Cheryl Bennett v. Soileau Animal Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-597

CHERYL BENNETT

VERSUS

SOILEAU ANIMAL HOSPITAL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 03
PARISH OF CALCASIEU, NO. 01-06326
SAMUEL LOWERY, WORKERS’ COMPENSATION JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

Amy, J., dissents and would grant the exception of prescription.

AFFIRMED.

Marshall J. Simien, Jr.
Simien Law Firm
Capitol One Tower, Suite 1110
One Lakeshore Drive
Lake Charles, LA 70629
(337) 497-0022
COUNSEL FOR PLAINTIFF/APPELLEE:
Cheryl Bennett

Frank R. Whiteley
John V. Quaglino
Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley
3320 West Esplanade Avenue North
Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLANT:
Sears, Roebuck & Company

COOKS, Judge.

Defendant, Soileau Animal Hospital, appeals the denial of its Exception of

Prescription by the Office of Workers’ Compensation. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

Cheryl Bennett worked for Soileau Animal Hospital from August 1992 through

November 1993. Her duties included cleaning pens, feeding animals, and

grooming/bathing animals. To bathe the animals, Ms. Bennett was required to dip

them in various pesticides. Ms. Bennett testified, through the course of the day, her

clothing would become soaked from various pesticides.

Ms. Bennett claims she began developing health problems during her

employment at Soileau Animal Hospital. She testified she eventually became

physically weak and began suffering memory loss. Although she began to gradually

experience these health problems, at the time she did not suspect they were caused by

her employment.

Ms. Bennett first sought treatment for her alleged symptoms on October 2,

1995, with Dr. Andrew Campbell, a toxicologist located in Houston. During this

time, Ms. Bennett was a plaintiff in breast implant litigation and learned of Dr.

Campbell at a seminar in conjunction with that litigation. Dr. Campbell diagnosed

her as suffering from a series of autoimmune system disorders, chronic fatigue

syndrome, and multiple chemical sensitivity. Dr. Campbell believed Ms. Bennett’s

problems were related to her breast implants, although Defendant argues Dr.

Campbell did advise Ms. Bennett her problems could be related to her working with

pesticides. Ms. Bennett eventually had her breast implants removed in 1998.

Despite the implant removal surgery, Ms. Bennett continued to experience
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health problems. She testified that while reading the Houston Chronicle’s December

6, 2001 edition she came upon an article discussing how the U.S. Environmental

Protection Agency was going to phase out Dursban, the most widely used pesticide

in the country, and one used extensively in her work at Dr. Soileau’s clinic. The

article discussed how certain pesticides, including Dursban, caused human health

risks.

After reading the article, Ms. Bennett informed Dr. George Matewere of her

concerns. Dr. Matewere ordered an MRI of Ms. Bennett’s brain, which was taken on

March 27, 2001. The MRI revealed a deterioration of the myelin sheath of nerve

tissue. Ms. Bennett then saw Dr. Thomas Calendar, a toxicologist, who believed her

current medical problems could have been caused by or related in part to her exposure

to pesticides at Soileau Animal Hospital.

Ms. Bennett then filed suit against Defendant in state district court on June 5,

2001, alleging that Dr. Soileau intentionally exposed her to chemicals whose

dangerous propensities he either knew or should have known; thus, he failed to

provide her a safe working environment.

Shortly thereafter, on August 28th, 2001, she filed the present claim in the

Office of Workers’ Compensation seeking medical treatment and wage benefits. She

asserted she contracted an occupational disease while engaged in the course and

scope of her employment with Soileau Animal Clinic. On April 30, 2004, the

employer filed an Exception of Prescription alleging claimant’s suit had prescribed

pursuant to the time limitation for occupational disease claims set forth in La.R.S.

23:1031.1(E). The trial court, after reviewing the evidence, determined that Ms.

Bennett did not have knowledge that her injuries were occupationally related until

December 6, 2000, and her suit filed on August 23, 2001 was not prescribed.

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The employer lodged this appeal, contending the trial court erred as a matter

of law in denying the Exception of Prescription because Ms. Bennett’s claim for

occupational illness was not filed within six months of the time she knew or had

reasonable grounds to believe her disease was occupationally related.

ANALYSIS

Initially, the Defendant argues the trial court incorrectly applied a one-year

prescriptive period rather than a six-month prescriptive period. La.R.S. 23:1031(E),

as it existed at the time Ms. Bennett was allegedly injured, provided:

E. 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.

Subsection (E) of La. R.S. 23:1031.1 was amended by Acts 2001, No. 1189, § 1, and

now provides a one-year prescriptive period for notice of occupational disease claims.

This amendment became effective June 29, 2001.

Louisiana Civil Code article 3462 provides that prescription is interrupted

when an action is commenced in a court of competent jurisdiction and proper venue.

In regard to a workers’ compensation claim, 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 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.

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(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.

In LaCour v. Hilti Corp., 98-2691 (La. 5/18/99), 733 So.2d 1193, the Louisiana

Supreme Court concluded that La.R.S. 23:1031.1(E) requires only that notice be

given of an occupational disease to the employer within the six-month period rather

than the actual filing of a claim with the Office of Workers’ Compensation. The

LaCour court stated as follows:

[La.R.S. 23:1031.1(E)] requires that the employee file a claim with his
employer within six months of the date that the disability commences or
the claim is barred. The statute does not say that a formal disputed claim
must be filed with the Office of Workers’ Compensation within the six
month period. In Duplechain v. Gulf States Utility Co., 468 So.2d 1386,
1389 (La.App. 3d Cir.1985), the third circuit concluded that the
language of the statute suggests that its time limitation applies only to
the “notification” of an employer of an occupational disease rather than
the actual filing of a petition to recover compensation benefits. It
reasoned:

From a liberal reading of this phrase, as we are mandated
to do in interpreting the workmen’s compensation laws, it
appears that the statute does not contemplate a lawsuit
against an employer but merely the notification of such
employer. This interpretation is supported by another
stipulation of the statute which states that the notification
of the employer’s compensation carrier will constitute
compliance with the notification requirements of
23:1031.1.

We agree that La. R.S. 23:1031.1(E) requires only that notice be
given to the employer or to the compensation insurer within six months
of a determination that the claimant is disabled as a result of an
occupational disease. What constitutes notice will depend upon the
facts and circumstances of the particular case. In Edwards v. Sawyer
Industrial Plastics, 26,320 (La.App.2d Cir.12/07/94); 647 So.2d 449,
the employee wrote a letter to his employer stating that while in the
workplace, he sustained total disability from working. In Winzor v.
Augenstein Construction Co., Inc., 378 So.2d 470 (La.App. 3d
Cir.1979), writ denied, 379 So.2d 1103 (La.1980), the employee was
visited by his job superintendent while he was hospitalized for tests. At
that time, the employee told his superintendent that he had a lung
disease and would not be able to return to work as a welder due to

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smoke and dust on the job. In Riley v. Avondale Shipyards, 305 So.2d
742 (La.App. 4th Cir.1975), plaintiff’s notification of the employer’s
insurance department of his retirement because of disability was
sufficient to satisfy La. R.S. 23:1031.1(E). In the instant case, we find
that the notice requirement was satisfied. Hilti was aware that Mr.
LaCour was suffering from carpal tunnel syndrome and pain in both
elbows for years and that such conditions were related to his work
duties. In November of 1995, Hilti wrote a letter to Mr. LaCour
indicating that his short-term disability benefits were about to expire and
he would be terminated if he did not return to work on January 11, 1996.
In letters dated December 28, 1996 and January 31, 1996 from Dr.
Gosey to Sun Life, Hilti’s disability insurer, Dr. Gosey stated that Mr.
LaCour’s previous employment, specifically the demonstration of
vibrating machines, caused Mr. LaCour’s problems to his elbows to
begin with and he should not return to his employment because it would
cause further destruction and deterioration to his elbows. These letters
state that Mr. LaCour is disabled as a result of his employment. We find
that these events served as timely notification to Hilti that Mr. LaCour
was disabled as a result of an occupational disease so as to satisfy La.
R.S. 23:1031.1(E).

Id. at 1196-97.

In the present case, Ms. Bennett filed a tort suit in district court on June 5, 2001,

(within six months of the December 6, 2000 article) alleging that Dr. Soileau

intentionally exposed her to chemicals whose dangerous propensities he either knew

or should have known, and that he failed to provide her with a safe working

environment. Defendant answered the suit. This was more than sufficient to meet the

notice requirement of La.R.S. 23:1031.1(E), and would interrupt prescription.

Defendant also contends the workers’ compensation judge’s conclusion

regarding the date Ms. Bennett had knowledge of the alleged occupational disease for

purposes of La.R.S. 23:1031.1(E) was fatally flawed. The workers’ compensation

judge gave the following reasons for concluding the prescriptive period began to run

on December 6, 2000:

The law, specifically Louisiana R.S. 23:1021.1(E), clearly states
that a claim is prescribed unless it is filed within one year that, one, the
disease manifests itself; two, the employee becomes disabled as a result
of the disease; and, three, and the employee knows or has reasonable
grounds to believe that the disease is occupationally related. The

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jurisprudence says that all three of these factors must exist for
prescription to run.

There’s no controversy regarding the first two issues. The
disputed issue is whether she filed her claim within one year of the date
that she knew or had reasonable grounds to believe that her disease was
occupationally related. Testimony was that Ms. Bennett worked for Dr.
Soileau and his animal clinic on two occasions, the first as a surgical
assistant; the second time she worked from August 1992 to November
of '93 as an animal groomer where her duties included bathing the
animals and dipping them in various pesticides. Ms. Bennett testified
that on a daily basis her clothing was soaked with the pesticide
chemicals used and eventually her hand started breaking out. Eventually
she grew physically weak and began suffering memory loss and felt skin
crawling sensations. Her attorney argues that unbeknownst to her, she
was suffering from extensive dermal and inhalation exposure to the
chemical nerve agents which are used in the pesticide which had only
recently been banned. Although she began to gradually experience these
health problems, she said she never suspected at the time that they were
caused by her employment.

To explain her conclusion in this regard, her attorney introduced
evidence regarding the claimant’s extensive and lengthy medical history.
She began seeing Dr. Andrew Campbell, a Houston toxicologist, and he
diagnosed Ms. Bennett as suffering from a series of autoimmune system
disorders, chronic fatigue syndrome, and multiple chemical sensitivity.
He concluded that her physical impairments rendered her permanently
disabled. However, apparently Dr. Campbell felt that Ms. Bennett’s
symptoms were related to her having breast implants since 1994. He
opined that she suffered from silicone induced immune dysfunction
syndrome. Dr. Campbell ordered blood tests for Ms. Bennett which
showed elevated levels, particularly her liver enzymes. Follow up tests
were taken a year later and showed normal blood levels, although her
breast implants had not yet been removed. When asked to explain this
phenomenon, Dr. Campbell said that, quote, “Maybe it wasn’t the
silicone. Maybe it was the pesticides”, end of quote.

My understanding of Dr. Campbell’s comments is that he was
suggesting that perhaps her one time elevated blood levels were related
to her working around pesticides. I frankly cannot see how such an
observation standing alone can give rise to a presumption that Ms.
Bennett should have reasonably known her illness was related to her
occupation. This is especially true since her blood levels returned to
normal. The record is clear that she was seeing Dr. Campbell for a
suspected autoimmune disorder caused by breast implant disease.
Diagnosis would have made it quite reasonable that she was especially
susceptible to environmental exposures; and once those sources of
exposure were removed, the effects would disappear. However,
although Ms. Bennett’s blood work went back to normal, her symptoms
remained and her illnesses, however, did not subside.

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I cannot see where in the record Dr. Campbell expressed any
specific concern about her having been around pesticides, and he did not
discuss any hazards associated with those pesticides and clearly he did
not deviate from his focus on breast implant disease and autoimmune
disorders caused by silicone. Doctors she saw subsequent to Dr.
Campbell apparently kept saying that there was nothing wrong with her.
Counsel argues that despite her health issues, Ms. Bennett had no
independent reason to believe her illness was caused by pesticide
exposure. In fact, her treating psychologist, after comprehensive blood
testing, gave her reason to believe that her breast implants were the sole
cause of her problems.

Ms. Bennett says some time thereafter, while reading the
“Houston Chronicle”, she saw an article on December the 6th dealing
with how certain pesticides caused human health risks and discussing
how the U.S. Environmental Protection Agency would begin to phase
out Dursban, the most widely used pesticide in the country, and one
used extensively in her work at Dr. Soileau’s clinic.

Ms. Bennett informed her family physician, Dr. George
Matewere, of her suspicions. He ordered an M.R.I. of Ms. Bennett’s
brain, which was taken on March the 27th of 2001 and showed multiple
areas of abnormal signal appearing as a removal of the myelin sheath of
nerve tissue.

On April the 24th, 2001, Ms. Bennett was seen by Dr. Thomas
Calendar, a Lafayette toxicologist, who said that, quote, his medical
opinion was that some of her current medical problems could have
caused by or contributed to by her workplace chemical exposures at the
veterinary clinic.

Ms. Bennett then filed suit against the defendant in state district
court on June the 5th, 2001, alleging, among other things, that Dr.
Soileau intentionally exposed her to chemicals whose dangerous
propensities he either knew or should have known, failing to provide a
safe working environment. Shortly thereafter, on August 28th, 2001, the
present action was filed here with the Office of Workers’ Compensation.
Both actions were filed within one year of the time Ms. Bennett learned
of the phase out of the pesticides used by her in Dr. Soileau’s animal
clinic.

The evidence shows clearly that Ms. Bennett filed this claim
within one year of December 6, 2000, the time she discovered pesticides
she worked with ast Dr. Soileau’s animal clinic were being banned for
causing extensive neurological problems. Only then, I think, did she
have reasonable grounds to believe her injuries were occupationally
related.

For these reasons, the defendant’s exception of prescription is
denied.

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We find the trial court did not err in finding the earliest date Ms. Bennett had

reasonable grounds to trigger the running of prescription under La.R.S. 23:1031.1(E)

was on December 6, 2000. Defendant argues that based upon her conversation in

1997with Dr. Campbell that pesticides could be related to her health problems, Ms.

Bennett gained knowledge on that date sufficient for prescription to begin running.

The WCJ specifically discussed this argument, and concluded the medical record did

not show Dr. Campbell expressed specific concerns about her having been around

pesticides, and he did not depart from his primary focus that her problems were

caused by breast implant disease. The WCJ’s finding that prescription began to run

on December 6, 2000 was well within his discretion and not erroneous.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’

Compensation is affirmed. Costs of this appeal are assessed to Defendant-Appellant,

Soileau Animal Hospital.

AFFIRMED.

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