Glenn Hankel Versus Jefferson Parish Fire Department ( 2020 )

GLENN HANKEL NO. 19-CA-613
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH FIRE DEPARTMENT COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION
DISTRICT 7
STATE OF LOUISIANA
NO. 18-3849
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING
September 22, 2020
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.
AFFIRMED
JJM
JGG
DISSENTS WITH REASONS
FHW
COUNSEL FOR PLAINTIFF/APPELLANT,
GLENN HANKEL
Frank A. Bruno
COUNSEL FOR DEFENDANT/APPELLEE,
JEFFERSON PARISH FIRE DEPARTMENT
Michael F. Nolan
MOLAISON, J.
In this workers’ compensation case, claimant, Glenn Hankel, appeals the
decision of the Office of Workers’ Compensation Judge that granted summary
judgment in favor of his former employer, the Jefferson Parish Fire Department
(“JPFD”), on the issue of permanent partial disability benefits related to claimant’s
work-related hearing loss. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Mr. Hankel was employed by the JPFD from October 11, 1986, until his
retirement on November 7, 2017. Mr. Hankel claims that, over time, he was
exposed to loud noise as a firefighter sufficient to cause a permanent partial loss of
his hearing in both ears.
The record shows that Mr. Hankel had yearly examinations of his hearing
from approximately 2004 through 2018, and into his retirement. These tests, as a
whole, revealed an accelerating cumulative deterioration of Mr. Hankel’s ability to
hear out of either ear. When he retired in 2018, Mr. Hankel was diagnosed as
having “38% binaural loss.”
After his retirement, Mr. Hankel filed a disputed claim for compensation on
June 11, 2018, which sought indemnity benefits for his permanent partial disability
caused by his noise-induced hearing loss, pursuant to La. R.S. 23:1221(4)(p).
JPFD filed a motion for summary judgment at that time, arguing that Mr. Hankel’s
hearing loss was an occupational disease, rather than an injury precipitated by
some specific event, which disqualified him from coverage under La. R.S.
23:1221(4)(p). After the OWC judge denied JPFD’s motion for summary
judgment on November 1, 2018, the parties entered into a consent judgment
awarding Mr. Hankel medical benefits, including $3,890.00 for previously
purchased hearing aids and payment for all future hearing loss related medical
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treatment and expenses. The consent judgment also provided that JPFD was to pay
$5,000.00 in attorney fees.
JPFD thereafter filed a second motion for summary judgment on the issue of
Mr. Hankel’s entitlement to permanent partial disability benefits, which the court
granted on October 4, 2019. Mr. Hankel timely filed the instant appeal.
LAW AND ANALYSIS
Because this case was decided on summary judgment rather than after a trial,
the manifest error standard of review does not apply in this case; instead, we
review the granting of summary judgment de novo. Peironnet v. Matador Res. Co.,
12–2292 (La. 6/28/13), 144 So.3d 791; Schroeder v. Board of Sup'rs of La. State
Univ., 591 So.2d 342 (La. 1991). Thus, appellate courts ask the same questions the
trial court does in determining whether summary judgment is appropriate: whether
there is any genuine issue of material fact, and whether the mover is entitled to
judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.
App. 5 Cir. 11/29/11), 78 So.3d 849, 852.
In the instant case, the OWC judge made several specific findings of fact in
its October 4, 2019 Order. Specifically, the court found that Mr. Hankel was
“exposed to injurious noise” while employed with the JPFD which caused a
permanent partial loss of hearing. The court classified the hearing loss as a
“cumulative hearing loss that occurred over time.” Finally, in determining that Mr.
Hankel was not entitled to permanent partial benefits pursuant to Louisiana
Revised Statute 23:1221(4)(p), the court concluded that Mr. Hankel’s hearing loss
was not the result of a single traumatic event.
The La. R.S. 33:2581.1 Consent Judgment
La. R.S. 33:2581.1, which is titled “Development of hearing loss during
employment in the classified fire service; occupational disease,” is among a special
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class of Louisiana Revised Statutes found at Title 33, Chapter 5, Part 4,
specifically created by the legislature to address service-related occupational
injuries that firefighters and other first responders may develop throughout their
careers.1 Although not specifically incorporated within the Louisiana Workers'
Compensation Act, La. R.S. 23:1021 et seq., courts have consistently applied these
statutes to workers' compensation cases.
La. R.S. 33:2581.1 provides:
A. Any loss of hearing which is ten percent greater than that of
the affected employee's comparable age group in the general
population and which develops during employment in the classified
fire service in the state of Louisiana shall, for purposes of this Section
only, be classified as a disease or infirmity connected with
employment. The employee affected shall be entitled to medical
benefits including hearing prosthesis as granted by the laws of the
state of Louisiana to which one suffering an occupational disease is
entitled, regardless of whether the fireman is on duty at the time he is
stricken with the loss of hearing. Such loss of hearing shall be
presumed to have developed during employment and shall be
presumed to have been caused by or to have resulted from the nature
of the work performed whenever same is manifested at any time after
the first five years of employment in such classified service. This
presumption shall be rebuttable by evidence meeting judicial
standards and shall be extended to an employee following termination
of service for a period of twenty-four months.
The record before us shows that Mr. Hankel used the presumption that his
hearing loss was an occupational injury sustained during his career as a firefighter.
For example, in opposing the JPFD’s motion for summary judgment, Mr. Hankel
asserted:
Here, Hankel satisfies all of the criteria of §2581.1, and
therefore his hearing loss is presumed to have been caused by
his employment as a firefighter, and thus he will not bear the
burden of proof on this issue at trial. McKenzie v. City of
Bossier City, 22,578 (La. App. 2 Cir. 8/21/91), 585 So.2d 1229,
1232 (holding that companion provision, R.S. 33:2581, the
"fireman's heart-lung statute" establishing similar presumption
applies to workers compensation claims).
1
See also, for example, The Heart and Lung Statute, La. R.S. 33:2581, Development of heart and lung
disease during employment in classified fire service; occupational disease, and La. R.S. 33:2581.2,
Posttraumatic stress injury; presumption of compensability.
19-CA-613 3
Also, medical records included in Mr. Hankel’s opposition to the JPFD’s
motion for summary judgment, demonstrated that his hearing loss was ten
percent greater than that of his comparable age group in the general
population and developed during employment in the classified fire service,
which is the very specific threshold needed to use the presumption found in
La. R.S. 33:2581.1. For its part, the JPFD acknowledged that Mr. Hankel’s
hearing loss was an occupational injury properly addressed by La. R.S.
33:2581.1.
In the August 15, 2019 consent judgment, Mr. Hankel was given every
benefit provided under La. R.S. 33:2581.1, consisting of workers’ compensation
medical benefits for past payments that Mr. Hankel had paid for personally,
hearing aids previously purchased by Mr. Hankel, and future medical treatment for
hearing loss. Also, the JPFD agreed to pay to resolve all attorney fees disputes.
Permanent Partial Disability Benefits
Once a disease or condition covered by La. R.S. 33:2581 is found to exist,
the applicability of the workers' compensation provisions is resolved and questions
attendant to compensation are then decided pursuant to La. R.S. 23:1021 et seq.
Amos v. Ouachita Par. Police Jury, 43,289 (La. App. 2 Cir. 6/18/08), 991 So.2d
102, 111. In granting JPFD’s second motion for summary judgment, the OWC
judge relied on the plain language of La. R.S. 23:1221(4)(p), which provides for
permanent partial disability in instances where “the employee is seriously and
permanently disfigured or suffers a permanent hearing loss solely due to a single
traumatic accident.” Specifically, in its reasons for judgment,2 the OWC judge
explained:
2
We note that appellate courts do not review reasons for judgment as a part of the judgment itself. La.
C.C.P. art. 1918; Burmaster v. Plaquemines Parish Government, 07-1311 (La. 8/31/07), 963 So.2d 378,
379. The written reasons for judgment are merely an explication of the trial court's determinations. State
19-CA-613 4
Upon reviewing the medical evidence and medical testimony, the
Court concludes that Claimant's hearing loss is a cumulative hearing
loss not covered under La R.S. 23:1221(4)(p) which provides benefits
to an employee who suffers a permanent hearing loss solely due to a
single traumatic accident (emphasis added). Claimant's arguments
have merit that should be addressed with the legislature for changes in
the current statute. Unfortunately, as written, La R.S. 23:1221(4)(p)
does not provide benefits for cumulative hearing loss. As such, there
are no genuine issues of material fact that Claimant is not entitled to
permanent partial disability indemnity benefits in accordance with La.
R.S. 23:1221(4)(p).
On appeal, Mr. Hankel asserts that the trial court erred by failing to award
him indemnity benefits under the workers' compensation statute for his hearing
loss, and by failing to award attorney fees and penalties based upon the JPFD’s
failure to pay indemnity benefits. Conversely, JPFD argues that La. R.S.
23:1221(4)(p) does not apply to provide a benefit to Mr. Hankel because his
hearing loss was not due to a single traumatic accident during his employment.
It is undisputed that Mr. Hankel’s hearing loss was not the result of a single
injury. However, in arguing that his hearing loss qualifies him for workers’
compensation, although his hearing loss occurred over time, Mr. Hankel relies
primarily on the case of Arrant v. Graphic Packaging Int'l, Inc., 13-2878 (La.
5/5/15), 169 So.3d 296. In that case, the Court held that the plaintiffs, current and
former employees of a paper mill, box plant, and carton plant, had sustained noise-
induced hearing loss over time that qualified as a “personal injury by accident”
within the meaning of La. R.S. 23:1021(1), and as an “occupational disease”
within the meaning of the LWCA.
The Purpose Of The Louisiana Workers' Compensation Act
“The purpose of the Workers' Compensation Act is to set up a court-
administered system to aid injured workmen by relatively informal and flexible
in the Interest of Mason, 356 So.2d 530, 532 (La. App. 1 Cir. 1977). The Louisiana Supreme Court has
held, however, that a court of appeal can use reasons for judgment to gain insight into the district court's
judgment, and we refer to them now for that purpose. See, Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61
So.3d 507.
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proceedings that are to be interpreted liberally in favor of workmen.” Rhodes v.
Lewis, 01-1989 (La. 5/14/02), 817 So.2d 64, 69. One of the primary purposes of
the Workers' Compensation Act is to protect workers; a policy behind the Act is to
keep the injured employee and his or her family from destitution. Breaux v.
Hoffpauir, 95-2933 (La. 5/21/96), 674 So.2d 234, 237. It is well settled that when
courts interpret provisions of the Workers' Compensation Act, the basic history and
policy of the compensation movement must be taken into account. Stelly v.
Overhead Door Company of Baton Rouge, 94-0569 (La. 12/8/94), 646 So.2d 905;
Roberts v. Sewerage & Water Bd. of New Orleans, 92–2048 (La. 3/21/94), 634
So.2d 341, 345. In Rando v. Anco Insulations Inc., 08-1163 (La. 5/22/09), 16
So.3d 1065, 1076, the Louisiana Supreme Court recounted:
The history of the workers' compensation begins when the state of New
York passed the first workers' compensation statute in the United States in
1910. Four years later, following the submission of a lengthy report and
recommendation by a Commission Governor L.E. Hall tasked to study and
draft laws providing for compensation to injured employees, the Louisiana
Legislature enacted one of the first workers' compensation statutes in the
South. In its report to the Legislature, the Commission detailed there was
“conservatism required” in enacting such a system of laws, because of the
diverging approaches by the differing states. Furthermore, it was noted the
concept of workers' compensation in Louisiana was “all in the experimental
state.” La. Sen. Journal Reg. Sess.1914, p. 33. The Commission found
conservatism was required because “no matter how moderate the act may be
in its provisions, it is a radical departure, being suddenly adopted through
the United States, from the line of thought which prevailed up to 1910.” Id.;
see also 13 Malone and Johnson, Louisiana Civil Law Treatise § 36 (4th
ed.2002) (noting that although it was impressed with the diversity of
treatment accorded the various workers' compensation problems in the
various states commented, “it was aware of the novelty of the entire
compensation principle and the possibilities of failure that attended many of
the more experimental measures.”). Against that backdrop, La.Rev.Stat. §
23:1031 (1914) originally provided an employee who “receives personal
injury by accident arising out of and in the course of [his] employment” is to
receive compensation.
In 1918, the Legislature amended La. R.S. § 23:1021 to define the terms
accident and personal injury as follows:
(1) “Accident” means an unexpected or unforeseen event happening
suddenly or violently, with or without human fault and producing at the
time objective symptoms of an injury.
19-CA-613 6
…
(7) “Injury” and “Personal Injuries” includes only injuries by violence to the
physical structure of the body and such disease or infections as naturally
result therefrom. These terms shall in no case be construed to include any
other form of disease or derangement, howsoever caused or contracted.
Rando, supra, 16 So.3d at 1077.
As the Rando Court stated,
While the purpose of the 1914 statute may have initially been to cover only
work-related “accidents,” with the advancement of the industrial revolution
and growing number and types of diseases arising from work-related
activities, a liberal interpretation was given to the statute which “effectuated
its beneficent purpose of relieving workmen of the economic burden of
work-connected injuries by diffusing the costs in channels of commerce.”
16 So.3d at 1077.
Thereafter Louisiana courts, in interpreting the 1914 statute and its amendment in
1918, included certain occupational illnesses and diseases in their classification of
“accidents.” Parks v. Insurance Co. of North America, 340 So.2d 276, 281 (La.
1976).
Introduction in 1952 of “occupational disease” in addition to “personal
injury by accident” as a type of injury compensable under the LWCA ultimately
led the legislature to redefine “accident” in narrower terms, to draw a meaningful
distinction between the two types. The current, revised definition of “accident”
came into effect in 1990, and reads as follows:
(1) “Accident” means an unexpected or unforeseen actual,
identifiable, precipitous event happening suddenly or
violently, with or without human fault, and directly
producing at the time objective findings of an injury which
is more than simply a gradual deterioration or progressive
degeneration.
La. R.S. 23:1021(1) (2014) (emphasis added to words not in the older
version of definition). These additions in the modern definition appear to have
been a clear attempt by the legislature to underscore its desire that “accidents” be
understood as temporally isolated events, and that “personal injuries” caused by
19-CA-613 7
them not be understood to include gradual diseases such as noise-induced hearing
loss, which more appropriately would fall within the scope of “occupational
disease.”
However, in interpreting the LWCA statutes, the Louisiana Supreme Court
found that a noise-induced hearing loss may be classified as both an occupational
disease and a personal injury caused by an accident. Arrant, supra. The Court
reasoned that each occurrence of excessive noise was a single traumatic injury to
the ear even though the impact caused by excessive noise only gradually became
effective over time, with repeated exposure. Arrant at 307-08.
The most recent case to interpret Arrant is Hartman v. St. Bernard Par. Fire
Dep't & Fara, 20-0103 (La. App. 4 Cir. 5/20/20), 2020 WL 2561480, which is
factually similar to the case at bar. In that case, James Hartman, Jr., the claimant,
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. The Office of
Workers’ Compensation Court denied him permanent partial disability benefits,
upon finding 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.
In affirming the OWC’s denial of benefits to Mr. Hartman, the Fourth
Circuit concluded that “the language of R.S. 23:1221(4)(p) restricting permanent
partial disability payments to hearing losses resulting solely from a single
traumatic accident is clear and unambiguous.” Id. at *3. The court declined to
apply the Louisiana Supreme Court’s reasoning in Arrant, stating “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
19-CA-613 8
compensable under R.S. 23:1221(4)(p). Id. at *2. The Fourth Circuit concluded
that pursuant to the statute’s clear provisions, “Mr. Hartman’s arguments that R.S.
23:1221(4)(p) extends permanent partial disability benefits to hearing losses
arising out of a series of single accidents and that the OWC judge
unconstitutionally deprived him of a remedy lacked merit. Id. at *3.
Given the factual similarities and issues raised in Hartman to the instant
case, we are persuaded by the Fourth Circuit’s reasoning and conclusion on this
issue. We would further distinguish Arrant on the basis that the plaintiffs, in that
case, were not firefighters who benefitted from the presumption of occupational
hearing loss and accompanying damages under La. R.S. 33:2581.1.
CONCLUSION
In the instant case, there is no dispute that Mr. Hankel’s hearing loss was
gradual and not the result of a single accident or event. The plain language of La.
R.S. 23:1221(4)(p) only provides benefits for permanent hearing losses resulting
solely from a single traumatic accident. Accordingly, after a de novo review of the
record, we find that there is no genuine issue as to material fact and that the JPFD
is entitled to judgment as a matter of law. Thus, we find no error in the trial
court’s ruling that Mr. Hankel is not entitled to permanent partial disability benefits
for his hearing loss.
DECREE
Accordingly, for the foregoing reasons, the judgment of the OWC court,
denying permanent partial disability benefits to Mr. Hankel is affirmed.
AFFIRMED
19-CA-613 9
GLENN HANKEL NO. 19-CA-613
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH FIRE COURT OF APPEAL
DEPARTMENT STATE OF LOUISIANA
WICKER J., DISSENTS WITH REASONS
I respectfully dissent and would reverse the ruling of the trial court granting
summary judgment to defendant, Jefferson Parish Fire Department (JPFD), and
remand the matter for further proceedings. In my opinion claimant, Glenn Hankel,
presented sufficient evidence to preclude summary judgment on his claim for
permanent partial disability benefits. Further, I am of the opinion that, as the
intermediate courts who are bound by the decisions of the Louisiana Supreme
Court, both the Louisiana Fourth Circuit Court of Appeal in Hartman v. St.
Bernard Par. Fire Dept’ & Fara, 20-0103 (La. App. 4 Cir. 5/20/20), 2020 WL
2561480 and this Court in this case have erred in failing to follow the clear dictates
of the Louisiana Supreme Court in Arrant v Graphic Packaging Int’l, Inc.,13-2878,
169 So. 3d 296, 305 (La. 5/5/15).
The question before this Court is not whether Mr. Hankel’s hearing loss is
covered by La. R.S. 33:2581.1 as a hearing loss developed “during employment in
the classified fire service; occupational disease” or an occupational disease as
defined by La. R.S. 23:1031.1B. There is also no dispute that Mr. Hankel’s
hearing loss was found to be “occupational noise-induced hearing loss” (“NIHL”).
Mr. Hankel was a firefighter who suffered ever worsening hearing deficits of an
amount ten percent greater than that of the relevant general population and his
hearing loss was caused by causes and conditions characteristic of and peculiar to
his particular trade. The sole issue presented to the worker’s compensation court,
19-CA-613 10
now presented to this Court, is whether the work-related NIHL suffered by Mr.
Hankel also falls within the ambit of La. R.S. 23:1221(4)(p)’s indemnification as a
“permanent hearing loss solely due to a [number of] single traumatic accident[s],”
thus entitling him to permanent partial disability benefits.
To be clear, Mr. Hankel has already been awarded medical benefits for an
occupational injury pursuant to La. R.S. 33: 2581.1. We are now examining
whether Mr. Hankel is additionally entitled to “compensation not to exceed sixty-
six and two-thirds percent of wages for a period not to exceed one hundred weeks”
pursuant to La. R.S. 23:1221(4)(p). In my opinion, the Arrant Court, with Justice
Greg Guidry writing for a five-justice majority3, clearly, unequivocally and in
detailed fashion answered this question affirmatively. Arrant v Graphic Packaging
Int’l, Inc.,13-2878, 169 So. 3d 296, 305 (La. 5/5/15).
The majority in this case concedes that
“...in interpreting the LWCA statutes, the Louisiana Supreme Court
found that a noise-induced hearing loss may be classified as both an
occupational disease and a personal injury caused by accident. The
[Arrant] Court reasoned that each occurrence of excessive noise was a
single traumatic injury to the ear even though the impact caused by
excessive noise only gradually became effective over time, with repeated
exposure.” Majority opinion at p.10 (internal citations omitted).
Nevertheless, in relying upon the Louisiana Fourth Circuit’s opinion in Hartman v.
St. Bernard Par. Fire Dep’t & Fara, 20-0103 (La. App. 4 Cir. 5/20/20), 2020 WL
2561480, the majority here declined to follow Justice Guidry’s explicit reasoning
in Arrant on the basis that “Arrant made no affirmative finding that gradual
hearing losses are specifically compensable under R.S. 23:1221(4)(p),”. Majority
opinion at p.10; see also Hartman, 2020 WL 2561480 at *2.
3
In Arrant, supra, Justice Knoll, joined by Justice Johnson, dissented and would have found that noise-
induced hearing loss neither classifies as an occupational disease nor a personal injury by accident, and
therefore does not fall within the exclusive remedy of the LWCA. Thus, they would have reversed the
appellate court and reinstated the trial court’s ruling, allowing the proceedings in tort to continue.
19-CA-613 11
In my humble opinion this court is not at liberty simply to disregard the clear
and unambiguous reasoning and finding of the Louisiana Supreme Court merely
because, while relying upon the clear language of La. R.S. 23:1221(4)(p) to find
that Mr. Arrant had sustained a personal injury caused by a series of single
traumatic accidents and related statutory authority, the High Court failed to
specifically cite the article. Arrant, 169 So.3d at 307-08.
Louisiana Revised Statutes 23:1221 in relevant part states:
(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) …where the employee…suffers a permanent hearing loss solely
due to a single traumatic accident….
The majority appears to be of the opinion that La. R.S. 23:1221(4)(p) is
limited to an injury caused by a single isolated traumatic event and does not apply
in situations in which a worker suffers multiple separate injuries to the same
anatomical area caused by multiple isolated traumatic events. To draw a clear
analogy: in a situation in which a chemical plant employee suffers respiratory
distress as a result of an isolated irregular blast of chemicals, recovers sufficiently
to return to work with a modicum of permanent respiratory tract injury and
thereafter suffers a second chemical assault caused by another isolated irregular
chemical blast with additional permanent respiratory injury, the majority would
apparently find that worker to suffer from occupational disease but not from a
compensable 23:1221(4)(p) injury. I disagree.
In Arrant Justice Guidry stated the res nova issue before the court as,
“whether gradual noise induced hearing loss caused by occupational exposure to
hazardous noise levels is a personal injury by accident or an occupational disease,
or both under the Louisiana Workers’ Compensation Act.” Further, that the
consolidated cases before them required the Court to determine, “whether the
NIHL is a covered “personal injury by accident” and/or an “occupational disease
19-CA-613 12
within the meaning of the LWCA in its various configurations over the years.”
The Supreme Court specifically found that, “noise-induced hearing loss qualifies
as a “personal injury by accident” within the meaning of La. Rev. Stat. 23:1021(1),
at least until the definition of “accident was revised in 1990.”
In his search to discern whether NIHL was a “personal injury by accident”
within the meaning of La. R.S. 23:1021(1) Justice Guidry turned to the testimony
of Dr. Ross Roeser, an expert in audiology who testified both in Arrant as well as
to an earlier NIHL case:
“Plaintiffs' expert in audiology, Dr. Ross Roeser, explained the
anatomical structure of the ear, as well as a discussion of the nerves that
carry sound to the brain. He testified that the snail-shaped structure is the
auditory portion of the inner ear called the cochlea. He explained the
cochlea has two and a half turns, which, if unrolled longitudinally, could be
said to be “tonotopically” organized. He explained that “tonotopically”
means each distinct anatomical part is responsible for a different frequency,
and high frequencies of sound are heard close to where the mechanical force
enters the cochlea. This is consistent with Dr. Roeser's testimony in a
previous NIHL case, in which he explained that, when a high level of energy
enters the cochlea “it literally destroys, it damages and destroys that row of
hair cells in that particular part of the ear.” Thus, there is an immediate
injury to the inner ear, even though the effect of the damage thereto
only gradually becomes perceptible over time and only with repeated or
continuous exposures to the hazardous levels of noise. In this regard, the
excessive noise is a traumatic injury to the ear. This is not a long-
latency occupational disease case. The damage to the inner ear is
immediate, though imperceptible until the damage cumulates into a
measurable hearing shift or loss.” Arrant, 169 So.3d at 307-08 (referring
to Becker v. Murphy Oil Corp., pp. 27-28, 10-1519 (La.App. 4 Cir. 6/2/11)(internal citations omitted, emphasis added).
Based upon this testimony the Supreme Court specifically found that this
exposure to loud noises causing inner ear damage constituted an accidental injury:
Such traumatic damage to the inner ear certainly qualifies as an
“injury” within the meaning of the LWCA, because the high levels of
energy noise entering the ear cause damage to the inner ear “by violence to
the physical structure of the body,” i.e., the hairs and cells in the inner ear.
Furthermore, the exposure to hazardous levels of industrial noise, as
alleged by the plaintiffs, qualifies as an accident because the hazardous
19-CA-613 13
level of industrial noise, a large quantity of energy that did violence and
damage to the inner ear, was an “unexpected or unforeseen event
happening suddenly or violently, with or without human fault and
producing at the time objective symptoms of an injury.” As we have
reiterated, “when the performance of the usual and customary duties of a
workman cause or contribute to a physical breakdown, the statutory
requirements for an accidental injury are present.
Arrant, 169 So.3d at 308 (internal citations omitted).
While in Arrant Justice Guidry was referring specifically to the pre-1990
definition of “accident”, his analysis applies equally here. In 1918, the Legislature
amended La. R.S. § 23:1021 to define the terms accident and personal injury as
follows:
(2) “Accident” means an unexpected or unforeseen event happening
suddenly or violently, with or without human fault and producing at the
time objective symptoms of an injury.
…
(7) “Injury” and “Personal Injuries” includes only injuries by violence to the
physical structure of the body and such disease or infections as naturally
result therefrom. These terms shall in no case be construed to include any
other form of disease or derangement, howsoever caused or contracted.
This definition remained in effect until the current, revised definition of “accident”
came into effect in 1990, and reads as follows:
(2) “Accident” means an unexpected or unforeseen actual, identifiable,
precipitous event happening suddenly or violently, with or without
human fault, and directly producing at the time objective findings
of an injury which is more than simply a gradual deterioration or
progressive degeneration.
La. R.S. 23:1021(1) (2014) (emphasis added to words not included in
the pre-1990 definition).
Dr. Roeser thoroughly described the effects of the NIHL caused by an
individual noise event upon the human ear; he told the Court “it literally destroys,
it damages and destroys that row of hair cells in that particular part of the ear.”
19-CA-613 14
Likewise, the Supreme Court held that NIHL is an “accident as currently defined
by La. R.S. 23:1021, “even though the effect of the damage thereto only gradually
becomes perceptible over time and only with repeated or continuous exposures to
the hazardous levels of noise.” Arrant, 169 so.3d at 307-08.
The majority finds that “23:1221(4)(p) does not apply to provide a benefit to
Mr. Hankel because his hearing loss was not due to a single traumatic accident
during his employment.” However, this is contrary to the holding in Arrant;
rather, in my opinion, the Louisiana Fourth Circuit Court of Appeal in Hartman v.
St. Bernard Par. Fire Dept’ & Fara, 20-0103 (La. App. 4 Cir. 5/20/20), 2020 WL
2561480 and this court in this case have made arguments identical to those made
by Justice Jeannette Knoll in her dissent in Arrant, joined by Chief Justice
Johnson. There Justice Knoll argues that that NIHL does not classify as a personal
injury by accident because “given its gradual and insidious nature, gradual hearing
loss is neither palpable, nor ‘sudden,’ ‘acute,’ or ‘identifiable.’” In this case, the
majority likewise states that the plaintiffs are ineligible for permanent partial
disability where it is undisputed that “Mr. Hankel’s hearing loss was gradual and
not the result of a single accident or event.” The majority is correct that Justice
Guidry did not specifically refer to La. R.S. 23:1221(4)(p) in his discussion or
findings. Nevertheless, the Supreme Court’s explicitly detailed findings in Arrant
mandate the result that La. R.S. 23:1221(4)(p) applies in NIHL cases.
Again,
(4) Permanent partial disability…..
(p) …where the employee…suffers a permanent hearing loss solely
due to a single traumatic accident….
Justice Guidry and the rest of the Supreme Court majority in Arrant plainly
considered and disregarded the arguments made there by the dissenting justices
and here by the majority. The Arrant court squarely and in explicit detail held that:
(1) NIHL is caused by multiple individual assaults to the ear which “literally
19-CA-613 15
destroys… the row of hair cells in that particular part of the ear;” (2) there is an
immediate injury to the inner ear, even though the effect of the damage thereto
gradually becomes perceptible over time; (3) NIHL is a personal injury by
accident; and (4) that NIHL is caused by multiple single traumatic accidents each
of which cause immediate injury. Arrant, 169 So.3d at 307-308 (quotation marks
omitted). To this end, even though the Arrant Court did not explicitly refer to
23:1221(4)(p), proper application of the law unquestionably provides that Mr.
Hankel’s occupational NIHL falls within the ambit of La. R.S. 23:1221(4)(p)’s
indemnification for “permanent hearing loss solely due to a single traumatic
accident.” Id.
In this case, the worker’s compensation court granted JPFD’s motion for
summary judgment, and dismissed plaintiff’s claim for partial permanent
disability. There is no doubt that Mr. Hankel suffers a disability, namely hearing
loss, caused by his work. Because the Louisiana Supreme Court, in Arrant, found
that a noise induced hearing loss of the exact type suffered by Mr. Hankel qualifies
as a “Personal Injury by Accident” and applying the Arrant court’s holding to
§1221(4)(p)’s text, Mr. Hankel should be given the opportunity to litigate his right
to permanent, partial disability at the trial level. Minimally, summary judgment
should be reversed and the matter remanded to the compensation court to allow the
parties to bring forth expert testimony such as the trial court heard in both the
Arrant and Becker cases.
As mentioned, I am aware of the decision rendered by the Fourth Circuit in
Hartman v. St. Bernard Par. Fire Dep't & Fara, 20-0103 (La. App. 4 Cir.
5/20/20), 2020 WL 2561480, and Dove v. State Farm Fire & Cas. Co., No. CV 16-
740-JJB-RLB, (M.D. La. Mar. 1, 2017), 2017 WL 811876, however, I find that the
holdings in those cases are in conflict with the Louisiana Supreme Court’s decision
in Arrant, supra.
19-CA-613 16
I am also aware of La. R.S. 33:2581.1A, located in the Municipal Code,
classifying a NIHL hearing loss as a disease or infirmity. However, that statute
clearly states that it is applicable for purposes of the Municipal Code only,
presumably employment benefits, and therefore I conclude that it does not apply in
cases involving a determination of entitlement to worker’s compensation benefits.
For these reasons, I would reverse the ruling of the worker’s court granting
summary judgment in favor of JPFD, remand the matter for further proceedings.
19-CA-613 17
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 22, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-613
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
MICHAEL F. NOLAN (APPELLEE)
MAILED
FRANK A. BRUNO (APPELLANT)
ATTORNEY AT LAW
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NEW ORLEANS, LA 70113