Thomas v. Alliance Compressors

889 So. 2d 424, 4 La.App. 3 Cir. 1034, 2004 La. App. LEXIS 2965, 2004 WL 2808561
CourtLouisiana Court of Appeal
DecidedDecember 8, 2004
DocketWCA 04-1034
StatusPublished
Cited by5 cases

This text of 889 So. 2d 424 (Thomas v. Alliance Compressors) 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
Thomas v. Alliance Compressors, 889 So. 2d 424, 4 La.App. 3 Cir. 1034, 2004 La. App. LEXIS 2965, 2004 WL 2808561 (La. Ct. App. 2004).

Opinion

889 So.2d 424 (2004)

Vernita THOMAS
v.
ALLIANCE COMPRESSORS.

No. WCA 04-1034.

Court of Appeal of Louisiana, Third Circuit.

December 8, 2004.

*425 George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellee, Vernita Thomas.

Mark Alan Watson, Stafford, Stewart, & Potter, Alexandria, LA, for Defendant/Appellant, Alliance Compressors.

Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.

EZELL, Judge.

In this workers' compensation case, Alliance Compressors appeals the finding of the workers' compensation judge that Vernita Thomas suffered an occupational disease and appeals the subsequent award of supplemental earnings benefits (SEB), medical expenses, medically-related travel expenses, and penalties and attorney's fees. For the following reasons, we affirm the decision of the workers' compensation judge.

In approximately March, 2001, Vernita Thomas was working on an assembly line for Alliance Compressors. Her work was of a repetitive nature, and she had just been moved to a part of the Alliance plant that required more physically demanding work than she had previously performed. Sometime in that month or early April, she began to experience pain in her left shoulder, neck, and arm, as well as weakness and tremors in her left hand. She told her *426 supervisor, Mike Leatherwood, about the problems, but he never sent her to a doctor or began any workers' compensation file. Mrs. Thomas later presented to the emergency room complaining of the above symptoms. She was eventually diagnosed as having cervical radiculopathy. Her doctors believed this condition was work-related. She later filed this disputed workers' compensation claim, seeking medical expenses and SEB.

At trial, the workers' compensation judge ruled that Mrs. Thomas had not suffered an accident, but had developed an occupational disease. He awarded SEB, medical expenses, medically related travel expenses, and penalties and attorney's fees. From this decision, Alliance appeals. Mrs. Thomas answers, claiming that the workers' compensation judge erred in finding she had not suffered an accident, and seeking additional attorney's fees for work done on appeal.

Alliance asserts four assignments of error on appeal. It claims the workers' compensation judge erred in finding that Mrs. Thomas suffered an occupational disease, that he erred in awarding her SEB and medical expenses based on that finding, that the workers' compensation judge erred in awarding Mrs. Thomas penalties and attorney's fees, and finally, that the workers' compensation judge erred in excluding an ergonomics report created by one of its witnesses.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (alteration in original), the supreme court set forth the standard of review for factual findings in workers' compensation matters:

Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of review. Smith v. Louisiana Dep't of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. 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 factfinder's conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, "if the [factfinder'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 differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Generally, an injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. Specifically, La. R.S. 23:1031.1 governs workers' compensation claims for occupational disease. An occupational disease means "only that 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." La.R.S. 23:1031.1(B). As noted in Dunaway v. Lakeview Regional Medical Center, 02-2313, p. 5 (La.App. 1 Cir. 8/6/03), 859 So.2d 131, 134-35:

Prior to the legislative extension of workers' compensation coverage to include occupational diseases, a worker's entitlement to compensation hinged on the occurrence of an "accident," which *427 can only be established by the heightened burden of proof by the claimant of an "identifiable precipitous event" that caused injury. See O'Regan v. Preferred Enterprises, Inc., 98-1602, pp. 10-13 (La.3/17/00), 758 So.2d 124, 132-33. While enlarging workers' compensation coverage to cases of occupational disease, La. R.S. 23:1031.1 retains the requirement that an employee establish the disease arises from his work, i.e., from "causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." See Coats v. American Telegraph Company, 95-2670, p. 7 (La.10/25/96), 681 So.2d 1243, 1247. Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. Vargas v. Daniell Battery Manufacturing Company, 93-1249, pp. 7-8 (La.App. 1 Cir. 5/20/94), 636 So.2d 1194, 1197. The causal link between a claimant's illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of 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. Comeaux v. Star Enterprise/Motiva Enterprise, XXXX-XXXX, p. 8 (La.App. 1 Cir. 12/20/02), 836 So.2d 359, 364.

Alliance asserts as its first assignment of error that the workers' compensation judge erred in finding that Mrs. Thomas suffered an occupational disease when her diagnosis was cervical radiculopathy, and that the evidence failed to establish that the injury was linked to her trade. Alliance notes that La. R.S. 23:1031.1 states that: "[d]egenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section." While degenerative disc disease and spinal stenosis are often causes of cervical radiculopathy, there is no evidence in the record to indicate that Mrs. Thomas suffered from either of these ailments. In fact, her medical records indicate that a MRI performed on her was clear of any such problems. Thus, Alliance's claim that Mrs. Thomas' cervical radiculopathy is excluded under the statute is not supported by the record.

Alliance also claims that the record was devoid of any evidence Mrs.

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Bluebook (online)
889 So. 2d 424, 4 La.App. 3 Cir. 1034, 2004 La. App. LEXIS 2965, 2004 WL 2808561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-alliance-compressors-lactapp-2004.