LeeEric Bess v. Graphic Packaging International, Inc

Judgment rendered November 17, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,111-WCA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

LEEERIC BESS Plaintiff-Appellant

versus

GRAPHIC PACKAGING Defendant-Appellee
INTERNATIONAL, INC.

*****

Appealed from the
Office of Workers’ Compensation, District 1-E
Parish of Ouachita, Louisiana
Trial Court No. 18-05971

Brenza Irving Jones
Workers’ Compensation Judge

*****

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

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

*****

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

1
In his original disputed claim for compensation, Bess claimed that he was
injured on December 21, 2017. It later developed that the date he claimed the injury
occurred was December 22, 2017, the Friday before Christmas.

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

2
Although he never filed a disputed claim for compensation alleging that he has
CTS, over the course of treatment, Bess described symptoms of the disease to several
doctors. Bess was tested for the disease and the tests were normal. However, one doctor
opined that Bess might have CTS, in spite of the normal test results and provided
treatment to alleviate the symptoms.
2

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
3

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
4

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
5

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

employed at Graphic, but had not worked in a year and a half. He claimed

the pain interfered with his sleep and was worse with prolonged driving. Dr.

Cooper x-rayed Bess’s hands and opined that he had bilateral CTS and

possible cubital tunnel syndrome. Dr. Cooper took Bess off work and

referred him to Dr. J. Eric Bicknell for an electromyography/nerve

conduction study (“EMG/NCS”) to determine whether the plaintiff had CTS.

In a letter dated June 24, 2019, Dr. Bicknell stated that Bess’s tests on both

hands were completely normal and did not show that he had CTS.

Bess returned to Dr. Cooper in June 2019, who found that Bess had

possible CTS despite the normal test results. Dr. Cooper gave Bess steroid
6

injections in both hands and said if he had a positive response to the

injections, he might be a candidate for CTS surgery. He also prescribed

braces for both hands to be worn at night.

On July 31, 2019, Dr. Bilderback wrote an addendum to his IME

report after reviewing the normal results of Bess’s EMG/NCS testing from

June 2019. Dr. Bilderback said he did not believe that Bess had CTS. He

had an inflammatory arthritic condition responsible for his longstanding

tenosynovitis, which was not related to work. Dr. Bilderback observed that

there were no findings or symptoms of a particular injury, Bess was at

maximum medical improvement, and should be able to return to work

without restrictions.

Bess saw Dr. Cooper on August 12, 2019, and reported two days of

relief from the injections. At that point, Bess complained of neck pain. An

x-ray showed mild spondylosis and disc narrowing at C4-C6, with no

evidence of instability. Dr. Cooper stated that Bess might get some

improvement with a carpal tunnel release based upon the temporary relief he

got from the steroid injections. Dr. Cooper thought Bess should have his

cervical spine evaluated and kept him off work until that evaluation could be

completed.

On December 31, 2019, Dr. Cooper saw Bess and stated in his report

that Bess had lateral CTS, despite normal diagnostic testing. He found that

Bess had a good response to the steroid injections, but at that point, he was

primarily complaining of pain in his neck. Dr. Cooper noted that efforts

were being made to obtain a workers’ compensation evaluation for Bess’s

neck pain. He talked with Bess about the possibility of bilateral CTS

surgery “in the future if this becomes necessary.” Dr. Cooper’s records
7

never directly stated that Bess’s work caused his condition, but he did

consistently restrict Bess from work. Dr. Cooper was never deposed, and

thus we do not have the benefit of a full explanation of his medical opinion.3

Dr. Steven Kautz was ordered by the Office of Workers’

Compensation to perform an IME of Bess. He examined Bess on

November 18, 2019. Dr. Kautz noted that the objective studies were normal

and Bess’s clinical symptoms did not fit the diagnosis of CTS. He thought

Bess was experiencing an exacerbation of his underlying arthritis. He found

there was no reason that Bess could not return to work, without restrictions,

with the knowledge that an underlying arthritic condition can be exacerbated

by activity-related demand. In a deposition given on February 4, 2020, Dr.

Kautz stated that Bess did not have a condition related to any type of

accident or work-related condition and could return to full duty at work.

Bess gave a second deposition on February 20, 2020. He was

unrepresented at that time. He was still receiving long-term disability

benefits of $1,000 per month, based upon arthritis in his hands. His

application for Social Security disability benefits was denied in 2018, and he

was appealing that decision.

Bess stated that, in January 2020, he filed an amended complaint

alleging neck pain. In his deposition, Bess said his neck pain started before

his hand pain, possibly in the summer of 2017, when he woke up with

stiffness in his neck. He again acknowledged that he did not have a specific

accident at work. He claimed that his neck pain worsened when he jumped a

3
It appears from the record that a deposition for Dr. Cooper had been scheduled,
but was cancelled because of the settlement discussions referenced earlier in this opinion.
This information was contained in a motion to continue filed by Graphic on
November 14, 2019. By that time, Bess, who has a high school education, did not have
an attorney.
8

fence to get away from a dog. He had been seeing Dr. Ellis Cooper, who

ordered EMG testing of Bess’s hands and recommended carpal tunnel

surgery. Dr. Cooper also referred Bess to a spine specialist who thought the

wrist pain was coming from Bess’s neck. Bess described a throbbing pain in

his hands and numbness in his fingers.

After taking the matter under advisement, the WCJ held a remote

court session on August 21, 2020, to announce reasons for granting

summary judgment in favor of Graphic. The WCJ reasoned that Bess failed

to demonstrate the presence of genuine issues of material fact in regard to

his entitlement to workers’ compensation benefits, and Graphic’s motion for

summary judgment was granted. In her reasons for judgment, the WCJ

noted that the opinions of Drs. Bilderback and Kautz, who performed IMEs,

were entitled to greater weight than the opinions of the other medical

experts. The judgment, dismissing Bess’s claims, was signed September 9,

2020. Bess obtained new counsel and appealed the decision.

MOTION FOR SUMMARY JUDGMENT

On appeal, Bess argues that the WCJ erred in granting summary

judgment in favor of Graphic. Bess maintains that information contained in

the reports of his treating orthopedic physician, Dr. Cooper, creates a

genuine issue of material fact regarding the causality and compensability of

Bess’s CTS.

Legal Principles

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the district court’s consideration of

whether summary judgment is appropriate. Peironnet v. Matador Res. Co.,

12-2292 (La. 6/28/13), 144 So. 3d 791; Shields v. McInnis Bros. Constr.,
9

Inc., 53,581 (La. App. 2 Cir. 3/3/21), 314 So. 3d 1079; Bagwell v. Quality

Easel Co., Inc., 53,282 (La. App. 2 Cir. 11/18/20), 307 So. 3d 354, writ

withdrawn, 20-01430 (La. 1/20/21), 308 So. 3d 1148, writ denied, 20-01431

(La. 1/20/21), 308 So. 3d 1166.

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002;

Bagwell v. Quality Easel Co., Inc., supra. The procedure is favored and

shall be construed to secure the just, speedy, and inexpensive determination

of actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue

as to material fact and that the mover is entitled to judgment as a matter of

law. La. C.C.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery,

affects a litigant’s ultimate success, or determines the outcome of the legal

dispute. A genuine issue of material fact is one as to which reasonable

persons could disagree; if reasonable persons could reach only one

conclusion, there is no need for trial on that issue and summary judgment is

appropriate. Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So. 3d 874;

Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d 876, cert.

denied, 574 U.S. 869, 135 S. Ct. 197, 190 L. Ed. 2d 130 (2014); Saldana v.

Larue Trucking, LLC, 52,589 (La. App. 2 Cir. 4/10/19), 268 So. 3d 430, writ

denied, 19-00994 (La. 10/1/19), 280 So. 3d 159.

In determining whether an issue is genuine, a court should not

consider the merits, make credibility determinations, evaluate testimony, or
10

weigh evidence. Chanler v. Jamestown Ins. Co., 51,320 (La. App. 2 Cir.

5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La. 10/27/17), 228 So. 3d

1230; Marioneaux v. Marioneaux, 52,212 (La. App. 2 Cir. 8/15/18), 254 So.

3d 13.

The only documents that may be filed in support of or in opposition to

the motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and

admissions. La. C.C.P. art. 966(A)(4); Doerle Food Servs., L.L.C. v. River

Valley Foods, L.L.C., 52,601 (La. App. 2 Cir. 5/22/19), 273 So. 3d 656, writ

denied, 19-01188 (La. 10/15/19), 280 So. 3d 602.

The court may consider only those documents filed in support of or in

opposition to the motion for summary judgment and shall consider any

documents to which no objection is made. Any objection to a document

shall be raised in a timely filed opposition or reply memorandum. The court

shall consider all objections prior to rendering judgment. The court shall

specifically state on the record or in writing which documents, if any, it held

to be inadmissible or declined to consider. La. C.C.P. art. 966(D)(2); Bank

of Am., N.A. v. Green, 52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219.

The burden of proof rests with the mover. Nevertheless, if the mover

will not bear the burden of proof at trial on the issue that is before the court

on the motion for summary judgment, the mover’s burden on the motion

does not require him to negate all essential elements of the adverse party’s

claim, action, or defense, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s

claim, action, or defense. The burden is on the adverse party to produce

factual support sufficient to establish the existence of a genuine issue of
11

material fact or that the mover is not entitled to judgment as a matter of law.

La. C.C.P. art. 966(D)(1); Doerle Food Servs., L.L.C. v. River Valley Foods,

L.L.C., supra; Collins v. Hill, 52,457 (La. App. 2 Cir. 2/27/19), 265 So. 3d

1202.

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the

matters stated therein. La. C.C.P. art. 967(A). When a motion for summary

judgment is made and supported as provided above, an adverse party may

not rest on the mere allegations or denials of his pleading, but his response,

by affidavits or as otherwise provided above, must set forth specific facts

showing that there is a genuine issue for trial. If he does not so respond,

summary judgment, if appropriate, shall be rendered against him. La. C.C.P.

art. 967(B); Shields v. McInnis Bros. Constr., Inc., supra; Doerle Food

Servs., L.L.C. v. River Valley Foods, L.L.C., supra; Bank of Am., N.A. v.

Green, supra.

Under the workers’ compensation statutes, “accident” is defined as an

unexpected or unforeseen actual, identifiable, precipitous event happening

suddenly or violently, with or without human fault, and directly producing at

the time objective findings of an injury which is more than simply a gradual

deterioration or progressive degeneration. La. R.S. 23:1021(1). Injury and

personal injuries include only injuries by violence to the physical structure

of the body and such disease or infections as naturally result therefrom.

These terms shall in no case be construed to include any other form of

disease or derangement, however caused or contracted. See La. R.S.

12

23:1021(8)(a). Regarding occupational disease, La. R.S. 23:1031.1(B)

provides:

B. An occupational disease means only that disease or illness
which is due to causes and conditions characteristic of and
peculiar to the particular trade, occupation, process, or
employment in which the employee is exposed to such disease.
Occupational disease shall include injuries due to work-related
carpal tunnel syndrome. Degenerative disc disease, spinal
stenosis, arthritis of any type, mental illness, and heart-related
or perivascular disease are specifically excluded from the
classification of an occupational disease for the purpose of this
Section. [Emphasis supplied.]

An occupational disease is one in which there is a demonstrated

causal link between the particular disease or illness and the occupation.

Arrant v. Graphic Packaging Int’l, Inc., 13-2878 (La. 5/5/15), 69 So. 3d

296; Johnson v. Manitowoc Co., 52,264 (La. App. 2 Cir. 9/26/18), 256 So.

3d 463, writ denied, 18-1759 (La. 1/8/19), 260 So. 3d 592.

Discussion

After reviewing the evidence submitted by Graphic, the WCJ found

there was no showing that Bess suffered an accident and injury to his wrists

or neck arising out of or in the course of his employment. By Bess’s own

admission in his depositions, no such accident occurred. He never told Dr.

Stockstill or Dr. Cooper that he had an accident and injury at work. Instead,

he enlisted Dr. Stockstill’s help in obtaining short-term and long-term

disability benefits based on arthritis in his hands. Arthritis is specifically

excluded from the definition of an occupational disease under La. R.S.

23:1031.1(B). Bess also said in his deposition and in his visit with Dr.

Stockstill that his neck injury occurred when he jumped over a fence, several

months after he stopped working at Graphic. Therefore, the WCJ correctly

found that there was no genuine issue of material fact regarding the

13

occurrence of an accident and injury affecting Bess’s wrists and neck. Bess

does not argue on appeal that the WCJ erred in rejecting his claims of an

accident and injury to his hands and neck.

On appeal, Bess argues only that there is a genuine issue of material

fact as to whether he suffers from CTS due to the conditions of his

employment at Graphic. He contends that the WCJ erred in finding that

there was no genuine issue of material fact regarding CTS and granting

summary judgment in favor of Graphic.

We note, as pointed out by Graphic, that Bess has never pled, in any

disputed claim for compensation, that he suffers from CTS or any other

compensable occupational disease. Graphic argues on appeal that, under

these circumstances, the issue of whether Bess has a compensable claim for

CTS is not properly before the court. Regarding the assertion of workers’

compensation claims arising from occupational diseases, La. R.S.

23:1031.1(E) provides:

E. All claims for disability arising from an occupational
disease are barred unless the employee files a claim as provided
in this Chapter within one year of the date that:

(1) The disease manifested itself.

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

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

Although Bess never formally raised the issue of CTS in a disputed claim for

compensation, the record is clear that the CTS issue was obvious to both

sides and was addressed during the course of the proceedings. At the

hearing on Bess’s motion for summary judgment, held on April 15, 2019,

his attorney stated:
14

And essentially, Judge, what we’ve got here is we have an
alternative argument – or motion – but essentially, we have a
client that’s got carpal tunnel syndrome. Everybody basically
knows he’s got carpal tunnel syndrome; it just hasn’t been
confirmed.

Graphic did not file an exception of prescription or otherwise object when

the issue was informally raised in the proceedings below. The court may not

supply the exception of prescription, which shall be specially pleaded. La.

C.C.P. art. 927(B). In its motion for summary judgment, Graphic argued

that Bess did not have CTS and included medical records and depositions in

support of that argument. All evidence in this case was submitted by

Graphic, including the uncertified medical records of Dr. Cooper, who

opined that Bess had CTS. As stated in La. C.C.P. art. 966(D)(2), the court

may consider only those documents filed in support of or in opposition to the

motion for summary judgment and shall consider any documents to which

no objection is made. In the present case, the WCJ addressed the CTS claim

in deciding the motion for summary judgment. Under these circumstances,

we will consider the issue on appeal.

The claimant asserting an occupational disease must prove, by a

preponderance of the evidence, a disability related to an employment-related

disease, that it was contracted during the course of employment, and that it is

the result of the work performed. Ball v. Wendy’s Int’l, Inc., 36,922 (La.

App. 2 Cir. 3/5/03), 839 So. 2d 1208, writ denied, 03-0978 (La. 5/30/03),

845 So. 2d 1056. The causal link between an employee’s occupational

disease and work-related duties must be established by a reasonable

probability. The disease must originate from conditions in the employment

that result in a hazard that distinguishes the employment in character from

the general run of occupations. Ball v. Wendy’s Int’l, Inc., supra. The
15

claimant will fail if there is only a possibility that the employment caused

the disease, or if other causes not related to the employment are just as likely

to have caused the disease. Johnson v. Manitowoc Co., supra; Atkins v. DG

Foods, 48,490 (La. App. 2 Cir. 9/25/13), 125 So. 3d 530.

Bess contends that Dr. Bilderback and Dr. Cooper agreed “that the

appellant suffered from the occupational disease of CTS.” Bess claims this

created a genuine issue of material fact and the WCJ erred in finding

otherwise. Bess asserts that he established a causal link between the

occupational disease of CTS and his work-related duties due to the

statements of Dr. Cooper and the doctor’s action in ordering that Bess not

return to work. Bess urges that Dr. Cooper’s opinion created a genuine issue

of material fact regarding the existence and causality of the occupational

disease of CTS.

The record does not support all of Bess’s arguments. Drs. Stockstill,

Kautz, Mallepalli, and Bilderback found that Bess had arthritis. Dr.

Bicknell’s testing was negative for CTS. Contrary to Bess’s argument, Dr.

Bilderback did not agree that the claimant had CTS. In the addendum to his

IME report, made after receiving the normal EMG/NCS results, Dr.

Bilderback stated that Bess did not have CTS. According to Dr. Bilderback,

Bess had an inflammatory arthritic condition responsible for his

longstanding tenosynovitis, which was not related to work. Dr. Bilderback

said there were no findings or symptoms of a particular injury, Bess was at

maximum medical improvement, and should be able to return to work

without restrictions.

By contrast, Dr. Cooper thought, even after the normal EMG/NCS test

results, that Bess had CTS, and restricted him from work. We note that
16

Graphic amassed an impressive amount of medical evidence to support its

contention that Bess does not have CTS. However, the reports of Dr.

Cooper, which were introduced by Graphic, contradict the opinions of

Graphic’s medical experts and establish a genuine issue of material fact as to

whether Bess had the occupational disease of CTS that was employment-

related. We have carefully examined all of the reports and the information

contained therein. Although this a close case, we find that the information in

these reports is sufficient to create a genuine issue of material fact. The

WCJ erred in finding to the contrary. We also note that the WCJ did not

fully consider Dr. Cooper’s opinion and erred in assigning greater weight to

the IME opinions. As stated above, on a motion for summary judgment, a

court should not consider the merits, make credibility determinations,

evaluate testimony, or weigh evidence. Whether Bess can actually prove

that he has a compensable case of CTS, related to his employment at

Graphic, is a matter for trial on the merits.

CONCLUSION

For the reasons stated above, we reverse the ruling of the WCJ

granting summary judgment in favor of the defendant, Graphic Packaging

International, Inc., and remand for further proceedings. Costs in this court

are assessed to the defendant, Graphic Packaging International, Inc.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

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