Thornell v. Payne and Keller, Inc.

• Decision Date: 22 November 1983
• Docket Number: No. 83,83
• Citation: 442 So.2d 536
• Court: Court of Appeal of Louisiana — District of US
• Parties: Harley THORNELL v. PAYNE AND KELLER, INC. and Aetna Casualty & Surety Company. CA 0077.

Page 536

442 So.2d 536

Harley THORNELL v. PAYNE AND KELLER, INC. and Aetna Casualty & Surety Company.

No. 83 CA 0077.

Court of Appeal of Louisiana First Circuit.

Nov. 22, 1983.

Rehearing Denied Dec. 22, 1983.

Writ Denied Feb. 27, 1984.

Carey J. Guglielmo, Baton Rouge, for defendant-appellant Payne and Keller, Inc. and Aetna Cas. & Sur. Co.

Stephen C. Riedlinger, Baton Rouge, for plaintiff-appellee Harley Thornell.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This is a suit for workmen's compensation benefits and statutory penalties alleging that the employee is totally and permanently disabled by an occupational disease (silicosis). The employer and its insurer answered the suit and filed a peremptory exception pleading prescription. They also filed a third party demand for indemnification or contribution from the employee's previous employer and its insurer alleging that the prior employment caused the occupational disease. The previous employer and its insurer filed a peremptory exception of no cause of action to the third party demand.

The trial court overruled the plea of prescription and held that the employee's occupational disease was causally related to his last employment, that the employee was totally and permanently disabled, that the employer and its insurer acted arbitrarily, capriciously and without probable cause in withholding compensation benefit payments and awarded the employee statutory penalties which included an attorney fee of $6,000. The trial court further determined that the employee's prior employment was also causally related to his occupational disease but, as a matter of law, the employer had no cause of action against the previous employer and its insurer for contribution or indemnification and sustained their exception. This suspensive appeal followed.

FACTS

In March of 1950, at the age of sixteen, Harley Thornell commenced working for Service Painting Company of Beaumont, Inc. (Service) and remained with them intermittently until March of 1974. During this 24 year interval, he worked 134 months for Service as a sandblaster-painter. During the last 18 months of this employment, he did no sandblasting because he was a working foreman.

During his employment with Service, Thornell used no protective device until 1968 or 1969. At that time, he commenced using an air hood, a protective device that fits over the head, extends down to the waist and provides an air supply. The hood was only used when sandblasting and not while performing other work.

In March of 1974, Thornell began working for Payne and Keller, Inc. (P & K) as a sandblaster-painter. P & K did not require a physical examination prior to this employment. For the first three or four months of this employment, Thornell was furnished with a desert hood while performing his work. A desert hood is a face mask with no independent air supply. Thereafter, he was furnished with an air hood. After several months, Thornell was promoted by P & K to the position of foreman in which he did no actual sandblasting except in demonstrations to subordinates. Thornell was subsequently promoted to supervisor which enlarged his sphere of responsibility. While acting as foreman and supervisor, Thornell occupied a shed in the area where sandblasting was conducted. He wore no protective device while discharging his duties as foreman and supervisor.

In 1975, Thornell was referred by his family doctor, Dr. Raymond Benski, to Dr. A.W. Harrison, a specialist in thoracic and general surgery, because Dr. Benski found a shadow on Thornell's chest X-ray. Dr. Harrison first saw Thornell on November 21, 1975, and admitted him to a hospital for diagnostic testing during the period of December 1-10, 1975. Dr. Harrison could not determine that Thornell had cancer or tuberculosis but did find silicosis present in both of his lungs. Thornell was referred back to Dr. Benski. There is no evidence to indicate that Thornell was advised not to continue working in contact with sandblasting or where he would be exposed to silica dust. Thornell continued to work for P & K.

On October 13, 1980, Thornell went to Dr. Arthur T. Pederson, a specialist in internal medicine and allergies, with complaints of severe chest pains, numbness in the left arm, frequent urination, coughing, episodes of epigastric discomfort and allergy. Dr. Pederson, in cooperation with Dr. Martin L. Kaplan, committed Thornell to a hospital during October 21-25, 1980, for diagnostic testing. Drs. Pederson and Kaplan diagnosed Thornell's condition as chronic and mild silicosis of both lungs and irritable chronic bronchitis. They recommended that Thornell avoid exposure to sand and discontinue cigarette smoking. He had smoked two or three packs of cigarettes per day for 30 years, and this was a contributing factor in his lung condition. Thornell was advised not to resume any sandblasting activities or be employed where there was silica dust. Dr. Pederson was of the opinion that Thornell could do strenuous work in a proper environment, that is, in a place sand free and where irritating fumes were kept to a minimum.

At the beginning of November 1980, Thornell reported to his supervisor at P & K, Kent Mitchum, that he had silicosis and could no longer work around sandblasting. At first, Mitchum proposed to send Thornell to a new location but subsequently laid him off. Thornell then applied for work with Service but was told that he could not be hired in any capacity because of his condition. This suit was filed on April 13, 1981.

PRESCRIPTION

P & K contends that Thornell's workmen's compensation claim is prescribed by the six months prescriptive period of La.R.S. 23:1031.1(E) because the silicosis manifested itself in the late 1960's, this condition was diagnosed by Dr. Harrison in 1975, and he had reasonable grounds to believe that the silicosis was occupationally related.

Prior to July 24, 1980, La.R.S. 23:1031.1(E) ¹ provided as follows:

All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months of the date of his contraction of the disease or within four months of the date that the disease first manifested itself. Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

The jurisprudence interpreting this statutory provision held that the mere knowledge by an employee that he had an occupational disease was not a manifestation of disability and the prescriptive period did not commence to run until the employee's employment actually terminated because of disability resulting from the occupational disease. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979); LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967); 1 W. Malone & H. Johnson, Workers' Compensation Law and Practice § 221 in 13 Louisiana Civil Law Treatise 468-475 (1980). Effective July 24, 1980, Act 666 of 1980 amended La.R.S. 23:1031.1 to provide in paragraphs E and I as follows:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:

(a) The disease manifested itself.

(b) The employee is disabled from working as a result of the disease.

(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

* * *

I. Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business. If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.

It appears that the purpose of this amendment to the law was to codify a good deal of the prior jurisprudence interpreting La.R.S. 23:1031.1(E). See note 89 at page 37 of the 1983 pocket part for 1 W. Malone & H. Johnson, Workers' Compensation Law and Practice § 221 in 13 Louisiana Civil Law Treatise (1980). An examination of La.R.S. 23:1031.1(E) shows that parts (a), (b) and (c) are not separated either by the disjunctive article "or" or by the conjunctive article "and". It is well settled that the provisions of the workmen's compensation statute should be liberally interpreted in favor of workers. Campbell v. Fidelity & Casualty Co. of New York, 339 So.2d 339 (La.1976); Woodard v. J & M Seafood Restaurant, 413 So.2d 536 (La.App. 4th Cir.1982); Johnson v. Aetna Casualty & Surety Co., 387 So.2d 1340 (La.App. 1st Cir.1980), writ denied 393 So.2d 746 (La.1980). After reviewing the prior jurisprudence and applying the above principle of construction, we conclude that parts (a), (b) and (c) of La.R.S. 23:1031.1(E) must be construed in the conjunctive (rather than the disjunctive) and that the existence of all three are necessary for the prescriptive period of that statute to commence. In the instant case, all three of these conditions did not exist until the diagnostic procedures were completed by Drs. Pederson and Kaplan during the latter part of October 1980.

The party pleading prescription has the burden of proving it. Langlinais v. Guillotte, 407 So.2d 1215 (La.1981). La.R.S. 23:1031.1(I) provides that if the employer fails to post a notice of the time limitation in which workmen's compensation claims may be filed for occupational diseases, the six months prescriptive period of La.R.S. 23:1031.1(E) shall be extended for an additional six months. There is no evidence in the record to show that the required notice was posted. Thornell learned that he was disabled from further work with P & K on October 25, 1980. This suit was filed on April 13, 1981, five months and nineteen days later. The ruling of the trial court...