
    Silmon O. SEAL v. GAYLORD CONTAINER CORPORATION.
    No. 96 CA 0349.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1997.
    Writ Granted May 1, 1997.
    
      Richard Ducote, New Orleans, for Plaintiff/Appellee, Silmon O. Seal.
    Kirk L. Landry, Baton Rouge, for Defendants/Appellants, Gaylord Container Corporation and Transportation Insurance Co.
    Before LOTTINGER, C.J., and CARTER, FOIL, GONZALES and PARRO, JJ.
   J2GONZALES, Judge.

This is an appeal by an employer, Gaylord Container Corporation (Gaylord), from a decision rendered in favor of one of its former employees, Silmon O. Seal (Seal), for workers’ compensation benefits. Gaylord challenges the hearing officer’s determination that Seal (1) contracted an occupational disease within the meaning of La. R.S. 23:1031.1, (2) was entitled to supplemental earnings benefits, and (3) was entitled to penalties, interest, and attorney fees due to Gaylord’s arbitrary and capricious handling of his claim.

FACTS AND PROCEDURAL HISTORY

Seal, a 59-year-old male, worked at Gay-lord’s paper mill from 1957 until 1994. For the last fifteen years of his employment, Seal worked as a bogol operator, mixing and “cooking” various chemicals with the application of steam. This process exposed Seal to fumes from the chemicals which caused him to develop a chronic cough.

In September 1994, Seal was referred to Dr. Henry Jackson, a physician certified in the fields of internal medicine and pulmonary diseases, with complaints of a chronic cough and shortness of breath. After running several tests on Seal, Dr. Jackson diagnosed him with severe bronchitis. Dr. Jackson attributed Seal’s condition to his exposure to the chemical fumes at his employment. In a December 31, 1994 letter to Gaylord’s workers’ compensation insurer, Dr. Jackson stated that the severity of Seal’s condition made it “potentially injurious” to his health to continue to work in such an environment.

In March 1995, Seal filed a disputed claim for compensation with the Office of Workers’ Compensation, alleging that he had been “exposed to noxious chemicals over an extended period of time causing severe lung damage” and that Gaylord had refused to pay him benefits after being apprised of his condition.

The matter was tried before an Office of Workers’ Compensation hearing officer on October 5, 1995. The hearing officer signed a decision in favor of Seal and against Gay-lord on November 27, 1995, (1) ordering that Gaylord pay Seal supplemental ^earnings benefits up to 520 weeks beginning August 1, 1994, with a credit for any payments made by Gaylord’s insurer and (2) assessing Gaylord with penalties, interest, and attorney fees of $4,500.00 because it “acted arbitrarily and captiously (sic) in [its] handling of this matter.”

Gaylord appeals fi-om this adverse decision, asserting the following assignments of error:

1. The trial court committed legal error in determining that Seal sustained an occupational disease as defined by La. R.S. 23:1031.1.
2. The trial court committed legal error in determining that Seal is entitled to supplemental earnings benefits pursuant to La. R.S. 23:1221(3).
3. The trial court committed manifest error in determining that the employer acted arbitrarily and capriciously in the handling of this matter, and awarding penalties, interest, and attorney fees.

OCCUPATIONAL DISEASE

According to La. R.S. 23:1031.1(A), every employee who is disabled because of the contraction of an occupational disease as defined by the Workers’ Compensation Law shall be entitled to compensation benefits the same as if the employee received personal injury by accident arising out of and in the course and scope of his employment.

In its first assignment of error, Gaylord challenges the hearing officer’s conclusion that Seal suffered from an occupational disease within the meaning of La. R.S. 23:1031.1. Section B of the statute defines an occupational disease as:

that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

The claimant in a workers’ compensation action based on an occupational disease must establish by a preponderance of the evidence that there is a disability which is related to the employment-related disease. Vargas v. Daniell Battery Manufacturing Company, Inc., 93-1249 (La.App. 1st Cir. 5/20/94), 636 So.2d 1194, 1197. An occupational disease has been defined as one which is the result of a series of events, |4often imperceptible in nature, which are eventually evidenced in the manifestation of a disability. The plaintiff must show that he contracted the disease during the course of his employment and that the disease was the result of the nature of the work performed. Vargas v. Daniell Battery Manufacturing Company, Inc., 636 So.2d at 1197.

Whether a plaintiff is disabled as a result of an occupational disease or illness is a question of fact, and it is well settled that an appellate court will not set aside a finding of fact unless it is clearly wrong or manifestly erroneous. Stutes v. Koch Services, Inc., 94-782 (La.App. 3d Cir. 12/7/94), 649 So.2d 987, 990, writ denied, 95-0846 (La.5/5/95), 654 So.2d 335; Vargas v. Daniell Battery Manufacturing Company, Inc., 636 So.2d at 1197.

In this case, the hearing officer found that Seal suffered from an occupational disease. In his reasons for judgment, the hearing officer stated:

Claimant as a result of working with chemicals for years at defendant’s plant gradually developed such pulmonary problems that he could no longer work and had to seek medical aid. Claimant would have to incessantly cough although he did not smoke. Claimant testified as to his condition because of the fumes from the chemicals. Two of his fellow workers also testi-fíed as to the effects of the fumes on claimant. They said that claimant would cough until he [would] almost lose his breath and they observed that claimant would have the symptoms of a cold for months at a time. Claimant proved that he suffered an occupational [disease] as set forth in the ... statute.

In addition to the above findings of the hearing officer, we also note that Dr. Jackson’s deposition testimony supports the finding that Seal suffered from a disability caused by an employment-related disease. Based on Seal’s history as a non-smoker who also tested negative for asthma and allergies, Dr. Jackson opined that his severe bronchial inflammation was attributable to his exposure to chemical fumes at his place of employment.

After a thorough review and evaluation of the record, and primarily based upon the testimony of Seal, Seal’s co-workers, and Dr. Jackson, we cannot say that the hearing |5officer’s conclusion that Seal suffered from an occupational disease is clearly wrong or manifestly erroneous.

SUPPLEMENTAL EARNINGS BENEFITS

In its second assignment of error, Gaylord contends that the hearing officer erred in awarding Seal supplemental earnings benefits.

An employee is entitled to supplemental earnings benefits (SEBs) when he has sustained an employment-related injury resulting in his inability to earn wages equal to 90% or more of his wages at the time of the injury. La. R.S. 23:1221(3)(a); Miller v. Roger Miller Sand, Inc., 94-1151 (La.11/30/94), 646 So.2d 330, 335; Morris v. Norco Construction Company, 632 So.2d 332, 334 (La.App. 1st Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163. The purpose of SEBs is to compensate the injured employee for wage earning capacity he has lost as a result of his accident. Hurst v. Baker Sand Control, 94-2463 (La.App. 1st Cir. 10/6/95), 671 So.2d 408, 411. A claimant seeking SEBs must prove that his disability prevents him from earning 90% of his pre-injury wages by a preponderance of the evidence. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Farrill v. Hammond State School, 93-1735 (La. App. 1st Cir. 6/24/94), 639 So.2d 449, 450. It is irrelevant whether the claimant is physically able to perform his former job; rather, the relevant question is whether he is partially disabled and unable to earn 90% of his pre-injury wages. Hurst v. Baker Sand Control, 671 So.2d at 412. Whether an employee has proved that he is unable to earn 90% of his pre-injury wages is a question of fact governed by the manifest error/clearly wrong standard. Morris v. Norco Construction Company, 632 So.2d at 335.

Ir,In this case, we find that Seal failed to prove his inability to earn 90% of his pre-injury wages by a preponderance of the evidence. When he left his employment at Gay-lord in August 1994, Seal was earning $17.36 per hour. Dr. Jackson’s testimony establishes that Seal could not return to his position as a bogol operator at Gaylord. However, Dr. Jackson’s testimony also establishes that when Seal was no longer exposed to the chemical fumes, he no longer had breathing problems and most likely will not have any in the future as long as he avoids the type of environment in which he previously worked. Thus, the record does not establish that it is more probable than not that Seal was unable to earn at least 90% of $17.36 per hour in some other position at Gaylord or in some other type of employment. At the time of trial in October 1995, Seal had not worked since August 1994. When asked on cross-examination if he had applied for work anywhere since then, Seal responded negatively. The relevant portion of the trial transcript reads:

Q: Mr. Seal, you haven’t worked since August of 1994; is that correct?
A. Right.
Q: Have you applied for work anywhere since then?
A: No, sir. I looked around for a job. Most of them that I could get was paying minimum wages and that wasn’t near enough you know....
Q: Have you asked anyone at Gaylord Container Corporation if you could work there?
A. No, sir. I figured they’d contact [my attorney] being I had to hire him, you know.
Q: No one at Gaylord Container Corporation has refused you employment, is that correct?
A: No, sir, they haven’t.

At oral argument, Seal’s counsel conceded that the above testimony is the only evidence in the record demonstrating that Seal has carried his burden of proving hisHinability to earn 90% of his pre-injury wages. We conclude that this evidence presented on the issue of inability to earn wages is insufficient to support the award of SEBs. First, Seal’s testimony contains no reference to a “disability” as the cause of his inability to earn 90% of his pre-injury wages; in fact, the evidence indicates that Seal suffers from no residual problems from his contraction of an occupational disease. Further, there is inadequate evidence as to whether Seal can do any type of work, and if he can, how much that work would pay. See Lachney v. Delaney, 628 So.2d 46, 50 (La.App. 3d Cir.1993), writ denied, 93-3090 (La.2/25/94), 632 So.2d 764 and Green v. Cement Products Services, Inc., 526 So.2d 493, 498 (La.App. 1st Cir.), writ denied, 531 So.2d 270 (La.1988). Thus, a determination as to whether Seal can earn 90% of his pre-injury wages is not possible.

We also note that, in support of his SEB claim, Seal argues that Gaylord failed to offer him a position in a location of the plant other than the bogol plant. However, an employer is not obligated to offer a position or prove its availability until an SEB claimant has first carried his burden of proving an inability to earn 90% of his pre-injury wages. See McClinton v. Rapides General Hospital, 93-1295 (La.App. 3d Cir. 5/4/94), 640 So.2d 534, 536, writ denied, 94-1438 (La.9/23/94), 642 So.2d 1290. Thus, for the foregoing reasons, we find that the hearing officer was clearly wrong in awarding Seal SEBs.

PENALTIES, INTEREST, AND ATTORNEY FEES

In assignment of error number three, Gay-lord challenges the hearing officer’s award of penalties, interest, and attorney fees to Seal. Because we conclude that the hearing officer erred in awarding Seal SEBs, we concomitantly conclude that he erred in assessing penalties, interest, and attorney fees against Gaylord.

DECREE

For the foregoing reasons, the decision of the hearing officer against Gaylord Container Corporation and in favor of Silmon O. Seal is REVERSED. Costs of the appeal are assessed against Silmon O. Seal.

CARTER, J., concurs in part and dissents in part with reasons.

| xCARTER, Judge,

concurring in part and dissenting in part.

I agree with the majority opinion in its conclusion that Silmon O. Seal (Seal) suffered from an occupational disease. However, I disagree with all other parts of the opinion.

With regard to Seal’s entitlement to supplemental earnings benefits, the threshold inquiry to the recovery of supplemental earnings benefits is that the employee’s injury results in Ms inability to earn wages equal to ninety percent or more of the wages that he was earning at the time of his injury. The employee bears the burden of proving by a preponderance of the evidence that the injury resulted in Ms inability to earn that amount. Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Hickman v. City of New Orleans, 95-0210 p. 3 (La.App. 4th Cir. 12/28/95), 666 So.2d 696, 698, writ denied, 96-0264 (La.4/19/96), 671 So.2d 927; Fontenot v. Trans Gulf, Inc., 95-0342 p. 11 (La.App. 1st Cir. 11/9/95), 664 So.2d 1238, 1246. In determining whether the employee is entitled to supplemental earnings benefits, the court should take into account all those factors which might bear on the employee’s ability to earn a wage. Hickman v. City of New Orleans, 666 So.2d at 698.

The jurisprudence is also clear that the analysis of whether the employee has sustained this burden “is necessarily a facts and circumstances one in wMch the court is mindful of the jurisprudential tenet that worker’s compensation law is to be liberally construed in favor of coverage.” Hickman v. City of New Orleans, 666 So.2d at 698, citing Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989).

The standard of review applicable to factual findings of district courts is also applicable to the factual findings of an admmistrative body or hearing officer. In |2workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the “manifest error-clearly wrong” standard. Ridley v. East Baton Rouge Parish School Board, 96-0661 (La.App. 1st Cir. 12/20/96), 684 So.2d 1152; Alexander v. Pellerin Marble & Granite, 93-1698 pp. 5-6 (La.1/14/94), 630 So.2d 706, 710. For an appellate court to reverse a hearing officer’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the hearing officer or that the finding is clearly wrong. See Ridley v. East Baton Rouge Parish School Board, 684 So.2d at 1154. See also Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon' review where conflict exists in the testimony. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882-83.

Although the majority opimon correctly notes that the manifest error-clearly wrong standard applies to our review of the factual determination of whether an employee has established that he is unable to earn 90% of Ms pre-injury wages, the majority then fails to properly observe that standard and reviews the evidence, maMng de novo factual and credibility determinations. I respectfully submit that the majority opimon fails to properly observe the standard of review required by Stobart. See Lirette v. State Farm Insurance Company, 563 So.2d 850 (La.1990).

lain the instant case, the majority finds that Seal failed to prove the first step in the analysis of entitlement to supplemental earnings benefits, namely that Seal failed to establish his inability to earn 90% of his pre-injury wages. In so finding, the majority posits that the evidence is insufficient because Seal did not testify that “his disability caused Ms inability to earn 90% of his pre-injury wages” and because there is “inadequate” evidence as to what type of work, if any, Seal is capable of performing and the amount of pay he may earn. However, in looking for the “magic words” in the testimony, the majority overlooks the substance of the testimony and evidence presented at the hearing.

The medical and lay testimony presented at the hearing established that Seal suffered from an occupational disease which prevented him from returning to his $17.36 an hour job as a bogol operator at Gaylord. The majority acknowledged that this finding is correct. Seal testified that he has a high school diploma and began working at the Gaylord facility when he was twenty years old. At the time of the hearing, Seal was fifty-eight years old and had been employed at the facility for more than thirty-eight years, the last fifteen of which had been as a bogol operator. This testimony establishes that Seal has spent his entire work life at his job at the paper mill and has no other discernible skills to utilize to earn a living. Seal testified that he left his employment with Gaylord in 1994 because of his severe bronchial condition. The medical testimony corroborated Seal’s testimony. Clearly, Seal cannot earn his pre-injury wages because he cannot return to his job and because he had no skills other than that of a paper mill worker. Seal testified that he looked for alternative work but was unable to find a job which paid more than minimum wage. Seal acknowledged that “[i]t looks like I’m going to have to go to that.”

In light of the tenet requiring liberal construction in favor of workers’ compensation coverage, I submit that this evidence is sufficient to establish Seal’s prima facie showing that, because of he work-related injury, he is unable to earn 90% of his pre-injury wages. The jurisprudence supports the hearing officer’s determination that such evidence is sufficient to carry the claimant’s burden of proof and that thejjburden then shifts to the employer to show that the employee is physically able to perform work that was offered to him or was available to him in the community. See Hickman v. City of New Orleans, 666 So.2d at 698; Miller v. City of New Orleans, 95-1005 p. 8 (La.App. 4th Cir. 12/14/95), 665 So.2d 1293, 1298-99; Fontenot v. Trans Gulf, Inc., 664 So.2d at 1246; and Mitchell v. Dixie Roofing & Sheet Metal Co., Inc., 95-288 pp. 3-5 (La.App. 3rd Cir. 10/4/95), 663 So.2d 222, 225.

In Fontenot v. Trans Gulf, Inc., 664 So.2d at 1246, this court considered the combined effects of the claimant’s chronic lumbar problems, which were substantiated by medical testimony and records, and affirmed a hearing officer’s determination that these problems prevented claimant from returning to his former occupation as a truck driver. The appellate court concluded that this testimony, together with the testimony of the claimant and his wife relative to the claimant’s pain, established by a preponderance of the evidence that claimant’s work-related injuries prevented him from earning ninety percent of the wages he was earning at the time of his injury.

In Hickman v. City of New Orleans, 666 So.2d at 698, the court upheld a hearing officer’s determination that the claimant sustained his burden of proof that he was entitled to supplemental earnings benefits. In affirming the hearing officer’s determinations, the appellate court pointed to evidence that Hickman had been employed in his capacity as a fireman for fifteen years, had no other technical skills, and had applied without success at the local employment offices.

In Miller v. City of New Orleans, 95-1005 p. 8 (La.App. 4th Cir. 12/14/95), 665 So.2d 1293, 1298-99, the appellate court affirmed a hearing officer’s determination of a claimant’s entitlement to supplemental earnings benefits. The court noted that the claimant had attended one year of high school and had worked as a stock clerk at a grocery store. He then spent four years in the Navy and received a G.E.D. diploma. After his discharge from the Navy, the claimant worked briefly for a roofing company. Claimant then spent the next thirty years working for the New Orleans Fire Department. His work-related injury prevented his return to his former job. In analyzing this |5evidence, the court concluded that the claimant had made a prima facie case of entitlement to supplemental earnings benefits.

In Mitchell v. Dixie Roofing & Sheet Metal Co., Inc., 95-288 pp. 3-5 (La.App. 3rd Cir. 10/4/95), 663 So.2d 222, 225, the appellate court affirmed a hearing officer’s determination that a claimant was entitled to supplemental earnings benefits. At the time of his accident, Mitchell was earning $12.00 per hour. Mitchell had only a seventh grade education, and he worked for the defendant for fifteen years. Although Mitchell had been released to return to his job with restrictions, Mitchell’s attempts at performing his former job were unsuccessful. The appellate court pointed out that the claimant’s own testimony about his experiences and the medical testimony relative to the claimant’s actual abilities supported the hearing officer’s conclusion that Mitchell established his inability to earn 90% of his pre-injury wages.

It is clear from our reading of the record and the written reasons that the hearing officer found that Seal could not go back to his old job and that he has looked for another job, but that he could not find any jobs, except those paying minimum wage. A review of the testimony and other evidence in the instant ease clearly and unequivocally supports the hearing officer’s determination that Seal could not return to his former job and could only find minimum wage jobs. Clearly, Seal was unable to earn at least 90% of $17.36 per hour wages.

In reversing the hearing officer’s determination in the instant ease, the majority cites McClinton v. Rapides General Hospital, 93-1295 (La.App. 3rd Cir. 5/4/94), 640 So.2d 534, 536, writ denied, 94-1438 (La.9/23/94), 642 So.2d 1290, as authority for the proposition that the burden of proof does not shift to the employer until the claimant meets his threshold requirement of establishing his inability to earn 90% of his pre-injury wages. However, there is no dispute that this is what the law requires. The majority simply determined that Seal did not prove the threshold inquiry, despite the contrary factual determination by the hearing officer. Moreover, the McClinton case cited by the majority is factually distinguishable from the instant case. In McClinton, the claimant testified that he applied for numerous jobs, but was unable to find work. However, this evidence was | ¡¡contradicted by the testimony of three of the prospective employers, each of whom had no record of claimant’s applications. Moreover, the claimant’s testimony was fraught with credibility problems. As a result, the hearing officer determined, and the appellate court affirmed, that McClinton failed to carry his initial burden.

After Seal successfully carried his burden of proving his inability to earn wages equal to 90% of his pre-injury wages, the burden shifted to Gaylord to establish that Seal is physically able to perform work that was offered to him or was available to him in the community. This Gaylord failed to do. The testimony presented at trial reveals that no one at Gaylord offered Seal another job, nor did Gaylord establish that there were other jobs available in the community or reasonable geographic area.

On direct examination, Seal testified as follows:

Q. Mr. Seal, did anyone at Gaylord contact you to offer you a job since you filed Workers’ Compensation benefits?
A. No, sir.
Q. Did Dr. Jackson tell you to avoid or stay away from an unclean environment?
A. He sure did.

Mr. Bringer H. Barker, Human Resources Supervisor for Gaylord, testified as follows:

Q. You have not offered Mr. Seal a job, have you, sir?
A. No, I haven’t.
Q. And were you asked by the insurance — who’s your insurance carrier? Gaylord’s?
A. CNA.
Q. Have you been asked by CNA to offer Mr. Seal a job?
A. They have asked if we had any light duty or any jobs that he could bid on, and we did have that available.
Q. Have you communicated—
A. No light duty.
Q. Have you communicated any jobs to either me or Mr. Seal that you think he could do given his restrictions?
A. Directly, no, I haven’t.
17Q- Okay. And you — like you said, you’re not aware of the restrictions put on by Dr. Jackson, so you can’t say that Mr. Seal can do any jobs at that paper mill given the fact that there is exposure to some extent everywhere around that mill.

A. I cannot truthfully testify to that.

For these reasons, I respectfully submit that the hearing officer was eminently correct in his determination that Seal was entitled to supplemental earning benefits. The majority commits legal error in misapplying the proper standard of review. For this court to continue to err in the application of the standard of review as the majority does in the case sub judice and to ignore the legal requirements of Stobart not only invites, but requires continuing reversal by the supreme court.

Further, it is clear that Gaylord did not have a reasonable basis to controvert Seal’s claim for compensation and was arbitrary and capricious in the handling of this matter and should be properly cast for penalties, interest, and attorney’s fees.

Therefore, I respectfully concur in part and dissent in part. 
      
      . Although the workers' compensation insurer participated as a defendant in the trial of this matter, the decision signed by the hearing officer only names Gaylord as the party liable to the plaintiff.
     
      
      . Gaylord argues that the hearing officer erred in concluding that Seal suffered from an occupational disease. It is Gaylord's position that Seal was not “disabled” from his bronchial condition because, according to Dr. Jackson, he suffered no residual effects from his exposure to chemical fumes. Although a lack of residual effects may ■ affect a claimant's entitlement to workers' compensation benefits, it does not determine whether the claimant became disabled in the first place as a result of an occupational disease. A "disability” is marked as the time from which it is clear that the employee is no longer able to perform the duties of his employment in a satisfactory manner. Starks v. Universal Life Insurance Company, 95-1003 (La.App. 1st Cir. 12/15/95), 666 So.2d 387, 390, writ denied, 96-0113 (La.3/8/96), 669 So.2d 400. The record establishes that Seal's condition progressed to a level which prevented him from satisfactorily performing his job, thus establishing his disability.
     