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O'Regan v. Preferred Enterprises6/29/1999
LEMMON, J., Subscribing to the Opinion and Assigning Additional Concurring
Reasons
The employee has the burden of proving causation in every workers' compensation case. The so-called "presumption" in La. Rev. Stat. 23:1031.1D does not shift the burden of proof as to causation, which always remains with the employee. The statutory imposition of the "presumption" itself therefore had no effect upon the employee's burden of proof.
The more problematic provision in Section 1031.1D is the requirement of proving causation by "an overwhelming preponderance of evidence." In theory, the Legislature could grant a remedy under the Act for a particular occupational disease (thereby apparently excluding a tort remedy against the employer), but could set the burden of proof so high that the compensation remedy was in fact no remedy at all. However, that did not happen in the present case. Whatever the meaning of "overwhelming preponderance of evidence," the standard is not so high as to effectively preclude any remedy under the Act and arguably entitle the employee to a tort remedy against the employer.
Moreover, even if the statutory standard were the usual preponderance of evidence and plaintiff had failed to meet that burden in this case, the issue would still be the same -- whether the Act is exclusive only when the employee actually recovers compensation under the Act, or whether the Act is exclusive when the Act provides a compensation remedy for the occupational disease, irrespective of whether the employee can prove by the usual standard of proof that the employment caused the disease. The majority correctly resolves that issue by holding that the compensation scheme does not contemplate a tort remedy whenever the employee cannot prove that the particular occupational disease (which falls within the definition in the Act) was not caused by his or her employment.
Knoll, Justice, Dissenting.
The Achilles' heel in the majority's opinion is its failure to address the non- occupational presumption as the threshold issue in its analysis of La.R.S. 23:1031.1(D). Instead of focusing on this legislatively included presumption, the opinion improperly shifts attention to the burden of proof outlined in the statute. Through such mode of analysis, the majority creates a fiction to say that O'Regan's claim falls within the Workers' Compensation Act. Ultimately, this methodology leaves O'Regan without a remedy in law. When there is no remedy, there is no immunity. Boyer v. Crescent City Box Factory, 143 La. 368, 78 So. 596 (1918).
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written. La.Civ. Code art. 9; La.R.S. 1:4. Moreover, this Court has cautioned before that in the interpretation of the Workers' Compensation Act, the basic history and policy of the compensation movement must be considered. Roberts v. Sewerage & Water Board of New Orleans, 92-2048 (La. 3/21/94), 634 So.2d 341, 345.
Against this backdrop, I note that the jurisprudence and those who comment on the theory of workers' compensation repeatedly emphasize that compromise is the quintessential characteristic of the workers' compensation movement. Roberts, 634 So.2d at 344; Gagnard v. Baldridge, 612 So.2d 732, 735 (La. 1993); Atchinson v. May, 201 La. 1003, 1013, 10 So.2d 785, 788 (1942); Puchner v. Employers' Liab. Assur. Corp., 198 La. 921, 931, 5 So.2d 288, 291 (1941); 13 H. ALSTON JOHNSTON, LOUISIANA CIVIL LAW TREATISE, WORKERS' COMPENSATION ยง 32, at 40 (3d ed. 1994). Succinctly stated, a quid pro quo nexus forms the foundation for the relationship between the employer and employee in the w
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