Woodrow W. Colton, Jr. v. Boise Cascade Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-410

WOODROW W. COLTON, JR.

VERSUS

BOISE CASCADE CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT NO. 3
PARISH OF CALCASIEU, NO. 17-07611
JONATHAN W. BROWN, WORKERS’ COMPENSATION JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Gary J. Ortego, Judges.

AFFIRMED.

Thomas A. Filo
Cox, Cox, Filo, Camel & Wilson, L.L.C.
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLEE:
Woodrow W. Colton, Jr.

Phillip E. Foco
Bienvenu, Bonnecaze, Foco, & Viator LLC
4210 Bluebonnet Boulevard
Baton Rouge, LA 70809
(225) 388-5600
COUNSEL FOR DEFENDANTS/APPELLANTS:
Boise Cascade Corporation
Packaging Corporation of America

Max Malvin
Malvin Law, LLC
201 St. Charles Ave, Suite 2500
New Orleans, LA 70170
(504) 383-0895
COUNSEL FOR DEFENDANTS/APPELLANTS:
Boise Cascade Corporation
Packaging Corporation of America

SAVOIE, Judge.

Packaging Corporation of Amercia (PCA) appeals a workers’ compensation

judge’s (WCJ’s) judgment rendered in favor of Plaintiff, Woodrow Colton, awarding

him supplemental earnings benefits (“SEBs”) for occupational noise-induced

hearing loss resulting from his employment at a paper mill owned by PCA and its

predecessors, as well as penalties and attorney fees. Mr. Colton answers the appeal

and seeks an additional award of costs and attorney fees incurred on appeal.

For the following reasons, we affirm the judgment in favor of Mr. Colton and

award an additional $5,000.00 in attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Colton began working for Boise Cascade Corporation (Boise Cascade),

which is a predecessor of PCA, at a paper mill in 1972. He was twenty years old at

the time. After working for forty one years as a paper maker and operator on the

paper machines, he retired from his job in August 2013. At the time of his

retirement, Mr. Colton had an annual wage of $104,862.00, which was equivalent to

an average weekly wage of $2,016.58 per week. After leaving the paper mill, Mr.

Colton completely retired from the workforce for reasons unrelated to hearing loss.

On November 28, 2017, Mr. Colton filed a workers’ compensation claim

against Boise Cascade, seeking benefits related to hearing loss resulting from his

employment at the paper mill. PCA has stipulated that it is liable for any and all

workers’ compensation obligations that may be owed to Mr. Colton by its

predecessors, including Boise Cascade. On October 23, 2018, Mr. Colton was

evaluated by his treating physician, Dr. Brad LeBert. Dr. LeBert opined that Mr.

Colton had occupationally related noise-induced hearing loss as a result of his work

at the paper mill, and he restricted Mr. Colton’s work to within National Institute for

Occupational Safety and Health (“NIOSH”) compliant environments.

Following Mr. LeBert’s recommendations, Mr. Colton made a formal demand

on October 23, 2018, seeking medical benefits, audiograms, hearing aids, vocational

rehabilitation, and SEBs. Dr. LeBert also submitted a Form 1010 Request for

Authorization for treatment on May 22, 2019. These demands were either ignored

or denied. Further, the parties stipulated that PCA did nothing to reasonably

controvert Mr. Colton’s claim until, at the earliest, November 20, 2019, when it

received a second medical opinion.

A combined trial on the merits of Mr. Colton’s claims, along with the nearly

identical claims asserted against PCA by former employees Marlon Hyatt and

Clarence Bos, was held on June 24, 2021.1 Following trial, the WCJ found that Mr.

Colton proved by preponderance of the evidence that he has suffered from

occupationally related noise-induced hearing loss, he was given a work restriction

by Dr. LeBert, and he was unable to earn ninety percent or more of his pre-injury

wage.2

A judgment was rendered in favor of Mr. Colton for medical and indemnity

benefits, including SEBs in the amount of $64,376.00. This is the equivalent of 104

weeks, beginning October 23, 2018, at a maximum weekly compensation rate of

$619.00. The WCJ also concluded that PCA was arbitrary and capricious in failing

to authorize Mr. Colton’s requests for various medical treatments, SEBs, and

1
PCA’s appeal of the similar ruling rendered in favor of Mr. Hyatt bears docket number
22-411, and its appeal of the of the similar ruling rendered in favor of Mr. Bos bears docket number
22-412. These cases were consolidated with the instant case in this court for purposes of oral
argument.
2
The WCJ’s written reasons for ruling are set forth in Bos v. Packaging Corporation of
America, 22-412 (La.App. 3 Cir. _/_/23), __ So.3d __.

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vocational rehabilitation services, and it awarded Mr. Colton $8,000.00 in penalties

and $15,000.00 in attorney fees. The judgment further recognized that PCA was

entitled to a “credit/offset in the amount of $30,000.00.”

PCA appeals and asserts the following as assignments of error:

1. The Workers’ Compensation hearing officer erred in awarding
SEBs to Colton, as he withdrew from the workforce for reasons
unrelated to his hearing loss prior to the date that [sic] Dr. Le[B]ert’s
NIOSH recommendation.

2. The Workers’ Compensation hearing officer erred in awarding
SEBs to Colton based on Dr. Le[B]ert’s recommendation that
Colton follow NIOSH noise exposure guidelines if he returned to
work, as that recommendation is generally applicable and not
causally related to Colton’s hearing loss.

3. The Workers’ Compensation hearing officer erred in finding that
Colton was incapable of performing the job of an “A Operator” at
the PCA paper mill between October 23, 2018 and October 23, 2020
as a result of Dr. Le[B]ert’s NIOSH recommendation.

4. The Workers’ Compensation hearing officer erred in awarding
penalties in the amount of $8,000 and attorneys’ fees in the amount
of $15,000 to Colton.

Mr. Colton answers the appeal and seeks additional attorney fees and costs

incurred in connection with work done on appeal.

ANALYSIS

The assignments of error and legal arguments made herein are identical to

PCA’s arguments made in connection with its appeals of the judgments rendered in

favor of Mr. Bos and Mr. Hyatt, as well as in Smith v. Packaging Corporation of

America, 22-171 (La.App. 3 Cir. 11/30/22), __ So.3d __. For the reasons set forth

by this court in both Bos v. Packaging Corporation of America, 22-412 (La.App 3

Cir. __/__/23), __ So.3d __, and Smith, __ So.3d __, we likewise affirm the judgment

of the WCJ with respect to Mr. Colton. We further award Mr. Colton with an

additional $5,000.00 in attorney fees incurred in connection with this appeal.

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DECREE

For the reasons set forth above, we affirm the judgment of the workers’

compensation judge. In addition, attorney fees in the amount of $5,000.00 are

awarded in favor of claimant, Woodrow Colton, and against Packaging Corporation

of America, for attorney fees incurred on appeal. All costs of this proceeding are

assessed to appellant, Packaging Corporation of America.

AFFIRMED.

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