Bess v. Graphic Packaging Int'l, Inc.

• Decision Date: 17 November 2021
• Docket Number: 54,111-WCA
• Citation: 331 So.3d 490
• Parties: Leeeric BESS, Plaintiff-Appellant v. GRAPHIC PACKAGING INTERNATIONAL, INC., Defendant-Appellee
• Court: Court of Appeal of Louisiana — District of US

331 So.3d 490

Leeeric BESS, Plaintiff-Appellant

v.GRAPHIC PACKAGING INTERNATIONAL, INC., Defendant-Appellee

No. 54,111-WCA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered November 17, 2021

THE HAYES LAW FIRM, PLC, By: DaShawn P. Hayes, New Orleans, Counsel for Appellant

JUGE, NAPOLITANO, GUILBEAU, RULI & FRIEMAN, By: Keith E. Pittman, Counsel for Appellee

Before MOORE, GARRETT, and HUNTER, JJ.

GARRETT, J.

The plaintiff, LeeEric Bess, appeals from a ruling of the workers’ compensation judge ("WCJ") granting summary judgment in favor of the defendant, Graphic Packaging International, Inc. ("Graphic"). For the following reasons, we reverse and remand for further proceedings.

FACTS

Bess went to work for Graphic in November 2014. On September 5, 2018, he filed a disputed claim for compensation, asserting that he suffered an accident and injury to his "left and right wrist" at work on December 22, 2017. He described the accident as follows:

In the midst of loading the straitline [sic] machine with precut cardboard stock, he lifted several sheets of precut cardstock off a pallet which at that time was above his head level. As he was lifting the cardboard stock he immediately felt a sharp pain in both wrists. Thinking the pain would subside, he continued loading the straitline [sic] machine until the pain became unbearable, and he asked to leave work because he was not feeling well.¹

Bess sought workers’ compensation benefits, penalties, attorney fees, and interest. He did not claim in his pleadings that he had an occupational disease.

On October 15, 2018, Graphic filed an answer denying that Bess was injured, had an accident at work, or was entitled to workers’ compensation benefits. On January 22, 2019, Bess filed a motion for summary judgment which was denied by the workers’ compensation judge on May 16, 2019.

The matter was set for trial on November 14, 2019. Bess's counsel withdrew on November 1, 2019. Bess employed new counsel, who negotiated a settlement which Bess rejected. That attorney withdrew also, and Bess continued in the workers’ compensation proceedings unrepresented.

In January 2020, Bess filed an amended disputed claim for compensation, alleging that on December 22, 2017, he suffered injuries to his left and right wrists, his shoulder, and his neck. He did not describe the accident or injury, but sought medical treatment in the form of a referral to a spine specialist for cervical evaluation and treatment. Graphic answered, denying the claim. Again, he did not claim that he had an occupational disease.

In April 2020, Graphic filed a motion for summary judgment, claiming that Bess did not suffer any work injury, accident, or occupational disease, and was not entitled to workers’ compensation benefits. Graphic asserted that all the medical evidence showed that no accident occurred on December 22, 2017; Bess suffered from arthritis, which is not a compensable occupational disease; and testing showed that he did not have carpal tunnel syndrome ("CTS").² According to Graphic, the evidence also showed that, in April 2018, several months after he stopped working at the company, Bess injured his neck while jumping a fence to get away from a dog.

A remote hearing on Graphic's motion was held on July 9, 2020. Graphic offered an affidavit from its human resources manager, two depositions from Bess, and depositions and medical records from several doctors who treated Bess or who performed independent medical examinations. Bess represented himself at that time. He did not file a formal opposition to the motion for summary judgment and he did not offer any additional evidence in opposition to the motion. He advised the WCJ that he was relying upon information contained in the medical records filed by the defendant to support his contention that he had CTS and it was work-related.

Kevin A. Cuppia, the Senior Human Resources Manager for Graphic, submitted an affidavit stating that Bess was scheduled to work from 7 a.m. until 3 p.m. on December 22, 2017, but he gave notice at 8:45 a.m. that he intended to leave at 11 a.m. in accordance with his unrelated intermittent Family Medical Leave Act ("FMLA") claim. This claim was associated with swelling in Bess's knee. He clocked out at 10:50 a.m. and did not give notice to his supervisor, the plant nurse, or anyone at the plant regarding an alleged injury. A few days later, Bess contacted the company's short-term disability carrier to file a claim for an unrelated work disability regarding his hands. Bess's family physician, Dr. J. Dean Stockstill, completed paperwork for the claim, stating that arthritis in both hands was the condition preventing Bess from returning to work. The short-term disability was approved beginning January 3, 2018. Later, Bess was diagnosed with diffuse connective tissue disease, and his benefits were converted to long-term disability benefits beginning June 27, 2018.

In October 2018, Bess gave a deposition in which he said he had been experiencing pain in his hands since 2016. He also occasionally took time off from work under the FMLA because he frequently had swelling in his knee. On the day of the alleged accident and injury, Bess said that his hands hurt and he asked to see the company nurse, who was not available. He told a coworker that his hands hurt and they concluded it was arthritis. Bess left work at 11 a.m. on December 22, 2017, under the provisions of the FMLA. He acknowledged that there was no specific incident that day involving his hands. He told his supervisor that he was leaving work, but he did not say it was because of pain in his hands.

In early January 2018, Bess went to his treating family physician, Dr. Stockstill, who opined that the claimant had arthritis which was aggravated by the repetitive use of his hands. Dr. Stockstill prescribed medicine and took him off work. Bess applied for short-term and then long-term disability benefits, through insurance associated with Graphic, based upon arthritis in his hands. Dr. Stockstill referred Bess to Dr. Jyothi Mallepalli, a rheumatologist.

Bloodwork ordered by Dr. Mallepalli showed that Bess's rheumatoid factor was elevated. Dr. Mallepalli diagnosed Bess with connective tissue disease, nonspecific.

Bess said he had not worked since December 2017, the numbness and sharp pain in his hands was worse, and he could not grab or lift more than five pounds. He had applied for Social Security disability benefits.

Dr. Stockstill's medical records show that Bess came to him on January 2, 2018, complaining of arthritis in his hands. Dr. Stockstill excused him from work until January 27, 2018. On January 10, 2018, Bess saw Dr. Stockstill, who noted that Bess's arthritis was improved with rest. On January 25, 2018, Bess visited Dr. Stockstill complaining of arthritis in his hands and he was referred to Dr. Mallepalli. Bess saw Dr. Stockstill on April 16, 2018, complaining of back, neck, and right shoulder pain after jumping over a fence to get away from a dog. Bess saw Dr. Stockstill for an arthritis follow-up on May 14, 2018. Dr. Stockstill noted that Bess was still seeing Dr. Mallepalli. On July 16, 2018, Bess had a follow-up visit with Dr. Stockstill regarding his disability paperwork. Bess wanted to see an orthopedic surgeon for a second opinion.

Dr. Stockstill gave a deposition on November 15, 2019. In August 2017, prior to the alleged accident, Bess saw Dr. Stockstill, complaining of right finger pain. He stated that, in September 2017, Bess complained of occasional joint pain in his knees and in his right hand. His hand was x-rayed and Dr. Stockstill diagnosed Bess with arthritis.

Dr. Stockstill stated that he saw Bess in early January 2018, for recurrent arthritic pain in both hands. Bess never told Dr. Stockstill that he had an accident and injury at work. In April 2018, Bess visited Dr. Stockstill for neck and shoulder pain after jumping over a fence. This was the first time that Bess had mentioned neck or shoulder pain to Dr. Stockstill. According to Dr. Stockstill, Dr. Mallepalli's diagnosis of connective tissue disease supported the diagnosis of arthritis. Dr. Stockstill said that Bess's condition is something that will flare up without a specific cause. The last time Dr. Stockstill saw Bess for his hands or wrists was February 26, 2019. Dr. Stockstill said that Bess's negative nerve conduction study ruled out CTS. Dr. Stockstill's opinion was that Bess's hand pain was not caused by his employment. It did appear that his employment made it worse. Rest from work helped some, but it did not "solve the pain."

Bess saw Dr. Karl K. Bilderback, an orthopedic surgeon, for an independent medical examination ("IME") on February 19, 2019. He reported to the doctor that he had an accident at work on December 22, 2017, while feeding cartons into a machine. He claimed to have constant pain in both hands that was worse with activity. Bess told Dr. Bilderback that he "Googled carpal tunnel to see what the symptoms were." Dr. Bilderback said Bess presented only mild evidence of CTS, based on his symptoms, which only mildly fit the diagnosis. Dr. Bilderback said that the claim of CTS seems to be based on what the patient read. Bess's physical exam was normal. Dr. Bilderback said that Bess had digital tenosynovitis with underlying rheumatoid arthritis. He did not think that Bess was at maximum medical improvement, but he should be able to return to light duty work with limited gripping activities bilaterally.

Bess saw Dr. Ellis Cooper, his choice of orthopedic surgeon, on April 18, 2019, complaining of bilateral hand pain, numbness, tingling, and weakness. Bess told Dr. Cooper that his symptoms had been present since 2017. Bess told Dr. Cooper that his work at Graphic involved loading cardboard cartons into a machine and this eventually caused him to have numbness, tingling, and pain in his hands "which apparently was so severe that he had to stop working." Bess told Dr. Cooper that he was still...