Amos v. Ouachita Parish Police Jury

• Decision Date: 18 June 2008
• Docket Number: No. 43,289-WCA.,43,289-WCA.
• Citation: 991 So.2d 102
• Parties: Arthur AMOS, Plaintiff-Appellant v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

991 So.2d 102

Arthur AMOS, Plaintiff-Appellant v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.

No. 43,289-WCA.

Court of Appeal of Louisiana, Second Circuit.

June 18, 2008.

Judgment rendered June 18, 2008.

Street and Street, by C. Daniel Street, Monroe, for Appellant, Arthur Amos.

Hayes, Harkey, Smith & Cascio, by John B. Saye, Monroe, for Appellees, Ouachita Parish Police Jury and Ouachita Parish Fire Department.

Before BROWN, STEWART, and LOLLEY, JJ.

BROWN, Chief Judge.

From the rejection of his claim for benefits under the Heart and Lung Act, La. R.S. 33:2581, Arthur Amos, a former fireman in Ouachita Parish, has appealed. For the reasons set forth below, we reverse the judgment of the workers' compensation judge ("WCJ") and remand the matter to the WCJ for further proceedings consistent with this opinion.

Procedural History

Claimant, Arthur Amos, was employed as a fireman with the Ouachita Parish Fire Department from February 29, 1988, until November 26, 2002, when he suffered a disabling stroke. Claimant filed a claim seeking workers' compensation benefits from his employer, the Ouachita Parish Police Jury, asserting disability caused by the stroke and "black lung." The police jury paid weekly compensation benefits in the amount of $416 to claimant until January 16, 2005, which is when the WCJ determined that claimant's stroke and resulting disability were not employment related. A final judgment was signed and neither party appealed therefrom.

Thereafter, on September 14, 2005, claimant filed a second claim alleging entitlement to benefits under the Heart and Lung Act, La. R.S. 33:2581, for disabling lung and heart conditions allegedly related to his employment with the fire department. The police jury filed an exception of res judicata which was overruled by the WCJ. Writs filed with this court and the supreme court were denied.

A hearing was held on March 14, 2007, and May 17, 2007. The WCJ found that the evidence showed manifestation of an infirmity in claimant's lungs prior to his first five years of employment with the fire department, thus precluding application of the presumption of causation provided by La. R.S. 33:2581. Therefore, the WCJ concluded that claimant was required to prove that his condition was caused by and resulted from the nature of the work that he performed. After reviewing the medical evidence from claimant's treating and evaluating physicians, the WCJ found that claimant did not establish a causal connection between his employment and his lung condition. From the dismissal of his claim for indemnity and medical benefits, claimant has appealed.

Discussion

Applicability of Presumption Afforded by La. R.S. 33:2581

In his first assignment of error, claimant argues that the WCJ erred in failing to find that he was entitled to the presumption of causation set forth in La. R.S. 33:2581.

The Heart and Lung Act, La. R.S. 33:2581, provides that:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

As the courts of this state have recognized, it is generally accepted that a fireman, as a result of the stress and strain of his work, is predisposed to vascular disease, and our legislature has acknowledged this fact in enacting La. R.S. 33:2581. Coats v. City of Bossier City, 31,164 (La. App. 2d Cir.10/30/98), 720 So.2d 1283, writ denied, 99-0019 (La.02/12/99), 738 So.2d 581; Vallelungo v. City of New Orleans, 95-0264 (La.App. 4th Cir.05/01/96), 673 So.2d 1292. La. R.S. 33:2581 expressly covers any disease or infirmity of the heart or lungs. City of Jennings v. Deshotel, 99-1232 (La.App. 3d Cir.02/02/00), 758 So.2d 269, writ denied, 00-0663 (La.04/20/00), 760 So.2d 1157.

If applicable, the statute's provisions actually afford a claimant two presumptions: (1) that his heart or lung disease or infirmity developed during employment; and (2) that the disease or infirmity was caused by or resulted from the nature of his employment. Coats, supra; Rothell v. City of Shreveport, 626 So.2d 763 (La.App. 2d Cir.1993), writ denied, 93-3191 (La.02/11/94), 634 So.2d 379; Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4th Cir.1975), writ denied, 329 So.2d 760 (La. 1976).

The WCJ found that the presumptions did not apply to claimant because a lung infirmity first manifested itself within claimant's first five years of employment. The WCJ relied on the medical histories related by claimant to his physicians. Specifically, on March 5, 2004, claimant was examined by Dr. Glenn Gomes of the Oschner Clinic Foundation. In his notes, Dr. Gomes recorded, "The patient states that he has no prior history of asthma, pneumonia, emphysema or tuberculosis as a child. He states he first began having problems with his breathing in about 1990. This was after he quit smoking cigarettes, and he relates his problems with breathing with smoke exposure. He states that he has had an occasional cough now for years." The WCJ also took note of the history given by claimant to Dr. Scott Irby, considered by claimant to be his current treating physician. In a report dated June 24, 2004, Dr. Irby observed that claimant gave a history of beginning to experience problems with wheezing and shortness of breath in 1990 or 1992 and that he has been on and off inhalers since that time.

In addition to the above medical histories, claimant testified that his breathing problems and cough began in 1991 and that both conditions got worse over time. Claimant's employment as a fireman began in 1988, which is less than five years before the first manifestation of his symptoms. In light of the above evidence, we cannot say that the WCJ erred in finding that the presumptions afforded by La. R.S. 33:2581 were inapplicable in this case. This does not end the inquiry, however.

Causal Connection Between Employment and Lung Condition

Although finding that the evidence showed manifestation of an infirmity in claimant's lungs within his first five years of employment with the fire department, the WCJ concluded that claimant failed to establish that his lung condition was caused by and/or resulted from the nature of his work. Claimant contends, however, that the medical evidence overwhelmingly shows a causal connection between his employment and his lung condition.

Most of the jurisprudence applying La. R.S. 33:2581 involves claimants who, because of the time frames in which their diseases or conditions developed, were afforded the benefit of the statutory presumptions. Because we agree with the trial court that the statutory presumptions are not applicable to this claimant, this line of cases does not offer this court much guidance in analyzing whether claimant established the causal connection necessary for him to be entitled to benefits under the Heart and Lung Statute. In Savoie v. Fire Protection District #1, St. Landry Parish, 483 So.2d 1041 (La.App. 3d Cir.1986), writ denied, 485 So.2d 54 (La.1986), however, the court was presented with a claimant who, because he had not been employed with the fire department a full five years when he developed pneumonia and a lung abscess, was not entitled to the benefit of the statutory presumptions. The Third Circuit observed that La. R.S. 33:2581 does not expressly set forth the burden of establishing disability and its causal relation with employment for those without the benefit of the statutory presumptions. Citing Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985), the court explained that "as in other civil suits the employee in a worker compensation proceeding initially has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence." Savoie, 483 So.2d at 1044. As noted by this court in Jones v. A T & T, 28,059 (La.App. 2d Cir.02/28/96), 669 So.2d 696, just as with an employment accident, the claimant who asserts an occupational disease bears the burden of proving by a preponderance of evidence that an employment-related affliction caused the disability.

However, neither the Heart and Lung Act nor the cases interpreting its application suggest that a claimant must prove that his employment was the only cause of the development of a disease or infirmity. Vallelungo, supra. Instead, it is sufficient under the act to show that the employment is a contributing, accelerating, or aggravating factor. Rothell, supra; Vallelungo, supra.

Therefore, we must examine the evidence to determine whether the WCJ erred in finding that claimant did not bear his burden of proving by a preponderance that his lung disability was causally connected to his employment with the fire department.

Claimant, Arthur Amos

Claimant, Arthur Amos, testified that he worked as a full-time fireman from February 29, 1988, until November 26, 2002, achieving the rank of captain before becoming disabled by a non-work-related stroke. Claimant stated that his work included responding to calls, putting out fires, and working chemical spills. As a fireman, he was exposed to smoke and chemicals. In fact, claimant was on the crew that responded to several chemical fires, including the catastrophic fire and explosion in Sterlington in 1991...