Thomas v. Universal Match Corp.

635 So. 2d 1220, 93 La.App. 5 Cir. 767, 1994 La. App. LEXIS 621, 1994 WL 80410
CourtLouisiana Court of Appeal
DecidedMarch 16, 1994
DocketNo. 93-CA-767
StatusPublished
Cited by2 cases

This text of 635 So. 2d 1220 (Thomas v. Universal Match Corp.) 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. Universal Match Corp., 635 So. 2d 1220, 93 La.App. 5 Cir. 767, 1994 La. App. LEXIS 621, 1994 WL 80410 (La. Ct. App. 1994).

Opinion

WICKER, Judge.

This appeal arises from a claim for worker’s compensation benefits by plaintiffrappel-lant, Bernard Thomas, for alleged work-related disability caused by exposure to the burning of potash and phosphorous. Thomas filed the claim for alleged blood poisoning, and injuries to his lungs and gastrointestinal system against Universal Match Corporation, defendanVappellee. The hearing officer granted judgment in favor of Universal and dismissed Thomas’ claim. Thomas now appeals. We affirm.

On appeal Thomas specifies the following errors:

1. The hearing officer erred in finding that no compensable work-related accident or incident occurred;
2. The hearing officer erred in disregarding the objective pulmonary tests which indicate plaintiffs disability;
3. The hearing officer’s failure to credit plaintiffs uncontroverted testimony is manifest error, and
4. The hearing officer’s reference to alleged similar complaints by plaintiff in 1973 as a basis for judgment is manifest error.

Appellant initially argues that the manifest error rule does not apply and suggests that this court conduct an “expansive if not exactly de novo review.” He bases this argument on the grounds that the hearing officer who rendered judgment did not base his decision on his view of the witnesses but rather on the “cold record”. The Louisiana Supreme Court has held, however, that “[t]he same standard of appellate review applicable to factual findings of district courts is also applicable to the factual findings of an administrative body or hearing officer ... The manifest error-elearly wrong standard must be applied even where the evidence before the trier of fact consists solely of written reports, records and depositions.” Alexander v. Pellerin Marble & Granite, 93-C-1698, p. 6, 630 So.2d 706, 710 (La.1994).

We note at the outset that appellant has attached two judgments to his brief and these two judgments are referred to by ap-pellee as well. The judgment before us was rendered March 23, 1993. A second judgment was purportedly rendered August 12, 1993. This court only has the judgment of March 23, 1993 and the appeal therefrom before it. The record before us does not contain the later judgment1 nor appeal therefrom, if any. While it appears the second judgment is essentially a supplemental reasons for judgment since it does not purport to change the prior substance of the original judgment; nevertheless, we make no determination as to an issue not before this court and do not address a document which is not in the record before us. Additionally, this court previously remanded this ease for completion of the record and a supplemental [1222]*1222record was subsequently filed. The supplement does not contain a second judgment nor a second appeal although we specifically ordered these documents to be supplemented if such documents existed.

EXPOSURE TO TOXIC CHEMICALS:

There are inconsistencies in the testimony regarding Thomas’ exposure, if any, to toxic chemicals. The hearing officer concluded there was “no compensable work-related accident or incident.” He also noted Dr. Robert N. Jones, a pulmonary disease expert, found no evidence of lung or respiratory disease from exposure to chemicals. We find no manifest error.

Thomas testified he began burning materials for six months from January, 1990 to June, 1990. On June 15,1990 he noticed the following symptoms: swollen stomach, nausea, dizziness, breathing problems, and a metallic taste in his mouth. He denied having any respiratory problems before he began burning the chemicals, although he admitted having suffered prior injuries in 1968 when the muscles and tissues of his chest were mashed from his picking up heavy barrels.

Thomas stated he burned the following material: match waste, match boxes, match sticks, damaged potash, and old phosphorous. He burned potash and phosphorous on a daily basis. In addition to his inhaling these fumes he also stated he did some pipe fitting with glue in a non-ventilated area which also caused him to have a suffocating sensation. He testified he burned the materials from 7:00 a.m. to noon. He reported that his face would be gummy and sticky from the vapor. He stated he burned four to five hundred pounds of material each day.

Bruce Johnson, a fellow employee, testified he observed Thomas burning material on one occasion. It was Johnson’s job to load the waste material in boxes for Thomas to burn. To the best of his knowledge one box of material was burned daily.

Johnson stated that when he observed Thomas burning the waste he was doing so in the old incinerator. He told Thomas he was not supposed to be burning it there. Johnson also told Thomas he did not like smelling the fumes and did not like the way breathing it in made his chest feel. This was why he told the general manager, Charlie Gudger, that he refused to bum it. Prior to the burning the waste was washed down the drain each day. However, an environmental agency wanted this practice discontinued.

Although Johnson testified he observed Thomas’ exposure to fumes on one occasion, the hearing officer gave greater weight to the testimony of Charlie Gudger.

Gudger testified by deposition. He stated that the smoke from the burning of the materials would go up a stack. There were two incinerators, both of which were used ones. Even in the older incinerator the majority of the smoke would go up a smoke stack. Although Thomas testified he burned potash, no raw form of potash was burned. Only small amounts of chlorate of potash as part of the match waste were burned.

Additionally, although Thomas testified he burned four to five hundred pounds of material each day, Gudger stated large quantities of raw chemicals were not burned. He explained that match waste consists of chemicals but in minute quantities. He estimated less than one percent of the waste material swept up from the printing room, where Johnson worked, consisted of chemicals.

Gudger also testified neither Thomas nor any other employee came to him complaining of breathing problems as a result of burning match waste.

Gudger stated Thomas was terminated because he was working at a janitorial job.2 [1223]*1223Thomas admitted he ran a janitorial company but stated this was known by the company and that he only worked in a supervisory capacity. He testified he was unable to continue working in his business after he became ill. The business closed in October or November of 1990.

Gudger’s testimony that Thomas could only have been exposed to minute quantities of chemicals, the majority of which went up a smoke stack when burned, is supported by the testimony of Dr. Jones regarding the absence of any indication of damage due to chemical exposure.

Dr. Jones testified by deposition. He stated that the type of injury which might result from long-term exposure to burning an irritant such as phosphorous would be that if a sufficient quantity was inhaled these might irritate and inflame the bronchial tubes. On a physical examination there might be evidence of sneezing or obstructive breathing. Dr. Jones looked at Thomas’ chest x-rays to determine whether he had evidence of a collection of mineral components from the match formula. He received the formula by letter from Universal. Dr.

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635 So. 2d 1220, 93 La.App. 5 Cir. 767, 1994 La. App. LEXIS 621, 1994 WL 80410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-universal-match-corp-lactapp-1994.