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Brunet v. Avondale Industries12/5/2000
al posture, to evaluate the evidence and argument that the parties presented, and then found that asbestos was not an oxygen compound as per R.S. 23:1031.1.
Other courts have since relied upon Gautreaux for the position that asbestos is not an oxygen compound , but we find that Gautreaux made no such definitive determination, given that only a two-judge plurality of the court found that asbestos could not be considered an oxygen compound as per R.S. 23:1031.1. A denial of a writ application does not prevent the parties from making an additional showing at trial, and thus does not preclude a trial court from making a different ruling following the presentation of additional evidence at trial.
The Gautreaux plurality relied upon two cases in making its ruling: Hicks v. Liberty Mut. Ins. Co., 165 So.2d 51, 53 (La. App. 2d Cir.1964); and Thomas v. Armstrong World Indus., Inc., 95-2222 (La. App.1st Cir. 6/28/96), 676 So.2d 1185, writ denied, 96-1965 (La.11/1/96), 681 So.2d 1272. As noted by the dissenters, the plurality's reliance on these two cases is misplaced.
In Hicks, plaintiff sought workers' compensation benefits for emphysema allegedly caused by exposure to flour. The court denied benefits, holding that emphysema was not a covered disease, nor did plaintiff present evidence that flour contained, in sufficient quantity to produce emphysema, chemical compounds enumerated in R.S. 23:1031.1 as the causes of compensable diseases. The Hicks case did not discuss the compounds at issue here (oxygen, metal). It is not clear which compounds or substances the Hicks court considered or their percentage representation in flour. The following is the sum of the Hicks court's discussion:
Since bronchitis, bronchiolitis and emphysema are not named as diseases for which an employee may recover workmen's compensation, even if causally connected with his employment, we turn to that portion of the statute relating to diseases resulting from contact with the enumerated chemicals or other materials. Plaintiff, in an effort to show that the flour contained either one or a combination of the chemicals and compounds designated in the statute produced the testimony of several eminent physicians and one chemist. From our study of this testimony, we are convinced that flour does not contain any of the elements or their derivatives listed in sufficient quantities to produce emphysema. Therefore, we conclude the plaintiff's disability is not proved to be the result of contact with any of the chemicals or compounds enumerated in LSA-R.S. 23:1031.1 B(1).
Though the court denied benefits, its method of analysis supports Avondale's interpretation of R.S. 23:1031.1.
Gautreaux also relies on Thomas v. Armstrong World Indus., Inc.; however, that case held that lung cancer was not compensable because it was not a listed disease and asbestos was not a listed substance. It did not consider whether asbestos might be a listed compound. Further, the Thomas court considered the grant of an exception of no cause of action filed by the defendant ANCO; in reversing it, the court said:
While Anco presents an interesting argument to support the inferential inclusion of asbestos in the provided list of substances within La. R.S. 23:1031.1, it is not sufficient to overcome the fact that asbestos is simply not specifically written as one of the exclusive substances; nor, is lung cancer provided as one of the diseases that falls under the restricted ambit of a workers' compensation action. The focal issue to be judicially determined is whether the lung cancer was independently caused by asbestos or, alternatively, whether it was a progression of the asbestosis disease that Mr
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