Romero v. Northrop-Grumman

• Decision Date: 30 May 2001
• Docket Number: No. 01 0024-WCA.,01 0024-WCA.
• Citation: 787 So.2d 1149
• Parties: Roland ROMERO v. NORTHROP-GRUMMAN.
• Court: Court of Appeal of Louisiana — District of US

Page 1149

787 So.2d 1149

Roland ROMERO v. NORTHROP-GRUMMAN.

No. 01 0024-WCA.

Court of Appeal of Louisiana, Third Circuit.

May 30, 2001.

Aubrey Edward Denton, Aaron Wayne Guidry, Porter, Denton & Guidry, Lafayette, LA, Counsel for Roland Romero.

Christopher M. Trahan, Raggio, Cappel, etc., Lake Charles, LA, Counsel for Northrop—Grumman.

Court composed of HENRY L. YELVERTON, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.

SAUNDERS, Judge.

Mr. Roland A. Romero has appealed the findings of the workers' compensation judge in his case. Specifically, Mr. Romero seeks a reversal of the workers' compensation judge's findings regarding his employer's right to a credit and his right to penalties and attorney fees. For the reasons that follow, we reverse.

FACTS

Mr. Roland A. Romero began employment with Northrop Grumman Corporation (Northrop Grumman) in Lake Charles, Louisiana, on November 10, 1997, as an aircraft structure mechanic. Initially, Mr. Romero worked under Mr. John Gott in the outboard wing section of hangar A. Mr. Romero's job duties included cleaning the outboard section of the wing with organic solvents, including alodine, yellow primer, toluene, pro-seal, and methyl ethyl ketone. The outboard tanks were unventilated. Mr. Romero would enter these wing sections with the upper portion of his body in order to clean them. Despite Northrop Grumman's process specifications which precluded an employee without proper certification and personal protective equipment from working in such an environment, Mr. Romero testified that he worked without either.

Mr. Romero testified that while he was working in hangar A, "a monitor come [sic] by and he stopped me and told [me] that I couldn't work because I didn't have no [sic] certifications. I wasn't even supposed to be around the area." Sometime thereafter, Mr. Romero was transferred to a new crew, where he boxed and tagged plane parts after cleaning them with an industrial solvent and a sealer. Mr. Romero's supervisor at that time, Calvin LeDoux told him that "[he] shouldn't even be out here on the floor [without training]." Mr. LeDoux had Mr. Romero placed into Chennault Training Institution in December 1997. At that time, classes had beer in session approximately four weeks. Mr. Romero started during week five and stayed at the Chennault Training Institution for approximately two and one-half weeks. After his training was over, he returned to Mr. LeDoux's crew.

Eventually, Mr. Romero was assigned to another crew called "doors." While working on this crew, he had to prepare plane parts to be shipped to California. This involved using 11-7 and pro-seal to clean and install rivets to hold skins while shipping. Mr. Romero was also responsible for preparing the paperwork for those parts.

On March 26, 1998, Mr. Romero became ill as he was getting out of bed one morning to prepare to go to work. Mr. Romero testified that he felt a sudden onset of dizziness, headache, and nausea, which caused him to fall. That day, he was admitted to Lake Charles Memorial Hospital for treatment. Dr. Anand Roy evaluated him upon admission. Dr. Roy noted that Mr. Romero had no past medical history and that his chief complaints upon admission were dizziness and disorientation. In his report made after examination, Dr. Roy stated that, "[t]he best thing is to get MRI of brain in view of normal neurological sign as soon as possible." Apparently, even after some testing was done, the specific cause of Mr. Romero's dizziness had not been pinpointed. Specifically, Dr. Roy informed Mr. Romero that if he continued to experience problems, he would be subjected to an arteriogram. Dr. Roy discharged Mr. Romero from the hospital on March 28. 1998.

Since then, Mr. Romero has been evaluated by numerous physicians and neuro-psychologists in Lake Charles and Houston. Mr. Romero treated with Dr. John W. Largen, a licensed psychologist with a speciality in neuropsychology. Dr. Largen treated Mr. Romero for over a year. Through testing and evaluation, Dr. Largen found that the level and pattern of neurological tests were commensurate with generalized organic brain impairment of mild to moderate severity. Dr. Largen indicated that the test data were consistent with diffuse and bilateral deficits with no clear lateral features noted. Dr. Largen testified that he felt that Mr. Romero definitely had severe problems, and he felt that they were due to organic brain impairment, not a psychological or psychiatric condition. Although Dr. Largen stated that he deferred to his colleagues as to what had caused the organic brain condition, he opined that Mr. Romero's symptoms and testing indicated neurotoxic exposure. The doctor also indicated that Mr. Romero has concurrent depression and anxiety.

Mr. Romero also treated with Dr. Arch I. "Chip" Carson, an occupational medicine physician and toxicologist, to further investigate the potential connection between Mr. Romero's occupational chemical exposure and his symptoms. Dr. Carson examined Mr. Romero, his history, his medical records, and MSDS's in order to make his diagnosis. Dr. Carson testified he believed Mr. Romero had two principal diagnoses contributing to his symptoms. The first was an organic brain syndrome, which he found to be more likely than not due to toxic chemical damage resulting from his workplace exposure to organic solvents. The second was rather severe mental depression, which contributed to and intensified his symptoms. Dr. Carson based his diagnoses on the fact that other probable causes of Mr. Romero's problems had been ruled out and that the conclusions were consistent with the test results and other medical evaluations as well as his own.

Dr. Timothy B. Boone, a board certified urologist, also examined Mr. Romero. Dr. Boone found that Mr. Romero's urinary dysfunction was consistent with organic brain syndrome secondary to organic solvent exposure. At his deposition, he was asked the following:

Q. But within your field of speciality and within your fields of subspecialty and concluding-and excuse me, and including your neuroscience background, would the presentation of Mr. Romero be consistent with organic brain syndrome secondary to organic solvent exposure?

A. It was consistent with organic brain syndrome. And if neurologic exclusion had come up with that diagnosis, having not ever seen toxic exposure and OBS and in sufficient numbers, then I would be dependent on that diagnosis. But it could well fit.

In addition, to the physicians above, Mr. Romero was also examined by Dr. John R. Mathias and Dr. William J. Nassetta. Dr. Mathias, a neurogastroenterologist, performed fifteen hours of electro-diagnostic tracing of Mr. Romero's upper small intestine. From these studies, Dr. Mathias found that Mr. Romero suffers from enteric nerve disease. Dr. Mathias stated that Mr. Romero suffers from "hollow visceral neuropathy, which is the worst form of enteric neuropathy you can have." After his evaluation, Dr. Mathias concluded that Mr. Romero's exposure to industrial solvents was the most likely cause of his hollow visceral neuropathy. In addition, Dr. Nassetta, an occupational medicine specialist, conducted a records review of Mr. Romero's case. Dr. Nassetta explained that exposure to organic solvents can have both an acute and chronic effect. Dr. Nassetta stated that the symptoms of an acute affect quickly disappear, but the chronic effect of exposure occurs gradually and loss of function occurs after many years. Dr. Nassetta found no specific scientific basisto attribute Mr. Romero's condition to organic solvent exposure.

Finally, Mr. Zachary Krabill, an industrial hygienist employed by Northrop Grumman, testified at trial. He testified that the air sampling he conducted in the outboard wing sections of the aircraft exposed individuals to organic solvent levels below the maximum exposure limits.

PROCEDURAL FACTS

Mr. Romero filed a claim for disputed compensation on January 5, 1999, seeking indemnity benefits and medical benefits under the Louisiana Workers' Compensation Act. In his claim, he asserted that he was diagnosed with organic brain syndrome on September 9, 1998, and that the cause of that condition was his exposure to "noxious vapor inhalation from chemicals used to clean aircraft parts."

Trial on the merits was held on February 14, 2000, and February 16, 2000. Mr. Romero maintained that his overexposure to toxic substances at Northrop Grumman constituted an accident and/or occupational disease under workers' compensation law, thereby entitling him to workers' compensation indemnity and medical benefits, as well as penalties and attorney's fees for the failure on the part of Northrop Grumman to acknowledge its liability under the act.

The workers' compensation judge (WCJ) signed the judgment on June 7, 2000. The WCJ found by an overwhelming preponderance of the evidence that Mr. Romero's organic brain syndrome was casually related to his workplace exposure to toxic chemicals. In addition, the WCJ held that Mr. Romero was temporarily totally disabled, retroactive to March 26, 1998. Furthermore, the WCJ found that Northrop Grumman was entitled to a credit for "short term disability and health insurance benefits" if it could provide evidence to the court of the proportion funded by the employer. Finally, the WCJ denied Mr. Romero's request for penalties and attorney fees.

On July 5, 2000, Northrop Grumman filed a suspensive appeal regarding the issue of its liability; however, it dismissed the appeal on August 20, 2000. Mr. Romero filed the instant devolutive appeal on July 26, 2000.

LAW AND ANALYSIS

STANDARD OF REVIEW

Our court reviews the factual findings of a workers' compensation court under the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep't of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error-clearly wrong standard, we must determine not whether...