Schouest v. J. Ray McDermott & Co., Inc.

• Decision Date: 25 January 1982
• Docket Number: No. 81-C-1573,81-C-1573
• Citation: 411 So.2d 1042
• Parties: James Paul SCHOUEST, Jr. v. J. RAY McDERMOTT & CO., INC.
• Court: Louisiana Supreme Court

Page 1042

411 So.2d 1042

James Paul SCHOUEST, Jr. v. J. RAY McDERMOTT & CO., INC.

No. 81-C-1573.

Supreme Court of Louisiana.

Jan. 25, 1982.

Concurring Opinion April 2, 1982.

As Amended April 16, 1982.

James L. Donovan, of Donovan & Lawler, Metairie, for plaintiff-applicant.

Claude O. Vasser of Jones, Walker, Waechter, Pointevent, Carrere & Denegre, Metairie, for defendant-respondent.

CALOGERO, Justice. ^*

There are factual and legal issues presented in this worker compensation case.

(1) Factually, has plaintiff proven that he suffers from silicosis, an occupational disease, by virtue of his employment with J. Ray McDermott over the past fifteen years?

The trial court's conclusion did not negate the presence of silicosis; rather it was simply that plaintiff was not disabled. ¹ The Court of Appeal found that plaintiff does suffer from silicosis.

(2) Is plaintiff disabled?

The trial court found that he was not. The Court of Appeal found, at least inferentially, that he was. They found that he is no longer able to work as a sandblaster or in any but a silica free environment, and that his "impairment... is slight" and it "will not interfere with moderate to heavy work" in a silica free environment. Schouest v. J. Ray McDermott & Co., Inc. unpublished (La.App. 4th Cir. 1981), No. 11581.

(3) Legally, is plaintiff entitled under the law to a compensation judgment in any respect? ²

The trial court determined that he was not. The Court of Appeal found also that he was not entitled to any judgment because, in addition to the fact that his impairment was slight and would not interfere with the performance of moderate to heavy work, he was offered "a job (or any of three jobs in five locations) at his former wages by defendant in an atmosphere testified to be relatively free of dust." They so found while nonetheless acknowledging that the progressive nature of plaintiff's silicosis assures ultimate permanent disability. They dismissed his claim with prejudice while concluding that plaintiff is at liberty to bring a new lawsuit at such time as the "regrettably inescapable disability that silicosis promises" arrives.

We find that plaintiff indeed does suffer from job related silicosis, that he is partially disabled, and that he is entitled under law to an appropriate judgment in his favor.

James Paul Schouest, Sr., a painter/sandblaster with only a fourth grade education, was employed by J. Ray McDermott, Co., Inc. intermittently from 1964 to 1971 and continuously for the seven years from 1971 to January 1979. In November, 1978, a company scheduled routine chest x-ray revealed changes compatible with silicosis. Schouest was so notified on January 9, 1979. Two weeks later, Schouest consulted his family physician, Dr. Alden H. Baehr, because of respiratory problems evidenced by bronchitis and the flu. Dr. Baehr referred him to the now deceased Dr. Morton S. Ziskind, an expert in the field of pulmonary disease at Tulane University School of Medicine. On February 6, 1979, Dr. Ziskind reported to Schouest (with carbon copies to Dr. Samuel Logan, the doctor administering the November 1978 x-ray, and to Mr. James Carroll of J. Ray McDermott Co., Inc.):

The diagnosis of silicosis has been established and Mr. Schouest should be removed from exposure to respirable free silica. His respiratory impairment at present is slight and will not interfere with the performance of moderate to heavy work.

J. Ray McDermott Co., Inc. paid workers' compensation benefits of $3825.55 and medical benefits of $624.76 for the period beginning January 24, 1979 through August 6, 1979. A letter dated August 16, 1979 from George B. Lester, compensation representative for J. Ray McDermott, Co., Inc., to plaintiff reads as follows:

We are in receipt of correspondence from Dr. Eugene Rosenberg and Dr. Alden Baehr stating that you may return to work in a restricted dust environment.

It is arranged for you to return as an equipment repairman. This position is offered to you in as much as you cannot return to your former occupation.

Based on these recommendations from the Doctor's (sic), you are being returned to work status as of August 6, 1979. Your weekly compensation benefits have ceased as of that date. Failure for you to return to work, may result in personnel action. Questions may be addressed to this department.

Plaintiff did not return to work at J. Ray McDermott. His compensation benefits were thus terminated. This suit followed on August 27, 1979.

At trial when plaintiff rested his case, the court, without written reasons, granted defendant's motion to dismiss.

While affirming the district court's dismissal, the Fourth Circuit Court of Appeal found that job related silicosis had been established, a finding, with which, as we have already stated, we agree. While the burden in workers' compensation cases is upon the plaintiff (as it is in other civil litigation) to establish a controverted fact by a preponderance of the evidence, ³ there is no error in finding that James Schouest carried his burden in this instance. Proof by a preponderance of evidence is sufficient when "the evidence taken as a whole, shows that the fact ... sought to be proved is more probable than not." Hall v. Great Atlantic and Pacific Tea Company, Inc. 297 So.2d 527 (La.App. 4th Cir. 1974), quoting Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971), writ denied 300 So.2d 842 (La.1974).

The medical report of Dr. Morton Ziskind ⁴ and the testimony of Dr. Alden Baehr, the plaintiff's physician, expressly confirmed the presence of silicosis. Such diagnosis and the opinions of the treating physician and specialist to whom referred by the treating physician are entitled to more weight than that of those doctors examining the plaintiff for consultation for litigation purposes only. Williams v. Liberty Mutual Ins. Co., 327 So.2d 462 (La.App. 3d Cir. 1976); Babin v. Highlands Ins. Co., 290 So.2d 720 (La.App. 1st Cir. 1974); Gates v. Ashy Construction Co., Inc., 171 So.2d 742 (La.App. 3d Cir.), writ denied 247 La. 678, 173 So.2d 542 (1965); Harris v. Argonaut Ins. Co., 142 So.2d 501 (La.App. 2d Cir. 1962).

It is nonetheless noteworthy that the doctors called by the defense did not categorically rule out silicosis but only advanced other possible prognoses. Furthermore, medical testimony "must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability." Vicknair v. So. Farm Bureau Casualty Ins. Co., 292 So.2d 747 (La.App. 4th Cir.), writ denied 296 So.2d 838 (La.1974). Lay testimony at trial confirmed Schouest's respiratory problems. We affirm, then, the Court of Appeal's determination that the plaintiff had contracted silicosis while employed as a painter/sandblaster for J. Ray McDermott Co., Inc.

The consequence of Schouest's having contracted silicosis is less easily resolved. Before the enactment of La.R.S. 23:1031.1, disabilities arising from diseases contracted in the course of employment were handled as forms of "cumulative injury" by the judiciary to effect a just and equitable result. Malone & Johnson, Workers' Compensation § 219, 13 La.Civ.L. Treatise 457 (1980). In 1952 the Louisiana legislature sought to eliminate some of the uncertainties by providing for occupational disease coverage and by expressly providing for certain occupational diseases under the Louisiana workers' compensation law. La.R.S. 23:1031.1. Silicosis was one such disease. La.R.S. 23:1031.1(B)(4).

Then because many employment related diseases did not fit into the statutory categories, the Louisiana legislature in 1975 replaced the specific schedule with one of a more general nature. This change, nonetheless, was designed to include those previously enumerated (like silicosis) as well as to embrace certain others formerly excluded. Malone & Johnson, supra § 220 at 462. Silicosis, then, is a statutorily covered occupational disease, for which a worker may receive workers' compensation.

Regarding employees who are eligible to receive compensation, La.R.S. 23:1031.1(A) provides:

Every employee who is disabled because of an occupational disease as herein defined, or the employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.

This section of the statute was interpreted in LaCoste v. J. Ray McDermott and Co., Inc., 250 La. 43, 193 So.2d 779 (1967) to deny compensation to a painter and sandblaster who had contracted silicosis but who had not quit working in the same job. This Court regarded the plaintiff as not totally and permanently disabled because he continued to work "at the same job and for the same employer without undue pain or discomfort." LaCoste, supra. Finding no disability, this Court allowed no compensation judgment.

Later, in Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976), a split court denied compensation for total and permanent disability to a plaintiff who had quit working with asbestos because of a plant shut down, but who had continued working at a different type of employment at increased wages. There was, too, in that case, a serious factual question concerning whether plaintiff actually suffered from asbestosis. The Court majority concluded that he was not disabled.

Unlike LaCoste and Chivoletto, ⁵ Schouest is disabled. On the advice of his doctor and because of his medical condition, he has discontinued working at sandblasting. He is prohibited for the same reasons from ever working again in a silica environment.

The matter remaining for the Court in this case is to ascertain the character of Schouest's disability under the present law.

Plaintiff argues that he is entitled to an award for permanent total disability...