Oliveaux v. Riverside Nursing Home

691 So. 2d 340, 1997 La. App. LEXIS 877, 1997 WL 175014
CourtLouisiana Court of Appeal
DecidedApril 2, 1997
Docket29419-WCA
StatusPublished
Cited by19 cases

This text of 691 So. 2d 340 (Oliveaux v. Riverside Nursing Home) 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
Oliveaux v. Riverside Nursing Home, 691 So. 2d 340, 1997 La. App. LEXIS 877, 1997 WL 175014 (La. Ct. App. 1997).

Opinion

691 So.2d 340 (1997)

Vennie OLIVEAUX, Plaintiff-Appellee,
v.
RIVERSIDE NURSING HOME, Defendant-Appellant.

No. 29419-WCA.

Court of Appeal of Louisiana, Second Circuit.

April 2, 1997.

*341 Onebane, Bernard, Torian, Diaz, McNamara & Abell by Mark L. Riley, Lafayette, for Defendant-Appellant.

Albert W. Block, Jr., West Monroe, for Plaintiff-Appellee.

Before BROWN, GASKINS and PEATROSS, JJ.

PEATROSS, Judge.

In this worker's compensation action, the employer, Riverside Nursing Home ("Riverside"), appeals the judgment of the Workers' Compensation Hearing Officer ("WCHO"), contending that the claimant, Vennie Lee Oliveaux ("Claimant"), did not prove by an overwhelming preponderance of the evidence that she contracted an occupational disease within the first twelve months of her employment. The WCHO found that the Claimant had met her burden of proof and awarded weekly workers' compensation benefits from the date they were terminated, legal interest from its due date until paid, penalties in the amount of $2,000 and attorney fees in the amount of $5,000. For the following reasons, we affirm the award of weekly workers' compensation benefits and reverse the award of penalties and attorney fees.

FACTS

The Claimant began working in the dietary department of Riverside as a kitchen assistant on August 3, 1993. Her duties included serving on the food line, cleaning the dining room, washing pots and pans and operating the dish washing machine. Within two months of her employment, Claimant began having problems with her hands which became irritated between the fingers. She continued to have problems with her hands, and in March 1995, Riverside sent the Claimant to the Monroe Medical Clinic. Dr. Helena Altick diagnosed Claimant as having a secondarily infected pompholyx secondary to allergic reaction to latex gloves. Dr. Altick suggested that the Claimant be transferred from her dish washing position and that she wear vinyl gloves with cotton lining and avoid contact with water as much as possible.

On June 5, 1995, the Claimant went to Dr. Creighton Chandler, a dermatologist whom she had previously seen for contact dermatitis around her mouth in September and October 1992. Dr. Chandler noted blisters and weeping on the Claimant's hands and suggested that she not work for a month, June 6, 1995, until July 5, 1995. The Claimant visited Dr. Chandler again on June 9, 1995, and the doctor noticed fissuring and peeling, but did see improvement. On her June 15, 1995, visit the Claimant's hands were red but healing, and showed no signs of new blisters.

On June 26, 1995, Dr. Chandler performed a patch test on the Claimant and read the results of that test on June 29, 1995. The Claimant had reactions to a carba mix and a thiuram mix, both of which are ingredients used in making rubber. On July 20, 1995, Dr. Chandler diagnosed the Claimant as having contact dermatitis due to an unknown primary irritant and rubber allergy. The Claimant continued to see Dr. Chandler and was still under his care at the time of the trial.

The Claimant stated in her Disputed Claim for Compensation Form that her last day of work was June 1, 1995. Riverside paid Claimant's compensation for the first month she was placed off work by Dr. Chandler and has continued to pay all medical bills. After Riverside terminated Claimant's compensation payments, she filed a Disputed Claim for Compensation with the Office of Workers' Compensation on June 8, 1995, in which she alleged that she was forced to terminate her employment with defendant as a result of long-term exposure to cleaning fluids. Trial was held on April 4, 1996, and the WCHO signed a judgment on May 17, 1996, ordering the payment of weekly workers' compensation benefits in the amount of $179.39 from the date the benefit payments were terminated until Dr. Chandler released Claimant to return to work. The judgment also ordered Riverside to pay a $2,000 penalty and awarded attorney fees to Claimant's attorney in the amount of $5,000.

The parties filed a joint motion and order to amend the judgment because the WCHO *342 awarded weekly workers' compensation benefits in the amount of $179.39, the Claimant's average weekly wage, rather than 66 2/3 percent of the weekly wage, or $119.60. LSA-R.S. 23:1221. The WCHO amended the judgment to reflect the proper weekly workers' compensation award of $119.60[1].

Riverside appeals the judgment and order amending the judgment, arguing that the Claimant did not prove by an overwhelming preponderance of the evidence, as required by LSA-R.S. 23:1031.1(D), that she contracted an occupational disease within the first twelve months of her employment. Riverside also complains that the WCHO's order that interest be paid on each installment of weekly workers' compensation benefits from the date due until paid is contrary to LSA-R.S. 23:1201.3 which allows for interest from the date ordered paid by the WCHO until the date of satisfaction. In addition, Riverside argues that the imposition of penalties and attorney fees was improper because it was not unreasonable in denying the Claimant's benefits.

DISCUSSION

In its first assignment of error, Riverside argues that the Claimant did not overcome the presumption found in LSA-R.S. 23:1031.1(D) that her illness is a non-occupational disease. Riverside contends that the Claimant failed to prove by an overwhelming preponderance of the evidence that she contracted her disease during the first twelve months of her employment as required by the statute. LSA-R.S. 23:1031.1(D) provides:

Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months' limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by an overwhelming preponderance of evidence.

Riverside claims that Dr. Chandler's testimony is insufficient to overcome this presumption because he is unable to name the specific primary irritant found in the Claimant's work environment that caused her contact dermatitis. The employer characterizes Dr. Chandler's testimony as establishing only a temporal relationship between the Claimant's disease and her work environment because many of the irritants discussed by Dr. Chandler as possible causes of Claimant's condition would also be found in her home environment.

In Dibler v. Highland Clinic, 27,274 (La. App.2d Cir. 9/27/95), 661 So.2d 588, this court discussed the meaning of the phrase "overwhelming preponderance of evidence" as used in LSA-R.S. 23:1031.1(D). In that case the claimant alleged that she had contracted carpal tunnel syndrome, tardy ulnar palsy and thoracic outlet syndrome during her first twelve months as an oral surgeon's assistant. We affirmed the WCHO's award of workers' compensation benefits, finding that the claimant had met her burden of proof under the statute. In discussing the burden of proof, this court stated:

In accord with the ordinary sense of the word overwhelm, we conclude evidence which overwhelmingly preponderates is that evidence, if found credible and objectively supported by the trier of fact, which either is much more probable than, is greatly superior to, or greatly overcomes the evidence to the contrary.

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Bluebook (online)
691 So. 2d 340, 1997 La. App. LEXIS 877, 1997 WL 175014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliveaux-v-riverside-nursing-home-lactapp-1997.