CATHERINE KINCHEN v. TANGIPAHOA PARISH SCHOOL SYSTEM (2026)

In this workers’ compensation proceeding, the Tangipahoa Parish School System (“TPSS”) appeals a judgment rendered by the Office of Workers’ Compensation (“OWC”) in favor of Catherine Kinchen. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

On January 26, 2022, Kinchen filed a disputed claim for compensation with the OWC, alleging that she was injured in the course and scope of her employment with TPSS. Kinchen alleged that on February 4, 2021, while she was working at the Florida Parish Juvenile Detention Center in Covington, Louisiana, certain personnel were moving a large metal shelf when it scraped across the floor, causing a loud sound that permanently damaged her right ear. Kinchen alleged that she suffered hearing loss, vertiginous migraines, and other issues as a result of her injury. She asserted that no wage benefits had been paid, nor had any medical treatment been authorized by TPSS, and sought compensation, penalties, costs, attorney fees, and judicial interest.

On February 10, 2022, TPSS answered Kinchen's disputed claim for compensation, denying Kinchen sustained an “injury” of hearing loss in the course and scope of her employment and further denying Kinchen was disabled in any capacity from the alleged injury.

On November 29, 2022, TPSS filed a motion to appoint an independent medical examiner (“IME”) in accordance with La. R.S. 23:1123 ² and La. R.S. 23:1124.1 ³ , averring that its physician of choice (Dr. Gerard Gianoli) and Kinchen's treating physician (Dr. Jeffrey Lacour) disagreed as to Kinchen's medical condition and her ability to return to work. In addition, TPSS sought an IME to address causation issues considering the facts specific to Kinchen's claim. On January 6, 2023, Kinchen filed an opposition to TPSS's motion to appoint an IME, alleging that the two physicians at issue only disagreed as to the particular diagnosis, but agreed as to the recommended treatment and how her injury manifests itself.

Following a hearing on January 17, 2023, the workers’ compensation judge (“WCJ”) denied TPSS's motion to appoint an IME pursuant to La. R.S. 23:1123, but appointed an IME of its own in the field of ENT/Otolaryngology pursuant to La. R.S. 23:1124.1. On May 10, 2023, the WCJ appointed Dr. Adam Master as the IME, instructing him to prepare a report addressing, among other things: Kinchen's diagnosis as it relates to her complaints in her right ear; whether this diagnosis is related to the February 4, 2021 workplace accident; what work restrictions, if any, Kinchen would have because of her right-ear symptoms; his treatment recommendations, including whether those recommendations are related to the workplace accident; Kinchen's prognosis; whether Kinchen can return to work at the detention center, and if not, whether she is capable of returning to work in any capacity.

On October 9, 2023, TPSS filed a motion for summary judgment alleging that: (1) Kinchen cannot meet her burden of proving injury as defined by the Louisiana Workers’ Compensation Act; and (2) Kinchen has retired, so even if she could prove entitlement to indemnity benefits, TPSS is entitled to an offset/credit under La. R.S. 23:1225(C)(l)(c). On January 30, 2024, the WCJ issued a judgment denying TPSS's motion for summary judgment as to Kinchen's ear condition and its relationship to her employment, granting TPSS's motion for summary judgment on the issue of an offset/credit, finding TPSS to be entitled to an offset/credit pursuant to La. R.S. 23:1225(C)(1)(c) for the periods in which Kinchen received both workers’ compensation benefits and disability retirement benefits, and denying TPSS's motion for summary judgment as to the amount of any such offset/credit, finding that genuine issues of material fact remained.⁴

A trial before the WCJ was held on September 25, 2024, after which the WCJ took the matter under advisement. On January 30, 2025, the WCJ signed a final judgment containing the following orders:

(1) Rendering judgment in favor of Kinchen and against TPSS.

(2) Finding that Kinchen carried her burden to establish that she suffered an accident and injury in the course and scope of her employment with TPSS on February 4, 2021, and is therefore entitled to workers’ compensation benefits pursuant to La. R.S. 23:1031.

(3) Finding that Kinchen's injuries resulting from the February 4, 2021 workplace accident were disabling.

(4) Finding that Kinchen carried her burden to establish that she was entitled to supplemental earnings benefits pursuant to La. R.S. 23:1221(3) at a zero-earning capacity. Further finding that Kinchen's average monthly wage was $2,924.78, the WCJ ordered TPSS to pay supplemental earnings benefits to Kinchen in the amount of $102,659.77, representing thirty-five months and three days from October 23, 2021, through the date of trial.

(5) Finding that Kinchen's retirement was a regular, non-disability retirement and that pursuant to La. R.S. 23:1225, TPSS is not entitled to a credit.

(6) Finding that, as a result of the accident on February 4, 2021, Kinchen's injuries necessitated medical care which was provided by medical providers, including but not limited to Drs. Lacour, Olson, Master, and Murphy.

(7) Assessing $2,000.00 in penalties against TPSS pursuant to La. R.S. 23:1201(F) for its failure to timely or otherwise authorize and/or pay for necessary and related medical care as a result of the workplace accident.

(8) Assessing $2,000.00 in penalties against TPSS pursuant to La. R.S. 23:1201(F) for its failure to timely or otherwise pay indemnity benefits to Kinchen as a result of the accident.

(9) Ordering TPSS to pay attorney fees to Kinchen in the amount of $15,000.00 pursuant to La. R.S. 23:1201(F) for its failure to authorize and/or provide Kinchen's workers’ compensation medical and indemnity benefits.

(10) Ordering TPSS to pay costs to Kinchen in the amount of $3,682.28 pursuant to La. R.S. 23:1317(B), reflecting costs for court filing fees, medical records/exhibits, and depositions/exhibits.

(11) Dismissing Kinchen's docket number 22-00528 with prejudice.

The WCJ issued written reasons for judgment on the same date.

TPSS filed a timely suspensive appeal on February 27, 2025.

ASSIGNMENTS OF ERROR

On appeal, TPSS makes the following assignments of error:

(1) The [WCJ] committed manifest error in finding that [Kinchen] sustained an on-the-job injury to her right ear on or about February 4, 2021.

(2) The [WCJ] committed manifest error in finding that [Kinchen] was disabled as a result of a right ear injury allegedly sustained in the course and scope of her employment with [TPSS].

(3) The [WCJ] committed manifest error in finding that [Kinchen] is entitled to Supplemental Earnings Benefits (SEB) at a zero dollar earning capacity.

(4) The [WCJ] committed manifest error in finding that [Kinchen] is entitled to indemnity benefits, in the amount of $102,659.77, representing thirty-five (35) months and three (3) days, from October 23, 2021, through the date of Trial.

(5) The [WCJ] committed manifest error in finding that [Kinchen] is entitled to medical benefits for work-related injuries to her right ear.

(6) The [WCJ] committed legal error by reversing its previous judgment in [TPSS's] favor on its Motion for Summary Judgment, finding at Trial that [Kinchen's] retirement was regular, non-disability retirement and, as a result, [TPSS] is not entitled to a credit set forth in La. R.S. 23:1225.

(7) The [WCJ] committed manifest error in finding that [Kinchen] is entitled to penalties, attorney fees, costs, and judicial interest.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Lee v. Smitty's Supply, Inc., 2024-0460, p. 4 (La.App. 1 Cir. 12/20/24), 404 So.3d 916, 923. An appellate court cannot set aside the factual findings of the WCJ unless it determines there is no reasonable basis for the findings and the findings are clearly wrong (manifestly erroneous). Lee, 2024-0460 at pp. 4-5, 404 So.3d at 923. If the WCJ's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier-of-fact, it would have weighed the evidence differently. Lee, 2024-0460 at p. 5, 404 So.3d at 923.

Furthermore, when factual findings are based on the credibility of witnesses, the factfinder's decision to credit a witness's testimony must be given “great deference” by the appellate court. Young v. Smitty's Supply, Inc., 2023-0092, p. 4 (La.App. 1 Cir. 9/29/23), 376 So.3d 903, 908, writ denied, 2023-01570 (La. 1/24/24), 378 So.3d 68. Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Young, 2023-0092 at p. 4, 376 So.3d at 908. Determinations as to whether the employee has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Id.

DISCUSSION

Compensable Injury

Following the trial of this matter, the WCJ found that Kinchen carried her burden of proving that she suffered an accident and injury in the course and scope of her employment with TPSS on February 4, 2021, entitling her to workers’ compensation benefits under La. R.S. 23:1031.

TPSS argues on appeal that the WCJ's finding that Kinchen sustained an on-the-job injury to her right ear on February 4, 2021 was manifestly erroneous. TPSS asserts that there is no “injury” in this matter, only a collection of subjective symptoms/complaints that cannot be correlated through objective clinical examination or diagnostic testing.

Kinchen argues in response that the medical records and expert testimony in this case indicate that she was injured in the workplace accident. While she acknowledges that Drs. Lacour, Gianoli, and Master have different diagnoses, Kinchen avers that “the symptomology that has resulted in her disability related to the diagnosis is the same, and has been consistent throughout her treatment.”

The Workers’ Compensation Act provides compensation to an employee for personal injury by accident arising out of and in the course and scope of his employment. La. R.S. 23:1031(A). Louisiana Revised Statutes 23:1021(1) defines “accident” as “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 that is more than simply a gradual deterioration or progressive degeneration.” The terms “injury” and “personal injury” include only “injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom” and “shall in no case be construed to include any other form of disease or derangement, however caused or contracted.” La. R.S. 23:1021(8)(a). Generally, a mental injury or illness caused by a physical injury to the employee's body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable under the Workers’ Compensation Act unless it is demonstrated by clear and convincing evidence.⁵ La. R.S. 23:1021(8)(c).

The statutory requirement of “violence” is satisfied when the injury has a violent or harmful effect on the employee's physical condition, even if the cause of that change was not in itself violent. Salter v. Desoto Parish Police Jury, 54,982, p. 14 (La.App. 2 Cir. 5/17/23), 361 So.3d 1259, 1271, writ denied, 2023-00818 (La. 10/3/23), 370 So.3d. 1069. Thus, there is an “injury” when there is “violence,” i.e., a harmful effect, to the “physical structure of the body.” Id.

A claimant seeking workers’ compensation benefits for a work-related accident is not required to prove the exact cause of her disability, but she must demonstrate by a preponderance of the evidence that the accident has a causal connection with it. Salter, 54,982 at p. 14, 361 So.3d at 1271. A preponderance of the evidence means evidence which is of greater weight than that which is offered in opposition. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact of causation sought to be proved is more probable than not. Merida v. Orleans Levee Dist., 2024-0945, p. 19 (La.App. 1 Cir. 4/9/25), 410 So.3d 423, 435, writ denied, 2025-00598 (La. 10/7/25), 418 So.3d 363, and writ denied, 2025-00620 (La. 10/7/25), 418 So.3d 365. Disability may be presumed to have resulted from an accident if, before the accident, the claimant was in good health, but commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterward, provided that there is sufficient medical evidence to show a reasonable possibility of a causal relation between the accident and disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. Salter, 54,982 at p. 14, 361 So.3d at 1271.

An otherwise healthy employee with a pre-existing condition is entitled to benefits if she can prove that her work-related accident contributed to, aggravated, or accelerated her injury. Louisiana Safety Association of Timbermen v. Carlton, 12-0775, p. 9 (La.App. 1 Cir. 12/21/12), 111 So.3d 1076, 1083. When an employee proves that before the accident she had not manifested disabling symptoms, but commencing with the accident the disabling symptoms appeared and manifested themselves, and medical or circumstantial evidence indicates a reasonable possibility of a causal connection, the employee's work injury is presumed to have aggravated or accelerated the pre-existing infirmity or disease to produce her disability. Bridges v. Gaten's Adventures Unlimited, L.L.C., 2014-1132, p. 11 (La.App. 1 Cir. 4/2/15), 167 So.3d 992, 1002.

Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate, or combine with the pre-existing disease or infirmity to produce the employee's disability. Bridges, 2014-1132 at p. 12, 167 So.3d at 1002. The application of this presumption and the determination of causation are factual issues subject to the manifest error standard of review. Id.

Kinchen testified at trial that she had been deaf in her left ear since 2010 following an illness. Although her single-sided deafness made it difficult for her to tell where sounds came from, Kinchen testified that it did not prevent her from performing her job at the detention center. Kinchen described the detention center as a “very loud” environment; however, she explained that prior to February of 2021, her classroom was in a room that was “not as loud” as the rest of the facility due to its location and interior finishes. In early February of 2021, Kinchen's classroom was being relocated to an equipment room in the gymnasium because her classroom was needed for another purpose. Kinchen was concerned about her classroom being moved because the equipment room is “very loud and noisy, and they're bouncing balls, and the balls hit the window and hit the door, and if, you know, just very unnerving and hard to be in there. The kids can't pay attention. It's just loud.”

Because the “equipment room” was not currently being used as a classroom, Kinchen and other staff members “had to go in there and try to figure out how to make it into a classroom.” According to Kinchen, when staff members began dragging a metal shelf across the concrete floor of the equipment room, the scraping of the metal against the concrete floor made “a really loud screeching kind of sound” that caused a “stabbing pain” in her right ear. Kinchen covered her right ear to protect it and rubbed the ear in an attempt to stop the pain, but as the staff members continued to move the metal shelf, the stabbing pain continued and she began to feel pressure in her right ear. Kinchen testified that she developed a headache over the next hour, so she “just kind of finished up in there and left” for lunch. During her lunch break, Kinchen went to a nearby store and bought “some Aleve or Naproxen and something to drink” and sat in her car before going back to work in her old classroom for the afternoon.

According to Kinchen, she mentioned the issue with her right ear to her paraprofessional, Felicia Arabie, that afternoon after Felicia saw her with her head down on her desk. Kinchen also emailed her supervisor, Dr. Altarene Brown, that day, telling her that her ear was “ringing” after spending only an hour in the new classroom and asking her to “find a solution so that I do not jeopardize my well-being.” Kinchen explained at trial that she did not mention the screeching sound or stabbing pain from the shelf being moved in her email to Dr. Brown because she “wasn't thinking it was going to be an issue,” but she did tell her about it the next day when she saw her.

Kinchen testified that she had never experienced any of the right-ear symptoms that developed after the February 4, 2021 accident (ear fullness, ringing, trouble distinguishing sounds, etc.) prior to the accident. At trial, Kinchen explained that she can hear with her right ear as long as she is talking to someone one-on-one, but when there are multiple noises at one time, she has trouble distinguishing between the sounds and gets confused and overwhelmed and has to leave the situation. However, despite the fact that she did not lose her hearing in her right ear as a result of the accident, Kinchen testified that she became fearful after the accident that she would lose her hearing entirely. Kinchen acknowledged that this fear was “irrational,” and testified that she was seeing a therapist for this issue. Kinchen testified that as of the time of trial, she is still fearful of loud noises and still experiences ear fullness, balance issues, and trouble distinguishing sounds, but the stabbing pain in her right ear had gone away. Kinchen testified that she has learned to live with her condition; for example, she carries earplugs in her purse so that if she happens to be in a situation where there are loud noises and she cannot leave, she can use the earplugs.

Dr. Jeffrey Lacour, a board-certified otolaryngologist (ENT) and Kinchen's treating physician, testified that he has treated Kinchen since 2010. Following the workplace accident at issue in this matter, Kinchen presented to Dr. Lacour on February 10, 2021, reporting “a feeling of cotton in her right ear, ringing with certain sounds, certain frequencies that cause ringing, and that she had a feeling of being underwater.” Dr. Lacour diagnosed Kinchen with mild low frequency hearing loss, right-sided tinnitus (ringing), and vertiginous (inner ear) migraines. According to Dr. Lacour, the mild hearing loss in Kinchen's right ear just makes sounds “a little muffled” and “a little bit harder to hear.” Regarding the tinnitus diagnosis, Dr. Lacour explained that people like Kinchen with higher stress levels and higher levels of anxiety tend to be more affected by tinnitus because they are more aware of it. Finally, Dr. Lacour explained that Kinchen's vertiginous migraines primarily manifest as sound sensitivity, which he described as “very debilitating” when exposed to loud noises, as well as a feeling of being off balance or “just kind of feeling a little off.” Dr. Lacour later diagnosed Kinchen with hyperacusis of the right ear, and referred her to Dr. Terrence Murphy, an otolaryngologist, for that diagnosis. Dr. Lacour opined that it was more likely than not that Kinchen's symptoms were triggered by the workplace accident.

TPSS's choice of physician, Dr. Gerard Gianoli, a board certified neurotologist and otolaryngologist, examined Kinchen in October of 2022. Dr. Gianoli reported that Kinchen complained of reduced hearing in her right ear, fullness, pressure, ringing, intermittent ear pain, sound sensitivity or noise intolerance (hyperacusis), and vertigo, which she attributed to the February 4, 2021 workplace accident. After examining Kinchen, performing numerous tests, and reviewing her medical records, Dr. Gianoli diagnosed Kinchen with “[t]hird mobile window syndrome – strain-induced and sound-induced vertigo with noise intolerance [hyperacusis]” and “[o]tolithic dysfunction, likely secondary to [third mobile window syndrome].” Dr. Gianoli explained that noise-induced hearing loss or acoustic trauma requires two elements: an intensity level of concern and a duration of concern. He opined that the noise caused by the metal shelf scraping against the concrete floor could not have been loud enough or of long enough duration to cause inner ear damage or Kinchen's reported right-ear symptoms. Dr. Gianoli explained that while he did not doubt that Kinchen has a true fear and anxiety over losing her hearing in her right ear, “the noise she is concerned about, which provokes discomfort, does not have the potential to cause damage to her ear.” In Dr. Gianoli's opinion, Kinchen's symptoms were most likely caused by third mobile window syndrome rather than the workplace accident. Dr. Gianoli opined that Kinchen's untreated obstructive sleep apnea likely caused intermittent spikes in intracranial pressure, which led to third mobile window syndrome and the resulting symptoms. Despite his opinion that the workplace accident did not cause Kinchen's third mobile window syndrome, Dr. Gianoli explained that the workplace accident aggravated Kinchen's pre-existing third mobile window syndrome and triggered her pain or discomfort.

Dr. Terrence Murphy, an otolarygologist, began treating Kinchen in January of 2023 for “tympanic membrane perforation and hyperacusis.” On January 12, 2023, Dr. Murphy noted the following history obtained from Kinchen:

Was at school and was in an area where people were moving a large metal shelf and patient stated that her ears [sic] immediately started having pain in ear, headache, dizziness[,] and nauseated. Dizziness resolved within a day. Has problems when more than 1 person talking or lots of different sounds, she describes feeling as disoriented/confused. States she has sensitivity to sounds[.]

Dr. Murphy reviewed Kinchen's records, ordered further testing, and ultimately diagnosed her with left-sided sensorineural hearing loss with unrestricted hearing of right ear, hyperacusis of right ear, sensation of fullness in right ear, migraine variant, and nontraumatic perforation of tympanic membrane of left ear. Dr. Murphy's medical records in evidence do not include an opinion as to the cause of Kinchen's symptoms. Dr. Murphy recommended that Kinchen wear hearing protection when exposed to loud noise and referred her to a neurologist for further evaluation or treatment.

Dr. Adam Master, a physician board certified in otolaryngology and neurotology, was appointed by the WCJ to perform an independent medical examination of Kinchen. Dr. Master saw Kinchen on May 24, 2023. Dr. Master diagnosed Kinchen with hyperacusis, which he explained is a “reduced tolerance to sounds of average intensity.” According to Dr. Master, such sounds may cause physical pain and psychological stress to a patient experiencing hyperacusis, and the patient may become fearful of certain environments as a result. Dr. Master explained that even though the sounds are not actually physically harmful or dangerous, a patient with hyperacusis may feel better wearing noise-reduction earplugs in certain environments. Dr. Master explained that in order for a noise to cause hearing loss or acoustic trauma, it must be extremely loud (such as explosions and close-range gunshots) and of significant duration. In Dr. Master's opinion, the noise made by the metal shelf being dragged against the concrete floor could not have been loud enough or of sufficient duration to have caused “any measurable hearing impairment” to Kinchen. Although Dr. Master believed that Kinchen was “very truthful” when describing her history and symptoms to him, Dr. Master opined that Kinchen's symptoms are likely related to her single-sided deafness. When asked about whether the workplace accident either caused the hyperacusis or aggravated her overall hearing condition and led to her symptoms, Dr. Master testified: “I don't know if I could say it aggravated her hearing condition because it seems like we don't have ․ evidence of that. But I think more likely than not [the workplace accident] set us a start to these symptoms that we can best define as hyperacusis.” Dr. Master further explained that hyperacusis can be set off by a psychological event or experience.

Kinchen was referred to Dr. Jon Olson, a neurologist, by Dr. Murphy for “neurologic evaluation and concern of migraine variant.” In June 2023, Dr. Olson documented that Kinchen presented with:

Right side with hyperacusis and problems tolerating environments busy and many people. Onset was 2021 after [right ear] trauma and feeling stopped up. If she stays, she'll get a headache and occasionally dizzy then. Very loud or low bass sound brief exposures with HA: achy, frontal for a day and then with mild light sensitivity and noise and rarely [nausea/vomiting]. She avoids restaurants with loud bands or crowds with loud people will leave. Naproxen and earplugs help. No migraine prescriptions.

Dr. Olson diagnosed Kinchen with migraine variants, left-sided hearing loss, and hyperacusis of right ear, and prescribed migraine and nausea medication, but did not opine as to the cause of Kinchen's symptoms.

In its written reasons for judgment, the WCJ noted that the medical providers found Kinchen to be truthful and “had right ear issues which impacted her hearing, balance, and tolerance to noise.” The WCJ noted that although each of the medical providers had a different diagnosis, they agreed that the scraping sound either caused or aggravated Kinchen's condition. Noting that the employer takes the employee as it finds her and that the aggravation of a pre-existing condition is fully compensable, the WCJ concluded that Kinchen's claim for her right ear is compensable. After a thorough review of the record before us on appeal, we cannot say that the WCJ's finding that Kinchen sustained an accident and injury in the course and scope of her employment was manifestly erroneous or clearly wrong. This assignment of error has no merit.

Supplemental Earning Benefits

At the conclusion of the trial, the WCJ concluded that Kinchen's injuries resulting from the February 4, 2021 accident were disabling and that she is entitled to supplemental earnings benefits (“SEBs”) at a zero-earning capacity. The WCJ awarded $102,659.77 in SEBs to Kinchen.

The purpose of SEBs is to compensate the injured employee for the wage-earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La. 7/1/97), 696 So.2d 551, 556; see also Carral v. Winn-Dixie Louisiana, Inc., 2005-1482, p. 3 (La.App. 1 Cir. 6/9/06), 93 8 So.2d 799, 801. Louisiana Revised Statutes 23:1221(3)(a) provides that SEBs shall be paid “[f]or injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury.” A claimant is not entitled to SEBs when his inability to earn wages equal to ninety percent of his pre-injury wages is due to circumstances other than his work-related injury. Carral, 2005-1482 at p. 4, 938 So.2d at 801.

The claimant seeking SEBs bears the initial burden of proving by a preponderance of the evidence that a work-related injury resulted in his inability to earn wages equal to ninety percent of his pre-injury wages under the facts and circumstances of the individual case. Carral, 2005-1482 at pp. 3-4, 93 8 So.2d at 801. In Poissenot v. St. Bernard Parish Sheriff's Office, 2009-2793 (La. 1/9/11), 56 So.3d 170, the Louisiana Supreme Court clarified that the consideration when awarding SEBs is not whether the employee is unable to return to his prior employment:

La. R.S. 23:1221(3)(a) requires that a claimant prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of wages he was earning at the time of injury “whether or not the same or similar occupation as that in which the employee was customarily engaged when injured.” (Emphasis added). The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.

Poissenot, 2009-2793 at p. 7, 56 So.3d at 175.

In determining if an injured employee has made out a prima facie case of entitlement to SEBs, the court may and should take into account all those factors which might bear on an employee's ability to earn a wage. Poissenot, 2009-2793 at p. 5, 56 So.3d at 174. Louisiana Revised Statutes 23:1221 does not permit a claimant to choose not to work and still collect SEBs when he is physically able to work and jobs are available. Carral, 2005-1482 at p. 4, 938 So.2d at 801.

If a claimant satisfies his initial burden of proof, the burden of proof shifts to the employer to prove, by a preponderance of the evidence, that the claimant is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee's community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Poissenot, 2009-2793 at p. 5, 56 So.3d at 174. Alternatively, if the claimant alleges substantial physical pain prevents him from performing work offered or available paying at least ninety percent of his pre-injury wages, the employee must prove this by clear and convincing evidence. Carral, 2005-1482 at p. 4, n.2, 93 8 So.2d at 801, n.2.

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately, the issue of disability is a question of fact, which cannot be reversed in the absence of manifest error. Batiste v. Tenet Healthcare Corp., 2009-1192, p. 4 (La.App. 1 Cir. 2/12/10), 3 5 So.3d 3 52, 355, writ denied, 2010-0559 (La. 5/7/10), 34 So.3d 864.

TPSS first argues on appeal that the WCJ manifestly erred in finding that Kinchen was disabled as a result of the right ear injury allegedly sustained in the workplace accident, rather than as a result of her pre-existing condition. TPSS urges that Kinchen was unwilling to perform her job solely as a result of her preexisting medical conditions and not her alleged work-related injury, and therefore she should not be entitled to SEBs.

Kinchen testified at trial that although her left-sided deafness affected her ability to hear and to tell where sounds were coming from, it never prevented her from teaching at the detention center or required any modifications to her position. Although she admitted that the detention center was “very loud,” she explained that prior to February of 2021, her classroom was in a room that was “not as loud” as the rest of the facility due to its location and interior finishes. Kinchen testified that she briefly taught in the equipment room in the gymnasium in January 2016, but she had to ask to be moved after only a few days due to the noise in that room making it difficult for her to teach and for the students to pay attention. Despite this, Kinchen denied that she had any hearing or other symptoms related to the noise level in the equipment room in 2016.

Following the workplace accident and the injury to her right ear in February of 2021, Kinchen sought assistance from various employees of TPSS and the detention center to obtain accommodations that would allow her to continue performing her job duties. Kinchen contacted her supervisor, Dr. Brown, on the date of the workplace accident, asking to be moved to another room and explaining that her ear was ringing after being in her new classroom for “only a little while.” According to Kinchen, Dr. Brown responded that “we just all have to do things we don't want to do” and told her she needed to do whatever the detention center wanted her to do. Kinchen also sought assistance from TPSS's risk manager, Kim Notariano, and TPSS's human resources director, Gavin Vitter, to request accommodations for her hearing disability. Kinchen purchased earphones or earplugs to wear to work in an attempt to protect her right ear, but was advised by Dr. Brown not to let the detention center staff see them. At a meeting with the executive director of the detention center and other staff the day after the workplace accident, Kinchen explained that due to “an issue with [her] ear” and the noise level in the new classroom, teaching in that classroom would be a problem. Vitter told Kinchen to look for acoustic wall panels to help with the noise level and they would be ordered for her classroom. On February 8 and 9, 2021, Kinchen emailed the building supervisor, Tyler Hinshaw, links for ordering acoustic wall panels and furniture pads for the bottom of the chair legs to prevent them from making a “screeching sound.” According to Kinchen, Hinshaw later told her that he was unsure if he could order the acoustic panels because the detention center had just spent a lot of money on a kitchen remodel. It does not appear from the record that the panels were ever obtained or that any other accommodations were made for Kinchen's disability.

Kinchen discussed her ability to continue working at the detention center with Dr. Lacour at her February 10, 2021 appointment. Dr. Lacour recommended that she take some time off of work in order to rest her ear (avoid sounds) and let her inner ear heal. After taking some time to consider it, Kinchen took six weeks of medical leave. When her symptoms were not improved at the end of that six-week period, Kinchen returned to Dr. Lacour and, based upon his recommendation, took another six weeks of leave. Kinchen testified that while she was on medical leave, she began to realize that it was going to be very difficult to facilitate a classroom due to the issues she was having with distinguishing sounds and being able to communicate, as well the confusion she experienced when there were multiple sounds at once. In addition, Kinchen had developed what she acknowledged was an irrational fear of losing her hearing entirely, and she explained that the fear made it hard for her to return to work. Although she sought counseling for her fear, Kinchen ultimately reached the conclusion that she could not go back into the classroom because she did not feel that she could be an effective teacher given her condition, so she made a decision to retire. Kinchen explained that she believed that her injury to her right ear would also prevent her from teaching in a regular school environment, where bells are ringing and there are multiple noises at one time.

Following the workplace accident and injury to Kinchen's right ear, Dr. Lacour recommended that she take “at least 6 weeks” off of work due to her newly developed symptoms and the fact that “[l]oud noises can worsen her condition.” Dr. Lacour testified that Kinchen could return to work, but not in a loud environment that will cause her symptoms to “flare up.” When asked whether he believed that Kinchen was disabled from working, Dr. Lacour testified that he would need to reevaluate Kinchen and the circumstances of any potential job in order to form an opinion. Dr. Lacour's concerns about Kinchen returning to work were that her symptoms would flare up as a result of the stress of teaching and the noisy work environment.

Dr. Gianoli testified that there is no reason Kinchen could not return to work as a teacher as a result of her right ear condition; however, he admitted that Kinchen would have difficulty functioning in a loud environment. Dr. Gianoli believed that noise cancelling headphones and acoustic wall panels could help with the noise level.

Dr. Master testified that there is no objective medical reason that Kinchen cannot perform her job as a classroom teacher. Dr. Master explained that Kinchen would require some accommodations in order to teach in a loud environment due to her sound sensitivity, such as the use of noise-cancelling headphones or earplugs to reduce the intensity of surrounding noise so that it would be less likely to cause painful stimulation. However, Dr. Master acknowledged that these accommodations might make it difficult for Kinchen to perform her teaching job, since they would reduce her ability to hear all things.

Dr. Robert Gardner, Ph.D., LPC, opined that Kinchen should not return to work at the detention center due to her “generalized anxiety due to her hearing loss and a corresponding inability to function normally in the classroom due to a difficulty communicating and interacting with students.”

Kinchen's supervisor, Dr. Brown, filled out a disability form in connection with Kinchen's application for disability retirement. The form, dated July 12, 2021, states that Kinchen was a very dependable, punctual, and dedicated teacher before the “disabling condition.” Dr. Brown noted on the form that Kinchen could still perform the “expressive duties” of a teacher, but she would have difficulty performing the “receptive duties” of a teacher due to her disabling condition. Dr. Brown also noted that the detention center had offered to buy and install “mats for the walls to decrease noise level.” However, at trial, Dr. Brown testified that to her knowledge, the acoustic wall panels were never purchased. Dr. Brown could not recall ever telling Kinchen that she could not wear earplugs at the detention center, but, she testified that she did not believe that it would have been appropriate for Kinchen to wear earplugs at work because she would not be able to hear.

After reviewing the record before us on appeal, we cannot say that the WCJ's finding that Kinchen was disabled as a result of her February 4, 2021 workplace injury, rather than as a result of a pre-existing condition, was manifestly erroneous or clearly wrong. The record contains evidence that Kinchen worked at the detention center for many years following her sudden hearing loss in her left ear without needing any accommodations. The record also contains evidence that Kinchen's right-sided ear symptoms resulting from the workplace injury, rather than her pre-existing condition, were what rendered her unable to continue working at the detention center. This assignment of error has no merit.

TPSS next argues on appeal that the WCJ erred in finding that Kinchen is entitled to SEBs at a zero-dollar earning capacity. TPSS avers that Kinchen's physician, Dr. Lacour, only removed Kinchen from work for six weeks, and TPSS “agreed to accommodate [Kinchen's] subjective symptoms/complaints,” but Kinchen “did not want job accommodations because she did not want to work in the new classroom.”

In concluding that Kinchen is entitled to SEBs, the WCJ stated:

There is substantial medical and lay evidence to support Ms. Kinchen's ongoing disability and inability to perform her duties as a teacher at the juvenile detention center and likely in any classroom. [TPSS] did not provide any vocational rehabilitation to Ms. Kinchen to assist this disabled veteran teacher to return to the workforce in a different job that suited her restrictions. Additionally, [TPSS] has failed to establish Ms. Kinchen's earning capacity. Therefore, Ms. Kinchen is entitled to supplemental earnings benefits for a maximum of five hundred twenty weeks in accordance with La. R.S. 23:1221(3). (Citations omitted).

In concluding that Kinchen is entitled to SEBs, the WCJ focused on evidence of her “ongoing disability and inability to perform her duties as a teacher at the juvenile detention center and likely in any classroom,” rather than her inability to earn a certain wage. As the supreme court pointed out in Poissenot, that is not the correct standard. See Poissenot, 2009-2793 at pp. 6-7, 56 So.3d at 175.

Our review of the record reveals that the evidence presented focused on Kinchen's ability to return to her former occupation as a classroom teacher rather than on her ability to earn wages equal to ninety percent or more of the wages she was earning at the time of injury.

Drs. Lacour, Master, and Gianoli agreed that Kinchen would have trouble teaching in a noisy environment due to her sound sensitivity, although certain accommodations, such as acoustic panels, noise-cancelling headphones, or earplugs may be useful in helping Kinchen tolerate noise. However, Kinchen did not present evidence that she was unable to earn wages equal to ninety percent or more of the wage she was earning at the time of her workplace injury, regardless of the type of occupation or the type of work performed. Dr. Lacour, who recommended that Kinchen take at least six weeks off of work after the accident, testified that he did so in order to get Kinchen out of the loud classroom environment. He further testified that Kinchen could return to work, just not in a loud environment. Given that the restrictions on Kinchen's ability to work are essentially limited to the noise level of the work environment, it is logical that there is some type of work that Kinchen could perform. However, because there was no evidence bearing upon Kinchen's inability to earn a certain amount of wages after the accident, Kinchen failed to satisfy her initial burden of proof, and the burden never shifted to TPSS to prove that Kinchen was physically able to perform a certain job and that the job was offered to her or that the job was available to her in either her own or TPSS's community or reasonable geographic region. See Poissenot, 2009-2793 at p. 12, 56 So.3d at 178. Accordingly, the WCJ erred in concluding that Kinchen was entitled to SEBs pursuant to La. R.S. 23:1221(3), and the WCJ's award of SEBs in the amount of $102,659.77 must be reversed.⁶

Medical Benefits

TPSS also assigns error to the WCJ's finding that Kinchen is entitled to medical benefits for work-related injuries to her right ear. Following the trial, the WCJ found that the February 4, 2021 workplace accident resulted in Kinchen's injuries, which necessitated medical care provided by medical providers. TPSS argues on appeal that Kinchen has no injury to her right ear and there are no recommendations for medical treatment from any of the physicians.

An injured employee's right to medical expenses is separate and distinct from her right to disability benefits, and an employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. See La. R.S. 23:1203; Coleman v. Walter Industries, Inc./Jim Walter Homes, 2010-1145, p. 2 (La.App. 1 Cir. 2/11/11), 56 So.3d 1258, 1259. It is the employee's burden to prove that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Coleman, 2010-1145 at p. 3, 56 So.3d at 1259. The employer's obligation includes all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal. La. R.S. 23:1203(A). The question of whether a claimant is entitled to medical benefits is ultimately a question of fact, and the WCJ's resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless it is clearly wrong. Coleman, 2010-1145 at p. 3, 56 So.3d at 1259-60.

As we have concluded that the WCJ did not err in finding that the February 4, 2021 workplace accident caused an injury to Kinchen's right ear that resulted in the onset of symptoms, the only remaining issue for us to consider is whether the WCJ erred in finding that Kinchen's injuries necessitated medical care.

Following her workplace injury, Kinchen sought treatment from her treating otolarygologist, Dr. Lacour, for her right-ear symptoms, which included ringing and a feeling of fullness in her right ear, as well as nausea. Kinchen also sought treatment for her right-sided symptoms from Dr. Terrence Murphy, an otolaryngologist, and Dr. Jon Olson, a neurologist. As we have found the WCJ's finding that Kinchen's right-ear symptoms were caused by the February 4, 2021 workplace accident to be reasonable based on our review of the record, the WCJ likewise did not err in concluding that the medical care Kinchen received for these symptoms was necessitated by the workplace accident. This assignment of error has no merit.

Penalties, Attorney Fees, Costs, and Interest

In its final assignment of error, TPSS argues that the WCJ manifestly erred in finding that Kinchen is entitled to penalties, attorney fees, costs, and judicial interest. The parties stipulated prior to the trial of this matter that TPSS did not pay any indemnity or medical benefits to Kinchen. Following the trial, the WCJ found that TPSS failed to reasonably controvert Kinchen's request for medical treatment or to prove that there were conditions over which it had no control when it failed or refused to authorize or pay for necessary and related medical care as a result of the workplace accident. The WCJ further found that TPSS failed to establish that it reasonably controverted Kinchen's request for indemnity benefits or that there were conditions over which it had no control when it failed or refused to timely or otherwise pay indemnity benefits to Kinchen as a result of the workplace accident. Accordingly, the WCJ ordered TPSS to pay Kinchen $2,000.00 in penalties pursuant to La. R.S. 23:1201(E) and (F) for its failure to pay medical benefits, $2,000.00 in penalties pursuant to La. R.S. 23:1201(F) for its failure to pay indemnity benefits, and $15,000.00 as a reasonable attorney fee pursuant to La. R.S. 23:1201(F) for its failure to pay medical and indemnity benefits.⁷ On appeal, TPSS argues that it had a reasonable basis to dispute Kinchen's alleged accident and injury because Kinchen's medical condition was “related to [her] pre-existing issues” and because TPSS made “multiple attempts to accommodate [Kinchen's] limitations,” but Kinchen chose to seek disability retirement benefits rather than return to work.

Under La. R.S. 23:1201(F), an employer or insurer may be assessed with penalties and reasonable attorney fees for failure to timely pay indemnity or medical benefits where the employer or insurer has failed to reasonably controvert the claim. Lee, 2024-0460 at p. 12, 404 So.3d at 927. To determine whether the claim has been reasonably controverted, a court must ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time the employer or his insurer refused to pay all or part of the benefits allegedly owed. Mallory v. Pineapple Management Services, Inc., 2002-0126, p. 6 (La.App. 1 Cir. 12/31/02), 83 7 So.2d 693, 697. To avoid penalties and attorney fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits. Thibodeaux v. High Hope Care Center, 2023-94, p. 2 (La.App. 3 Cir. 10/25/23), 373 So.3d 120, 123.

Statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Authement v. Wal-Mart, 2002-2434, p. 11 (La.App. 1 Cir. 9/26/03), 857 So.2d 564, 574. The burden is on the claimant to prove his entitlement to statutory penalties and attorney fees due to the employer's failure to timely pay workers’ compensation benefits. Lee, 2024-0460 at p. 13, 404 So.3d at 927. The crucial inquiry is whether the employer has an articulated and objective reason for denying payment at the time it took that action. Id. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee's entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. Headley v. Textron Systems, 2020-1174, p. 8 (La.App. 1 Cir. 4/26/21), 324 So.3d 1080, 1087. A WCJ's determination that an employer should be cast with penalties and attorney fees is a factual question, and we review that determination under the manifest error standard of review. Id.

Since we have reversed the trial court's award of SEBs, Kinchen is not entitled to statutory penalties for TPSS's failure to pay indemnity benefits, and the WCJ's award of a $2,000.00 penalty for TPSS's failure to pay indemnity benefits is reversed. See Poissenot, 2009-2793 at pp. 12-13, 56 So.3d at 178. Accordingly, the only remaining issue before us on this assignment of error is whether the WCJ erred in awarding penalties and attorney fees for TPSS's failure to provide medical benefits to Kinchen.

Our review of the record reveals that on February 18, 2021, Kinchen filled out a “Workers’ Compensation – First Report of Injury or Illness” form, in which she reported hearing impairment, ear pain, sound sensitivity, dizziness, and headache following an injury to her inner ear caused by the “loud screeching sound” that occurred when the metal shelf was being moved in her new classroom. On February 19, 2021, after contacting Gavin Vitter, TPSS's human resources director, to discuss how to proceed, Kinchen forwarded the “WC documents” that she filled out to Vitter. On February 23, 2021, Amy Fulcher, the detention center's director of human resources, emailed Kim Notariano, TPSS's risk manager, regarding Kinchen's claim. In her email, Fulcher stated that she and others met with Kinchen on February 5, 2021, “the day after the alleged incident,” regarding Kinchen's concerns about her new classroom. Fulcher explained that at that meeting, Kinchen expressed concern about the noise level in the classroom, but did not mention her hearing disability or “a loud noise from the previous day causing her any issues with her hearing.” Notariano responded to Fulcher's email, stating that she would not file a workers’ compensation claim until she received video footage of the alleged incident from Fulcher. In addition, Notariano requested that Fulcher obtain witness statements from various employees who were either in the meeting or in the classroom at the time of the alleged incident. With regard to Dr. Brown's witness statement, Notariano told Fulcher that “Dr. Brown needs to include her observation of when the table [sic] was dragged across the floor and Ms. Kinchen never complained about the noise, (what Dr. Brown told me.).” On March 15, 2021, Kinchen contacted Vitter again to inquire about the status of her workers’ compensation claim. Vitter responded, “[Don't] know about workers comp. Will have to check with Kim Notariano.” On March 17, 2021, Kinchen emailed Notariano, asking whether a decision had been made on her workers’ compensation claim. Notariano responded to Kinchen's email on March 18, 2021, stating that she was still waiting on one document and asked Kinchen to forward “all physician evaluations to date” to her. On March 19, 2021, Kinchen forwarded the visit summary from her visits with Dr. Lacour to Notariano, as well as information on hyperacusis and sound sensitivity and their causes and treatment “to explain the medical part of the diagnosis.” On June 25, 2021, Kinchen emailed Vitter again, stating that the condition of her ear was not improving and she was still experiencing symptoms and inquiring about the procedure for seeking a medical retirement. Vitter responded on June 29, 2021, stating that he was forwarding Kinchen's request to TPSS's retirement specialist. Kinchen contacted Notariano again on June 29, 2021, inquiring about the status of her workers’ compensation claim and stating that she was requesting a medical retirement and did not know whether her workers’ compensation claim needed to be processed first. Notariano responded on June 30, 2021, stating:

Per your doctor's evaluation, your hearing loss was due to a pre-existing condition. The paperwork I received was his recommendation was that you take off based on his concerns of the delicacy of your hearing condition; however, there was no incident or accident at your workplace that caused your hearing loss or worsened your hearing loss. Therefore, a worker's compensation claim was not generated. In addition, it was my understanding that you were taking a medical leave of absence based on your treating physician's recommendation which is quite different than being off because of a worker's compensation claim. Your retirement could be based on medical disability or regular retirement. It seems that you want to go with disability retirement. Are you looking to go that route? If so, where are you with that?

Based on the evidence presented, TPSS was clearly aware in February of 2021 that Kinchen was requesting workers’ compensation benefits for a workplace injury to her right ear. Further, Dr. Lacour's visit summary from Kinchen's February 10, 2021 appointment lists diagnoses of “Bilateral hearing loss, unspecified hearing loss type,” “Tinnitus of right ear,” and “Vertiginous migraine” and states that Kinchen's right ear symptoms began on “Thursday” (February 4, 2021), while she was teaching. The visit summaries from Kinchen's next few follow-up appointments with Dr. Lacour continued to list Kinchen's right-sided ear symptoms, and the April 27, 2021 visit summary states: “The right ear fullness started after the incident at school when she had noise trauma at her place of work. She is still very sensitive to sound. She thinks that this is newer for her.” Despite possessing this information, TPSS denied Kinchen's request for workers’ compensation benefits in June of 2021, but did not have Kinchen examined by its own choice of physician, Dr. Gianoli, until October 10, 2022, and did not request the appointment of an IME until November 29, 2022.

The record simply does not support TPSS's assertion that it had a reasonable basis to dispute Kinchen's claim for medical benefits, despite the unusual nature of her work-related disability. On the contrary, the evidence overwhelmingly shows that TPSS failed to satisfy its continuing duty to investigate, assemble, and assess factual information before denying Kinchen's request for benefits. After a thorough review of the record, we find no manifest error in the WCJ's conclusion that TPSS failed to establish that it reasonably controverted Kinchen's request for medical treatment or that there were conditions over which it had no control when it failed or refused to authorize or pay for necessary and related medical care as a result of the workplace accident. This assignment of error is without merit.

CONCLUSION

For the reasons set forth herein, the January 30, 2025 judgment of the Office of Workers’ Compensation is reversed insofar as it finds that Catherine Kinchen is entitled to supplemental earnings benefits and awards supplemental earnings benefits of $102,659.77, plus a $2,000.00 penalty for Tangipahoa Parish School System's failure to timely or otherwise pay indemnity benefits to Catherine Kinchen. In all other respects, the judgment is affirmed. Costs of this appeal are to be shared equally by the parties.

REVERSED IN PART; AFFIRMED IN PART.

FOOTNOTES

2.   Louisiana Revised Statutes 23:1123 provides:If any dispute arises as to the condition of the employee, or the employee's capacity to work, the assistant secretary, upon application of any party, shall order an additional medical opinion regarding an examination of the employee to be made by a medical practitioner selected and appointed by the assistant secretary. The medical examiner shall report his conclusions from the examination to the assistant secretary and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

3.   Louisiana Revised Statutes 23:1124.1 provides:Neither the claimant nor the respondent in hearing before the workers’ compensation judge shall be permitted to introduce the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony. However, the workers’ compensation judge, on his own motion, may order that any claimant appearing before it be examined by other physicians.

4.   The WCJ initially denied TPSS's motion for summary judgment on both issues; however, on January 30, 2024, the WCJ vacated its prior judgment on its own motion and issued a new judgment denying TPSS's motion in part and granting its motion in part.

5.   No mental injury or illness shall be compensable under La. R.S. 23:1021 (8)(c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association. La. R.S. 23:1021(8)(d).

6.   Because we have concluded that the WCJ erred in finding that Kinchen is entitled to SEBs and reversed the portion of the judgment awarding SEBs to Kinchen, TPSS's assignments of error concerning the duration of her entitlement to SEBs and its entitlement to a credit or offset pursuant to La. R.S. 23:1225 are moot.

7.   Pursuant to La. R.S. 23:1201(J), only one reasonable attorney fee may be awarded, regardless of the number of violations by the employer or insurer of their obligation to pay benefits.

THERIOT, J.