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Austin v. Abney Mills9/4/2002
he diseases of contact poisoning from enumerated sources, asbestosis, silicosis, dermatosis, and pneumoconiosis. La. Rev. Stat. 23:1031.1(A) (1952). In 1958, by Acts 1958, No. 39, the legislature added tuberculosis as one of the specified occupational diseases for certain hospital workers. La. Rev. Stat. 23:1031.1(A) (1958). Although the 1952 and 1958 enactments listed specific occupational diseases, in 1975 by Acts 1975, No. 583, ยง 2, the legislature revised La. Rev. Stat. 23:1031.1(A) by removing the list of specific diseases for which there was coverage under workers' compensation and substituting the following definition:
An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.
The parties do not dispute that La. Rev. Stat. 23:1031.1(A) since the 1975 amendment thereto would include mesothelioma as an occupational disease covered by the Louisiana workers' compensation law.
Additionally, La. Rev. Stat. 23:1032 provides that workers' compensation benefits are the exclusive remedy of an employee for an injury or compensable sickness or disease arising out of and in the course of employment, except for those resulting from intentional acts. In 1976, the legislature amended La. Rev. Stat. 23:1032 to extend statutory immunity from tort liability to "any officer, director, stockholder, partner, or employee" of the employer.
III.
In February 2000, the employer defendants filed a motion for summary judgment claiming they have immunity from tort liability under La. Rev. Stats. 23:1031.1 and 23:1032. In their memorandum accompanying the motion, the employer defendants specifically allege that the cause of action for, and the right to, workers' compensation benefits is governed by the date of disability. Thus, they argue that once an employee has a disability caused by a disease contracted as a result of his employment, the workers' compensation law provides his exclusive remedy, and the employer's tort immunity follows. The employer defendants point out that the workers' compensation law makes no reference to when a disease is contracted, only that it be contracted, and contraction is not defined. The employer defendants allege that Mr. Hogue's cause of action for workers' compensation benefits arose when he became disabled in 1998 and, therefore, his cause of action for benefits did not exist prior to the 1975 change in La. Rev. Stat. 23:1031.1. They assert that, because Mr. Hogue's cause of action for workers' compensation benefits arose after the effective date of La. Rev. Stat. 23:1031.1, he is limited to recovery of workers' compensation benefits, and the employers have complete immunity. In support of their motion, the defendants submitted a medical report indicating that Mr. Hogue was diagnosed with mesothelioma in December of 1998 and that he first experienced symptoms of the disease in July 1998, when he ceased working due to disability.
In his opposition to the employer defendants' motion, Mr. Hogue asserts that the law that governs this case of latent occupational disease is the law in effect when the injury-producing exposures occur, citing Cole v. Celotex, supra, that the pre-1975 workers' compensation laws apply to this case of mesothelioma because injury-producing exposures to asbestos occurred prior to 1975, and, therefore, the subsequent legislative changes to La. Rev. Stat. 23:1031.1 or 23:1032 cannot be applied to abrogate Mr. Hogue's vested rights, see Walls v. American Optical Corp., 98-0455 (La. 09/08/99), 740 So.2d 1262. In opposing the motion
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