had mostly cleared. Lucius was instructed to return on an as-needed basis.

ACCIDENT OR INJURY

Defendants argue that Lucius failed to prove that he suffered an "accident" or "injury" as defined by the Louisiana Worker's Compensation Act. The plaintiff in a compensation claim has the burden of proving a work-related accident by a preponderance of the evidence. Arnold v. Cavanaugh Aviation, 95-433 (La.App. 3 Cir. 10/4/95); 663 So.2d 329. La.R.S. 23:1021 of the Louisiana Worker's Compensation Act defines "accident" and "injury" as follows:

(1) `Accident' means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
* * * * * *
(7)(a) `Injury' and `personal injuries' include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

Whether there was an accident is a finding of fact, and the appeal from such a finding is subject to the manifest error standard of review. Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). We find that based on the record and the evidence adduced at trial, claimant has met this burden.

An employer takes his employee as he finds him and an employee's disability is compensable when a non-disabling preexisting condition is activated or precipitated into a disabling manifestation as a result of injury. Bradley v. Manville Forest Products, 616 So.2d 280 (La.App. 2 Cir.1993).

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Cite This Page — Counsel Stack

Bluebook (online)
673 So. 2d 1357, 1996 WL 230792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucius-v-hb-zachry-co-lactapp-1996.