STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-395
WILLIE L. LOLLIS, JR.
VERSUS
SHAW GLOBAL ENERGY SERVICES
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 4 PARISH OF VERMILION, NO. 05-03229 SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter, Judges.
AFFIRMED.
Louis M. Corne 1014 West University Ave. Lafayette, LA 70506 (337) 264-1160 Counsel for Plaintiff/Appellee: Willie L. Lollis, Jr.
John J. Rabalais Rabalais, Unlan & Lorio 5100 Village Walk, Suite #300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant/Appellant: Shaw Global Energy Services GREMILLION, Judge.
The defendant, Shaw Global Energy Services, appeals the decision of the
workers’ compensation judge finding the plaintiff, Willie Lee Lollis, Jr., disabled,
entitled to indemnity benefits, and entitled to any necessary medical treatment or
vocational rehabilitation services as a result of an occupational disease. We affirm.
FACTS
Lollis was employed as a paint mixer/sandblaster by Shaw at its
Delcambre, Louisiana location. On November 7, 2004, while mixing Tideguard
171A Gray Resin, a spray-on epoxy cladding from Ameron Coatings, Lollis noticed
a bitter taste in his mouth and then saw that he had Tideguard on his arms. He
reported the incident to his supervisors after his arms became irritated. As a result of
this contact, Lollis suffered headaches and developed rashes over his body. On
January 14, 2005, he was diagnosed as suffering from an irritant dermatitis by Dr.
Jennifer-Waguespack LaBiche, a dermatologist. Although Shaw restricted him from
working in contact with Tideguard, Lollis quit work on February 13, 2005, because
he claimed that the rash had spread to his eyes and affected his vision. A patch test
performed by Dr. Waguespack-LaBiche revealed that Lollis was allergic to epoxy
resin. Dr. William Nassetta, a specialist in occupational and environmental
medicine, diagnosed him as suffering from an allergic contact dermatitis.
Lollis filed the instant disputed claim for compensation against Shaw
seeking weekly indemnity benefits, medical treatment, and penalties and attorney’s
fees. Shaw denied all of Lollis’ claims and further alleged that he forfeited his right
to receive any benefits due to his fraudulent statements. Following a trial on the
1 merits, the workers’ compensation judge denied Shaw’s fraud claim and held that
Lollis was disabled and entitled to weekly indemnity benefits retroactive to February
13, 2005, medical expenses and treatment, vocational rehabilitation services, and
future supplemental earnings benefits if appropriate. The workers’ compensation
judge further awarded Lollis $2000 in penalties and $7500 in attorney’s fees as a
result of Shaw’s failure to accommodate his work restrictions and its failure to
provide him with vocational rehabilitation services. This appeal was perfected by
Shaw.
ISSUES
Shaw raises six assignments of error on appeal.
1. That the workers’ compensation judge erred in finding that Lollis suffered a compensable accident or occupational injury.
2. That the workers’ compensation judge erred in finding a causal connection between Lollis’ alleged exposure to Tideguard and his alleged disability.
3. That the workers’ compensation judge erred in finding that Lollis proved his disability.
4. That the workers’ compensation judge erred in finding that Lollis was entitled to indemnity benefits and additional medical benefits.
5. That the workers’ compensation judge erred in finding that it failed to reasonably controvert Lollis’ entitlement to benefits.
6. That the workers’ compensation judge erred in finding that Lollis did not forfeit his entitlement to indemnity benefits by making false statements for the purpose of receiving workers’ compensation benefits.
2 STANDARD OF REVIEW
The standard of review applied to factual findings in workers'
compensation matters is the manifest error standard. This standard, which is based
upon the reasonableness of the factual findings in light of the record reviewed in its
entirety, is well established in our jurisprudence following the seminal cases of Rosell
v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of
Transportation and Development, 617 So.2d 880 (La.1993).
As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361
(La.1992):
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
OCCUPATIONAL INJURY
In its first three assignments of error, Shaw argues that the workers’
compensation judge erred in finding that Lollis suffered an occupational injury as a
result of his exposure to Tideguard and that he satisfied his burden of proof with
regard to disability.
An employee suffering from an occupational disease receives the same
workers’ compensation benefits as an employee who has suffered an injury by
accident arising out of and in the course of his employment. La.R.S. 23:1031.1(A).
3 An occupational disease is defined as “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). However, it does not include carpal tunnel syndrome, degenerative
disc disease, spinal stenosis, arthritis, mental illness, or heart-related or perivascular
disease. Id.
In order to recover medical and compensation benefits as the result of
an occupational disease, Lollis must prove that he became allergic to epoxy resins as
a result of the nature of his duties as a sandblaster/painter. Dunaway v. Lakeview
Reg’l Med. Ctr., 02-2313 (La.App. 1 Cir. 8/6/03), 859 So.2d 131. Lollis’ burden is
to prove a connection between his condition and his work-related duties by a
reasonable probability. Id. Proof of only a possible relationship between the two
does not satisfy this burden. Id.
In order to receive temporary total disability benefits, an employee must
prove that he is unable to physically engage in any employment or self-employment
as a result of his work-related injury. La.R.S. 23:1221(1)(c). The employee’s burden
of proof is by clear and convincing evidence; thus, Lollis must prove that his
disability is highly probable or much more probable than not. Carrier v. Debarge’s
Coll. Junction, 95-18 (La.App. 3 Cir. 9/27/95), 673 So.2d 1043, writ denied, 96-0472
(La. 4/8/96), 671 So.2d 337.
Lollis testified that Shaw began using Tideguard in October 2004, at the
request of a customer. He stated that he mixed this coating for approximately three
weeks without any problems. However, on November 7, 2004, he stated that he
4 noticed a strong bitter taste in his mouth and that the skin on his arms was irritated.
When he removed his rubber gloves, he said that he noticed Tideguard on his arms
and that his gloves were imprinted on his arms. He said that he washed his arms and
then reported the incident to David Smith, his supervisor.
That night, Lollis testified that he began shivering as though suffering
from a fever. The next day, he called Smith and told him that his head was hurting
badly and that his arms were irritated. He stated that Smith told him to take care of
himself. Lollis returned to work on November 9, 2007, but was taken by David
Cravey, Shaw’s safety officer, to MedXcel Occupational Medicine Center because
his arms and hands were swollen. He stated that he was examined by James Carruth,
a physicians assistant, who injected him with a steroid and released him to work.
Lollis testified that Smith removed him from sandblasting/painting and
had him driving a forklift in Shaw’s yard, in an effort to distance him from the
Tideguard. Despite this precaution, he stated that he was exposed to overspray and
that his rash spread to his chest and his genitals. He stated that he was seen by Dr.
Waguespack-LaBiche, who prescribed two creams for his rash. Although the creams
worked, Lollis testified that the rash continued spreading to his forehead and below
his eyes. At that point, he stated that he was having trouble with his vision so he
went to the University Medical Center in Lafayette. There, he stated that he was
given drops for his eyes and was advised by his doctor not to return to his position
with Shaw. Lollis testified that he informed Smith of this and was further advised by
him not to return to work.
5 Lollis continued working for Shaw through February 13, 2005. He
testified that he stopped working at that time because his headaches were worse and
his chest was hurting. He said that he was taken by his father to Our Lady of Lourdes
Hospital in Lafayette. Lollis testified that tests run on his heart were negative and
that he was given cream for his itching. However, neither the records from Our Lady
of Lourdes or University Medical Center were introduced into evidence. Lollis stated
that he was later examined by Dr. Nassetta, who recommended that he undergo a
patch test. He returned to Dr. Waguespack-LaBiche, who determined that he was
allergic to epoxy resins.
Lollis testified that his symptoms have continued. He stated that he
experiences problems with headaches, rashes, stomach sickness, and muscle
weakness when exposed to epoxy resins. He said he never experienced any of these
symptoms prior to November 7, 2004. He stated that when he touches anything made
of foam or plastic he starts itching. He said that he carries a pair of cotton gloves
with him, which he uses anytime he touches something made of plastic, such as the
steering wheel, phone, cellular phone, or remote control. He stated that he developed
a rash on his stomach when the antenna from his cellular phone touched his skin.
At the time of the incident, Lollis testified that he was wearing his full
personal protective gear, consisting of a double chamber respirator, rubber gloves,
safety goggles, and coveralls. However, he stated that he was wearing the same
gloves and coveralls from the previous day. He stated that when he first started
mixing Tideguard, he was only required to wear goggles. As they learned more about
the coating, he said that Shaw increased the amount of protective equipment they
6 were required to wear. Lollis further indicated that he had gotten Tideguard on his
skin prior to the November 7, 2007 incident, but experienced no problems.
Lollis’ father, Willie Lollis, Sr., testified that his son was in good health
prior to the November 7th incident, but afterwards, he exhibited a rash on his arms
and his eyes. At a later date, he said that Lollis suffered a high fever along with his
rash, and that he had to rush him to the hospital. He stated that Lollis’ eyes were so
swollen that they were barely open. Lollis, Sr. further testified that Lollis’ condition
worsened after he stopped working for Shaw and that it was some time before his
rashes disappeared. Now, he said that Lollis experiences a reaction every time he
touches a Styrofoam cup.
Lollis’s wife, Bernice, testified that he did not experience rashes prior
to November 7, 2004, nor any other type of health problems. After November 7,
2004, she stated that Lollis exhibited rashes on his face, arm, leg, and chest, which
itched all the time. She stated that his rashes became worse after he switched to the
forklift and continued after he stopped working. She stated that he still experiences
rashes; she said that he had black spots on the side of his face and hands, which
itched all the time.
Smith, a paint superintendent for Shaw, testified that Lollis mixed the
majority of the paints used on the different offshore structures Shaw painted. He
stated that any personnel who paints is required to wear personal protection
equipment consisting of long sleeves, a respirator, a paint stocking to cover their head
and neck, and safety glasses/goggles. Additionally, he said that any employee who
mixes paint wears a large apron. He further stated that all employees attended daily
7 safety meetings, where they sign a job safety analysis sheet.
Smith testified that Shaw began using Tideguard approximately two
weeks prior to Lollis’ complaint. He further surmised that Lollis mixed fifty to sixty
gallons of the substance per day. However, he stated that Lollis was not the only
employee mixing paint during that time period.
On November 7, 2004, Smith stated that both he and Lollis completed
a report pertaining to the complained of incident. A couple of days later, he stated
that Lollis reported that he had developed a rash as a result of the incident. He said
that they went to Cravey’s office and told him about Lollis’ rash, after which Cravey
took Lollis to the doctor. Smith testified that he recalled Lollis stating that he was not
sure what caused the rash, and that they were still unsure of its cause. He further
remembered that the rash started on Lollis’ right hand and then spread to other areas
of his body.
As a precautionary measure, Smith testified that he moved Lollis to the
forklift-driver position in order to get him as far away from the Tideguard as possible.
He stated that they gave him all new work clothes and tried to ensure that he worked
downwind of any sandblasting or painting. He said that if he could not do so, Lollis
stayed in his office.
Smith stated that Lollis’ rash was bad at first, but that it became worse
and spread a week later. However, he thought that it was better toward the end of
February 2005. During that time, he stated that Lollis continued working full time.
On February 13, 2005, Smith said that Lollis complained that Shaw was not doing
anything for him and that he was going to see a doctor. Smith testified that he asked
8 what Shaw was supposed to do when Lollis reported to Cravey that he was fine. He
then asked Lollis to talk to Cravey, but said that Lollis left work and has not returned.
But for this, he testified that Lollis would still be employed by Shaw at a rate of
eighteen dollars per hour.
Smith testified that Lollis has never been restricted from working regular
duty by any doctor, nor did he observe him experiencing any difficulty while driving
the forklift. He further stated that Lollis never complained about overspray in the
yard or that he was hampered in his job duties by the presence of epoxy chemicals.
Although Smith admitted that overspray does occur and that epoxy paint possibly was
present in the air during sandblasting, he stated that Shaw tries to limit the amount by
painting everything in a large shop. He disagreed that the overspray was bad as
Shaw’s yard covered twelve to fourteen acres. Furthermore, he stated that if it were
bad, Shaw would have required all workers to wear respirators. Finally, he stated that
Lollis never complained to him about being unable to work. Had he done so, he
stated that he would have moved him to a position in the tool room until he was
capable of returning to his regular duties.
Following this incident, Smith testified that they started requiring all
painters to use chemical resistant rubber gloves. Previously, he stated that they only
used heavy cotton-type gloves. He further stated that they required the painters to use
a new pair every time they removed their gloves.
Carruth, the physician’s assistant, testified that he initially saw Lollis on
November 9, 2004, at which time he had a rash on his right forearm and on each side
of his neck. He stated that he diagnosed this as a chemical dermatitis of unknown
9 etiology. He said that he told Lollis to avoid all chemicals until his condition
resolved. Carruth testified that Lollis returned to him on November 27, 2004, after
he experienced small eruptions on both arms. He again diagnosed this as a chemical
dermatitis and set up an appointment for Lollis to see Dr. Waguespack-LaBiche.
Lollis again complained of a rash and itching on January 3, 2005, which he diagnosed
as a dermatitis of unknown etiology.
Dr. Waguespack-LaBiche testified that she diagnosed Lollis as suffering
from an irritant dermatitis, which she described as a reaction of the skin to some type
of irritant, such as a chemical or other substance. On January 14, 2005, she stated that
he exhibited hyper-pigmented lichenified plaques on his chest and the sides of his
neck, which appeared to be excoriated or scratched. She described these as being
raised darkly colored thickened areas on the skin, which caused by chronic rubbing
and scratching. She stated that he also complained of a rash in his groin, which she
diagnosed as jock itch or tinea cruris.
Dr. Waguespack-LaBiche stated that Lollis returned as an independent
patient on May 2, 2006, and requested a patch test to determine whether he was
allergic to rubber. She testified that the test revealed that he was allergic to epoxy
resins. She explained that a person may be predisposed at birth to becoming
synthesized to an allergen; however, a person becomes allergic to a specific allergen
when they are exposed to and become synthesized to a specific allergen. She said
that an allergy does not occur after one contact, rather, it develops over a period of
time after sufficient T-cells or immune response cells develop and act against the
allergen.
10 Dr. Waguespack-LaBiche testified that although dermatitis can be
disabling, Lollis was not disabled on May 2, 2006. She explained that she told him
to avoid epoxy resins, which are contained in some vinyls and can be absorbed
through rubber gloves. She stated that Lollis’ allergy to this substance would be life-
long and that he should not continue sandblasting or painting if epoxy resins were
involved. She further testified that Tideguard does contain epoxy resins.
Dr. Nassetta diagnosed Lollis as suffering from an allergic contact
dermatitis to epoxy resin. Of Lollis’ symptoms, he stated that his headache during the
acute setting was likely an irritant effect of the chemicals that compose the epoxy
resin. However, he found no relationship between Lollis’ symptoms in July 2005,
and his employment with Shaw. Although Dr. Nassetta opined that it may have taken
Lollis several weeks to become sensitized to epoxy resins, he said that once
sensitized, his reactions could result from a lower concentration of the substance and
from the presence of the substance in the air. He added that patients can develop an
exquisite sensitivity to their particular chemical allergen; and he indicated that Lollis
was extremely sensitive to some substance.
In July 2005, Dr. Nassetta noted that Lollis’ rashes were in different
locations from his initial reaction. This, he said, was common. He further stated that
if Lollis was removed from an environment containing epoxy resins, he should
improve in a matter of weeks or months. Dr. Nassetta also explained that Lollis could
have developed cross reactions after the initial reaction and that skin tests were
required to pin down his specific allergy. He stated that the skin tests performed by
Dr. Waguespack-LaBiche revealed that Lollis was allergic to epoxy resins, a well
11 known chemical sensitizer. This, he said, was consistent with contact dermatitis and
supported his diagnosis.
Dr. Nassetta testified that he could not make a disability determination
for Lollis based on the information he possessed. In order to do so, he stated that he
needed a definitive list of substances Lollis was allergic to, including cross reactions,
and an analysis of Shaw’s yard to determine whether those substances were present.
He testified that the analysis would involve meeting with Shaw’s environmental and
safety people and its hygienist in order to evaluate Lollis’ work environment. If
epoxy resins were present throughout Shaw’s yard and if Lollis was reacting to them,
whether he continued working there would depend on the effect his reactions had on
his health. If Lollis’ symptoms were treatable and nothing more than a nuisance, then
Dr. Nassetta felt that he could continue working. If they were worse, then it would
depend on the degree of his symptoms and the side effects from his medications as
to whether he continued working. As Lollis was able to work through February 2005,
Dr. Nassetta opined that he probably could continue working for Shaw, leaving aside
the unrelated symptoms. However, he stated that Lollis would probably not be able
to paint or sandblast epoxy resins or other substances in the same class. He said that
allergy shots were a possibility for Lollis.
In rendering his oral reasons, the workers’ compensation judge held that
Lollis satisfied his burden of proving that he suffered an occupational disease as a
result of his exposure to Tideguard and that based on his testimony, he proved that
he was temporarily totally disabled. In finding Lollis disabled, the workers’
compensation judge stated:
12 Dr. Nassetta an acknowledged expert in work place (sic) – environmental medicine opined that any job that Mr. Lollis gets from now on will require a screening of some sort to determine if there are any “cross reacting” agents, which will exacerbate his condition. This strikes me as placing some very severe limits and restrictions on the employment prospects of the man who had been a laborer all his adult life. He cannot touch plastic or rubber or any other epoxy derived material. The employer testified that it was willing to allow Mr. Lollis to work in areas of the facility where he would be isolated from Tideguard paint spray, but evidence forces a conclusion this would be exceedingly difficult if not impossible to do. The company simply sort of assumed that there are places on the yard that are immune from Tideguard spray residue. There was nothing like an examination of the area as suggested by Dr. Nassetta. I don’t know what a vocational rehabilitation expert might recommend because the company has not sent Mr. Lollis to see one.
Mr. Lollis (sic)on the stand for a long time and while he was on the stand for a long while (sic), and while he is not articulate he did appear at all times to be giving an honest effort in answering the questions posed to him. He came across as a thoroughly defeated person who had (sic) utterly perplexed and confused by the rapid and unexpected deterioration in this (sic) health and prospects. The Court finds that Mr. Lollis’ allergy condition is the result of his accidental expose (sic) to the chemical Tideguard. His medical situation is such that he cannot find a job even for minimum wage. He is disabled. He is therefore entitled to workers’ compensation indemnity benefits using Thirteen Dollars an hour for his annual weekly wage computation, retroactive to his last date of employment. The company will provide necessary medical treatment as well as vocation rehabilitation services as well (sic). If SEB is appropriate in due course then that will be ordered.
In reviewing the record in its entirety, we find no manifest error in the
workers’ compensation judge’s finding that Lollis proved he suffered an occupational
disease due to his exposure to Tideguard. His duties required him to mix coatings,
including Tideguard for approximately two to three weeks. Both Drs. Waguespack-
LaBiche and Nassetta diagnosed him as suffering from an allergic contact dermatitis
to epoxy resins, a known sensitizer and component of Tideguard. As such substance
was present in Lollis’ work environment, Dr. Waguespack-LaBiche felt that it was
13 probably the cause of his contact dermatitis, whereas Dr. Nassetta opined that
Tideguard was the cause of his initial reaction. Accordingly, we find that Lollis
proved he suffered an occupational disease as a result of his contact with Tideguard.
However, the workers’ compensation judge’s award of temporary total
disability poses the most vexed question on appeal. Dr. Waguespack LaBiche said
that Lollis was not disabled from his contact dermatitis as of May 2, 2006, although
she admitted that the condition could be disabling. In addition to giving Lollis a list
of substances to avoid, she told him to avoid exposure to epoxy resins at work. Dr.
Nassetta, the expert in occupational medicine, refused to render a disability
determination for Lollis without more information pertaining to his specific allergies,
possible cross reactions, and his work environment. In the absence of a more
definitive disability determination, we find no manifest error in the workers’
compensation judge’s finding that Lollis proved he was temporarily and totally
disabled. Accordingly, the judgment of the workers’ compensation judge finding that
Lollis suffered an occupational disease and was temporarily totally disabled as of
February 13, 2006, is affirmed.
We further find no error in the workers’ compensation judge’s award of
additional medical treatment to Lollis. Dr. Waguespack said that Lollis’ allergy
would continue for the rest of his life. Dr. Nassetta further indicated that Lollis
would require medicine if he continued experiencing reactions. Furthermore, he
stated that Lollis could possibly receive allergy shots.
PENALTIES AND ATTORNEY’S FEES
In its next assignment of error, Shaw argues that the workers’
14 compensation judge erred in finding that it failed to reasonably controvert Lollis’
entitlement to benefits for its failure to provide him with vocational rehabilitation
services. Shaw based its argument on the fact that it offered Lollis the modified
position as a forklift driver after the complained of incident. As this position was
available to Lollis, Shaw argues that vocational rehabilitation services were not
required.
We disagree. Both Drs. Waguespack-LaBiche and Nassetta restricted
Lollis from working where epoxy resins were present. Dr. Waguespack-LaBiche said
that he should not handle any epoxy resins and that those substances can penetrate
shirts and rubber gloves. Dr. Nassetta said that Lollis would have no work
restrictions if he was isolated totally from anything containing Tideguard or epoxy
resins. He further stated that epoxy resins can become airborne. Without knowing
Lollis’ specific allergies, i.e., epoxy resins and any other cross reactions that have
developed as a result of this allergy, we do not agree with Shaw’s assumption that the
forklift position alleviated the need for vocational rehabilitation services.
The medical evidence bears out that Lollis continued suffering rashes
even after he was moved to the forklift driver position and away from the Tideguard.
Moreover, Smith admitted that overspray occurred, that sandblasted epoxy paint was
possibly present in the air, and that he could not ensure that Lollis was kept
downwind of all painting or sandblasting which occurred in Shaw’s yard, even if the
yard was approximately fourteen acres large.
The workers’ compensation judge’s decision to award penalties and
attorney’s fees is factual in nature and will not be reversed on appeal absent manifest
15 error. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07), 956 So.2d
128. Based on the foregoing, we affirm the judgment of the workers’ compensation
judge awarding Lollis $2000 in penalties and $7500 in attorney’s fees for Shaw’s
failure to provide him with vocational rehabilitation services.
FRAUD
In its final assignment of error, Shaw argues that the workers’
compensation judge erred in failing to find that Lollis violated La.R.S. 23:1208, by
making false statements for the purpose of obtaining workers’ compensation benefits.
After reviewing the record and the testimony pointed out by Shaw, we find no
manifest error in the workers’ compensation judge’s finding.
CONCLUSION
For the foregoing reasons, the judgment of the workers’ compensation
judge is affirmed in all respects. The costs of this appeal are assessed to the
defendant-appellant, Shaw Global Energy Services.