James Schexnayder Versus Jefferson Parish Fire Department ( 2023 )

JAMES SCHEXNAYDER NO. 22-CA-315
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. 21-2567
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING
March 01, 2023
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.
JUDGMENT REVERSED; REMANDED
FHW
SMC
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
JAMES SCHEXNAYDER
William R. Mustian, III
COUNSEL FOR DEFENDANT/APPELLEE,
JEFFERSON PARISH FIRE DEPARTMENT
Michael F. Nolan
WICKER, J.
In this worker’s compensation proceeding, claimant appeals the Office of
Worker’s Compensation’s (OWC’s) March 25, 2022 judgment dismissing his
claim for worker’s compensation benefits related to his diagnosis of lymphoma
under La. R.S. 33:2011. At issue in this appeal is whether defendant-employer
presented sufficient evidence to rebut the presumption under La. R.S. 33:2011 that
claimant’s diagnosis of a rare form of lymphoma is an occupational disease under
the statute. For the following reasons, we find that the OWC judge erred in
dismissing claimant’s petition and we reverse the judgment appealed.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2021, Claimant, a Jefferson Parish firefighter, filed a 1008 form
seeking worker’s compensation benefits for an alleged service-connected
occupational disease as set forth under La. R.S. 33:2011, the Cancer Act, related to
his May 28, 2020 lymphoma diagnosis. On July 19, 2021, the Parish filed an
Answer to the disputed claim, contending that the undisputed medical evidence
demonstrates that claimant’s medical diagnosis is a rare form of lymphoma not
caused by his employment but rather by the Epstein-Barr virus and is, thus, not a
compensable occupational disease.
On March 21, 2022, the parties entered into a written stipulation that the
applicable compensation rate for claimant’s claim is $688 per week; that claimant
missed 120 days of work while being treated for lymphoma; that claimant’s
insurer, through his spouse’s employment, has paid 75% of his related medical
expenses and claimant’s spouse has paid 25% of his related medical expenses; and
that CCMSI (the third-party administrator) has not received any 1010 forms
requesting authorization for medical treatment from claimant.
The matter proceeded to trial on February 23, 2022. At trial, claimant,
James Schexnayder, testified that he is a firefighter with the Jefferson Parish Fire
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Department and has been employed for 31½ years and remained actively employed
as a firefighter at the time of trial. Claimant testified that he had been diagnosed
with lymphoma and that his local treating oncologist, Dr. Brian Bienvenu, referred
him to MD Anderson for a specific cancer diagnosis. At MD Anderson, claimant
treated with Dr. Ranjit Nair. He further treated locally with Dr. Ashley Mayes.
Claimant testified that he still returns to MD Anderson and his local
oncologist for follow-ups, PET scans, and bloodwork. He testified that he misses
1-2 days of work for each follow-up visit. He further testified that he recently
underwent nasal surgery related to his cancer diagnosis. He testified that his initial
treatment and radiation caused him to miss work from May or June of 2020 until
he was discharged to return to work on September 25, 2020. He testified that he
used personal leave, sick leave, and Covid administrative leave due to his
compromised immune system during his treatment and that he was paid throughout
his entire leave.
At trial, the Parish introduced into evidence questionnaires completed by
local oncologists Dr. Ashley Mayes and Dr. Brian Bienvenu. The questionnaires
submitted to Dr. Mayes and Bienvenu questioned “In your professional medical
opinion, was Mr. Schexnayder’s diagnosis of Lymphoma caused by his
employment with the fire department?”, to which both doctors responded “No.” In
a second question, Dr. Mayes and Dr. Bienvenu were asked, “what do you relate
the cause of this diagnosis to?” to which both doctors responded “unknown.” A
second questionnaire was subsequently submitted asking, “[a]re you able to state in
your medical opinion that more probable than not, Mr. Schexnayder’s lymphoma
could not have been caused by his employment with the Fire Department?”, to
which both doctors responded, “Yes.”
An identical questionnaire was submitted to claimant’s treating physician
with MD Anderson, Dr. Ranjit Nair, and introduced into evidence. Dr. Nair
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similarly responded that he was “able to state that more probable than not, Mr.
Schexnayder’s lymphoma could not have been caused by his employment with the
Fire Department.” When questioned “what do you relate the cause of his diagnosis
to,” Dr. Nair responded, “This is a lymphoma [sic] related to EBV virus and can be
triggered by immunosuppression, the cause of which is multifactorial.”
The Parish also introduced the deposition testimony of Dr. Mayes and Dr.
Bienvenu. Dr. Mayes testified that she is a head and neck surgical oncologist. She
testified that claimant presented to her office in 2020 with a neck mass. A biopsy
revealed that claimant had a lymphoma that was likely of a sinonasal source.
Claimant elected to treat at MD Anderson and, thus, she did not treat him for his
cancer. Rather, Dr. Mayes treated claimant after his radiation treatment for
standard side effects of chemoradiation, such as nasal crusting.
Dr. Mayes testified claimant has a fairly rare form of lymphoma that is
“most highly associated with Epstein-Barr” virus. While she cannot say that it is
“impossible” that claimant’s employment was a causative factor in his diagnosis,
she found it “unlikely.” She further testified that the rare type of lymphoma that
claimant has been diagnosed with “is not affiliated with exposure” to chemicals.
She testified that she agreed with Dr. Nair’s assessment that “this is a lymphoma
related to EBV virus and can be triggered by immunosuppression.”
The Parish also introduced the deposition of Dr. Brian Bienvenu, an
oncologist at Louisiana Hematology Oncology Associates. He testified that he
specializes in cancers of the head and neck. He testified that he treated claimant
for a neck mass that was biopsied and revealed “an NKT lymphoma, which is a
quite rare lymphoma.” He further testified that “NKT lymphomas are typically
related to Epstein-Barr virus. And the only information I know of in the literature
is that there is some slight increased risk for exposure to farming chemicals in
Asia. As to what causes it in the United States, where it’s uncommon, there isn’t
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any clear information, other than some interplay with EBV exposure. He further
agreed with Dr. Nair’s assessment that this rare lymphoma is Epstein-Barr Virus
related. On cross-examination, he clarified that he cannot say with 100% certainty
that claimant’s lymphoma is not related to his employment. He explained that “in
the world of medicine…it’s hard to say that anything is a hundred percent
impossible.” Rather, he testified that it is “more probable than not [the lymphoma]
is not related” to claimant’s employment exposure.
Plaintiff introduced the deposition testimony of Dr. Marc Matrana, an
oncologist with
Hospital who evaluated claimant as a second medical opinion (SMO) physician
retained by the Parish. Dr. Matrana testified that there is substantial medical
literature indicating an increased risk of non-Hodgkin’s lymphoma in firefighters
in general. He concluded after his research that plaintiff’s occupation may have
increased his risk for lymphoma.
Dr. Matrana responded to a July 14, 2021 questionnaire, asking if he agreed
with Dr. Bienvenu’s and Dr. Mayes’ opinion that claimant’s employment could not
have contributed to his lymphoma diagnosis, and he responded:
“No…. According to the patient he is a 31-year long veteran of the
fire department, providing for decades of exposure to potential
carcinogenic substances during the course of his daily work. He has
no significant family history of cancer and was never a smoker. The
location of his lymphoma in the nasal cavity, certainly suggest it may
be associated with prolonged inhalation of carcinogens. As above,
numerous studies now suggest an increased risk of lymphoma in
firefighters.”
Plaintiff introduced into evidence an email from Dr. Matrana to Cynthia Childers
on July 16, 2021, in which Dr. Matrana opined:
“I did see that his cancer was EBV positive. I definitely agree that his
cancer is likely linked to this virus, but it is more complicated than that.
See the attached article “Viruses, chemicals and cocarcinogenesis”
which details how cancers are caused by multiple factors. His decades
of exposure as a firefighter may certainly have increased his risk of
developing this virally associated disease.”
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In his deposition, Dr. Matrana testified concerning this publication and
stated that “certainly the viral infection is associated with the development of his
cancer, but his exposure to carcinogens probably also plays a role” as like most
cancers, non-Hodgkin’s lymphoma is likely multifactorial. He testified that there
is medical research to suggest that certain carcinogens, such as PCBs and certain
pesticides, work together with the EBV virus to cause Non-Hodgkin’s lymphoma.
Although the Parish provided no information to the physicians in this case
concerning the type of possible carcinogens to which plaintiff may have been
exposed over a thirty-year time period, Dr. Matrana testified that medical studies
reflect that firefighters in Eastern Siberia have been exposed to PCBs through their
employment. He further testified that although the research names certain PCBs
and pesticides as carcinogens known to work with the EBV virus to cause Non-
Hodgkin’s lymphoma, he clarified that the article does not limit its findings only to
those examples of carcinogens.
Plaintiff also introduced into evidence the deposition of Lori Francis, a
senior claims representative/adjuster with CCMSI (the third-party claims
administrator for the Parish). She verified that Dr. Matrana was selected as a
second medical opinion physician by CCMSI, and further agreed that his opinions
were the only opinions that referenced specific medical literature for review. She
also testified that she does not believe that the Parish provided any of the
physicians with any factual information as to what kinds of substances or toxins
Jefferson Parish firefighters, over the span of the last 30 years or currently, may be
exposed to in the workplace.
On March 25, 2022, the OWC issued a judgment, finding that claimant
worked for the Jefferson Parish Fire Department for approximately 31 years and
that claimant developed “extra nodal T cell lymphoma, EBV positive, nasal type”
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lymphoma during his employment with the Jefferson Parish Fire Department. The
OWC judge further found that claimant is entitled to the rebuttable presumption
under La. R.S. 33:2011(8) that his lymphoma was caused by or resulted from the
nature of the work, but determined that the Parish presented “medical evidence
meeting judicial standards to rebut the presumption” that claimant’s lymphoma
was caused by his employment. The judge rendered judgment in the Parish’s favor
and dismissed claimant’s 1008 petition with prejudice.
Claimant has appealed the March 25, 2022 judgment, contending that
defendant-employer, the Jefferson Parish Fire Department, has failed to rebut the
statutory presumption under La. R.S. 33:2011.
LAW AND ANALYSIS
At issue in this appeal is the interpretation and application of the statutory
presumption under La. R.S. 33:2011, the Cancer Act, which provides that when a
firefighter in classified service and employed more than ten years has developed
cancer, the cancer shall be classified as an occupational disease for which he or she
is entitled to certain worker’s compensation benefits. The presumption is
rebuttable by evidence meeting judicial standards.
La. R.S. 33:2011, in pertinent part, provides:
A. (1) Because of exposure to heat, smoke, and fumes or carcinogenic,
poisonous, toxic, or chemical substances, when a firefighter in the
classified service who has completed ten or more years of service
has developed cancer, the cancer shall be classified as an
occupational disease or infirmity connected with the duties of a
firefighter. The disease or infirmity shall be presumed to have been
caused by or to have resulted from the work performed. This
presumption shall be rebuttable by evidence meeting judicial
standards.
* * *
B. The cancer referred to in Subsection A of this Section shall be
limited to the types of cancer which may be caused by exposure to heat,
smoke, radiation, or a known or suspected carcinogen as defined by the
International Agency for Research on Cancer. The cancer shall also be
limited to a cancer originating in the bladder, brain, colon, liver,
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pancreas, skin, kidney, or gastrointestinal or reproductive tract, and
leukemia, lymphoma, multiple myeloma, prostate cancer, and testicular
cancer, or any other type of cancer, due to occupational exposure, for
which firefighters are determined to have a statistically significant
increased risk over that of the general population.
La. R.S. 33:2011.
The Act embodies the social policy of the state which recognizes that
firemen are subjected during their career to the hazards of smoke, heat, and
nauseous fumes from all kinds of toxic chemicals. Middlebrooks v. City of Bastrop,
51,073 (La. App. 2 Cir. 1/11/17), 211 So.3d 1231, 1233, writ denied sub
nom. Middlebrooks o/b/o Middlebrooks v. City of Bastrop, 17-0286 (La. 5/1/17),
219 So.3d 331 (quotations omitted). The legislature recognized that this exposure
could cause a fireman to become the victim of cancer and the presumption relieves
the claimant from the necessity of proving an occupational causation of the
disease. Middlebrooks, 219 So.3d at 331.
There is little jurisprudence discussing the burden of proof in a worker’s
compensation proceeding seeking benefits under the Cancer Act. However, La.
R.S. 33:2581, the Heart and Lung Act, involves a similar presumption in favor of
firemen who develop a disease or infirmity of the heart or lungs after having been
employed as a fireman for more than five years. We look to jurisprudence
discussing the burden of proof as to Heart and Lung Act cases for guidance in
determining the burden of proof under Cancer Act cases. See Middlebrooks, 211
So.3d at 1234. This Court, in considering a Heart and Lung Act case, has held
that, “[o]nce a claimant establishes that a covered disease or infirmity is at issue,
and the presumption applies, the burden shifts to the employer to prove that the
disease or infirmity was not caused by the firefighter’s employment. Bacon v.
Jefferson Par. Fire Dep’t, 22-510 (La. App. 5 Cir. 12/19/22).
Further, the First, Second, Third, and Fourth Circuits have held that to meet
a defendant-employer’s burden to rebut the presumption and prove that the disease
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was not caused by the firefighter’s employment, the medical evidence presented
cannot demonstrate that the employment was a “contributing, accelerating, or
aggravating factor” in the causation of the disease. See Miley v. Bogalusa Fire
Dep't, 14-1113 (La. App. 1 Cir. 3/6/15), 166 So.3d 319, 323 (holding that an
employer must prove that “the employment did not in any way precipitate,
accelerate, aggravate, or otherwise cause or contribute to the heart condition.”);
Middlebrooks, 211 So.3d at 1235 (finding that the medical evidence presented
must show “that the employment did not precipitate, accelerate, aggravate, or
otherwise cause or contribute” to the condition.)(emphasis in original); Olivier v.
City of Eunice, 11-1054 (La. App. 3 Cir. 6/6/12), 92 So.3d 630, 635, writ denied,
12-1570 (La. 10/12/12), 98 So.3d 874 (finding that the employer “could not rule
out that firefighting contributed to, accelerated, or aggravated [the condition].”);
and Richards v. St. Bernard Par. Gov’t, 11-1724 (La. App. 4 Cir. 5/2/12), 91 So.3d
524, 530, writ denied, 12-1203 (La. 9/21/12), 98 So.3d 340 (holding that medical
evidence that cannot rule out that employment “contributed to or aggravated” the
condition “is not affirmative evidence sufficient to rebut the Act’s presumption.”).1
Further, medical opinions tempered by acknowledgments, agreements, or
concessions that the work may have been a cause, even though remote, or possibly
a contributing factor of the disease, or which is otherwise equivocal, is not
affirmative evidence sufficient to overcome the Act’s presumption. Richards, 91
So.3d at 530. Moreover, evidence that the employment did not contribute to a
claimant’s condition is insufficient to overcome the Act’s presumption when the
1
Defendant points to the Gilliland case for the proposition that the OWC judge may discount an expert’s
opinion that presents evidence that the employment may have accelerated, aggravated, contributed to, or
caused the condition if conflicting circumstantial evidence is also presented. However, in the application
of a statutory presumption for a firefighter employed more than thirty years in the profession and
considering that the presumption is relevant because the causes of cancer are multifactorial and
complicated, we disagree. We further point out that the claimant in Gilliland was diagnosed with his
cancer after his retirement, and was paid 333 weeks of supplemental earnings benefits related to his
condition. The court recognized that “the majority of reported cases do not involve the manifestation of
the disease after the termination of work.” Gilliland v. City of Monroe, 42,458 (La. App. 2 Cir. 10/10/07),
968 So.2d 270, 274, writ denied, 07-2476 (La. 3/7/08), 977 So.2d 908.
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medical evidence presented also demonstrates that the cause of the firefighter’s
condition was “unknown.” See Meche v. City of Crowley Fire Dept., 96–577 La.
App. 3 Cir. 2/12/97, 688 So.2d 697, 702, writ denied, 97-0632 (La. 4/25/97), 692
So.2d 1088. Therefore, a claimant is not required to prove that the employment
was the sole cause of the injury or disease, so long as it is shown to be a
contributing, accelerating, or aggravating factor. Miley, 166 So.3d at 323.
In this case, it is undisputed that claimant has been employed in the
classified service as a firefighter for the Jefferson Parish Fire Department for more
than 31 years and is still employed as a professional firefighter with the Parish and
actively fighting fires today. Therefore, he is clearly entitled to the presumption
set forth in the Cancer Act.
Upon review of all evidence presented at trial, we find that the Parish did not
rebut the presumption sufficiently to dismiss claimant’s petition. Although the
Parish put forth evidence to demonstrate that the type of lymphoma claimant has
been diagnosed with is generally caused by the EBV virus, the claimant presented
evidence that such a diagnosis is multifactorial and that the etiology is
complicated. The evidence claimant introduced clearly demonstrated that
claimant’s employment could not be ruled out as a contributing factor to his
disease. Although Dr. Bienvenu and Dr. Mayes responded to a questionnaire that
the diagnosis is more probable than not associated with the EBV virus and not
claimant’s employment, they further responded that the “Cause” of the lymphoma
is “unknown.” Dr. Matrana’s response considered the fact that the lymphoma is a
rare nasal lymphoma typically associated with the EBV virus, but still maintained
that while the EBV virus is clearly a causative factor, claimant’s exposure to
various carcinogens over a thirty-year time span through his employment cannot be
ruled out as a causative factor for the disease.
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We find the evidence presented at trial could not rule out that claimant’s
more than 30-year employment actively fighting fires could not have contributed to
his diagnoses of lymphoma in this case. Consequently, we find the OWJ was
clearly erroneous in dismissing claimant’s 1008.
On appeal, claimant further seeks reimbursement for his portion of the
medical expenses paid, through his spouse’s employer’s insurance. We find
claimant is entitled to reimbursement as outlined under La. R.S. 33:2011, subject
to the set off set forth in La. R.S. 23:1212.
DECREE
Accordingly, for the reasons provided herein, we reverse the OWC’s
judgment and remand this matter to the OWC to determine the proper calculation
of benefits due to claimant.2
JUDGMENT REVERSED;
REMANDED
2
Claimant further seeks penalties under La. R.S. 23:1201(F). Under the facts of this case, we decline to
assess penalties against the Parish or award attorney fees in this case.
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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
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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
MARCH 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
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22-CA-315
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
WILLIAM R. MUSTIAN, III (APPELLANT) MICHAEL F. NOLAN (APPELLEE)
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