Hankel v. Jefferson Parish Fire Dep't
| Decision Date | 22 September 2020 |
| Docket Number | NO. 19-CA-613,19-CA-613 |
| Citation | 304 So.3d 117 |
| Parties | Glenn HANKEL v. JEFFERSON PARISH FIRE DEPARTMENT |
| Court | Court of Appeal of Louisiana — District of US |
COUNSEL FOR PLAINTIFF/APPELLANT, GLENN HANKEL, Frank A. Bruno
COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH FIRE DEPARTMENT, Michael F. Nolan
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
In this workers’ compensation case, claimant, Glenn Hankel, appeals the decision of the Office of Workers’ Compensation Judge that granted summary judgment in favor of his former employer, the Jefferson Parish Fire Department ("JPFD"), on the issue of permanent partial disability benefits related to claimant's work-related hearing loss. For the reasons that follow, we affirm.
Mr. Hankel was employed by the JPFD from October 11, 1986, until his retirement on November 7, 2017. Mr. Hankel claims that, over time, he was exposed to loud noise as a firefighter sufficient to cause a permanent partial loss of his hearing in both ears.
The record shows that Mr. Hankel had yearly examinations of his hearing from approximately 2004 through 2018, and into his retirement. These tests, as a whole, revealed an accelerating cumulative deterioration of Mr. Hankel's ability to hear out of either ear. When he retired in 2018, Mr. Hankel was diagnosed as having "38% binaural loss."
After his retirement, Mr. Hankel filed a disputed claim for compensation on June 11, 2018, which sought indemnity benefits for his permanent partial disability caused by his noise-induced hearing loss, pursuant to La. R.S. 23:1221(4)(p). JPFD filed a motion for summary judgment at that time, arguing that Mr. Hankel's hearing loss was an occupational disease, rather than an injury precipitated by some specific event, which disqualified him from coverage under La. R.S. 23:1221(4)(p). After the OWC judge denied JPFD's motion for summary judgment on November 1, 2018, the parties entered into a consent judgment awarding Mr. Hankel medical benefits, including $3,890.00 for previously purchased hearing aids and payment for all future hearing loss related medical treatment and expenses. The consent judgment also provided that JPFD was to pay $5,000.00 in attorney fees.
JPFD thereafter filed a second motion for summary judgment on the issue of Mr. Hankel's entitlement to permanent partial disability benefits, which the court granted on October 4, 2019. Mr. Hankel timely filed the instant appeal.
Because this case was decided on summary judgment rather than after a trial, the manifest error standard of review does not apply in this case; instead, we review the granting of summary judgment de novo . Peironnet v. Matador Res. Co ., 12-2292 (La. 6/28/13), 144 So.3d 791 ; Schroeder v. Board of Sup'rs of La. State Univ ., 591 So.2d 342 (La. 1991). Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C ., 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852.
In the instant case, the OWC judge made several specific findings of fact in its October 4, 2019 Order. Specifically, the court found that Mr. Hankel was "exposed to injurious noise" while employed with the JPFD which caused a permanent partial loss of hearing. The court classified the hearing loss as a "cumulative hearing loss that occurred over time." Finally, in determining that Mr. Hankel was not entitled to permanent partial benefits pursuant to Louisiana Revised Statute 23:1221(4)(p), the court concluded that Mr. Hankel's hearing loss was not the result of a single traumatic event.
La. R.S. 33:2581.1, which is titled "Development of hearing loss during employment in the classified fire service; occupational disease," is among a special class of Louisiana Revised Statutes found at Title 33, Chapter 5, Part 4, specifically created by the legislature to address service-related occupational injuries that firefighters and other first responders may develop throughout their careers.1 Although not specifically incorporated within the Louisiana Workers' Compensation Act, La. R.S. 23:1021 et seq ., courts have consistently applied these statutes to workers' compensation cases.
La. R.S. 33:2581.1 provides:
A. Any loss of hearing which is ten percent greater than that of the affected employee's comparable age group in the general population and which develops during employment in the classified fire service in the state of Louisiana shall, for purposes of this Section only, be classified as a disease or infirmity connected with employment. The employee affected shall be entitled to medical benefits including hearing prosthesis as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled, regardless of whether the fireman is on duty at the time he is stricken with the loss of hearing. Such loss of hearing shall be presumed to have developed during employment and shall be presumed 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 in such classified service. This presumption shall be rebuttable by evidence meeting judicial standards and shall be extended to an employee following termination of service for a period of twenty-four months.
The record before us shows that Mr. Hankel used the presumption that his hearing loss was an occupational injury sustained during his career as a firefighter. For example, in opposing the JPFD's motion for summary judgment, Mr. Hankel asserted:
Here, Hankel satisfies all of the criteria of § 2581.1, and therefore his hearing loss is presumed to have been caused by his employment as a firefighter, and thus he will not bear the burden of proof on this issue at trial. McKenzie v. City of Bossier City , 22,578 (La. App. 2 Cir. 8/21/91), 585 So.2d 1229, 1232 ().
Also, medical records included in Mr. Hankel's opposition to the JPFD's motion for summary judgment, demonstrated that his hearing loss was ten percent greater than that of his comparable age group in the general population and developed during employment in the classified fire service, which is the very specific threshold needed to use the presumption found in La. R.S. 33:2581.1. For its part, the JPFD acknowledged that Mr. Hankel's hearing loss was an occupational injury properly addressed by La. R.S. 33:2581.1.
In the August 15, 2019 consent judgment, Mr. Hankel was given every benefit provided under La. R.S. 33:2581.1, consisting of workers’ compensation medical benefits for past payments that Mr. Hankel had paid for personally, hearing aids previously purchased by Mr. Hankel, and future medical treatment for hearing loss. Also, the JPFD agreed to pay to resolve all attorney fees disputes.
Once a disease or condition covered by La. R.S. 33:2581 is found to exist, the applicability of the workers' compensation provisions is resolved and questions attendant to compensation are then decided pursuant to La. R.S. 23:1021 et seq .
Amos v. Ouachita Par. Police Jury , 43,289 (La. App. 2 Cir. 6/18/08), 991 So.2d 102, 111. In granting JPFD's second motion for summary judgment, the OWC judge relied on the plain language of La. R.S. 23:1221(4)(p), which provides for permanent partial disability in instances where "the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single traumatic accident." Specifically, in its reasons for judgment,2 the OWC judge explained:
Upon reviewing the medical evidence and medical testimony, the Court concludes that Claimant's hearing loss is a cumulative hearing loss not covered under La R.S. 23:1221(4)(p) which provides benefits to an employee who suffers a permanent hearing loss solely due to a single traumatic accident (emphasis added). Claimant's arguments have merit that should be addressed with the legislature for changes in the current statute. Unfortunately, as written, La R.S. 23:1221(4)(p) does not provide benefits for cumulative hearing loss. As such, there are no genuine issues of material fact that Claimant is not entitled to permanent partial disability indemnity benefits in accordance with La. R.S. 23:1221(4)(p).
On appeal, Mr. Hankel asserts that the trial court erred by failing to award him indemnity benefits under the workers' compensation statute for his hearing loss, and by failing to award attorney fees and penalties based upon the JPFD's failure to pay indemnity benefits. Conversely, JPFD argues that La. R.S. 23:1221(4)(p) does not apply to provide a benefit to Mr. Hankel because his hearing loss was not due to a single traumatic accident during his employment.
It is undisputed that Mr. Hankel's hearing loss was not the result of a single injury. However, in arguing that his hearing loss qualifies him for workers’ compensation, although his hearing loss occurred over time, Mr. Hankel relies primarily on the case of Arrant v. Graphic Packaging Int'l, Inc ., 13-2878 (La. 5/5/15), 169 So.3d 296. In that case, the Court held that the plaintiffs, current and former employees of a paper mill, box plant, and carton plant, had sustained noise-induced hearing loss over time that qualified as a "personal injury by accident" within the meaning of La. R.S. 23:1021(1), and as an "occupational disease" within the meaning of the LWCA.
"The purpose of the Workers' Compensation Act is to set up a court-administered system to aid injured workmen by relatively informal and flexible...
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