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Brunet v. Avondale Industries12/5/2000
1031.1, and neither was the pathogen, 2- 4-D (Dichlorophenoxyacetic Acid), but plaintiff was awarded workers' comp benefits under R.S. 23:1031.1. There was no discussion as to the chemical properties of 2-4-D, other than it was toxic and an irritant, but implicit in the court's analysis is the fact that 2-4-D was a listed compound.
Avondale's argument, therefore, is legitimate. For a plaintiff's occupational disease to be covered under workers' compensation, his occupational disease need not be specifically listed by name in former R.S. 23:1031.1. The inquiry does not end with the finding that the disease is not listed; courts must determine if the pathogen is listed, and must go the extra step, if the pathogen's name is not listed, to determine if the substance is included in the subcategories. In the above cases, none of the pathogens were listed by name, but were found to fall within several categories as compounds of listed elements and metals.
Consideration of expert testimony and proffers
Avondale presented the following evidence in proffers A-N. They would have called Dr. Harry Ensley, a professor in chemistry at Tulane University (with a Ph.D. in chemistry from Harvard University ). He would have testified that asbestos falls into the category of "oxygen and its compounds" and "metals and their compounds." The Handbook of Chemistry and Physics defines "compounds" as:
Compounds are substances containing more than one constituent element and having properties, on the whole, different from those which their constituents had as elementary substances. Hawley's Condensed Chemical Dictionary defines a compound as:
Compound. (1) A substance composed of atoms or ions of two or more elements in chemical combination....A compound is a homogenous entity where the elements have definite proportions by weight and are represented by a chemical formula. A compound has characteristic properties quite different from those of its constituent elements.
Three compounds are offered as examples. Water is a compound of hydrogen (a flammable gas) and oxygen (a gas) - H2O. When joined together, they produce a nonflammable liquid.
Table salt is a metal compound (NaCl). It is composed of sodium, a metal that explodes in water, and chlorine, a poisonous yellow gas. When combined to form table salt, they create a white non-poisonous solid that dissolves in water.
Rust (Fe2O3), or iron oxide, is a compound of oxygen and iron. Iron is a metal that is a good conductor of electricity. Oxygen is a gas. Combined, they form rust, which is a solid that is a poor conductor of electricity. Rust is both a metal compound and an oxygen compound.
There six forms of asbestos: chrysotile, amosite, crocidolite, tremolite, actinolite, and anthophyllite. Proffer "J" gives their chemical compositions, formulas, and lists their oxygen contents both by weight and number of atoms. The proffer shows that oxygen is a significant component of all forms of asbestos, and that each form of asbestos contains a significant amount of different metals. Chrysotile asbestos is the most common and represents over ninety (90%) of the asbestos used in industrial applications. Its oxygen content is 51.96% by weight, and 50% by number of atoms.
Professor Ensley would have testified that oxygen and metal are vital components of asbestos, which, if removed, would leave a substance that is no longer asbestos. He would have testified that there is no distinction, in chemistry, between the terms "oxygen and its compounds," "oxygen-containing compounds," and "compounds that contain oxygen."
Avondale proffered the deposition testi
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