Bynum v. Capital City Press, Inc.

• Decision Date: 02 July 1996
• Parties: 95-1395 La
• Court: Louisiana Supreme Court

Page 582

676 So.2d 582

95-1395 La. 7/2/96

Jacquelyn M. BYNUM v. CAPITAL CITY PRESS, INC.

No. 95-C-1395.

Supreme Court of Louisiana.

July 2, 1996.

Rehearing Denied Sept. 3, 1996.

Robert Everage Hill, Baton Rouge, for Applicant.

Maurice Blake Monrose, Lafayette, for Respondent.

[95-1395 La. 1] KIMBALL, Justice. ^*

ISSUE

We granted claimant's writ application in this case to resolve a conflict between the circuits regarding La.R.S. 23:1031.1.E(c). We are called upon specifically to determine whether or not an actual, medical "diagnosis" is required under that statute to determine if an employee "knows or has reasonable grounds to believe that the disease is occupationally related" so as to commence the running of prescription under the statute. Because we find that an actual "diagnosis" is not required by the statute, we affirm the court of appeal opinion in this case affirming the hearing officer's granting of defendant's exception of prescription and to the extent other court of appeal cases hold to the contrary, hereby overrule those cases.

[95-1395 La. 2] PROCEDURAL HISTORY

On February 11, 1991, claimant filed a claim with the Office of Worker's Compensation alleging she had suffered a work-related injury as a result of inhaling fumes and dust during the period of her employment in the pressroom at Capital City Press from January 13, 1977 to September of 1985. Defendant filed an exception of prescription which was granted by the hearing officer. After the court of appeal reversed the hearing officer's granting of the exception of prescription because of a lack of written notice to the claimant's attorney, re-trial on the exception was held. The exception was again granted, the court of appeal affirmed, ¹ and this court granted claimant's writ application. ²

FACTS

Claimant began working as an apprentice pressman for Capital City Press on January 13, 1977. She testified she was exposed daily to fumes from inks, dyes, dust and chemicals, and that she left work every day covered with ink on her skin and clothes as a result of her exposure to the ink fumes. Ms. Bynum, who had a history of recurrent pneumonia in 1971, 1972, 1973 and 1983 according to the medical records introduced into evidence, was hospitalized by her treating physician, Dr. Lott, in February of 1984 after she began feeling bad and coughing up dark green sputum, which, according to her testimony below was "filled with ink." The medical records show claimant was diagnosed as having cystic bronchiectasis of the right middle lobe and cylindrical bronchiectasis of both lower lobes.

Ms. Bynum was again hospitalized in August of 1984 for her bronchiectasis and underwent a right middle lobectomy on September 13, 1984. According to claimant's testimony, after returning to work at Capital City Press around March of 1985, she continued to have respiratory problems and continued to cough up sputum which she testified was "filled with ink". She quit her job with Capital City Press in September of 1985. ³

In October of 1985, Ms. Bynum was hospitalized again for pneumonia and chronic [95-1395 La. 3] bronchitis. In December of 1985, she sought treatment at the University of Texas Health Science Center in Houston, Texas. Her two doctors there, Drs. Dantzker and Glann, in a letter to Dr. Lott, confirmed the diagnosis of bronchiectasis. The letter indicated that Ms. Bynum was advised that her current level of disability precluded her from working at her current tasks. Ms. Bynum testified below that the doctors additionally told her she was totally disabled and that she could no longer work in any environment containing smoke, dust or fumes.

Ms. Bynum was later seen by Dr. Perret on November 16, 1987. Dr. Perret's report indicates claimant informed him she worked at Capitol City Press "and had to work around ink fumes which aggravated her cough." Dr. Perret diagnosed chronic bronchiectasis with persistent bronchitis. His report further indicates he considered Ms. Bynum to be completely disabled but felt she may be able to work with numerous limitations including "no exposure to irritating or toxic chemicals or fumes, all of which might aggravate her bronchiectasis" and a "controlled indoor environment." Ms. Bynum testified below that Dr. Perret told her she could not go back to working in the environment of the printing room.

After Dr. Lott died in July of 1988, claimant began treatment with Dr. McClay in August of 1988. Dr. McClay's notes from the first appointment indicate claimant told Dr. McClay "she had been totally well prior to onset of illness that lead (sic) to a lobectomy in 1984" and that "her problem began after she took a job working on the newspaper, and such had followed her coughing up ink." Dr. McClay's notes from Ms. Bynum's September 16, 1988 appointment and her October 28, 1988 appointment indicate claimant told him she was "still expectorating ink" and still "coughing up streaks of black ink" even though this was three years after she had stopped working for Capital City Press. Additionally, Dr. McClay testified during the hearing on prescription that claimant "kept stating [during her appointments] that she was inhaling black ink fumes from the presses and that at times, they would make her dizzy and weak and the like" and that this condition started several months after claimant started working at Capital City Press.

In a letter dated September 16, 1988 from Dr. McClay to Ms. Dreher, the claims examiner for Reliance Standard Life Insurance Company, plaintiff's disability insurer, Dr. McClay noted he considered Ms. Bynum to be 100% disabled and that his "impression" of her condition was "disability due to occupational lung disease secondary to inhalation of fumes, ink, [95-1395 La. 4] etc." Dr. McClay indicated in the letter that he needed Ms. Bynum's prior medical reports. During his testimony below, Dr. McClay explained that his conclusion in the letter to Ms. Dreher was only an "impression" and not a "diagnosis" because he did not have enough information at the time to make a diagnosis. Later, however, Dr. McClay testified that a patient's history as given by the patient is 90% of a diagnosis. In any case, he testified he was finally able to make a complete diagnosis only after he examined claimant's brothers to rule out any hereditary lung problems. Thus, he testified he did not give claimant a "diagnosis" of occupational lung disease until October of 1990. Dr. McClay did testify, however, that he "probably may have" discussed his "impression" of occupational lung disease with Ms. Bynum in 1988 and that he did tell her at that time that the "inhalation of the fumes ... could be" the cause of her problems.

In a report dated December, 1988, also mailed to Ms. Dreher, Dr. McClay reiterated his finding that claimant is 100% disabled by her pulmonary problems and states that if she could work at all, it would have to be in a controlled indoor environment. In a Physical Capacities Form filled out by Dr. McClay for IntraCorp, an agent of Reliance, on July 26, 1989, Dr. McClay stated that claimant's work restrictions included "dust, dampness, chemicals, fumes, gases" and that claimant would have to have "climate control." In a report filled out by Dr. McClay's office for Equifax in December of 1989, the "diagnosis" of claimant's condition is given as "chronic lung disease secondary to environmental hazards and ... chronic bronchitis."

Although at one point during the hearing Ms. Bynum testified no physician ever told her she had a "work-related" or "occupational disease" until Dr. McClay told her she had an occupational disease in October of 1990, the following exchange took place on cross-examination by Mr. Monrose:

Q: The doctors before [before Dr. McClay]--and I'm just going to say "the doctors before," and if you want to single them out, you're more than welcomed to do so. Some of the doctors before had already told you that your problem was related to the conditions at work, correct?

A: Yes.

On redirect, claimant was asked by Mr. Hill:

Q: Ms. Bynum, who, if anyone, prior to Dr. McClay told you that your disease was work-related?

A: None of the doctors told me that the disease was work-related.

[95-1395 La. 5] THE COURT: But you just testified--

MR. HILL: Your honor, she misunderstood the question.

A: I misunderstood--

MR. MONROSE: Wait a minute. Objection, your honor.

A: --What he was asking.

THE COURT: You just testified that a number of doctors told you that your illness was due to conditions on your job. We're quibbling here. Work-related is a term-of-art used in workers' compensation.

A. Oh, okay.

THE COURT: You were asked the question, did any of your doctors tell you that your condition was caused by the conditions of your work. You said, "yes." Now, is that true?

A. Yes.

ANALYSIS

La.R.S. 23:1031.1.E. provides:

All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:

(a) The disease manifested itself.

(b) The employee is disabled from working as a result of the disease.

(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

We note that subparts (a), (b) and (c) are not separated either by the disjunctive article "or" or by the conjunctive article "and". Prior court of appeal cases have continually held that the existence of all three factors is necessary for the prescriptive period of this statute to commence. See, e.g., Thornell v. Payne and Keller, Inc., 442 So.2d 536, 540-41 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984); Brown v. City of Monroe, 521 So.2d 780, 781 (La.App.2d Cir.1988); McDonald v. New Orleans Private Patrol, 569 So.2d 106, 107 (La.App. 4th Cir.1990); Naquin v. Johns-Manville Sales Corp., 456 So.2d 665, 666 (La.App. 5th...