Edward Blake VS Turner Industries Group, L.L.C.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 0140 EDWARD BLAKE VERSUS TURNER INDUSTRIES GROUP LLC Judgment Rendered September 21 2012 Appealed from the Office of Workers Compensation District 5 Parish of East Baton Rouge Docket Number 1000813 The Honorable Pamela Moses Laramore Presiding Brad O Price Baton Rouge LA Counsel for PlaintiffFirst Appellant Edward Blake Charles J Duhe Jr Ryan J Zumo Counsel for DefendantSecond Appellant Turner Industries Group LLC Baton Rouge LA BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ 1 Mcu C J crrcuiz3 WHIPPLE J In this workers compensation suit claimant Edward Blake and his employer Turner Industries Group LLC Turner appeal from a judgment of the OWC For the following reasons the judgment of the OWC is affirmed FACTS AND PROCEDURAL HISTORY Edward Blake who was employed by Turner as a tacker pipe fitter from June 26 2007 to April 24 2009 filed a disputed claim for compensation on January 21 2010 against Turner Therein Blake contended that he was exposed to harmful gases on the job which resulted in a subsequent lung condition Blake contended that he became ill in OctoberNovember of 2008 when his work environment changed on September 1 2008 after Hurricane Gustav damaged the Main Shop where he normally worked According to Blake he and other workers from the Main Shop were then moved to the Alloy Shop where he was exposed to toxic fumes from alloy metals causing him to become ill Turner denied Blake claim that his lung condition was caused by or otherwise s aggravated by his work for Turner The matter proceeded to trial before the OWC on May 17 and 18 2011 after which the parties were permitted to file posttrial briefs On August 19 2011 the OWC issued an oral ruling from the bench and on September 19 2011 the OWC signed a judgment in accordance with its oral ruling accompanied by written reasons In rendering its judgment the OWC concluded that Blake had a lung condition idiopathic pulmonary fibrosis IPF which the OWC found was not caused by his employment with Turner Instead the OWC found that Blake s lung condition was temporarily aggravated by his employment as a tackerpipe fitter with Turner but his lung condition had returned to its preemployment clinical state on May 26 2009 Accordingly because the temporary aggravation 2 of Blake lung condition caused Blake to be temporarily totally disabled from s January 20 2009 until May 26 2009 the OWC awarded Blake temporary total disability benefits TTD from Turner from January 20 2009 until May 26 2009 in the amount of 480 per week based upon an average weekly wage of 54 28 720 The OWC further awarded Blake interest in the amount of 4 on past due TTD benefits from January 20 2009 until May 26 2009 awarded Blake reimbursement for related out of pocket medical expenses and treatment from December 17 2008 until May 26 2009 and awarded Blake costs incurred in bringing his claim to trial Blake filed the instant devolutive appeal contending that the OWC 1 manifestly erred in finding that he had returned to his pre employment clinical state on May 26 2009 and 2 legally erred in failing to apply the standard set forth in Peveto v WHC Contractors 93 1402 La 1 630 So 2d 689 in 94 14 finding that the aggravation of his underlying lung condition had ended on May 26 2009 and that no further indemnity or medical benefits were due Turner tiled a suspensive appeal from the judgment contending that the OWC erred 1 in failing to admit medical records from Earl K Long Medical Center where Blake was treated two weeks before the discovery deadline 2 in failing to conclude that Blake suffered from an undifferentiated connective tissue disorder and 3 in continuing to rely on the 1ME physician opinion after s additional evidence was discovered that disproves the temporal relationship alleged DISCUSSION s Turner First Assignment of Error Although Turner is the second appellant herein we note that in its first assignment of error Turner is contending that the OWC judge made an erroneous evidentiary ruling in failing to admit Blake medical records from s 3 Earl K Long Medical Center into evidence If a trial court commits an evidentiary error that interdicts its fact finding process this court must conduct a de novo review Thus any alleged evidentiary errors must be addressed first on appeal inasmuch as a finding of error may affect the applicable standard of review I st Penton v City of Hammond Police Department 20072352 La App Cir 5 991 So 2d 91 95 08 2 As such we address the evidentiary challenge raised by Turner out of turn In its first assignment of error Turner argues that the OWC erred in not admitting Blake medical records from Earl K Long Medical Center at trial s despite Turner concession that it failed to meet the discovery deadline s imposed by the OWC in obtaining these records In its brief on appeal Turner contends that Blake presented at Earl K Long Medical Center for treatment on April 2 2011 Turner contends that upon learning of this treatment it sent a notice requesting Blake updated medical s records to Earl K Long Medical Center on April 7 2011 The OWC s discovery deadline in this matter was April 18 2011 Nonetheless on April 19 2011 Turner issued subpoenas to Dr Glenn Gomes and Earl K Long Medical Center seeking the medical records Blake responded by filing a motion to quash which the OWC granted noting that the discovery deadline had lapsed At trial the OWC did not allow Turner to introduce the records but instead allowed Turner to proffer the medical records In general an OWC hearing officer shall not be bound by technical rules of evidence or procedure LSAR S A 1317 23 Moreover LSAR S C 1 1310 23 authorizes the director of the OWC to adopt reasonable rules and regulations including the rules of procedure before the hearing officers according Likewise for ease of discussion we hereafter address Turner other assignments of s error out of turn 11 to the procedures established by the Administrative Procedure Act codified as LSAR 49 et seq To insure an orderly disposition of cases it is clear that S 950 the hearing officer has much discretion regarding the implementation and enforcement of pretrial procedural rules Kennedy v Johnn F Smith T ng ki ruc 940618 La App Ist Cir 3 652 So 2d 526 529 Absent an abuse of this 95 discretion the decision of the trier of fact will be upheld Shaffer v Brand st Scaffold Builders Inc 20030288 La App l Cir 12 868 So 2d 149 03 31 151 writ denied 2004 0303 La 3871 So 2d 355 04 26 Turner undisputedly failed to comply with the discovery deadline imposed by the OWC Further Blake contends that at no time did Turner request or seek a waiver of the sevenday waiting period in order to meet the discovery deadline In any event the record before us reveals that at the time the matter was scheduled for trial to commence on May 17 2011 Turner had previously filed a motion to continue an earlier fixing of the trial of this matter Considering the OWC judge responsibility to insure the orderly disposition of s cases and the broad discretion afforded it in enforcing pretrial procedure rules we find no abuse of discretion in refusing to allow the introduction of these records which were obtained by Turner approximately one week prior to trial and undisputedly after the experts treating physicians and the IME physician in this case had already been deposed without the benefit of being able to review same This assignment of error lacks merit The 2 only expert who had the benefit of reviewing these records prior to trial which commenced on May 17 2011 but after his report of April 11 2011 was Dr William J Nassetta Turner occupational environmental medicine physician s Although Turner contends that the updated medical records it seeks to introduce are relevant evidence of s Blake medical treatment and condition in Dr Nassetta proffered testimony concerning s these records he stated that hisBlake condition medical records from Earl K Long did not review ofBlake Thus we find no error s change his opinion concerning s W Standard of Review In workers compensation cases the appropriate standard of review to be applied by the appellate court to the OWC findings of fact is the manifest s error clearly wrong standard Dean v Southmark Construction 2003 1051 La 7 879 So 2d 112 117 Accordingly the findings of the OWC will 04 6 not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety Alexander v Pellerin Marble Granite 931698 La 1 630 So 2d 706 710 Where there is conflict in 94 14 the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even when the appellate court may feel that its own evaluations and inferences are as reasonable Robinson v North American Salt Company 2002 1869 La App 1 Cir 6 865 So 03 27 2d 98 105 writ denied 2003 2581 La 11 860 So 2d 1139 The court 03 26 of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Conner v Family Dollar Store 2009 1537 La App l st Cir 10 26 3 36 So 3d 339 345 writ denied 20100959 La 6 38 So 3d 10 25 344 During the trial of this matter the OWC considered the deposition testimony and testimony of Blake his coworkers and supervisors at Turner as well as the following experts and physicians Dr William J Nassetta Turner s expert in toxicology internal medicine and occupational environmental medicine Proffered testimony Dr Christopher B Thomas Turner expert in the field of s Pulmonary medicine critical care and internal medicine Dr Judd E Shellito an expert in the field of pulmonary and critical care medicine and the Chief of Section of pulmonary and critical care medicine at the LSU Health Sciences Center who conducted an independent medical exam of Blake Herman J Gibb DP Ph M an epidemiologist and expert in health risks assessments who H evaluated Blake information and related that to what he knows about welders s and Dr Glenn M Gomes Blake treating pulmonologist who was board s certified in pulmonary medicine critical care medicine and internal medicine After considering all of the testimony and evidence introduced over the course of a twoday trial the OWC issued written reasons for judgment wherein it found as follows The issue before the Court is whether or not Mr Blake contracted an occupational disease in the course and scope of his employment with Turner Industries The Court finds he did not he has failed to meet his burden of proof ithat more probably than e not he contracted his lung condition in the course and scope of his employment with Turner I base this on the evidence as a whole but Dr Shellito deposition was a predominate sic factor Dr Shellito s is the state IME and my interpretation of his report and deposition s is Mr Blake has an idiopathic pulmonary fibrosis IPF this means the physicians are not sure what caused his lung condition It is an interstitial lung disease but Dr Shellito was of the opinion it was not caused by his welding and pipefitting duties while employed by Turner There were a lot of factors utilized in concluding the actual diagnosis which is at the heart of this issue the lung biopsy itself per Dr Shellito did not support the condition being caused by welding fumes Also the fact his lung disease is a restrictive not an obstructive disease also negates causation by welding fumes Dr Shellito provided the Court with an excellent overview of the case he had the benefit of all of the physicians records and testing as well has having examined Mr Blake himself Dr Nasetta Turner expert diagnosed Mr Blake with an s undifferentiated connective tissue disease UCTD I am of the opinion the factors as stated by the experts do not fit this diagnosis As I reviewed the factors for UTCD the presence of an arthritic condition in this case falls short i Mr Blake arthritic e s condition is trauma related not systemic The dry mouth factor is negated by Mr Blake necessary use of an oxygen tank there are s other factors as well which fell short However Dr Nasetta also stated he thought it could be an idiopathic pulmonary fibrosis as found by Dr Shellito Some of the other experts made assumptions concerning his exposure which the Court found not to be fact based The evidence at trial satisfied the Court Mr Blake exposure was well within the s OSHA safety requirements and NOT in an enclosed environment nor was he exposed to the exotic metals as often as he remembered VA The Court finds Mr Blake IPF was aggravated by his s occupation as a welder while employed at Turner Dr Shellito stated Mr Blake chronic IPF being associated with restricted s physiology was more likely than not aggravated by his exposure to welding fumes Every witness including the safety manager and the other welders all testified post Gustav in the month of September the alloy bay and power bay were full to capacity and going at full speed The testimony is consistent that because of Gustav the main shop had been destroyed requiring all employees to be reallocated physically to the alloy bay the power bay and the north yard The alloy bay and the power bay were the two places Mr Blake worked Every possible space was filled to capacity and working at full speed to complete a large order backlogged by Gustay Both of these bays were about half the size of the main shop The Court finds that although there was adequate ventilation the MSDS sheets clearly warn of the same type of symptoms Mr Blake sustained nose and throat irritation shortness of breath coughing chest pain and that impaired respiratory function which Mr Blake already had may be worsened This occurred shortly before his condition became symptomatic thereby aggravating his preexisting condition The Court finds Mr Blake IPF returned back to its normally s Progressive state by May of 2009 The aggravation caused by the fumes once he was removed from the irritant away from welding acquired medications resolved Vath released him In May his treating physician Dr to return to work Mr Blake could never return to welding because of his underlying IPF but he returned d to his pre aggravation state Dr Crosby on May 26 said Mr Blake was clinically almost back to normal he felt good and wanted to return to work The Court finds Mr Blake is entitled to indemnity benefits from January 20 2009 to May 26 2009 the period of his disability benefits from his first symptoms December 2008 to May 26 2009 related to the aggravation of his IPF The Court awards medical The Court also awards all costs of litigation to the claimant Interest is awarded at the rate of 4 sSecond Assignment of Error Turner In its second assignment of error Turner contends that the trial court manifestly erred in finding that Blake lung condition was not the result of an s undifferentiated connective tissue disease 3 MSDS are material safety data sheets Both 4 Turner and Blake concede that the OWC misspoke as Blake was never seen by a Dr Vath Instead as the parties note the May 26 2009 visit with Blake treating s physician referred to by the OWC in her reasons for judgment was with Blake or about s treating pulmonologist Dr Robert L Crosby Notably Dr Crosby closed his practice on August of 2009 and was unable to be located for a deposition j At trial Turner presented the testimony of Dr Christopher Thomas s Turner expert who after evaluating Blake on one occasion and reviewing his medical records testified that Blake had an undifferentiated connective tissue disease ICTD Dr William J Nassetta an occupational environmental medicine physician hired by Turner to assess whether or not Blake medical s condition was caused or aggravated by his employment with Turner agreed that Blake had an undifferentiated connective tissue disease had never seen or evaluated Blake DAD However Dr Nassetta He recognized the diffuse alveolar damage in Blake pathology which could be associated with the inhalation of s welding fumes Blake presented the medical records and testimony of his treating pulmonologists Dr Robert L Crosby and Dr Glenn M Gomes who both opined after treating Blake for some time that Blake had bronchiolitis obliterans organizing pneumonia BOOP and DAD Dr Gomes testified that Blake did not have an underlying connective tissue disease Further Dr Gomes opined that when an underlying connective tissue disease is present a physical examination is rarely completely normal like in Blake case s An independent medical examination ordered by the OWC was conducted by Dr Judd E Shellito who had the benefit of examining Blake and taking a history from him as well as reviewing all of his medical records Dr Shellito also had a chest xray obtained and a pulmonary function test performed on Mr Blake in connection with his examination Dr Shellito opined that Blake clearly has BOOP and BOOP has many causes but when BOOP is idiopathic a cause cannot be identified In his opinion Blake has a pulmonary interstitial lung disease which is a disorder that affects the interstitium of the lung Dr Shellito further explained that interstitial diseases are typically associated with fibrosis or scarring of the lungs They are also often associated with restrictive defects on I the pulmonary functioning test as seen with Blake Blake lung biopsy showed a s pattern of organized diffuse alveolar damage with a minor component of Proliferative bronchiolitis as indicated by Drs Crosby and Gomes In relying on Dr Shellito opinion that Blake suffered from IPF the OWC s noted Dr Shellito provided the Court with an excellent overview of the case he had the benefit of all of the physicians records and testing as well has having examined Mr Blake himself Turner argues that the OWC erred in accepting the testimony of the IME Dr Shellito and Blake treating physician Dr Gomes and in disregarding s rejecting the opinions of Drs Thomas and Nassetta or The OWC was presented with conflicting testimony as to Blake medical condition s On review of the record herein including the extensive medical evidence and testimony presented in this matter we find the OWC determination was reasonable and is amply s supported by the record Accordingly the OWC reasonable evaluations of s credibility and inference of fact will Famil not be disturbed on review See Conner v Dollar Store 36 So 3d at 345 We find no merit to this assignment s Blake First and Second Assignments of Error sThird Assignment of Error Turner In these assignments of error Turner contends that the OWC manifestly erred in finding that Blake preexisting lung condition was aggravated by his s occupation as a welder with Turner Industries while Blake contends that the OWC committed manifest error by finding that the aggravation of Blake IPF s condition had ceased and had returned to its pre employment clinical state on May 26 2009 Blake further argues that the OWC committed legal error in failing to apply the standard set out in Peveto v WHC Contractors 931401 La 10 94 14 1 630 So 2d 689 After careful review we find no merit to either party s assertions In determining whether an accident caused the aggravation of a claimant s condition in workers compensation matters the Louisiana Supreme Court instructed in Peveto that an employee has the burden of establishing a causal link between the accident and the subsequent disabling condition Contractors 630 So 2d at 691 Peveto v WHC Where an employee suffers from a pre existing medical condition he may still prevail ifhe proves that the accident aggravated accelerated or combined with the disease or infirmity to produce death or disability for which compensation is claimed So 2d at 691 citing Walton v Normand Peveto v WH Contractors 630 Villa e Homes Association Inc 475 So 2d 320 324 La 1985 Once the employee has established the presumption of causation the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate aggravate or combine with the preexisting disease or infirmity to produce the employee disability s Walton v Normand Villa e Homes Association Inc 475 So 2d at 325 Moreover in making such determinations medical testimony albeit significant is not necessarily conclusive as to the issue of causation which remains an ultimate fact to be decided by the court after weighing all of the evidence citing Hau hton Peveto v WHC Contractors 630 So 2d at 691 v Fireman Fund American Insurance s Com an 355 So 2d 927 929 La 1978 In determining that Blake IPF was aggravated by his exposure to welding s fumes the OWC relied on Dr Shellito testimony that it was more likely than s not that Blake exposure to the welding fumes aggravated his underlying lung s condition because in this particular case even though the welding fumes did not cause his disease there was a temporal relationship between the exposure and his 11 symptoms Dr Shellito added that it is well recognized that exposure to welding fumes aggravates underlying lung disorders Moreover the OWC clearly relied on the substantial evidence presented by Blake to establish that the welding fumes he was exposed to at Turner were harmful which included the testimony of Turner Safety Manager Blake Dr s Herman Gibb and the other welders at Turner all of whom testified about the working conditions post Gustav when the shops were consolidated as well as MSDS sheets which warned of the same symptoms that Blake exhibited In addition to the testimony by Dr Shellito noted above Dr Gomes also testified that ifBlake did have a connective tissue disease as argued by Turner exposure to fumes would make his condition a lot worse Accordingly on review we find no manifest error in the OWC ultimate determination that Blake exposure to s s the welding fumes aggravated his underlying lung condition With reference to the OWC determinations as to whether and when s s Blake condition had returned to its pre aggravation state the OWC relied on the testimony of Blake treating pulmonologist Dr Robert L Crosby noting as s follows The Court finds Mr Blake IPF returned back to its normally s progressive state by May of 2009 The aggravation caused by the fumes once he was removed from the irritant away from welding acquired medications resolved In May his treating physician Dr Vath released him to return to work Mr Blake could never return to welding because of his underlying IPF but he returned d to his pre aggravation state Dr Crosby on May 26 said Mr Blake was clinically almost back to normal he felt good and wanted to return to work Dr Crosby records reflect that he treated Blake from January 2009 to s August 2009 and had diagnosed Blake with bronchiolitis obliterans organizing pneumonia BOOP and diffuse alveolar damage DAD On May 26 2009 5A set forth in footnote 2 both Turner and Blake concede that the OWC misspoke as Blake was never seen by a Dr Vath and that the treating physician referred to by the OWC in her reasons for judgment was with Dr Crosby Blake treating pulmonologist at the s time 12 after evaluating Blake condition on that visit Dr Crosby noted that Blake s eels If good and wants to go back to work He further noted i of nstead welding pipefitting he wants to drive trucks and that he is clinically almost back to normal Accordingly Dr Crosby then released Blake to return to work with the restriction that he not work around dust fumes or chemicals Dr Games who became Blake streating pulmonologist in January of 2010 after Dr Crosby closed his practice agreed with Dr Crosby diagnosis ofBOOP s and DAD Dr Gomes also agreed that Blake was able to return to work with the restriction that he be in a controlled temperature environment with no dust or fumes Dr Gomes also concluded that he would not be able to perform moderate manual labor In support of his assignment of error challenging the merits of the OWC s ruling Blake notes that Dr Shellito the IME physician testified that although Blake may have felt better the global pattern with his underlying condition was one ofworsening lung function However with regard to Blake ability to work s Dr Shellito conceded on cross examination that Blake had not informed him that he had in fact returned to work since January of 2009 Blake also points to the testimony of Dr Christopher Thomas Turner s expert who after evaluating Blake on one occasion and reviewing his medical records testified that he did not think Blake had BOOP but instead had an underlying connective tissue disease With reference to Blake argument that the s OWC erred in finding that he had returned to his pre employment clinical state Blake contends that Dr Thomas noted he thought there was some improvement but then Mr Blake began to decline On careful review of Dr Thomas deposition testimony however we note that in the testimony relied upon by Blake Dr Thomas qualified his response as follows Counsel 13 So have you seen the positive reaction that you would expect in Mr Blake condition with use of the steroids s Dr Thomas I personally don know if I can ascribe a significant clinical t status based on the evidence that I have I do know he demonstrated improvement from the time of the initial diagnosis and then subsequently had s that some form of decline unaccounted physicians for within the There is a period of time clinical evaluation by the I would be unable to state at that exact time because I t didn see him and he was unable to provide that interval with me to clarify Turner notes on appeal that Blake passed DOT physicals taken on July 6 2009 and on October 16 2009 after his lung biopsy which both provided that Blake had a normal lung and chest examination Further in addition to Dr s Crosby findings Dr Ceruti records of May 5 2009 state that Blake was s doing ok off steroid Further as noted by Turner following Blake release to s return to work by Dr Crosby in May of 2009 Blake did not seek further treatment for his injuries until approximately eight months later on January 28 2010 Considering all of the above and after review of the record in its entirety we recognize that there are some conflicts in expert and medical testimony Nonetheless where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact may not be disturbed upon review in the absence ofmanifest error even though an appellate court may feel that its own evaluations and inferences are as reasonable See Robinson v North American Salt Company 65 So 2d at 105 On the record before us we find no manifest error in the OWC finding that the aggravation of Blake IPF had returned to his s s pre employment clinical state on May 26 2009 Moreover to the extent that Blake contends that Peveto requires the employer to show that a claimant aggravation ended and thus that the OWC s herein erred in finding that the aggravation of Blake underlying condition s 14 ended absent a showing from Turner that the aggravation ended we likewise find no merit At the outset we note that Peveto is factually distinguishable from the instant case In Peveto the claimant suffered from a neurological disorder which s claimant treating physician testified might not be progressive at all Peveto v WHC Contractors 630 So 2d at 692 The court was therefore able to determine that absent the aggravation from his employment related accident his condition may not have progressed at all Hence the court found that the evidence presented by claimant created a presumption of causation which was not rebutted or contradicted by any evidence from the employer Peveto v WHC Contractors 630 So 2d at 692 Unlike the facts in Peveto the evidence in the instant case established that s Blake underlying IPF was a progressive condition Also in this case Turner argued and presented contradicting rebuttal evidence and testimony to show that s Blake condition was not aggravated by employment conditions at Turner whereas the employer in Peveto failed to do so In Peveto the evidence clearly showed that the aggravation of claimant condition did not return to its pre s aggravation state whereas there was evidence in the instant case which if accepted as true by the trial court would show that the aggravation of Blake s underlying condition had returned to its pre aggravation state As discussed above however after weighing and considering the conflicting evidence herein the OWC determined that Blake presented sufficient evidence to establish that it was more probable than not that his underlying IPF was aggravated by his exposure to welding and metal fumes at Turner Further we concluded above that the OWC correctly determined that the aggravation of s Blake underlying condition had ceased in that Blake condition returned to its s preaggravation state based on its consideration and resolution presented of the 15 conflicting testimony and evidence presented herein by Blake and Turner We again note we find no error in these determinations Finally we find no merit to s Blake argument that the OWC committed legal error under Peveto in finding that the aggravation of Blake underlying condition ended or returned to its pre s aggravation state These assignments of error by Turner and Blake lack merit CONCLUSION For the above and foregoing reasons the September 1 2011 judgment of 9 the OWC is affirmed Costs of this appeal are assessed equally against the appellants Edward Blake and Turner Industries Group LLC AFFIRMED 16
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