Marlon R. Hyatt v. Boise Cascade Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-411

MARLON R. HYATT

VERSUS

BOISE CASCADE CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT NO. 3
PARISH OF CALCASIEU, NO. 18-01902
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:
Marlon R. Hyatt

Phillip E. Foco
Bienvenu, Bonnecoze, 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 America (PCA) appeals a workers’ compensation

judge’s (WCJ’s) judgment rendered in favor of Plaintiff, Marlon Hyatt, 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. Hyatt 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. Hyatt and

award an additional $5,000.00 in attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

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

which is a predecessor of PCA, at a paper mill in 1970. He was thirty years old at

the time. After working for over thirty years as a paper maker, operator on the paper

machines, and in the shipping department, he retired from his job in August 2003.

At the time of his retirement, Mr. Hyatt had an annual wage of $63,936.00, which

was equivalent to an average weekly wage of $1,229.54 per week. Mr. Hyatt has

since retired from the workforce for reasons unrelated to hearing loss.

On March 28, 2018, Mr. Hyatt filed a workers’ compensation claim 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. Hyatt by its predecessors, including Boise Cascade. On

November 20, 2018, Mr. Hyatt was evaluated by his treating physician, Dr. Brad

LeBert. Dr. LeBert opined that Mr. Hyatt had occupationally related noise-induced

hearing loss as a result of his work at the paper mill, and he restricted Mr. Hyatt’s

work to within National Institute for Occupational Safety and Health (“NIOSH”)

compliant environments.

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

on November 21, 2018, seeking medical benefits, audiograms, hearing aids,

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

for Authorization for treatment on January 22, 2020. These demands were either

ignored or denied as non-compensable. Further, the parties stipulated that PCA did

nothing to reasonably controvert Mr. Hyatt’s claim until, at the earliest, November

5, 2019, when it received a second medical opinion.

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

identical claims asserted against PCA by former employees Clarence Bos and

Woodrow Colton, was held on June 24, 2021.1 Following trial, the WCJ found that

Mr. Hyatt 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. Hyatt for medical and indemnity

benefits, including SEBs in the amount of $43,264.00. This is the equivalent of 104

weeks, beginning November 20, 2018, at a weekly compensation rate of $416.00 per

week. The WCJ also concluded that PCA was arbitrary and capricious in failing to

authorize Mr. Hyatt’s requests for various medical treatments, SEBs, and vocational

1
PCA’s appeal of the similar ruling rendered in favor of Mr. Colton bears docket number
22-410, 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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rehabilitation services, and it awarded Mr. Hyatt $8,000.00 in penalties and

$15,000.00 in attorney fees.

PCA appeals and asserts the following as assignments of error:

1. The Workers’ Compensation hearing officer erred in awarding
SEBs to Hyatt, as he withdrew from the workforce prior to the date
that Dr. Le[B]ert made his NIOSH recommendation.

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

3. The Workers’ Compensation hearing officer erred in finding that
Hyatt was incapable of performing the job of an “A Operator” at the
PCA paper mill between November 20, 2018 and November 20,
2020 as a result of Dr. Le[B]ert’s NIOSH recommendation.

4. The Workers’ Compensation hearing officer erred in finding that Dr.
Le[B]ert’s NIOSH recommendation prevented Hyatt from earning
90% of his average weekly wage, considering his skills,
qualifications and experience.

5. The Workers’ Compensation hearing officer erred in awarding
penalties and attorneys’ fees for failure to initiate vocational
rehabilitation services.

6. The Workers’ Compensation hearing officer erred in awarding
penalties and attorney’s fees for failure to initiate SEBs.

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

incurred in connection with work done on appeal.

ANALYSIS

The first three assignments of error are identical to PCA’s arguments made in

connection with its appeals of the judgments rendered in favor of Mr. Bos and Mr.

Colton, 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

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____, and Smith, __ So.3d __, we likewise find no merit in these assignments of

error.

In its fourth assignment of error, PCA additionally argues that Mr. Hyatt did

not produce any evidence suggesting that Dr. LeBert’s NIOSH recommendation

prevented him from performing any other job for which he was qualified.

Specifically, PCA suggests that Mr. Hyatt worked for other companies after his

retirement from PCA until September 2018, when he was restricted from performing

any work due to a back injury, and that he made $27.00 per hour.

In response, Mr. Hyatt contends that PCA’s argument in connection with both

this assignment of error and its third assignment of error ignores the fact that Mr.

Hyatt need only establish a prima facie case of entitlement to SEBs, and once that

occurs, the burden shifts to PCA to negate entitlement to SEBs. We agree. For the

reasons expressed in Bos and in Smith, we likewise find that Mr. Hyatt satisfied his

prima facie case, the burden shifted to PCA, and PCA failed to satisfy its burden.

With respect to PCA’s fifth and sixth assignments of error, and Mr. Hyatt’s

answer to the appeal, we affirm the WCJ’s award of penalties and attorney fees and

award Mr. Hyatt with an additional $5,000.00 in attorney fees for work done on

appeal for the same reasons expressed in Bos and Smith.

DECREE

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

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

are awarded in favor of claimant, Marlon Hyatt, 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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