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Austin v. Abney Mills9/4/2002
Hogue's symptoms first appeared in July of 1998 and that he ceased working because of disability that same month. The document, dated December 2, 1998, also indicates that Mr. Hogue is diagnosed with malignant mesothelioma, that he is totally disabled from performing any manual labor or walking, and that there is no prognosis for future fundamental or marked change. Nowhere in the affidavits submitted in support of or in opposition to the motion for summary judgment, nor in the pleadings, depositions, answers to interrogatories, or admissions on file present in the record, is there any indication that Mr. Hogue became disabled before 1998. Thus, it would appear that there is no genuine controversy regarding the date Mr. Hogue became disabled.
However, the employer defendants must show that the date of disability is a fact material to the resolution of the case; in other words, they must establish that, under the applicable law governing the issue raised, they are entitled to summary judgment as a matter of law. See Maraist & Lemmon, supra, ยง 6.8, p. 145. In this case, the employer defendants maintain that the date of disability determines when the employee's cause of action for workers' compensation benefits accrues, that Mr. Hogue became disabled from mesothelioma in 1998 when the disease was a covered occupational disease under La. Rev. Stat. 23:2031.1, that he was entitled to workers' compensation benefits, and that the employer defendants were immune from a suit in tort under the workers' compensation law. In their argument to this court, the employer defendants assert that, pursuant to the quid pro quo doctrine underlying the Louisiana workers' compensation scheme, once the employee becomes entitled to seek workers' compensation benefits, his remedy is exclusively that of workers' compensation, and the employers enjoy immunity from any suit in tort.
We find that this argument misperceives the precise legal question presented in this case by the defendants' invocation of employer immunity. First, Mr. Hogue is not seeking workers' compensation benefits, so the cases relied on by the employer defendants for the premise that the date of disability determines eligibility for workers' compensation benefits are inapposite. See, e.g., LaCoste v. J. Ray McDermott & Co., 193 So.2d 779 (La. 1967); Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La. 1976); Schouest v. J. Ray McDermott, 411 So.2d 1042 (La. 1982); White v. Johns-Manville Sales Corp., 416 So.2d 327 (La. App. 5th Cir. 1982).
Second, the employer defendants' reliance on the plurality opinion in O'Regan v. Preferred Enterprises, Inc., 98-1602 (La. 3/17/00), 758 So.2d 124 (on rehearing), and language therein to support their argument that the legislature intended by amending La. Rev. Stat. 23:1031.1 in 1975 to cover additional occupational diseases and that the cause of action arises upon disability is misplaced. In this court, the employer defendants argue that quid pro quo requires that, once the employee becomes eligible for workers' compensation benefits, his exclusive remedy lies within the workers' compensation law and the employer is entitled to immunity from suit in tort. Yet, the conception of quid pro quo underlying the workers' compensation law is that of a compromise in which the employer surrenders immunity from liability, which he would otherwise be entitled to in cases wherein he was without fault, and, in return, the employee foregoes his right to full damages for his injury in exchange for limited but certain compensation. See Thomas v. State, Dept. of Transp. and Dev., 27,203 (La. App. 2 Cir. 10/12/95), 662 So.2d 788; Malone & Johnson, Workers' Compensation Law and Practice, 14 Louisiana Civ
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