Hartman v. St. Bernard Parish Fire Dep't & Fara

301 So.3d 562

James J. HARTMAN, Jr.

v.ST. BERNARD PARISH FIRE DEPARTMENT & FARA

NO. 2020-CA-0103

Court of Appeal of Louisiana, Fourth Circuit.

May 20, 2020

Frank A. Bruno, FRANK A. BRUNO, APLC, 807 Howard Avenue, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT

Richard Lee Seelman, Wayne J. Fontana, Shannon Michele Frese, ROEDEL PARSONS KOCH BLACHE BALHOFF & MCCOLLISTER, 1515 Poydras Street, Suite 2330, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown )

This is a workers’ compensation dispute regarding the conditions imposed by La. R.S. 23:1221(4)(p) to receive permanent partial disability benefits for a hearing loss. Appellant, James Hartman, Jr., filed a claim seeking permanent partial disability benefits for a permanent hearing loss incurred as a result of repeated exposure to high noise levels arising out of his occupation as a fireman with the St. Bernard Parish Fire Department. Mr. Hartman appeals the Office of Workers’ Compensation judgment denying him permanent partial disability benefits. The Office of Workers’ Compensation judge found that Mr. Hartman sustained a cumulative hearing loss and that La. R.S. 23:1221(4)(p) only provides benefits for permanent hearing losses resulting solely from a single traumatic accident. Finding no legal error, we affirm the judgment.

FACTUAL/PROCEDURAL HISTORY

Mr. Hartman has worked as a fireman with the St. Bernard Parish Fire Department ("Fire Department") since May 5, 1990. His work exposed him to high noise levels, which caused him to undergo audiograms on January 24, 2008, April 10, 2014, March 1, 2017, and September 27, 2017. The audiograms showed increasing levels of hearing loss. The March 1, 2017 and September 27, 2017 audiograms revealed a 42.2% binaural hearing loss. Although Mr. Hartman continued to work,¹ on March 31, 2017, he filed a formal claim under La. R.S. 23:1221(4)(p) to obtain permanent partial disability benefits for his hearing loss.

The Fire Department disputed Mr. Hartman's claim for permanent partial disability benefits, arguing, in part, that the language of R.S. 23:1221(4)(p) did not permit recovery for Mr. Hartman's cumulative hearing loss. The matter was fixed for trial on October 28, 2019. The parties entered stipulations and agreed to submit the matter on briefs. Relevant stipulations included the following:

1. Claimant, James Hartman ("Claimant"), has been employed by the St. Bernard Parish Fire Department ("Fire Department") since May 25, 1990 (5/25/90). He was exposed to injurious noise during his tenure with the Department and is presently a District Chief.

2. Claimant has never been disabled from employment with the Fire Department from his date of hire to present.

3. Claimant filed 1008s for an occupational disease claim on March 31, 2017, seeking permanent partial disability benefits (PPD) for hearing loss pursuant to La. R.S. 23:1221(4)(p).

4. Date employer advised of hearing loss: September 20, 2006. Claimant underwent audiograms on the following dates: January 24, 2008, April 10, 2014, March 1, 2017 and September 27, 2017. Each test showed a gradual increase of hearing loss due to noise exposure. The last test performed by Dr. Bode on September 27, 2017 shows a 42.2% binaural hearing loss. Dr. Bode stated that the repeated exposure from loud noises for extended periods of time (1990-2017) was likely a contributing factor to Claimant's bilateral sensorineural hearing loss. (Br. Bode's audiogram reports are attached as Exhibit "A.").

...

9. The current versions of La. R.S. 23:1021(1), La. R.S. 23:1221(4)(p), and La. R.S. 23:1031(B) and (E) are the only versions of those statutes applying to this case given the Claimant's date of employment with the Fire Department.

On December 10, 2019, the Office of Workers’ Compensation ("OWC") judge denied Mr. Hartman's claim. In the court's reasons for judgment, the OWC judge opined:

Upon reviewing the medical evidence and medical testimony, the Court concludes that Claimant's hearing loss is a cumulative loss not covered under La. R.S. 23:1221(4)(p) which provides benefits to an employee who suffers a hearing loss solely due to a single traumatic accident (emphasis added).

This appeal followed.

LAW/DISCUSSION

Mr. Hartman raises two assignments of error: (1) the OWC judge erred in failing to award him scheduled permanent partial disability benefits pursuant to R.S. 23:1221(4)(p) ; and (2) the OWC judge erred by failing to award attorney's fees and penalties due to the Fire Department's failure to pay indemnity benefits.

Standard of Review

In the case sub judice , the facts are not in dispute. The parties agree that Mr. Hartman's repeated exposure to high noise level as a fireman contributed to his 42.2% binaural hearing loss and that the hearing loss did not cause Mr. Hartman to miss time from work. Accordingly, whether the OWC judge erred in finding R.S. 23:1221(4)(p) excluded permanent partial disability benefits for Mr. Hartman's hearing loss presents a question of law. Questions of law, such as the proper interpretation of a workers’ compensation statute, mandate a de novo standard of review to determine if the trial court's judgment was legally correct. See Gaines v. Home Care Solutions, LLC , 2015-0895, p. 9 (La. App. 4 Cir. 4/6/16), 192 So.3d 794, 801 (citations omitted).

La. R.S. 23:1221(4)(p) / Conditions For Permanent Hearing Loss Benefits

La. R.S. 23:1221(4)(p) provides, in relevant part, the following:

(4) Permanent Partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:

...

(p) In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single traumatic accident ..., compensation not to exceed sixty-six and two-thirds percent of wages not to exceed 100 weeks may be awarded. ...

Mr. Hartman primarily relies on Arrant v. Graphic Packaging International, Inc. , 2013-2878, 2013-2981 (La. 5/5/15), 169 So.3d 296 to support his argument that his hearing loss is compensable under R.S. 23:1221(4)(p). In Arrant , the plaintiffs-employees brought a negligence action against their employer seeking damages for noise-induced hearing losses. The employer countered it had statutory immunity from tort actions because the alleged hearing losses arose out of the course and scope of the plaintiffs’ employment. The Supreme Court decided that the employees’ gradual, noise-induced hearing losses constituted both an injury by accident and an occupational disease under the Louisiana Workers’ Compensation Act ("LWCA"). Arrant , 2013-2878, 2013-2981, pp. 19-20, 169 So.3d at 308. The Arrant Court reasoned that even though the impact of the noise only gradually became effective over time, with repeated exposure, the excessive noise was a traumatic injury to the ear. Arrant , 2013-2878, 2013-2981, p. 18, 169 So.3d at 307-08. We agree with Mr. Hartman that Arrant conclusively established that work-related gradual hearing loss claims may be compensable under the LWCA. However, Arrant made no affirmative finding that gradual hearing losses are specifically compensable under R.S. 23:1221(4)(p). Indeed, notwithstanding the potential compensability of any work-related accident and injury, the employer's mandate to pay workers’ compensation indemnity benefits is limited to those employees who meet the statutory conditions imposed by the LWCA. See La. R.S. 23:1031(A).² In order to be entitled to indemnity benefits, the employee has the burden of proof to show he meets these conditions. See Gaines , 2015-0895, p. 10, 192 So.3d at 801-02.

The LWCA provides three other categories of benefits-temporary total, permanent total, and supplemental earnings benefits ("SEB")-in addition to permanent partial disability benefits.³ Here, Mr. Hartman did not meet the eligibility requirements to receive temporary total, permanent total, or SEB indemnity payments because, as stipulated, he continued to work and did not suffer a wage loss. Accordingly, he sought permanent partial disability benefits under R.S. 23:1221(4)(p). As referenced, infra , that statute expressly authorizes benefits to an employee who "suffers a permanent hearing loss solely due to a single traumatic incident." Mr. Hartman argues that the statute should be interpreted to find that he meets these criteria because he suffered a series of single traumatic accidents. He further asserts that the failure of the OWC judge to apply his interpretation of the statute impermissibly deprived Mr. Hartman of a remedy and equal protection under the Louisiana constitution. We disagree.

"The enactment of a statute is a solemn expression of legislative will." Roy Anderson Corporation v. 225 Baronne Complex, L.L.C. , 2017-1005, p. 13 (La. App. 4 Cir. 7/11/18), 251 So.3d 493, 502, writ denied 2018-1334 (La. 11/5/18), 255 So.3d 1049. See also La. C.C. art. 2.⁴ The starting point in the interpretation of any statute begins with the language of the statute itself. Arrant , 2013-2878, 2013-2981, p. 6, 169 So.3d at 300. A fundamental question in cases of statutory interpretation is legislative intent. Commodore v. City of New Orleans , 2019-0127, p. 13 (La. App. 4 Cir. 6/2/0/19), 275 So.3d 457, 469. In this matter, the parties stipulate that the current version of R.S. 23:1221(4), which went into effect on January 1, 1986, applies to this claim. Prior to its amendment, R.S 23:1221(4) provided, in pertinent part, that "[i]n cases not falling within any of the provisions already made ... where the usefulness of a physical function is seriously impaired, the court may allow compensation as is reasonable ... " See La. R.S. 23:1221(4)(p) 1982. Consequently, the Legislature clearly restricted the scope of permanent partial disability benefits when it amended R.S. 23:1221(4)(p) to include language expressly...