Howard McClure v. City of Pineville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-279

HOWARD MCCLURE

VERSUS

CITY OF PINEVILLE

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 03-06950,
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

REVERSED IN PART; AFFIRMED IN PART AS AMENDED.

Daniel E. Broussard, Jr.
Broussard, Bolton, Halcomb & Vizzier
Post Office Box 1311
Alexandria, Louisiana 71309
(318) 487-4589
Counsel for Plaintiff/Appellee:
Mary McClure

Thomas J. Solari
Attorney at Law
Post Office Box 3731
Lake Charles, Louisiana 70602
(337) 433-6328
Counsel for Defendant/Appellant:
City of Pineville

Gregory E. Bodin
Russell L. Mosely
Taylor, Porter, Brooks & Phillips
Post Office Box 2471
Baton Rouge, Louisiana 70821
(225) 387-3221
Counsel for Defendant/Appellant:
Louisiana Workers’ Compensation Corporation

SULLIVAN, Judge.

This is a workers’ compensation claim under the Heart and Lung Act, La.R.S.

33:2581. The employer and its workers’ compensation carrier appeal the judgment

rendered in favor of the claimant, which awarded her death benefits, funeral expenses,

medical expenses, penalties, and attorney fees associated with the death of her

husband, a retired fireman. For the following reasons, we reverse in part, amend, and

affirm the judgment as amended.

Facts

Howard McClure was employed by the Pineville Fire Department (Pineville)

for more than forty years. He retired in May 2000. In February 2003, he was

diagnosed with lung cancer; he died as a result of this cancer in July 2003. His

widow, Mary McClure, sought death benefits pursuant to the provisions of the Heart

and Lung Act, La.R.S. 33:2581.

Pineville had workers’ compensation coverage with Louisiana Municipal Risk

Management Association (LMRMA) which was administered through Risk

Management, Inc. (hereinafter referred to collectively as RMI) for the period

January 1, 1987 through December 31, 1998. Louisiana Workers’ Compensation

Corporation (LWCC) provided Pineville workers’ compensation coverage for the

period January 1, 1999 through December 31, 2001. Beginning January 1, 2002,

Pineville was self-insured; RMI was the administrator of its claims. On January 1,

2003, Pineville had coverage again with LMRMA/RMI.

After Mrs. McClure sought benefits, RMI filed a disputed claim, seeking a

declaratory judgment that it was not responsible for the benefits sought.

Mrs. McClure filed a Reconventional Demand seeking death benefits from RMI1 and

LWCC. She then named Pineville as a defendant.

The WCJ tried Mrs. McClure’s claims against Pineville and LWCC and took

the matter under advisement. Thereafter, the WCJ issued oral reasons granting

judgment in favor of Mrs. McClure and against LWCC and Pineville as follows:

Death benefits at the rate of $226.09 per week from July 22, 2003,
together with interest on each payment from February 24, 2004 or its
due date until paid.

Medical benefits incurred in connection with Mr. McClure’s diagnosis
and treatment of his lung cancer in the amount of $120,112.52 together
with legal interest thereon from February 24, 2004 until paid;

Funeral expenses in the amount of $5,000.00 together with legal interest
thereon from February 24, 2004 until paid;

Pineville and LWCC were each assessed with penalties for:

Failure to pay indemnity benefits $2,000.00

Failure to pay funeral expenses $2,000.00

Failure to pay medical expenses $2,000.00

Pineville and LWCC were also each assessed with attorney fees in the amount

of $5,000.00. The WCJ denied Mrs. McClure’s claim for temporary total disability

benefits from February 1, 2003 until July 22, 2003.

LWCC and Pineville appealed the judgment of the WCJ; Mrs. McClure

answered the appeal, seeking additional attorney fees for work performed on appeal.

Assignments of Error

LWCC assigns five errors:

1
RMI filed a motion for summary judgment seeking to have all claims against it dismissed;
the WCJ granted the motion. Appeals pertaining to that judgment are the subject of a separate
opinion. See McClure v. City of Pineville, 05-1460 (La.App. 3 Cir. __/__/06), __ So.2d __.

2

1. The WCJ erred in refusing to allow evidence of
Mr. McClure’s “last injurious” exposure.

2. The WCJ erred in ruling that LWCC was responsible for
the payment of death benefits, medical costs, and funeral
expenses because there was no conclusive evidence
presented at trial which proved that Mr. McClure’s
exposure during the period it provided workers’
compensation coverage to the Pineville Fire Department
caused his lung cancer.

3. The WCJ erred in concluding that LWCC failed to rebut
the presumption contained in the Heart and Lung Act,
La.R.S. 33:2581.

4. The WCJ erred in assessing LWCC with death benefits.

5. The WCJ erred in assessing LWCC with penalties and
attorney fees for its refusal to pay death benefits, medical
expenses, and funeral expenses.

Pineville also assigns five errors:

1. The WCJ erred in assessing Pineville with death benefits
because the claimant failed to produce evidence that she
was receiving any pecuniary support at the time of her
husband’s death.

2. Alternatively, the WCJ erred in assessing Pineville with
death benefits where the decedent was not receiving any
wages at the time of his death.

3. The WCJ erred in assessing penalties and fees against
Pineville for resisting payments based on its litigation of an
unsettled question of law.

4. The WCJ erred in assessing penalties against both Pineville
and LWCC, in contravention of limitations on the
imposition of and the amount of penalties under La.R.S.
23:1201(F).

5. The WCJ erred in increasing the total award of attorney
fees by $2,500 when a clarification on the award was
sought.

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Standard of Review

Factual findings of the WCJ should not be set aside unless they are manifestly

erroneous or are clearly wrong. However, if the WCJ committed a reversible error

of law or manifest error of fact, this court must ascertain the facts de novo from the

record and render a judgment on the merits. Bonnette v. Conoco, Inc., 01-2767 (La.

1/28/03), 837 So.2d 1219.

Discussion

Heart and Lung Act

As previously stated, Mrs. McClure’s claims are predicated on the Heart and

Lung Act, La.R.S. 33:2581, which provides:

Any disease or infirmity of the heart or lungs which develops
during a period of employment in the classified fire service in the state
of Louisiana shall be classified as a disease or infirmity connected with
employment. The employee affected, or his survivors, shall be entitled
to all rights and benefits as granted by the laws of the state of Louisiana
to which one suffering an occupational disease is entitled as service
connected in the line of duty, regardless of whether the fireman is on
duty at the time he is stricken with the disease or infirmity. Such disease
or infirmity shall be presumed, prima facie, 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.

Last Injurious Exposure

LWCC stipulated that it provided Pineville workers’ compensation coverage

from January 1, 1999 through December 31, 2001. Its first assignment of error is

based upon the following provision of the policy2 LWCC issued to Pineville:

A. How This Insurance Applies

2
LWCC proffered a copy of its policy at trial and indicated that it would provide a copy of
the policy to the court for inclusion in the record; however, the policy is not contained in the exhibits
compiled by the Office of Workers’ Compensation, and the Exhibit List states “DO NOT HAVE THIS
EXHIBIT ” for the exhibit designation LWCC assigned to its policy. Therefore, it is unknown what
subpart 1 of this provision indicates.

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This workers compensation insurance applies to bodily injury by
accident or bodily injury by disease. Bodily injury includes resulting
death.

....

2. Bodily injury disease must be caused or aggravated by the conditions
of your employment. The employee’s last day of last exposure to the
conditions causing or aggravating such bodily injury by disease must
occur during the policy period.

LWCC sought to introduce evidence of Mr. McClure’s involvement in fighting

fires during its policy period. It cites the case of Beason v. Red Ball Oxygen Co., Inc.,

29,894 (La.App. 2 Cir. 10/29/97), 702 So.2d 26, as support for its claim that

Mr. McClure’s last injurious exposure to conditions which could have caused or

contributed to his lung cancer determines whether its policy provides coverage for

Mrs. McClure’s claim. In Beason, the claimant sought benefits for his occupational

disease. He sued his employer and an insurer that provided workers’ compensation

coverage for a period of time during his employment. He claimed that each insurer

which provided workers’ compensation coverage during the time of his “injurious

exposure” was solidarily liable for his claim. The defendant insurer’s policy

contained the same “last exposure” limitation LWCC’s policy contains. The court

observed that the insurance contract “constitutes the law between the parties and is

enforced as written if the policy terms express the intent of the parties,” and held that

the insurer sued was not liable for the claim, as the claimant’s last performance of

repetitive arm, hand, and wrist movements, which contributed to his occupational

disease, did not occur during the insurer’s policy period. Id. at 28.

The occupational disease provision of the Workers’ Compensation Act, La.R.S.

23:1031.1, gave rise to the last injurious exposure rule. See Gales v. Gold Bond Bldg.

Prod., 493 So.2d 611 (La.1986). The occupational disease provision entitles

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employees disabled by occupational diseases to compensation as if they were injured

in accidents in the course and scope of their employment. La.R.S. 23:1031.1(A). In

Gales, the supreme court adopted the last injurious exposure rule, as opposed to

apportioning fault among all employers and their insurers whose employment

contributed to a workers’ compensation claimant’s occupational disease, explaining:

The last injurious exposure rule avoids most of the problems of
the apportionment [among employers] solution and because of this
promotes efficient administration, speedy payment of claims, and, in
most instances, provides the highest level of benefits for the claimant
. . . . [W]e conclude that, as between the successive employers
themselves, the solution of assigning liability according to the last
injurious exposure most effectively furthers the principles and goals of
workers’ compensation laws.

Id. at 617 (citation omitted).

Counsel for Mrs. McClure objected to the introduction of last injurious

exposure evidence. He argued that the Heart and Lung Act does not require a fireman

who has been employed for more than five years to prove exposure to establish his

claim for compensation. Therefore, exposure is not a coverage issue, and the insurer

providing coverage on the fireman’s last day of work provides coverage for the claim.

Counsel further argued that the purpose of the Heart and Lung Act would not be

served if a claimant’s receipt of benefits was delayed while insurers and the employer

fought over an issue which is not an issue for the claimant.

The WCJ agreed and refused to allow LWCC to introduce such evidence. The

WCJ concluded that the language of the Heart and Lung Act rendered such evidence

irrelevant and that the only relevant issue was Mr. McClure’s being a fireman for

more than five years. The WCJ reasoned that, because the Heart and Lung Act does

not require such a fireman to establish any type of injurious exposure, LWCC knew

or should have known when it issued its policies to Pineville that it would be

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responsible for any workers’ compensation claims made under the Heart and Lung

Act by firemen who retired during its coverage period. The WCJ explained:

When the insurer sold the policy and accepted the premium in payment
for the policy, they were well aware of the fact that any and all fire
fighters for the City [] may be diagnosed with a heart problem or a lung
problem and that the statutory presumption would make them
responsible for that type of coverage. . . . I’m not convinced that we’re
even dealing with a last injurious exposure case whatsoever under the
Heart and Lung Statute, because it requires no proof of that for there to
be coverage.

The Heart and Lung Act confers on firemen “all rights and benefits” afforded

a claimant suffering from an occupational disease; however, as noted by the WCJ, it

does not track the language of the occupational disease provision. La.R.S. 23:1031.1.

Section B of this provision requires that occupational diseases be “due to causes and

conditions characteristic of and peculiar to the . . . employment in which the

employee is exposed to such disease.” The Heart and Lung Act does not contain such

a requirement. Instead, it classifies heart and lung ailments as being “connected with

employment.” La.R.S. 33:2581. This distinction was noted in Vincent v. City of New

Orleans, 326 So.2d 401 (La.App. 4 Cir. 1975), writ denied, 329 So.2d 760 (La.1976),

and led the court to conclude that the jurisprudence interpreting La.R.S. 23:1031.1

is not directly applicable to the Heart and Lung Act.

The Heart and Lung Act significantly simplifies a fireman’s burden of proof

in an occupational disease claim, especially a fireman who has been employed for

more than five years. Requiring firemen to comply with the last injurious exposure

rule imposes a burden of proof that the Heart and Lung Act does not, and imposition

of such a requirement would hinder its principles and goals. For these reasons, we

find no error with the WCJ’s interpretation of the Heart and Lung Act, as it pertains

to firemen who have been employed by the same employer for more than five years.

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We do not believe this holding is in derogation of Beason, which held that

policy provisions must be upheld if they “express the intent of the parties.” The last

exposure provision of LWCC’s policy tracks the language of La.R.S. 23:1031.1 and

jurisprudence interpreting it. The Heart and Lung Act does not track the language of

the La.R.S. 23:1031.1 and, consequently, jurisprudence interpreting it is not

necessarily pertinent to application of the Heart and Lung Act. See Vincent, 326

So.2d 401. Counsel for LWCC stated at trial that LWCC’s policy was a statutory

policy. We take this to mean that the policy is intended to provide an employer with

workers’ compensation coverage which satisfies the statutory requirements of the

Workers’ Compensation Act. Certainly, Pineville intended to purchase a policy

which would satisfy all workers’ compensation claims asserted against it. The Heart

and Lung Act does not require evidence of injurious exposure; therefore, it is

reasonable to conclude that Pineville did not intend to purchase a policy which

required such evidence. It is also reasonable to conclude that if LWCC intended its

statutory policy to satisfy Heart and Lung Act claims asserted against Pineville, it did

not intend its policy to require such evidence.

Causation

LWCC next argues that the WCJ erred in holding it responsible for benefits

sought by Mrs. McClure because there was “no conclusive evidence” establishing

that Mr. McClure’s exposure to conditions during his employment “caused” his lung

cancer. It also urges that the WCJ erred in finding that it did not rebut the

presumption provided in La.R.S. 33:2581.

The Heart and Lung Act provides that once a fireman has established that the

presumption is applicable, i.e., lung disease manifested after he had been employed

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for five years, his employer must prove that the disease did not develop during his

employment to relieve itself from the obligation of paying workers’ compensation

benefits. La.R.S. 33:2581. It does not require “conclusive evidence” that exposure

during his employment caused his heart or lung condition as argued by LWCC. To

successfully defend a claim under the Heart and Lung Act, the employer must

produce affirmative evidence to establish that the fireman’s heart or lung condition

did not develop during his employment. Abate v. City of Abbeville, 02-297 (La.App.

3 Cir. 10/2/02), 827 So.2d 604, writs denied, 02-2648 (La. 1/31/03), 836 So.2d 67,

02-2718 (La. 1/10/03), 834 So.2d 440. This is an almost impossible burden because

the employer must prove a negative, i.e., the fireman’s heart or lung disease or

infirmity “could not have resulted from his service as a firefighter.” Rothell v. City

of Shreveport, 626 So.2d 763, 766 (La.App. 2 Cir. 1993), writ denied, 93-3191 (La.

2/11/94), 634 So.2d 379.

LWCC presented the testimony of Dr. Gerald Militello to rebut the

presumption. Dr. Militello opined that Mr. McClure’s history of smoking cigarettes

was more likely to have caused his lung cancer than his exposure to fire and smoke

as a firefighter. He testified that Mr. McClure would have had to have fought fires

on a daily basis for it to have had “a significant role with the disease process.” While

he believed cigarette smoking was “95% of the cause” of Mr. McClure’s lung cancer,

Dr. Militello could not rule out Mr. McClure’s exposure to smoke as a fireman as

playing a role in his cancer’s development, and he testified that Mr. McClure’s work

as a firefighter “may have contributed some, but I think it played a very small role”

in the development of his lung cancer. Mr. McClure’s treating physician, Dr. Hafez

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Al-Halawani, also testified that he could not rule out Mr. McClure’s exposure to

smoke in his employment as a contributing factor in the development of cancer.

Medical testimony to the effect that a firefighter’s employment probably did

not contribute to a fireman’s lung disease, which is tempered by an acknowledgment

that his employment cannot be ruled out as a contributing factor, is not sufficient to

rebut the Heart and Lung Act’s presumption. Rothell, 626 So.2d 763; City of

Jennings v. Deshotel, 99-1232 (La.App. 3 Cir. 2/2/00), 758 So.2d. 269, writ denied,

00-663 (La. 4/20/00), 760 So.2d 1157; and McCoy v. City of Shreveport Fire Dep’t,

26,181 (La.App. 2 Cir. 1/25/95), 649 So.2d 103. LWCC did not rebut the

presumption of the Heart and Lung Act.

Death Benefits

LWCC and Pineville contend that the WCJ erred in ordering the payment of

death benefits to Mrs. McClure, citing Arledge v. Dolese Concrete Co., 00-363

(La.App. 1 Cir. 6/6/01), 807 So.2d 876, writ denied, 01-2357 (La. 11/16/01), 802

So.2d 617, where the court held that survivors of retirees were not entitled to

workers’ compensation death benefits. The claimant in Arledge was found not to be

“actually and wholly dependent” on her husband’s “earnings for support at the time

of [his] accident and death” as required by La.R.S. 23:1231because the Arledges were

receiving social security retirement benefits, not earnings from Mr. Arledge’s

employer, at the time of his death. Therefore, the court concluded that she was not

entitled to death benefits.

This court declined to follow Arledge in Johnson v. City of Lake Charles, 04-

455 (La.App. 3 Cir. 9/29/04), 883 So.2d 521, because the holding results in death

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benefits being payable only when the employee is killed in the course of his

employment. The court explained:

To limit death benefit recovery to only those cases in which an
employee is actually killed in a work-related accident would be to ignore
the clear language of La.R.S. 23:1031.1(A), which grants a dependent
employee who dies from an occupational disease the same recovery
rights “as if [the] employee received personal injury by accident arising
out of and in the course of his employment.”

Id. at p. 525.

The court in Johnson further observed that survivors of firemen are entitled to

benefits under the Heart and Lung Act “regardless of whether the fireman is on duty

at the time he is stricken with the disease or infirmity,” and that the decision in

Arledge would result in many such survivors being left without a remedy simply

because of how quickly their spouse’s disease progressed and not because it was not

employment-related.

Pineville urges us to reject this court’s determination in Johnson. It argues that

pertinent language in La.R.S. 23:1231 and La.R.S. 23:1251 establishes this court’s

error in Johnson. Section 1231 provides in part that death benefits are due to a legal

dependent who is “actually and wholly dependent upon his earnings for support at the

time of the accident and death.” Section 1251 provides that a surviving spouse with

whom the deceased employee is living at the time of accident or death is

“conclusively presumed to be wholly and actually dependent upon the deceased

employee.” Pineville argues that this presumption does not relieve a surviving spouse

who was living with the deceased employee at the time of his death of proving that

she was “actually and wholly dependent upon his earnings for support.”

The presumption of Section 1251 appears to fall short of satisfying the

requirements of Section 1231, but La.R.S. 23:1255 clarifies that it does not. Section

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1255 provides: “No compensation shall be payable under this Part to a surviving

spouse unless he or she was living with the deceased spouse at the time of the injury

or death, or was then actually dependent upon the deceased spouse for support.” The

jurisprudence interpreting Section 1255 makes it clear that a spouse living with the

deceased at the time of death is conclusively presumed to be “wholly and actually

dependent on the deceased for support.” See Haynes v. Loffland Bros. Co., 215 La.

280, 291, 40 So.2d 243, 247 (1949), where the court observed: “the courts have

consistently held that both relationship and contribution to support at the time of the

injury and death must be proved in all cases where dependency is not conclusively

presumed.” (Emphasis added.) Therefore, where dependency is conclusively

presumed, relationship and contribution to support need not be proved.

The parties stipulated that Mrs. McClure was Mr. McClure’s surviving spouse

but not that she lived with him at the time of his death. Documentary evidence

established that her residence was at the same address as Mr. McClure’s residence,

and we find that Mrs. McClure proved that she lived with Mr. McClure at the time

of his death and that the conclusive presumption of La.R.S. 23:1251 applies to her.

The WCJ did not err in awarding Mrs. McClure death benefits.

Penalties and Attorney Fees

LWCC and Pineville argue that the WCJ erred in casting them with penalties

and attorney fees. LWCC complains that the WCJ wrongfully assessed penalties and

attorney fees because the medical evidence did not establish that Mr. McClure’s

exposure to any condition of his employment during the period of its policy

contributed to his cancer. For the reasons previously discussed herein under

“Causation,” we find no merit to this contention. The jurisprudence interpreting the

12

Heart and Lung Act established long ago that the evidence LWCC relied on to rebut

the presumption herein was insufficient. Its failure to pay Mrs. McClure’s benefits

was arbitrary and capricious, rendering it liable for penalties and attorney fees.

La.R.S. 23:1201.

Pineville urges that the WCJ erred in assessing penalties and attorneys fees

when an unsettled question of law is at issue. We do not agree. The decision in

Johnson is the latest pronouncement on this issue by this court. And, as previously

discussed, there is a long line of jurisprudence interpreting La.R.S. 23:1251 and

23:1255 which evidences the correctness of our decision in Johnson. This issue of

law is not unsettled.

Pineville also contends that the WCJ erred in assessing separate penalties and

attorney fees against it and LWCC. The WCJ found that because both the employer

and its insurer were obligated, but failed to satisfy the obligations contained in the

Heart and Lung Act, they were each liable for separate penalties and attorney fees.

La.R.S. 23:1201(F) provides for the assessment of penalties and attorney fees

“against either the employer or the insurer, depending upon fault.” The disjunctive

“or” limits the assessment of penalties and attorney fees against the employer or the

insurer, not both. La.R.S. 1:9. Accordingly, we find the WCJ erred in awarding

penalties and attorney fees against LWCC and Pineville and reverse that portion of

the judgment which assesses penalties and attorney fees against Pineville.

Increased Award of Attorney Fees

The WCJ initially awarded $7,500.00 in attorney fees. When a clarification

was requested regarding the award, the WCJ increased the initial award of $7,500.00

in attorney fees to $5,000.00 against Pineville and $5,000.00 against LWCC.

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Pineville assigns this as error. Our reversal of the assessment of attorney fees against

Pineville renders this argument moot.

Attorney Fees for Appeal

Mrs. McClure seeks an award for attorney fees for work performed on appeal.

She is entitled to an increase in attorney fees in light of the additional time required

of her counsel in defending this appeal. Frith v. Riverwood, Inc., 04-1086 (La.

1/19/05), 892 So.2d 7. We award $2,500.00 in attorney fees to Mrs. McClure for

work performed by her attorney on appeal.

Disposition

The assessment of penalties and attorney fees against Pineville is reversed. The

judgment is amended to award Mrs. McClure $2,500.00 in attorney fees for work

performed on this appeal. The judgment is affirmed in all other respects. All costs

of this appeal are assessed to LWCC.

REVERSED IN PART; AFFIRMED IN PART AS AMENDED .

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