Lyman L. Smith v. Packaging Corporation of America

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-171

LYMAN L. SMITH

VERSUS

PACKAGING CORPORATION OF AMERICA

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ON APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT # 03
PARISH OF CALCASIEU, NO. 18-02518
HONORABLE MELISSA ST.MARY,
WORKERS’ COMPENSATION JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Billy Howard Ezell, Jonathan W. Perry, and Gary J. Ortego,
Judges.

AFFIRMED.

Phillip E. Foco
Bienvenu, Bonnecaze, Foco & Viator, LLC
4210 Bluebonnet Blve.
Baton Rouge, Louisiana 70809
(225) 388-5600
COUNSEL FOR EMPLOYER/APPELLANT:
Packaging Corporation of America

Max Malvin
Malvin Law, LLC
201 St. Charles Ave., Suite 2500
New Orleans, Louisiana 70170
(504) 383-0895
COUNSEL FOR EMPLOYER/APPELLANT:
Packaging Corporation of America

Thomas A. Filo
Cox, Cox, Filo, Camel & Wilson, L.L.C.
723 Broad Street
Lake Charles, Louisiana 70601
(337) 436-6611
COUNSEL FOR CLAIMANT/APPELLEE:
Lyman L. Smith

PERRY, Judge.

In this workers’ compensation case, the issue before us is whether a former

employee can claim and receive supplemental earnings benefits (“SEBs”) after

retirement, even if the employee admitted his retirement was an independent

decision and not related to the workplace injury.

FACTS AND PROCEDURAL HISTORY

The employment of Lyman L. Smith (“Mr. Smith”) in the paper mills began

on March 29, 1974, when, at the age of twenty, he worked for Boise Cascade, the

predecessor of Packaging Corporation of America (“PCA”).1 On January 1, 2017,

at the age of sixty-two, Mr. Smith retired from PCA after working almost forty-three

years as a paper maker, operating paper machines. On April 23, 2018, Mr. Smith

filed a workers’ compensation claim against his former employer, PCA, seeking

benefits related to occupationally induced hearing loss resulting from his

employment at PCA’s paper mill located in DeRidder. On September 19, 2018, Dr.

Brad LeBert (“Dr. LeBert”), Mr. Smith’s choice of treating physicians, opined that

Mr. Smith had occupationally related noise induced hearing loss because of his work

at the paper mill and restricted his work within National Institute for Occupational

Safety and Health (“NIOSH”) compliant environments. Mr. Smith also made formal

demands on PCA on May 21, 2018 and September 19, 2018, seeking medical

benefits, including audiograms and hearing aids, vocational rehabilitation, and

SEBs.

The Workers’ Compensation Judge (“WCJ”) found that Mr. Smith satisfied

his burden of proving by a preponderance of the evidence that his hearing loss was

the result of his exposure to high noise levels over the length of his employment with

1
Although Boise Cascade employed Mr. Smith during most of his employment at the paper
mill, it and PCA stipulated that PCA is liable for all workers’ compensation obligations that may
be owed to Mr. Smith.

PCA. Accordingly, it determined that Mr. Smith was entitled to medical and

indemnity benefits. The court further found Mr. Smith was entitled to an SEB award

because he was unable to earn at least 90% of his pre-accident wages and the work-

related noise restrictions, his age, level of education, and his work career limited him

to the specific type of work he performed at PCA. The WCJ also found that PCA

failed to carry its burden to establish jobs available to its former employee that he

could perform within the medical restrictions, particularly one that would pay him

90% or more of his pre-accident wages, and that PCA never offered him a modified

position and any vocational rehabilitation services. However, because Mr. Smith

had retired, the WCJ limited his SEB award to 104 weeks in accordance with La.R.S.

23:1221(3)(d)(iii).

Finally, the WCJ awarded Mr. Smith penalties of $8,000.00 and attorney fees

of $15,000.00 because PCA failed to reasonably controvert the claim and was

arbitrary and capricious in handling the claim. Later, in an amended judgment, the

WCJ determined that PCA was entitled to a credit of $30,000.00 because of a prior

tort settlement in 2013 involving alleged hearing loss;2 thus, it determined that PCA

only owed Mr. Smith $61,328.00.

PCA suspensively appealed the decision of the WCJ which awarded Mr.

Smith medical benefits, SEBs, penalties, and attorney fees for hearing loss caused

by his employment. Mr. Smith, answered PCA’s appeal, seeking additional attorney

fees for work done at the appellate level. For the following reasons, we affirm the

judgment of the WCJ, and award Mr. Smith additional attorney fees for appeal.

2
This was confected prior to Arrant v. Graphic Packaging International, Inc., 13-2878
(La. 5/5/15), 169 So.3d 296, which held that hearing loss was to be treated as an occupational
disease under the Workers’ Compensation Act.
2

APPELLANT’S ASSIGNMENTS OF ERROR

PCA advances four assignments of error:

(1) The WCJ erred in awarding SEBs to Mr. Smith, as he retired for reasons
unrelated to his work injury prior to Dr. LeBert’s recommendation that
Smith work only in NIOSH compliant environments.

(2) The WCJ erred in awarding SEBs to Mr. Smith based on the
recommendation of Mr. Smith’s treating physician that he abide by
NIOSH noise exposure guidelines if he returned to work.

(3) The WCJ erred in finding that Mr. Smith was incapable of performing the
job of an “A Operator” at the PCA paper mill between September 19, 2018
and September 19, 2020, as a result of Dr. LeBert’s NIOSH
recommendation.

(4) The WCJ erred in awarding penalties in the amount of $8,000 and
attorneys’ fees in the amount of $15,000 to Mr. Smith.

STANDARD OF REVIEW

“Factual findings in workers’ compensation cases are subject to the manifest

error or clearly wrong standard of appellate review. In applying the manifest error

standard, the appellate court must determine not whether the trier of fact was right

or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v.

Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160,

1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted). In that

regard, the Louisiana Supreme Court stated in Stobart v. State, Through Dep’t of

Transp. & Dev., 617 So.2d 880, 882 (La.1993) (internal citations and quotation

marks omitted):

[T]he issue to be resolved by a reviewing court is not whether the trier
of fact was right or wrong, but whether the factfinder’s conclusion was
a reasonable one. Even though an appellate court may feel its own
evaluations and inferences are more reasonable than the factfinder’s,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review where conflict exists in the
testimony. However, where documents or objective evidence so
contradict the witness’s story, or the story itself is so internally
inconsistent or implausible on its face, that a reasonable factfinder
would not credit the witness’s story, the court of appeal may find
3

manifest error or clear wrongness even in a finding purportedly based
upon a credibility determination. Nonetheless, this Court has
emphasized that the reviewing court must always keep in mind that if
the trial court or jury’s findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even if
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.

LAW AND DISCUSSION

Loss of Wage Earning Capacity

In its first assignment of error PCA, relying on Poissenot v. St. Bernard

Parish, 09-2793 (La. 1/9/11), 56 So.3d 170, argues that Mr. Smith failed to prove he

lost any wage-earning capacity because of any hearing loss sustained during his

employment. Instead, it asserts that Mr. Smith voluntarily retired, leaving the

workforce for reasons unrelated to his hearing loss and before his treating physician

made his NIOSH recommendation.

Conversely, Mr. Smith, relies on Adams v. Georgia Gulf Lake Charles, LLC,

17-723 (La.App. 3 Cir. 6/27/18), 249 So.3d 1066, writ denied, 18-1272 (La.

11/5/18), 255 So.3d 1053, an occupational noise induced hearing case that rejected

a similar argument about the loss of wage-earning capacity based on Poissenot.

Accordingly, he contends the WCJ correctly found he was entitled to workers’

compensation medical benefits, including SEBs. As outlined in Adams, he contends

he proved entitlement to SEBs by showing three necessary elements: (1) he suffers

from occupational noise induced hearing loss; (2) he needs medical treatment

(hearing aids and tinnitus medication); and (3) he has been restricted by his treating

physician from working in noisy work environments that exceed NIOSH noise

exposure limits.

4

In Hager v. Hosp. Housekeeping Sys., L.L.C., 20-38, p. 18 (La.App. 3 Cir.

10/28/20), 305 So.3d 937, 946-47, writ denied, 21-0124 (La. 3/16/21), 312 So.3d

1099, this court stated:

The Louisiana Supreme Court addressed the standards for proving
entitlement to SEB payments in Clay v. Our Lady of Lourdes Regional
Medical Center, Inc., 11-1797, p. 4 (La. 5/8/12), 93 So.3d 536, 538-39,
as follows:

The purpose of SEBs is to compensate the injured
employee for the wage earning capacity he has lost as a
result of his accident. Poissenot v. St. Bernard Parish
Sheriff’s Office, 09-2793 (La. 1/9/11), 56 So.3d 170, 174;
Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52,
55 (La.1993). La.R.S. 23:1221(3)(a) provides that an
employee is entitled to receive SEBs if he sustains a work-
related injury that results in his inability to earn 90% or
more of his average pre-injury wage. Initially, the
employee bears the burden of proving, by a preponderance
of the evidence, that the injury resulted in his inability to
earn that amount under the facts and circumstances of the
individual case. Poissenot, 56 So.3d at 174; Banks v.
Industrial Roofing & Sheet Metal Works, Inc., 96-2840
(La. 7/1/97), 696 So.2d 551, 556. Once the employee’s
burden is met, the burden shifts to the employer who, in
order to defeat the employee’s claim for SEBs, must
prove, by a preponderance of the evidence, that the
employee is physically able to perform a certain job and
that the job was offered to the employee or that the job was
available to the employee in his or the employer’s
community or reasonable geographic region. La.R.S.
23:1221(3)(c)(i); Poissenot, 56 So.3d at 174; Banks, 696
So.2d at 551.

Louisiana Revised Statutes 23:1031.1(A) provides:

Every employee who is disabled because of the contraction of an
occupational disease as herein defined, or the dependent of an employee
whose death is caused by an occupational disease, as herein defined,
shall be entitled to the compensation provided in this Chapter the same
as if said employee received personal injury by accident arising out of
and in the course of his employment.

“[G]radual noise induced hearing loss caused by occupational exposure to hazardous

noise levels” has been recognized as an occupational disease such that the

employee’s remedy was in workers' compensation rather than in tort. Arrant v.
5

Graphic Packaging International, Inc., 13-2878, p. 2 (La. 5/5/15), 169 So.3d 296,

298. Moreover, by definition, “an occupational disease is one in which there is a

demonstrated causal link between the particular disease or illness and the

occupation.” Id. at 309.

To better focus on the issue now before us, we note that PCA does not dispute

that Mr. Smith established he developed hearing loss as a result of his work at the

paper mill and that he was unemployed and earned no wages after January 1, 2017.

Nonetheless, PCA contends the burden of proof never shifted to it because Mr. Smith

presented no evidence that he was unable to earn wages after that date because of

his hearing loss, only that he voluntarily retired for reasons other than his hearing

loss. It points out that the Adams court failed to fully address this issue. We

disagree.

In Adams, 249 So.3d at 1069, 1074, this court stated:

In January 2010, Mr. Adams had back surgery. Although Mr.
Adams testified that he had planned to work at Georgia Gulf until the
age of seventy, he chose to retire in January of 2011, at the age of sixty-
five, after being informed by Georgia Gulf that it was retiring him. In
his supplemental appellee brief, Mr. Adams concedes that “the record
does establish that Mr. Adams has not sought employment since his
retirement from Georgia Gulf and that he now considers himself
retired.”

In December 2011, Mr. Adams filed a tort claim alleging
occupational noise-induced hearing loss as a result of his employment
with Georgia Gulf. In 2015, the Louisiana Supreme Court held, in
Arrant v. Graphic Packaging International, Inc., 13-2878, 13-2981
(La. 5/5/15), 169 So.3d 296, that occupational noise-induced hearing
loss is an occupational disease under the Louisiana Workers’
Compensation Act (“LWCA”). Thereafter, on June 12, 2015, Mr.
Adams filed the current workers’ compensation claim, seeking SEB as
a result of his alleged occupational hearing loss.

....

Although Mr. Adams agrees with Georgia Gulf that the
Poissenot Court stressed that the focus under the statute is on whether
a claimant has shown inability to earn ninety percent of his pre-injury
6

wages, Mr. Adams argues that Poissenot did not involve, and the Court
did not discuss, an occupational illness or disease such as in this case.
Thus, Mr. Adams cites to the Louisiana Supreme Court case, Seal v.
Gaylord Container Corp., 97-0688 (La. 12/02/97), 704 So.2d 1161, for
the proposition that a claimant can establish a prima face case of
entitlement to SEB for an occupational illness by noting his age, his
limited education and specialized work history, his restrictions from
working in his previous employment, and the fact that he earned more
than minimum wage. Mr. Adams alleges that there is no question that
he established a prima facie case for entitlement to SEB for his
occupational hearing loss because he is (1) sixty-five years old, (2)
worked forty years with Georgia Gulf, (3) worked thirty-five years in a
specialized job at Georgia Gulf, (4) had a noise restriction that
prevented him from working in most, if not all, work environments at
the plant, (5) had only a high school diploma, and (6) earned four times
more than minimum wage. Mr. Adams argues that once he established
a prima facie case on the principles set out in Seal, then the burden
shifted to Georgia Gulf to establish available jobs within Mr. Adams’
restrictions, in his geographic area, paying ninety percent or more of
Mr. Adams’ pre-injury wage. We agree.

Looking closely at the Adams decision, one aspect of proof in the award of

SEBs, one specifically addressed in Seal, needs repetition. The court in Seal, 704

So.2d at 1165 (emphasis added), stated:

Once the employee has established the existence of an occupational
disease, for his illness to be compensable, the employee must further
establish that the illness is disabling. In other words, after the
employee has established the existence of an occupational disease,
then he must further establish that he meets the criteria for one or
more of the statutory disabilities, that is (1) temporary total disability,
(2) permanent total disability, (3) supplemental earnings benefits, or (4)
permanent partial disability.

In its reasons for judgment in favor of Mr. Smith, the WCJ stated:

Claimant satisfied his burden of proving by a preponderance of the
evidence his entitlement to Supplemental Earnings Benefits (“SEB”) in
that he is unable to earn at least 90% of his pre-accident wages due to
the work-related noise restrictions, his age, level of education, and the
fact that his entire work career was limited to the specific type of work
performed at Defendant’s facility. . . . Because Claimant is retired,
Claimant’s entitlement to SEB is limited to 104 weeks in accordance
with La.R.S. 23:1221(3)(d)(iii).

In the present case, Mr. Smith forthrightly stated he voluntarily retired from

PCA for reasons other than his hearing loss. Specifically, he said: (1) his retirement
7

in 2016 had nothing to do with his hearing loss; and (2) he retired because he reached

retirement age. Although we find this undisputed, we do not find these facts eliminate

Mr. Smith’s entitlement to an SEB award as PCA urges.

In Tower v. ConocoPhillips Co., 19-81, p. 8 (La.App. 3 Cir. 11/16/19), 283

So.3d 612, 618-19, we stated:

Whether a plaintiff is disabled as a result of an occupational
disease or illness is a question of fact. Stutes v. Koch Services, Inc., 94-
782 (La.App. 3 Cir. 12/7/94), 649 So.2d 987, writ denied, 95-846 (La.
5/5/95), 654 So.2d 335; Jones v. Universal Fabricators, 99-1370
(La.App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742 (La.
5/12/00), 762 So.2d 13; Williams v. Pilgrim's Pride Corp., 11-59
(La.App. 3 Cir. 6/1/11), 68 So.3d 616, writs denied, 11-1793, 11-1794
(La. 10/21/11), 73 So.3d 384. It is equally well settled that the
employee must establish that his illness is disabling to receive
compensation for an occupational disease. Coats v. American Tel. &
Tel. Co., 95-2670 (La. 10/25/96), 681 So.2d 1243. Moreover, disability
marks the time from which it is clear that the employee is no longer
able to perform the duties of his employment in a satisfactory manner.
Swearingen v. Air Prod. & Chem. Inc., 481 So.2d 122 (La.1986); Starks
v. Universal Life Ins. Co., 95-1003 (La.App. 1 Cir. 12/15/95), 666
So.2d 387, writ denied, 96-113 (La. 3/8/96), 669 So.2d 400.

In the present case, it was not until September 19, 2018, when Dr. LeBert

diagnosed Mr. Smith with an occupational disease, found him disabled, and

restricted his work within NIOSH requirements that the basis for his SEB claim was

completed. At that time, Mr. Smith’s retirement became one directly affected by his

disability, and he was properly treated as a person who left work because of an

occupational disease—one who has not retired in the traditional sense. Accordingly,

we find Mr. Smith presented the WCJ with evidence that he was unable to earn

wages because of his occupational hearing loss.

We find this court’s treatment of “retirement” in Adams supports our

resolution here. Like Mr. Adams, who initially retired for reasons other than his

occupational disease, Mr. Smith’s similar retirement does not preclude him from

seeking an SEB award. Rather, his retirement only limits the length of his recovery.
8

SEB and Dr. LeBert’s Universal NIOSH Restriction

In its second assignment of error, PCA contends the WCJ erred in awarding

SEBs to Mr. Smith based upon Dr. LeBert’s universal NIOSH restriction, one Dr.

LeBert would apply to everyone, should Mr. Smith return to work. PCA argues that

Mr. Smith can perform his former job, assuming he uses the same hearing protection

under the same circumstances that Dr. LeBert recommends for all employees. Thus,

PCA maintains Mr. Smith failed to prove that because of his work injury he was

incapable of performing his former job absent some modification of that job.

Mr. Smith argues that Dr. LeBert’s universal noise restriction makes it easier

to prove entitlement to workers’ compensation indemnity benefits. He contends that

rather than focusing on the nature of the work restriction, the proper focus is whether

the restriction does or does not prevent an injured worker from performing his

current job or does or does not prevent an injured worker from earning 90 percent of

his average weekly wage in the case of an SEB award. We agree.

Mr. Smith testified that he regularly worked in close proximity to the roar of

the paper machines. According to his testimony, the noise of those paper machines

were similar to those of a freight train or a jet engine taking off, and he had to shout

to coworkers in order to communicate at arm’s length at work. In addition, once or

twice a week louder steam leaks would occur. In the early days of his employment,

ear plugs were neither required nor available. Later, when ear plugs were provided,

they were simple rubber or foam ear plugs. Never in the course of his forty-three

years of work in the paper industry was double hearing protection consisting of ear

plugs and earmuffs required or used.

David Ludolph (“Mr. Ludolph”) was the paper mill’s Safety Coordinator until

his retirement in 2012. He testified that the paper mill was not in compliance with

9

the OSHA3 mandated noise conservation program. He further stated that noise

surveys were taken at the paper mill which revealed that dosimeter readings in excess

of 120 and 130 decibels were routine for operators working near paper machines. To

place this into perspective, the NIOSH standards provides that a person can be safely

exposed to decibel levels as follows: 115 dBA, 28 seconds; 118 dBA, 14 seconds;

121 dBA, 7 seconds; 124 dBA, 3 seconds; and 127 dBA, 1 second.

From the outset we observe that PCA does not dispute that Mr. Smith

established he developed a hearing loss as a result of his work at the paper mill.

Confirmation of that hearing loss may be found in Dr. LeBert’s examination of Mr.

Smith and his diagnosis,4 the undisputed testimony that Mr. Smith was repeatedly

exposed over the course of years to loud noises at the paper mill, and his records of

historical audiograms. The record is equally clear that Dr. LeBert acknowledged his

application of the NIOSH noise restrictions is one he would make to the general

population of workers at PCA and that not all workers at PCA would develop noise

induced hearing loss regardless of the NIOSH noise restriction. Nevertheless, Dr.

LeBert testified the NIOSH restriction is a work related restriction he would

particularly make for Mr. Smith because he suffered noise related hearing loss. By

doing so, Dr. LeBert acknowledged that Mr. Smith was more than a laborer subject

to the generalized application of the NIOSH noise restrictions—the application of

3
The record shows that there are OSHA and NIOSH standards regarding sound levels. It
appears that the greatest difference between the two standards centers on the length of time a
person can safely be exposed to each decibel level. To illustrate that point, Mr. Smith’s Exhibit G
states, “according to the OSHA standard a person can withstand an environment with sound levels
at 95 dBA for four hours. After four hours they are at risk for [noise induced hearing loss.] NIOSH
maintains that a person is safe in a 95 dBA environment for less than one hour.”

4
It was stated in Mr. Smith’s brief to this court that Dr. Gionoli, the physician who provided
PCA with a second medical opinion, did not dispute any of Dr. LeBert’s findings. We also note
that neither in its original nor reply brief did PCA reference Dr. Gianoli’s report or rebut Mr.
Smith’s synopsis of Dr. Gianoli’s affirmation of Dr. LeBert’s medical opinion.
10

this restriction to this particular injured individual would prevent further hearing

damage.

In the present case, Mr. Smith established that: (1) he was just shy of sixty-

three years of age when he last worked for PCA, (2) he worked almost forty-three

years with PCA, (3) he worked as an “A Operator,” a specialized job at PCA, (4) he

had a noise restriction that prevented him from working in most, if not all, work

environments at the plant, and (5) he had no education beyond high school; and (6)

he earned an annual salary of $104,963.00, significantly more than minimum wage.

Notwithstanding, PCA argues that because Mr. Smith admitted that the only

job for which he qualified that would allow him to earn 90% of his pre-injury wage

is the job he held at PCA before his retirement, he was required to prove that the work

conditions which lead to his hearing loss were no longer present during the SEB

period. In support of its argument, PCA points out that Mr. Ludolph’s testimony of

the mill conditions only related to the time before he himself left the mill in 2012,

and he lacked the qualifications to opine whether the facility was NIOSH compliant

later than that date. Relying on the testimony of Michael Czudek (“Mr. Czudek”),

PCA’s safety manager since April 2019, and Christopher Robertson (“Mr.

Robertson”), an industrial hygienist, PCA argues that the WCJ manifestly erred in

rejecting uncontradicted evidence that nothing prohibited Mr. Smith from performing

any job, including the job of an “A Operator” at PCA’s facility between September

19, 2018, and September 19, 2020, the period during which Mr. Smith could have

been awarded SEBs.

From the outset, we reject the attempt of PCA to impose a separate element

of prima facie proof on Mr. Smith, namely, that he failed to prove that the work

conditions that resulted in his hearing loss were still present during the SEB period.

11

Our review of the law and the jurisprudence fails to find that such a burden has been

imposed on a worker as an element of prima facie proof.

Moreover, in Trahan v. Trahan, 10-109, p. 12 (La.App. 1 Cir. 6/11/10), 43

So.3d 218, 228-29, writ denied, 10-2014 (La.11/12/10), 49 So.3d 889, the court

stated:

It is well settled in Louisiana that the trier of fact is not bound
by the testimony of an expert, but such testimony is to be weighed the
same as any other evidence. The trier of fact may accept or reject in
whole or in part the opinion expressed by an expert. Harris v. State ex
rel. Dept. of Transp. and Development, 2007–1566, p. 25 (La.App. 1
Cir. 11/10/08), 997 So.2d 849, 866, writ denied, 2008-2886
(La.2/6/09), 999 So.2d 785. The effect and weight to be given expert
testimony is within the broad discretion of the trial court. Morgan v.
State Farm Fire and Cas. Co., Inc., 2007-0334, p. 8 (La.App.11/2/07),
978 So.2d 941, 946.

The decision reached by the trial court regarding expert
testimony will not be disturbed on appeal absent a finding that the trial
court abused its discretion. Louisiana State Bar Ass’n v. Carr and
Associates, Inc., 2008-2114, p. 17 (La.App. 1 Cir. 5/8/09), 15 So.3d
158, 171, writ denied, 2009-1627 (La.10/30/09), 21 So.3d 292.

See also Carmichael v. Brooks, 16-93 (La. App. 3 Cir. 6/22/16), 194 So.3d 832, 838-

39, writ denied, 16-1396 (La. 11/7/16), 209 So.3d 100, and writ denied, 16-1501 (La.

11/7/16), 209 So.3d 100.

On the other hand, the Louisiana Supreme Court addressed the employer’s

burden of proof in SEB cases and established the minimum burden for employers to

prove job availability in Banks v. Industrial Roofing & Sheet Metal Works, Inc.,

96-2840 (La. 7/1/97), 696 So.2d 551. An employer may meet its burden of proof by

providing competent evidence of:

(1) the existence of a suitable job within claimant's physical
capabilities and within claimant's or the employer's community or
reasonable geographic region;

(2) the amount of wages that an employee with claimant's experience
and training can be expected to earn in that job; and

12

(3) an actual position available for that particular job at the time that
the claimant received notification of the job's existence.

Id.at 557.

In addition to the assertions of Mr. Czudek and Mr. Robertson, the WCJ heard

the testimony of Pamela Drouin (“Ms. Drouin”), PCA’s claims adjuster, that PCA

never offered Mr. Smith any job after he made demand for SEBs and no attempt was

made to identify other available jobs that met the restrictions and pay that would have

precluded an SEB award. Mr. Czudek, relying on the fact that claimants such as Mr.

Smith were retired, confirmed that no NIOSH compliant job offers were offered to

any hearing loss claimants. And Mr. Robertson admitted he was not involved in an

attempt to locate any jobs which met Dr. LeBert’s NIOSH noise restrictions, or that

any jobs were actually available for Mr. Smith.

Against that backdrop, the WCJ considered the evidence in light of the factors

delineated in Seal and relied upon in Adams and determined that Mr. Smith made a

prima facie showing that he was entitled to an SEB award. At that point the burden

shifted to PCA to establish available jobs within Mr. Smith’s restrictions, in his

geographic area, paying ninety percent or more of Mr. Smith’s pre-injury wage. After

examining the evidence in light of La.R.S. 23:1221 and the jurisprudence, the WCJ

determined that Mr. Smith made a prima facie showing of entitlement to an SEB

award.

We find the record fully supports the WCJ’s findings of fact and find no

manifest error in the WCJ’s determination of this threshold issue. Furthermore, once

Mr. Smith made a prima facie showing of his entitlement to an SEB award, the burden

shifted to PCA to establish available jobs within Mr. Smith’s restrictions, in his

geographic area, paying ninety percent or more of his pre-injury wage. The record is

13

clear that PCA made no such showing. Therefore, we find no error in the WCJ’s

award of SEBs to Mr. Smith.

Penalties and Attorney Fees

Next, PCA argues that the WCJ erred in awarding penalties of $8,000.00 and

$15,000.00 in attorney fees. PCA contests these awards in two distinct ways.

First, it argues that the WCJ erred in awarding penalties and attorney’s fees

for its failure to provide vocational rehabilitation services under La.R.S. 23:1226. It

points out that the goal of rehabilitation is to return the disabled worker to

employment as soon as possible after an injury occurs. PCA continues by noting

that in Mason v. Auto Convoy, (La.App. 2 Cir. 11/1/95), 662 So.2d 843, 848, the

court stated that “an employee who retired because he has withdrawn from the work

force has no need for rehabilitation or a job market survey. These benefits are

provided to an employee who aspires to return in some capacity to the work force

under the goal or scheme of the statute.” In the present case, PCA points out that

Mr. Smith retired from the work force and had no intention of returning to work.

Thus, vocational rehabilitation was not called for. PCA further contends that

pursuant to Chelette v. Riverwood Intern., USA, Inc., 03-1483 (La. 10/17/03), 858

So.2d 413, “the sanction of penalties and attorney fees imposed by La.R.S. 23:1201

is not directed at the vocational rehabilitation obligation of La.R.S. 23:1226.”

Secondly, PCA argues that it had a good faith legal and factual basis to dispute

Mr. Smith’s entitlement to SEBs. Although PCA does not dispute that Mr. Smith

was entitled to medical benefits, it points out that it was entitled to a $30,000.00

credit toward any amount owed to Mr. Smith. PCA contends that even if this court

finds it owed SEBs, thus exhausting PCA’s $30,000.00 credit prior to May 8, 2020,

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when Dr. LeBert requested approval for hearing aids, the maximum penalty it could

have owed was $6,000.00.

As to the question of vocational rehabilitation, Mr. Smith, relying on Lollis v.

Shaw Global Energy Serv., (La.App. 3 Cir. 10/3/07), 966 So.2d 1118, disputes

PCA’s contrary argument. Nevertheless, he further suggests that we do not need to

reach that argument because the $8,000.00 maximum amount provided in La.R.S.

23:1201 is met as more than four $2,000.00 penalties existed independent of

vocational rehabilitation.

An employer is subject to penalties and attorney fees should it fail to

reasonably controvert an employee’s claim. La.R.S. 23:1201(F); see also Leger v.

A-1 Nursing Registry, 98-1731 (La.App. 3 Cir. 4/28/99), 737 So.2d 142, writ denied,

99-1555 (La. 9/24/99), 749 So.2d 633. The standard of review for whether penalties

and attorney fees were appropriately assessed in a workers’ compensation case is

that of manifest error. See Bennett v. Pilgrim’s Pride, 07-753 (La.App. 3 Cir.

12/12/07), 972 So.2d 423, writ denied, 08-103 (La.3/7/08), 977 So.2d 907.

After reviewing the record and the argument of counsel, we find it

unnecessary to reach the argument raised by PCA regarding vocational rehabilitation

services. Mr. Smith made numerous requests to PCA to provide medical treatment,

testing, and the award of SEBs. These were based upon Dr. LeBert’s report which

outlined Mr. Smith’s diagnosis, the job restrictions, and various medical

recommendations, including approval of a hearing aid evaluation, a request for Lipo

Flavonoid for the treatment of tinnitus, approval of a follow-up audiogram, and a

request for the payment for hearing aids. These requests as well as a demand for the

payment of SEBs were not provided by PCA.

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What follows is the colloquy between counsel for Mr. Smith and Ms. Drouin,

PCA’s claims adjuster, who addressed various issues involving non-payment,

including reference to the earlier tort settlement of 2013, to-wit:

Q. [B]y 2020, even if you were thinking that there might be a credit
because of that tort settlement, that would have been completely used
up well before that; and so, that wasn’t the reason you didn’t pay for
the hearing aids; was it?

A. No.

....

A. Talking to the defense, it was said that we were not going to
authorize paying for these hearing aids.

Q. Okay. And you have no other reason not to pay for hearing aids
other than some lawyer must have told you some reason not to do it but
you don’t want to share it with the Court because I guess you claim
that’s attorney/client privilege?

A. That was my directive by my supervisor. I was . . . told that we
were not paying anything. We were not paying any medical and we
weren’t paying any SEB.

Q. Even when Dr. Gianoli [(PCA’s choice of a physician who provided
a second medical opinion)] agreed with . . . Dr. LeBert?

A. Yes, I’m going by what I was told.

Q. Okay. . . . [I]t sounds to me like you sort of disagreed with that but
you had to do it because you were told to; is that fair?

A. I was – I was told what to do.

Q. Did you believe, though, that these probably were owed because
you have a treating doctor and the second opinion doctor that both
agreed that it’s compensable?

A. Yes.

It is apparent that PCA knowingly chose to test various arguments in the trial

court to challenge Mr. Smith’s entitlement to workers’ compensation medical

benefits and an award for SEBs. The WCJ rejected those arguments, and we have

affirmed that judgment. Reliance on an erroneous interpretation of a law subjects
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the employer to penalties and attorney fees. McCarty v. State Office of Risk Mgt.,

94-33 (La.App. 3 Cir. 10/5/94), 643 So.2d 886; Rothell v. City of Shreveport, 626

So.2d 763, writ denied, 93-3191 (La. 2/11/94), 634 So.2d 379; McKenzie v. City of

Bossier, 585 So.2d 1229 (La.App. 2 Cir. 1991).

We next turn to Mr. Smith’s answer to the appeal, seeking an increase in the

attorney fee award for defending the judgment of the WCJ.

“The award of additional attorney fees is warranted when the claimant

successfully defends its judgment.” Thomas Med. Grp., APMC v. Stine, LLC,

10-580, p. 5 (La.App. 3 Cir. 12/8/10), 52 So.3d 993, 997. “Generally, when an award

for attorney’s fees is granted [by the WCJ], additional attorney’s fees are proper for

work done on appeal [so as] to keep the appellate judgment consistent with the

underlying judgment.” Wilczewski v. Brookshire Grocery Store, 08-718, p. 18

(La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La. 4/13/09), 5

So.3d 170.

Based upon counsel’s successful defense of the WCJ judgment, we award an

additional attorney fee of $5,000.00.

DECREE

For the foregoing reasons, we affirm the judgment of the Workers’

Compensation Judge. Additionally, the judgment of the Workers’ Compensation

Judge is amended, and judgment is rendered in favor of Lyman Smith and against

Packaging Corporation of America in the amount of $5,000.00 as additional attorney

fees for the work necessitated by this appeal. All costs of this appeal are assessed

against Packaging Corporation of America.

AFFIRMED.

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