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Brunet v. Avondale Industries12/5/2000
ontracted cancer in the 1990's resulting from exposure to asbestos while working at Avondale from 1950 to 1978. The jury made a specific finding of fact that Mr. Brunet's exposure to asbestos-containing products at Avondale was a substantial cause of his lung cancer. Avondale, as plaintiff's employer, argues that it is immune from tort suit, as per LSA-R.S. 23:1032. The 1976 amendment rewrote R.S. 23:1032; the applicable section previously read:
"The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations.
Avondale asserts that Mr. Brunet's only legal remedy against his employer or his dependents for his lung cancer is workers' compensation benefits. Avondale argues that lung cancer that has been caused by exposure to asbestos is an occupational disease recognized by the workers' compensation statutes. Avondale admits that lung cancer was not a listed occupational disease prior to 1976. Avondale argues that asbestos is both an oxygen compound, as per LSA-R.S. 23:1031.1(A)(1)(d), and a metal compound, as per LSA-R.S. 23:1031.1(A)(1)(g), and because these disease-causing agents are listed by LSA-R.S. 23:1031.1, plaintiff's exclusive remedy is workers' compensation. Avondale argues that the inquiry does not end merely with a finding that the disease is not specifically listed in R.S. 23:1031.1; the court must then inquire whether the disease's pathogen is included in the statute's list. The inquiry does not stop with a determination that the pathogen is not listed by name. Avondale argued to the trial court that asbestos is covered by the list because it is both an oxygen compound (A)(1)(d)) and a metal compound (A)(1)(g)).
LSA-R.S. 23:1031.1 defines the coverage and burden of proof for occupational diseases, and at the time of the majority of Brunet's employment at Avondale, provided, in pertinent part:
Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
A. An occupational disease shall include only those diseases hereinafter listed when contracted by an employee in the course of his employment as a result of the nature of the work performed, except as herein specified.
(1) Poisoning by or other disease resulting from contact with:
(a) the halogens, halogen compounds, and halogenated hydrocarbons
(1) alkaline materials
(1) arsenic, phosphorus, selenium, sulfur, tellurium, and their compounds
(d) oxygen, nitrogen, carbon, and their compounds
(e) cyanides and cyanogen compounds
(f) lead and lead compounds
(g) metals other than lead and their compound
(h) aliphatic hydrocarbons and their nitro, diaso and amino compounds
(1) aromatic and cyclic hydrocarbons and their nitro, amino and other compounds
(j) alcohols
(k) organic and inorganic acids and their derivatives and compounds
(l ) esters of aliphatic, aromatic and inorganic acids
(m) aldehyde
(n) ketones
(o) ethers, glycol ethers, and their compounds
(p) phenol and phenolic compounds
(2) Diseas
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Louisiana Personal Injury Attorneys
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