Stanley Shreve v. Bio-Lab, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

24-228

STANLEY SHREVE

VERSUS

BIO-LAB, INC.

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ON APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 19-02442
THOMAS E. TOWNSLEY, WORKERS’ COMPENSATION JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

John J. Rabalais
Blake M. Alphonso
Rabalais Unland
70779 South Ochsner Boulevard
Covington, Louisiana 70433
(985) 893-9900
COUNSEL FOR DEFENDANT/APPELLANT:
Bio-Lab, Inc.

Kevin L. Camel
Cox Cox Filo Camel Wilson & Brown, LLC
723 Broad Street
Lake Charles, Louisiana 70601
(337) 436-6611
COUNSEL FOR CLAIMANT/APPELLEE:
Stanley Shreve

PERRY, Judge.

This is a workers’ compensation claim based on alleged occupationally-

induced hearing loss. The employer appeals the decision of the workers’

compensation judge awarding the employee supplemental earnings benefits, medical

expenses, penalties, and attorney fees for hearing loss caused by his employment.

For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Stanley Shreve (“Mr. Shreve”) began his employment with Olin Corporation,

Inc., the predecessor of Bio-Lab, Inc. (“Bio-Lab”), on or about June 26, 1979. He

was employed as an operator at Bio-Lab’s Chemtura plant in Westlake for almost

thirty-eight years until his retirement on March 31, 2017. Mr. Shreve experienced a

progressive decline in his hearing, shown by historical audiograms starting in 1983.

On April 3, 2019, an audiogram was conducted showing Mr. Shreve had a sensory

neural hearing loss. On April 16, 2019, Mr. Shreve filed a disputed claim for

compensation against Bio-Lab seeking benefits related to occupationally-induced

hearing loss resulting from his employment. On August 7, 2019, Dr. Brad LeBert

(“Dr. LeBert”),1 Mr. Shreve’s choice of treating physicians, opined that Mr. Shreve

had noise-induced hearing loss because of his work at Bio-Lab and restricted his

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

compliant environments. On December 12, 2023, Dr. Blake LeBlanc (“Dr.

LeBlanc”) 2 evaluated Mr. Shreve and agreed with Dr. LeBert’s opinion that the

noise to which Mr. Shreve was exposed during his employment contributed to his

1
Dr. LeBert is an otorhinolaryngologist (“ENT”).
2
Dr. LeBlanc, also an ENT, was Dr. LeBert’s partner. Dr. LeBlanc became Mr. Shreve’s
treating physician after Dr. LeBert moved out of the area.

hearing loss. Dr. LeBlanc also agreed that Mr. Shreve was permanently restricted

from working in a noisy environment.

Bio-Lab denied Mr. Shreve’s hearing loss was caused by his employment and

asserted that Mr. Shreve’s claim had prescribed. Trial was held on January 3, 2024,

after which the workers’ compensation judge (“WCJ”) took the matter under

advisement and accepted post-trial briefs from each party.

On January 19, 2024, written reasons for judgment were handed down.

Therein, the WCJ found that Mr. Shreve had satisfied his burden of proving by a

preponderance of the evidence that his gradual hearing loss was the result of his

exposure to hazardous noise conditions over the length of his employment with Bio-

Lab. Thus, Mr. Shreve was entitled to medical and indemnity benefits; payment of

$132.00 for his audiogram; payment of $414.00 for his medical visit with Dr.

LeBert; and two years of supplemental earnings benefits (“SEBs”) in the amount of

$68,328.00 (104 weeks at a rate of $657.00/week).3 Finally, Mr. Shreve was

awarded penalties of $8,000.00 and attorney fees of $15,000.00 because Bio-Lab

failed to reasonably controvert the claim and was arbitrary and capricious in

handling the claim.4

A motion for a new trial was filed by Bio-Lab and denied by the trial court on

January 25, 2024. Bio-Lab then filed the instant appeal.

ASSIGNMENTS OF ERROR

Bio-Lab asserts five assignments of error:

1. The Workers’ Compensation Judge committed an error of law,
warranting de novo review, by applying the incorrect legal

3
Because Mr. Shreve had retired, his SEBs were limited to 104 weeks in accordance with
La.R.S. 23:1221(3)(d)(iii).
4
Bio-Lab was also cast with all costs of these proceedings.

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standard and/or burden of proof necessary to determine whether
Plaintiff/Appellee is disabled, and thereby entitled to indemnity
benefits, as a result of his alleged hearing loss.

2. The Workers’ Compensation Judge committed
manifest/reversible error, and/or his decision was clearly wrong,
in finding that Plaintiff/Appellee is disabled, and thereby entitled
to indemnity benefits, as a result of his alleged hearing loss.

3. The Workers’ Compensation Judge committed
manifest/reversible error, and/or his decision was clearly wrong,
in finding that Plaintiff/Appellee has established a causal link
between his work-related duties and his alleged hearing loss.

4. The Workers’ Compensation Judge committed
manifest/reversible error, and/or his decision was clearly wrong,
in finding that Plaintiff/Appellee’s claim for workers’
compensation benefits as a result of his alleged hearing loss has
not prescribed.

5. The Workers’ Compensation Judge committed
manifest/reversible error, and/or his decision was clearly wrong,
in finding that Plaintiff/Appellee is entitled to penalties and/or
attorney fees.

APPELLANT’S ARGUMENTS

Bio-Lab argues the WCJ applied the wrong legal standard and/or burden of

proof necessary to determine whether Mr. Shreve is disabled because of his alleged

hearing loss. Bio-Lab contends the recommendation to avoid loud noise made by

Mr. Shreve’s treating physician does not satisfy the applicable standard of law and/or

burden of proof necessary to establish the existence of a disability. Thus, Bio-Lab

asserts this court should review the evidence de novo.

In the event this court finds the WCJ did not commit an error of law, Bio-Lab

argues the WCJ was manifestly erroneous in finding Mr. Shreve is disabled because

of his alleged hearing loss. Bio-Lab contends the WCJ erred in finding that Mr.

Shreve is disabled based upon Dr. LeBert’s NIOSH recommendation.

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Bio-Lab argues no causal connection exists between Mr. Shreve’s alleged

hearing loss and his employment with Bio-Lab. Bio-Lab contends the WCJ was

manifestly erroneous in finding Mr. Shreve had established a causal link between

his work-related duties and his alleged hearing loss. Thus, Bio-Lab argues Mr.

Shreve’s claim for workers’ compensation benefits should have been denied.

Bio-Lab also argues the WCJ erred in determining that Mr. Shreve’s claim for

workers’ compensation benefits had not prescribed. According to Bio-Lab, Mr.

Shreve’s claim for indemnity benefits is prescribed pursuant to La.R.S. 23:1031.1,

and his claim for medical treatment related to his hearing loss is prescribed pursuant

to La.R.S. 23:1209.

Finally, Bio-Lab contends the WCJ was manifestly erroneous in finding that

Mr. Shreve is entitled to statutory penalties under La.R.S. 23:1201 as well as an

award of attorney fees. Bio-Lab argues they have reasonably controverted Mr.

Shreve’s workers’ compensation claim; thus, the WCJ erred in awarding penalties

of $8,000.00 and attorney fees in the amount of $15,000.00.

APPELLEE’S POSITION

Mr. Shreve asserts the WCJ did not err in ruling he met his burden of proving

his entitlement to workers’ compensation benefits. Mr. Shreve points out that his

treating physicians both testified that the noise to which he was exposed while

employed at Bio-Lab caused his hearing loss and both permanently restricted Mr.

Shreve from working in a noisy environment. Additionally, both treating physicians

opined that the noise at the Chemtura facility caused Mr. Shreve’s hearing loss.

According to Mr. Shreve, Bio-Lab did not call a single witness, did not obtain a

second medical opinion, and did not introduce any evidence to dispute either the

testimonies of Mr. Shreve or his treating physicians.

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Mr. Shreve contends the WCJ correctly applied the prescription rules for an

occupational illness under La.R.S. 23:1031.1(E), which states that a claim must be

filed “within one year of the dates that: (1) [t]he disease manifested itself[,] (2) [t]he

employee is disabled from working as a result of the disease[, and] (3) [t]he

employee knows or has reasonable grounds to believe that the disease is

occupationally related[.]” Mr. Shreve argues Bio-Lab misinterpreted the law on

prescription for occupational disease claims. He contends such a misinterpretation

is not sufficient to justify a refusal to pay a demand for workers’ compensation

benefits.

Mr. Shreve also argues the WCJ properly awarded him penalties and attorney

fees for failing to reasonably controvert his claim. According to Mr. Shreve, Bio-

Lab misinterpreted the law on prescription for occupational disease claims to justify

their failure to provide payment of his workers’ compensation benefits.

STANDARD OF REVIEW

Appellate courts review the factual determinations in workers’ compensation

cases using the manifest error or clearly wrong standard of appellate review. Smith

v. Packaging Corp. of America, 22-171 (La.App. 3 Cir. 11/30/22), 354 So.3d 132,

writ denied, 23-001 (La. 2/24/23), 356 So.3d 343. The manifest error or clearly

wrong standard of review was explained by the supreme court in Stobart v. State,

through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993) (internal citations

and quotation marks omitted), as:

[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

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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
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

Disability

In its first and second assignments of error, Bio-Lab argues Mr. Shreve failed

to prove he is disabled and, thus, entitled to SEBs. According to Bio-Lab, a de novo

review of the evidence is necessary because the WCJ applied the incorrect standard

and/or burden of proof necessary to determine whether Mr. Shreve is disabled.

Further, Bio-Lab alleges Mr. Shreve presented no evidence he was unable to earn

wages after the date of his hearing loss and the WCJ erred in supporting its disability

determination with Dr. LeBert’s NIOSH-based recommendation that would apply to

anyone.

In its brief to this court, Bio-Lab also states that the WCJ’s final judgment in

this matter “did not provide any discernable legal standard or jurisprudential

precedent by which he determined that Mr. Shreve is disabled as a result of his

alleged hearing loss.” Additionally, Bio-Lab asserts “Mr. Shreve has not submitted

any objective evidence to establish a ‘wage loss,’ outside of his unsubstantiated

desire for a zero-dollar earning capacity.”

In its reasons for judgment in favor of Mr. Shreve, the WCJ wrote:

I found Stanley Shreve to be very credible. He gave this Court a
good description of the equipment he worked around and the hazardous
noise conditions he was subjected to during the course and scope of his
employment. The record contains audiograms and medical testimony

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that demonstrate he suffered some occupational hearing loss, even
though not all is solely attributable to the hazardous noise condition of
his employment. As such, the Court finds that the claimant has proven
by a preponderance of the evidence that he suffered an occupationally
related noise induced hearing loss. Stanley Shreve was given
restrictions by Dr. LeBert and Dr. LeBlanc to avoid loud noise in all
settings and as such would not be able to return to his work at Bio-Lab,
Inc. or any industrial setting exposing him to loud noises. Stanley
Shreve testified that in his work as a setup supervisor/lead operator, he
has to troubleshoot equipment and can be exposed to loud noise from
the equipment from 10 minutes up to 2 hours. Consequently, he would
not be able to return to his previous (last job) he held with Bio-Lab,
Inc., where he was a high-wage earner.

Given the claimant’s age, limited education, lengthy history of
specialized work, and the restrictions on avoiding loud noise, the
claimant has made a prima facie case showing that he presumably is
unable to return to his prior job and earn ninety (90) percent of his pre-
injury wages, and the burden would shift to the employer to establish a
wage earning capacity, which it failed to do. However, due to Stanley
Shreve retiring, he would be limited to only two years of SEB[s].

Louisiana Revised Statutes 23:1221(3)(a)(i) requires that a claimant prove by

a preponderance of the evidence that he is unable to earn wages equal to ninety

percent or more of wages he was earning at the time of injury “whether or not the

same or a similar occupation as that in which the employee was customarily engaged

when injured[.]” In Clay v. Our Lady of Lourdes Reg’l Med. Ctr., Inc., 11-1797, p.

4 (La. 5/8/12), 93 So.3d 536, 539 (citations omitted), the supreme court explained

the standards for proving entitlement, stating:

[Louisiana Revised Statutes] 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. 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 her
employer’s community or reasonable geographic region.

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In this case, Mr. Shreve presented medical opinions from Drs. LeBert and

LeBlanc, supporting his inability to work in noisy conditions, such as his job at Bio-

Lab required. The record lacks evidence offered by Bio-Lab to carry its burden of

establishing the availability of any job for Mr. Shreve. Consequently, we find the

WCJ did not err in finding Mr. Shreve is entitled to indemnity benefits.

Causation

In its third assignment of error, Bio-Lab disputes that Mr. Shreve developed

hearing loss because of his work at its Chemtura facility. It argues the WCJ erred in

finding Mr. Shreve established a causal link between his alleged hearing loss and his

employment activities.

Louisiana Revised Statutes 23:1031.1(B) provides, in pertinent part, “An

occupational disease means only that disease or illness which is due to causes and

conditions characteristic of and particular to the particular trade, occupation,

process, or employment in which the employee is exposed to such disease.” In Rose

v. Maison Deville Care Center, 05-1307, p. 3 (La.App. 3 Cir. 4/5/06), 927 So.2d

625, 627, writ denied, 06-1054 (La. 9/1/06), 936 So.2d 205, this court observed:

A claimant asserting an occupational disease must prove by a
preponderance of evidence that there is a disability which is related to
an employment-related disease, that the disease was contracted during
the course of employment, and that the disease is a result of the work
performed. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir.
10/30/96), 682 So.2d 871. The causal link between an employee’s
occupational disease and work-related duties must be established by a
reasonable probability. Id.

The record contains Mr. Shreve’s testimony about the different tasks he

performed as well as the loud noise produced by different pieces of equipment,

which included vibrating equipment, blowers, boilers, and air compressors. The

record also contains medical opinions from two ENTs on the issue of causation.

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Both physicians, Drs. LeBlanc and LeBert, testified that their evaluations of

Mr. Shreve revealed hearing loss which they attributed to his noisy work

environment. Dr. LeBert stated it was his opinion that Mr. Shreve’s exposure to

noise from the various pieces of equipment contributed to Mr. Shreve’s hearing loss.

Likewise, Dr. LeBlanc testified that in reviewing Mr. Shreve’s medical records and

historical audiograms, Mr. Shreve’s hearing loss progressively worsened over the

course of his employment with Bio-Lab.

The record reveals Bio-Lab did not call a single witness, did not obtain a

second medical opinion, and did not introduce any evidence to dispute either the

testimonies of Mr. Shreve or his treating physicians. Thus, we find no error in the

WCJ’s determination on the issue of causation.

Prescription

Bio-Lab’s fourth assignment of error concerns the WCJ’s determination that

Mr. Shreve’s workers’ compensation claim was not prescribed. The WCJ found that

Mr. Shreve’s claim had not prescribed under La.R.S. 23:1031.1 because it was filed

within one year of the date that Dr. LeBert diagnosed Mr. Shreve with noise-induced

hearing loss caused at least in part due to the work environment. Accordingly, Dr.

LeBert restricted Mr. Shreve from working in a noisy environment such as the

setting in which he worked during the course and scope of his employment with Bio-

Lab.

Bio-Lab argues that Mr. Shreve was aware from prior audiograms that were

periodically performed at the Chemtura facility that he had hearing loss as early as

August 15, 1983. Bio-Lab further asserts Mr. Shreve testified he began to notice he

was having trouble hearing, and he began to suspect his hearing loss was caused by

his noisy work environment sometime in 2010. Thus, Bio-Lab alleges Mr. Shreve

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should have filed his disputed claim for workers’ compensation no later than 2011

or 2012.

Bio-Lab also argues Mr. Shreve’s claim is untimely even if the initial

disability date of August 7, 2019, the date on which Dr. LeBert first placed any work

restrictions on Mr. Shreve, was used. Bio-Lab contends Mr. Shreve’s claim would

be timely but for the fact that by that time, August 2019, Mr. Shreve had already

voluntarily retired for reasons which had nothing to do with his alleged hearing loss.

Louisiana Revised Statutes 23:1031.1 governs compensation for disability

resulting from occupational diseases. Gradual noise induced hearing loss caused by

occupational exposure to hazardous noise levels is an occupational disease under the

Louisiana Workers’ Compensation Act. Arrant v. Graphic Packaging Int’l, Inc.,

13-2878 (La. 5/5/15), 169 So.3d 296.

Louisiana Revised Statutes 23:1031.1(E) sets forth the prescriptive period

applicable to occupational disease claims and provides:

All claims for disability arising from an occupational disease are
barred unless the employee files a claim as provided in this Chapter
within one year of the date that:

(1) The disease manifested itself.

(2) The employee is disabled from working as a result of
the disease.

(3) The employee knows or has reasonable grounds to
believe that the disease is occupationally related.

In Bynum v. Capital City Press, Inc., 95-1395 (La. 7/2/96), 676 So.2d 582, the

supreme court held the existence of all three factors in La.R.S. 23:1031.1(E) is

necessary to trigger the commencement of prescription for claims of disability

arising from an occupational disease.

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On April 16, 2019, Mr. Shreve filed a disputed claim for compensation,

alleging occupational noise-induced hearing loss. The record reflects Dr. LeBert

restricted Mr. Shreve’s employment within NIOSH complaint environments on

August 7, 2019.

We find the WCJ did not err in determining that Mr. Shreve’s workers’

compensation claim was not prescribed. Mr. Shreve’s claim was timely filed within

one year of the date that he was permanently disabled from working because of his

hearing loss. See Caldwell v. West Fraser (South), Inc., 23-731 (La.App. 3 Cir.

8/21/24), 393 So.3d 982.

Penalties and Attorney Fees

Bio-Lab’s final assignment of error challenges the WCJ’s award of penalties.

Bio-Lab contends the WCJ erred in finding it was unreasonable for denying Mr.

Shreve’s claim for indemnity benefits, two medical bills, and vocational

rehabilitation which resulted in Bio-Lab being assessed with the maximum

allowable penalty of $8,000.00, and attorney fees of $15,000.00. Bio-Lab argues it

denied Mr. Shreve’s claim for workers’ compensation benefits because it understood

it to be prescribed and/or because no causal link existed between Mr. Shreve’s job

and his alleged hearing loss. Thus, Bio-Lab asserts that the WCJ wrongly held that

its denial was unreasonable in its handling of Mr. Shreve’s claim.

The penalties for failure to make timely payments of compensation and/or

medical expenses are set forth in La.R.S. 23:1201(F)(2), which provides, in pertinent

part (emphasis added):

[F]ailure to provide payment in accordance with this Section . . . shall
result in the assessment of a penalty in an amount up to the greater of
twelve percent of any unpaid compensation or medical benefits, or fifty
dollars per calendar day in which any and all compensation or medical
benefits remain unpaid . . . together with reasonable attorney fees for

11

each disputed claim; however, the fifty dollars per calendar day penalty
shall not exceed a maximum of two thousand dollars in the aggregate
for any claim. The maximum amount of penalties which may be
imposed at a hearing on the merits regardless of the number of penalties
which might be imposed under this Section is eight thousand
dollars. . . . Penalties shall be assessed in the following manner:

....

(2) This Subsection shall not apply if the claim is
reasonably controverted or if such nonpayment results
from conditions over which the employer or insurer had
no control.

The Louisiana Supreme Court has long held, “The purpose of imposition of

penalties and attorney fees is to discourage indifference and undesirable conduct by

employers and insurers.” Authement v. Shappert Eng’g, 02-1631, p. 11 (La.

2/25/03), 840 So.2d 1181, 1188. When determining whether penalties and attorney

fees should be imposed on an employer, the crucial inquiry is “whether the employer

had an articulable and objective reason to deny benefits at the time it took action.”

Id. “To reasonably controvert a claim, an employer must have sufficient factual and

medical information to reasonably counter the factual and medical information

provided by the employee.” McCarthy v. State, Off. of Risk Mgmt., 94-033, p. 5

(La.App. 3 Cir. 10/5/94), 643 So.2d 886, 889.

“The decision to assess penalties and attorney fees is a question of fact that is

in the great discretion of the WCJ, and it should not be reversed on appeal absent

manifest error.” Jeansonne v. Dep’t of Pub. Safety & Corr. Youth Servs., Off. of Juv.

Just., 17-635, p. 9 (La.App. 3 Cir. 6/6/18), 247 So.3d 893, 900–01, writ denied, 18-

1148 (La. 10/29/18), 254 So.3d 1209. The factors used in determining attorney fees

in workers’ compensation cases are “the degree of skill and ability exercised, the

amount of the claim, the amount recovered for the plaintiff, and the amount of time

devoted to the case.” Naquin v. Uniroyal, Inc., 405 So.2d 525, 528 (La.1981).

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Bio-Lab chose to test their arguments relating to prescription and causation in

the court below to challenge Mr. Shreve’s entitlement to workers’ compensation

benefits. The WCJ rejected those arguments, and we have affirmed his rulings.

“Reliance on an erroneous interpretation of a law subjects the employer to penalties

and attorney fees.” Smith, 354 So.3d at 144. Thus, we find no error in the WCJ’s

determination that penalties and attorney fees were warranted in this matter.

DECREE

For the foregoing reasons, we affirm. All costs of this proceeding are assessed

against Bio Lab, Inc.

AFFIRMED.

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