Willie L. Lollis, Jr. v. Shaw Global Energy Services

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-395

WILLIE L. LOLLIS, JR.

VERSUS

SHAW GLOBAL ENERGY SERVICES

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF VERMILION, NO. 05-03229
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter,
Judges.

AFFIRMED.

Louis M. Corne
1014 West University Ave.
Lafayette, LA 70506
(337) 264-1160
Counsel for Plaintiff/Appellee:
Willie L. Lollis, Jr.

John J. Rabalais
Rabalais, Unlan & Lorio
5100 Village Walk, Suite #300
Covington, LA 70433
(985) 893-9900
Counsel for Defendant/Appellant:
Shaw Global Energy Services

GREMILLION, Judge.

The defendant, Shaw Global Energy Services, appeals the decision of the

workers’ compensation judge finding the plaintiff, Willie Lee Lollis, Jr., disabled,

entitled to indemnity benefits, and entitled to any necessary medical treatment or

vocational rehabilitation services as a result of an occupational disease. We affirm.

FACTS

Lollis was employed as a paint mixer/sandblaster by Shaw at its

Delcambre, Louisiana location. On November 7, 2004, while mixing Tideguard

171A Gray Resin, a spray-on epoxy cladding from Ameron Coatings, Lollis noticed

a bitter taste in his mouth and then saw that he had Tideguard on his arms. He

reported the incident to his supervisors after his arms became irritated. As a result of

this contact, Lollis suffered headaches and developed rashes over his body. On

January 14, 2005, he was diagnosed as suffering from an irritant dermatitis by Dr.

Jennifer-Waguespack LaBiche, a dermatologist. Although Shaw restricted him from

working in contact with Tideguard, Lollis quit work on February 13, 2005, because

he claimed that the rash had spread to his eyes and affected his vision. A patch test

performed by Dr. Waguespack-LaBiche revealed that Lollis was allergic to epoxy

resin. Dr. William Nassetta, a specialist in occupational and environmental

medicine, diagnosed him as suffering from an allergic contact dermatitis.

Lollis filed the instant disputed claim for compensation against Shaw

seeking weekly indemnity benefits, medical treatment, and penalties and attorney’s

fees. Shaw denied all of Lollis’ claims and further alleged that he forfeited his right

to receive any benefits due to his fraudulent statements. Following a trial on the

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merits, the workers’ compensation judge denied Shaw’s fraud claim and held that

Lollis was disabled and entitled to weekly indemnity benefits retroactive to February

13, 2005, medical expenses and treatment, vocational rehabilitation services, and

future supplemental earnings benefits if appropriate. The workers’ compensation

judge further awarded Lollis $2000 in penalties and $7500 in attorney’s fees as a

result of Shaw’s failure to accommodate his work restrictions and its failure to

provide him with vocational rehabilitation services. This appeal was perfected by

Shaw.

ISSUES

Shaw raises six assignments of error on appeal.

1. That the workers’ compensation judge erred in finding that
Lollis suffered a compensable accident or occupational
injury.

2. That the workers’ compensation judge erred in finding a
causal connection between Lollis’ alleged exposure to
Tideguard and his alleged disability.

3. That the workers’ compensation judge erred in finding that
Lollis proved his disability.

4. That the workers’ compensation judge erred in finding that
Lollis was entitled to indemnity benefits and additional
medical benefits.

5. That the workers’ compensation judge erred in finding that
it failed to reasonably controvert Lollis’ entitlement to
benefits.

6. That the workers’ compensation judge erred in finding that
Lollis did not forfeit his entitlement to indemnity benefits
by making false statements for the purpose of receiving
workers’ compensation benefits.

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STANDARD OF REVIEW

The standard of review applied to factual findings in workers'

compensation matters is the manifest error standard. This standard, which is based

upon the reasonableness of the factual findings in light of the record reviewed in its

entirety, is well established in our jurisprudence following the seminal cases of Rosell

v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of

Transportation and Development, 617 So.2d 880 (La.1993).

As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361

(La.1992):

A worker’s testimony alone may be sufficient to discharge this burden
of proof, provided two elements are satisfied: (1) no other evidence
discredits or casts serious doubt upon the worker’s version of the
incident; and (2) the worker’s testimony is corroborated by the
circumstances following the alleged incident. West v. Bayou Vista
Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13
Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d
Ed.1980). Corroboration of the worker’s testimony may be provided by
the testimony of fellow workers, spouses, or friends. Malone &
Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350
(La.1991)]. Corroboration may also be provided by medical evidence.
West, supra.

OCCUPATIONAL INJURY

In its first three assignments of error, Shaw argues that the workers’

compensation judge erred in finding that Lollis suffered an occupational injury as a

result of his exposure to Tideguard and that he satisfied his burden of proof with

regard to disability.

An employee suffering from an occupational disease receives the same

workers’ compensation benefits as an employee who has suffered an injury by

accident arising out of and in the course of his employment. La.R.S. 23:1031.1(A).

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An occupational disease is defined as “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.” La.R.S.

23:1031.1(B). However, it does not include carpal tunnel syndrome, degenerative

disc disease, spinal stenosis, arthritis, mental illness, or heart-related or perivascular

disease. Id.

In order to recover medical and compensation benefits as the result of

an occupational disease, Lollis must prove that he became allergic to epoxy resins as

a result of the nature of his duties as a sandblaster/painter. Dunaway v. Lakeview

Reg’l Med. Ctr., 02-2313 (La.App. 1 Cir. 8/6/03), 859 So.2d 131. Lollis’ burden is

to prove a connection between his condition and his work-related duties by a

reasonable probability. Id. Proof of only a possible relationship between the two

does not satisfy this burden. Id.

In order to receive temporary total disability benefits, an employee must

prove that he is unable to physically engage in any employment or self-employment

as a result of his work-related injury. La.R.S. 23:1221(1)(c). The employee’s burden

of proof is by clear and convincing evidence; thus, Lollis must prove that his

disability is highly probable or much more probable than not. Carrier v. Debarge’s

Coll. Junction, 95-18 (La.App. 3 Cir. 9/27/95), 673 So.2d 1043, writ denied, 96-0472

(La. 4/8/96), 671 So.2d 337.

Lollis testified that Shaw began using Tideguard in October 2004, at the

request of a customer. He stated that he mixed this coating for approximately three

weeks without any problems. However, on November 7, 2004, he stated that he

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noticed a strong bitter taste in his mouth and that the skin on his arms was irritated.

When he removed his rubber gloves, he said that he noticed Tideguard on his arms

and that his gloves were imprinted on his arms. He said that he washed his arms and

then reported the incident to David Smith, his supervisor.

That night, Lollis testified that he began shivering as though suffering

from a fever. The next day, he called Smith and told him that his head was hurting

badly and that his arms were irritated. He stated that Smith told him to take care of

himself. Lollis returned to work on November 9, 2007, but was taken by David

Cravey, Shaw’s safety officer, to MedXcel Occupational Medicine Center because

his arms and hands were swollen. He stated that he was examined by James Carruth,

a physicians assistant, who injected him with a steroid and released him to work.

Lollis testified that Smith removed him from sandblasting/painting and

had him driving a forklift in Shaw’s yard, in an effort to distance him from the

Tideguard. Despite this precaution, he stated that he was exposed to overspray and

that his rash spread to his chest and his genitals. He stated that he was seen by Dr.

Waguespack-LaBiche, who prescribed two creams for his rash. Although the creams

worked, Lollis testified that the rash continued spreading to his forehead and below

his eyes. At that point, he stated that he was having trouble with his vision so he

went to the University Medical Center in Lafayette. There, he stated that he was

given drops for his eyes and was advised by his doctor not to return to his position

with Shaw. Lollis testified that he informed Smith of this and was further advised by

him not to return to work.

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Lollis continued working for Shaw through February 13, 2005. He

testified that he stopped working at that time because his headaches were worse and

his chest was hurting. He said that he was taken by his father to Our Lady of Lourdes

Hospital in Lafayette. Lollis testified that tests run on his heart were negative and

that he was given cream for his itching. However, neither the records from Our Lady

of Lourdes or University Medical Center were introduced into evidence. Lollis stated

that he was later examined by Dr. Nassetta, who recommended that he undergo a

patch test. He returned to Dr. Waguespack-LaBiche, who determined that he was

allergic to epoxy resins.

Lollis testified that his symptoms have continued. He stated that he

experiences problems with headaches, rashes, stomach sickness, and muscle

weakness when exposed to epoxy resins. He said he never experienced any of these

symptoms prior to November 7, 2004. He stated that when he touches anything made

of foam or plastic he starts itching. He said that he carries a pair of cotton gloves

with him, which he uses anytime he touches something made of plastic, such as the

steering wheel, phone, cellular phone, or remote control. He stated that he developed

a rash on his stomach when the antenna from his cellular phone touched his skin.

At the time of the incident, Lollis testified that he was wearing his full

personal protective gear, consisting of a double chamber respirator, rubber gloves,

safety goggles, and coveralls. However, he stated that he was wearing the same

gloves and coveralls from the previous day. He stated that when he first started

mixing Tideguard, he was only required to wear goggles. As they learned more about

the coating, he said that Shaw increased the amount of protective equipment they

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were required to wear. Lollis further indicated that he had gotten Tideguard on his

skin prior to the November 7, 2007 incident, but experienced no problems.

Lollis’ father, Willie Lollis, Sr., testified that his son was in good health

prior to the November 7th incident, but afterwards, he exhibited a rash on his arms

and his eyes. At a later date, he said that Lollis suffered a high fever along with his

rash, and that he had to rush him to the hospital. He stated that Lollis’ eyes were so

swollen that they were barely open. Lollis, Sr. further testified that Lollis’ condition

worsened after he stopped working for Shaw and that it was some time before his

rashes disappeared. Now, he said that Lollis experiences a reaction every time he

touches a Styrofoam cup.

Lollis’s wife, Bernice, testified that he did not experience rashes prior

to November 7, 2004, nor any other type of health problems. After November 7,

2004, she stated that Lollis exhibited rashes on his face, arm, leg, and chest, which

itched all the time. She stated that his rashes became worse after he switched to the

forklift and continued after he stopped working. She stated that he still experiences

rashes; she said that he had black spots on the side of his face and hands, which

itched all the time.

Smith, a paint superintendent for Shaw, testified that Lollis mixed the

majority of the paints used on the different offshore structures Shaw painted. He

stated that any personnel who paints is required to wear personal protection

equipment consisting of long sleeves, a respirator, a paint stocking to cover their head

and neck, and safety glasses/goggles. Additionally, he said that any employee who

mixes paint wears a large apron. He further stated that all employees attended daily

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safety meetings, where they sign a job safety analysis sheet.

Smith testified that Shaw began using Tideguard approximately two

weeks prior to Lollis’ complaint. He further surmised that Lollis mixed fifty to sixty

gallons of the substance per day. However, he stated that Lollis was not the only

employee mixing paint during that time period.

On November 7, 2004, Smith stated that both he and Lollis completed

a report pertaining to the complained of incident. A couple of days later, he stated

that Lollis reported that he had developed a rash as a result of the incident. He said

that they went to Cravey’s office and told him about Lollis’ rash, after which Cravey

took Lollis to the doctor. Smith testified that he recalled Lollis stating that he was not

sure what caused the rash, and that they were still unsure of its cause. He further

remembered that the rash started on Lollis’ right hand and then spread to other areas

of his body.

As a precautionary measure, Smith testified that he moved Lollis to the

forklift-driver position in order to get him as far away from the Tideguard as possible.

He stated that they gave him all new work clothes and tried to ensure that he worked

downwind of any sandblasting or painting. He said that if he could not do so, Lollis

stayed in his office.

Smith stated that Lollis’ rash was bad at first, but that it became worse

and spread a week later. However, he thought that it was better toward the end of

February 2005. During that time, he stated that Lollis continued working full time.

On February 13, 2005, Smith said that Lollis complained that Shaw was not doing

anything for him and that he was going to see a doctor. Smith testified that he asked

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what Shaw was supposed to do when Lollis reported to Cravey that he was fine. He

then asked Lollis to talk to Cravey, but said that Lollis left work and has not returned.

But for this, he testified that Lollis would still be employed by Shaw at a rate of

eighteen dollars per hour.

Smith testified that Lollis has never been restricted from working regular

duty by any doctor, nor did he observe him experiencing any difficulty while driving

the forklift. He further stated that Lollis never complained about overspray in the

yard or that he was hampered in his job duties by the presence of epoxy chemicals.

Although Smith admitted that overspray does occur and that epoxy paint possibly was

present in the air during sandblasting, he stated that Shaw tries to limit the amount by

painting everything in a large shop. He disagreed that the overspray was bad as

Shaw’s yard covered twelve to fourteen acres. Furthermore, he stated that if it were

bad, Shaw would have required all workers to wear respirators. Finally, he stated that

Lollis never complained to him about being unable to work. Had he done so, he

stated that he would have moved him to a position in the tool room until he was

capable of returning to his regular duties.

Following this incident, Smith testified that they started requiring all

painters to use chemical resistant rubber gloves. Previously, he stated that they only

used heavy cotton-type gloves. He further stated that they required the painters to use

a new pair every time they removed their gloves.

Carruth, the physician’s assistant, testified that he initially saw Lollis on

November 9, 2004, at which time he had a rash on his right forearm and on each side

of his neck. He stated that he diagnosed this as a chemical dermatitis of unknown

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etiology. He said that he told Lollis to avoid all chemicals until his condition

resolved. Carruth testified that Lollis returned to him on November 27, 2004, after

he experienced small eruptions on both arms. He again diagnosed this as a chemical

dermatitis and set up an appointment for Lollis to see Dr. Waguespack-LaBiche.

Lollis again complained of a rash and itching on January 3, 2005, which he diagnosed

as a dermatitis of unknown etiology.

Dr. Waguespack-LaBiche testified that she diagnosed Lollis as suffering

from an irritant dermatitis, which she described as a reaction of the skin to some type

of irritant, such as a chemical or other substance. On January 14, 2005, she stated that

he exhibited hyper-pigmented lichenified plaques on his chest and the sides of his

neck, which appeared to be excoriated or scratched. She described these as being

raised darkly colored thickened areas on the skin, which caused by chronic rubbing

and scratching. She stated that he also complained of a rash in his groin, which she

diagnosed as jock itch or tinea cruris.

Dr. Waguespack-LaBiche stated that Lollis returned as an independent

patient on May 2, 2006, and requested a patch test to determine whether he was

allergic to rubber. She testified that the test revealed that he was allergic to epoxy

resins. She explained that a person may be predisposed at birth to becoming

synthesized to an allergen; however, a person becomes allergic to a specific allergen

when they are exposed to and become synthesized to a specific allergen. She said

that an allergy does not occur after one contact, rather, it develops over a period of

time after sufficient T-cells or immune response cells develop and act against the

allergen.

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Dr. Waguespack-LaBiche testified that although dermatitis can be

disabling, Lollis was not disabled on May 2, 2006. She explained that she told him

to avoid epoxy resins, which are contained in some vinyls and can be absorbed

through rubber gloves. She stated that Lollis’ allergy to this substance would be life-

long and that he should not continue sandblasting or painting if epoxy resins were

involved. She further testified that Tideguard does contain epoxy resins.

Dr. Nassetta diagnosed Lollis as suffering from an allergic contact

dermatitis to epoxy resin. Of Lollis’ symptoms, he stated that his headache during the

acute setting was likely an irritant effect of the chemicals that compose the epoxy

resin. However, he found no relationship between Lollis’ symptoms in July 2005,

and his employment with Shaw. Although Dr. Nassetta opined that it may have taken

Lollis several weeks to become sensitized to epoxy resins, he said that once

sensitized, his reactions could result from a lower concentration of the substance and

from the presence of the substance in the air. He added that patients can develop an

exquisite sensitivity to their particular chemical allergen; and he indicated that Lollis

was extremely sensitive to some substance.

In July 2005, Dr. Nassetta noted that Lollis’ rashes were in different

locations from his initial reaction. This, he said, was common. He further stated that

if Lollis was removed from an environment containing epoxy resins, he should

improve in a matter of weeks or months. Dr. Nassetta also explained that Lollis could

have developed cross reactions after the initial reaction and that skin tests were

required to pin down his specific allergy. He stated that the skin tests performed by

Dr. Waguespack-LaBiche revealed that Lollis was allergic to epoxy resins, a well

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known chemical sensitizer. This, he said, was consistent with contact dermatitis and

supported his diagnosis.

Dr. Nassetta testified that he could not make a disability determination

for Lollis based on the information he possessed. In order to do so, he stated that he

needed a definitive list of substances Lollis was allergic to, including cross reactions,

and an analysis of Shaw’s yard to determine whether those substances were present.

He testified that the analysis would involve meeting with Shaw’s environmental and

safety people and its hygienist in order to evaluate Lollis’ work environment. If

epoxy resins were present throughout Shaw’s yard and if Lollis was reacting to them,

whether he continued working there would depend on the effect his reactions had on

his health. If Lollis’ symptoms were treatable and nothing more than a nuisance, then

Dr. Nassetta felt that he could continue working. If they were worse, then it would

depend on the degree of his symptoms and the side effects from his medications as

to whether he continued working. As Lollis was able to work through February 2005,

Dr. Nassetta opined that he probably could continue working for Shaw, leaving aside

the unrelated symptoms. However, he stated that Lollis would probably not be able

to paint or sandblast epoxy resins or other substances in the same class. He said that

allergy shots were a possibility for Lollis.

In rendering his oral reasons, the workers’ compensation judge held that

Lollis satisfied his burden of proving that he suffered an occupational disease as a

result of his exposure to Tideguard and that based on his testimony, he proved that

he was temporarily totally disabled. In finding Lollis disabled, the workers’

compensation judge stated:

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Dr. Nassetta an acknowledged expert in work place (sic) –
environmental medicine opined that any job that Mr. Lollis gets from
now on will require a screening of some sort to determine if there are
any “cross reacting” agents, which will exacerbate his condition. This
strikes me as placing some very severe limits and restrictions on the
employment prospects of the man who had been a laborer all his adult
life. He cannot touch plastic or rubber or any other epoxy derived
material. The employer testified that it was willing to allow Mr. Lollis
to work in areas of the facility where he would be isolated from
Tideguard paint spray, but evidence forces a conclusion this would be
exceedingly difficult if not impossible to do. The company simply sort
of assumed that there are places on the yard that are immune from
Tideguard spray residue. There was nothing like an examination of the
area as suggested by Dr. Nassetta. I don’t know what a vocational
rehabilitation expert might recommend because the company has not
sent Mr. Lollis to see one.

Mr. Lollis (sic)on the stand for a long time and while he was on
the stand for a long while (sic), and while he is not articulate he did
appear at all times to be giving an honest effort in answering the
questions posed to him. He came across as a thoroughly defeated person
who had (sic) utterly perplexed and confused by the rapid and
unexpected deterioration in this (sic) health and prospects. The Court
finds that Mr. Lollis’ allergy condition is the result of his accidental
expose (sic) to the chemical Tideguard. His medical situation is such
that he cannot find a job even for minimum wage. He is disabled. He
is therefore entitled to workers’ compensation indemnity benefits using
Thirteen Dollars an hour for his annual weekly wage computation,
retroactive to his last date of employment. The company will provide
necessary medical treatment as well as vocation rehabilitation services
as well (sic). If SEB is appropriate in due course then that will be
ordered.

In reviewing the record in its entirety, we find no manifest error in the

workers’ compensation judge’s finding that Lollis proved he suffered an occupational

disease due to his exposure to Tideguard. His duties required him to mix coatings,

including Tideguard for approximately two to three weeks. Both Drs. Waguespack-

LaBiche and Nassetta diagnosed him as suffering from an allergic contact dermatitis

to epoxy resins, a known sensitizer and component of Tideguard. As such substance

was present in Lollis’ work environment, Dr. Waguespack-LaBiche felt that it was

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probably the cause of his contact dermatitis, whereas Dr. Nassetta opined that

Tideguard was the cause of his initial reaction. Accordingly, we find that Lollis

proved he suffered an occupational disease as a result of his contact with Tideguard.

However, the workers’ compensation judge’s award of temporary total

disability poses the most vexed question on appeal. Dr. Waguespack LaBiche said

that Lollis was not disabled from his contact dermatitis as of May 2, 2006, although

she admitted that the condition could be disabling. In addition to giving Lollis a list

of substances to avoid, she told him to avoid exposure to epoxy resins at work. Dr.

Nassetta, the expert in occupational medicine, refused to render a disability

determination for Lollis without more information pertaining to his specific allergies,

possible cross reactions, and his work environment. In the absence of a more

definitive disability determination, we find no manifest error in the workers’

compensation judge’s finding that Lollis proved he was temporarily and totally

disabled. Accordingly, the judgment of the workers’ compensation judge finding that

Lollis suffered an occupational disease and was temporarily totally disabled as of

February 13, 2006, is affirmed.

We further find no error in the workers’ compensation judge’s award of

additional medical treatment to Lollis. Dr. Waguespack said that Lollis’ allergy

would continue for the rest of his life. Dr. Nassetta further indicated that Lollis

would require medicine if he continued experiencing reactions. Furthermore, he

stated that Lollis could possibly receive allergy shots.

PENALTIES AND ATTORNEY’S FEES

In its next assignment of error, Shaw argues that the workers’

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compensation judge erred in finding that it failed to reasonably controvert Lollis’

entitlement to benefits for its failure to provide him with vocational rehabilitation

services. Shaw based its argument on the fact that it offered Lollis the modified

position as a forklift driver after the complained of incident. As this position was

available to Lollis, Shaw argues that vocational rehabilitation services were not

required.

We disagree. Both Drs. Waguespack-LaBiche and Nassetta restricted

Lollis from working where epoxy resins were present. Dr. Waguespack-LaBiche said

that he should not handle any epoxy resins and that those substances can penetrate

shirts and rubber gloves. Dr. Nassetta said that Lollis would have no work

restrictions if he was isolated totally from anything containing Tideguard or epoxy

resins. He further stated that epoxy resins can become airborne. Without knowing

Lollis’ specific allergies, i.e., epoxy resins and any other cross reactions that have

developed as a result of this allergy, we do not agree with Shaw’s assumption that the

forklift position alleviated the need for vocational rehabilitation services.

The medical evidence bears out that Lollis continued suffering rashes

even after he was moved to the forklift driver position and away from the Tideguard.

Moreover, Smith admitted that overspray occurred, that sandblasted epoxy paint was

possibly present in the air, and that he could not ensure that Lollis was kept

downwind of all painting or sandblasting which occurred in Shaw’s yard, even if the

yard was approximately fourteen acres large.

The workers’ compensation judge’s decision to award penalties and

attorney’s fees is factual in nature and will not be reversed on appeal absent manifest

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error. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07), 956 So.2d

128. Based on the foregoing, we affirm the judgment of the workers’ compensation

judge awarding Lollis $2000 in penalties and $7500 in attorney’s fees for Shaw’s

failure to provide him with vocational rehabilitation services.

FRAUD

In its final assignment of error, Shaw argues that the workers’

compensation judge erred in failing to find that Lollis violated La.R.S. 23:1208, by

making false statements for the purpose of obtaining workers’ compensation benefits.

After reviewing the record and the testimony pointed out by Shaw, we find no

manifest error in the workers’ compensation judge’s finding.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation

judge is affirmed in all respects. The costs of this appeal are assessed to the

defendant-appellant, Shaw Global Energy Services.

AFFIRMED.

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