Weber v. State

Decision Date11 April 1994
Parties93-0062 La
CourtLouisiana Supreme Court
Concurring Opinion by Justice Kimball
April 12, 1994.

Rehearing Denied May 12, 1994.

Robert C. McCall, William B. Baggett, Lake Charles, for applicants.

Michael J. McNulty, III, Andrew Lane Plauche, Lake Charles, for respondent.

[93-0062 La. 1] LEMMON, Justice *.

This is a wrongful death action by the widow and children of Charles Weber, Sr. against Weber's employer, the State of Louisiana, based on the employer's intentional refusal to authorize medical treatment for Weber's occupational disease, when the treatment was necessary to save Weber's life. The issue is whether the employee's survivors have a cause of action to recover tort damages under the facts alleged in the petition or whether they are relegated to the statutory compensation remedies for the employer's arbitrary and capricious failure to provide the necessary treatment. Stated otherwise, the issues are whether the employer has total immunity under La.Rev.Stat. 23:1032 from tort liability for any and all damages resulting from its allegedly arbitrary and capricious refusal to furnish necessary medical expenses and whether the penalties and attorney's fees provisions of La.Rev.Stat. 23:1201 E and 1201.2 [93-0062 La. 2] are the employee's (or his survivors') exclusive remedy against his employer when the employer intentionally and arbitrarily refuses to pay for medical benefits necessary to treat a compensable injury or disease, knowing that death to the employee is substantially certain to result from the arbitrary refusal.

According to the petition, Weber contracted an occupational disease in early 1984. The State immediately commenced payment of workers' compensation benefits. In March of 1988, Weber's condition worsened, and his treating physician advised him and the State that his condition was terminal unless he had a heart transplant. When the State refused to authorize the medical work-up for the transplant, Weber submitted the matter to the Office of Worker's Compensation (OWC). On March 29, 1988, the OWC recommended that the State pay all medical expenses related to the transplant. 1 The State again refused to authorize the treatment. Before Weber's attorney could seek judicial intervention, Weber died on April 17, 1988.

This tort action ensued, in which Weber's survivors are seeking damages for Weber's wrongful death caused by the State's intentional act in refusing to authorize the medical treatment after having been advised by the treating physician that death was certain to follow any delay in providing a transplant for Weber and after the OWC recommended payment for the heart transplant.

The State filed a peremptory exception of no cause of action, asserting that La.Rev.Stat. 23:1032 provides the exclusive remedy for any employee covered by the Workers' Compensation Act. 2 The State asserted that when an employee [93-0062 La. 3] is disabled by an occupational accident or disease and the employer arbitrarily refuses to pay weekly benefits or medical treatment expenses, the exclusive remedy of the employee is to demand penalties and attorney's fees provided under La.Rev.Stat. 23:1201 E and 1201.2. 3 [93-0062 La. 4] The trial court granted the exception of no cause of action and dismissed the action.

The court of appeal affirmed. 608 So.2d 1016. The court held that the underlying policies of the Act require that the "intentional act" exception not be read expansively to include an employer's refusal to pay medical expenses as an intentional act which removes the employer from the exclusivity provisions of Section 1032. 608 So.2d at 1019. The court pointed out that the Act, in Sections 1201 E and 1201.2, provides a remedy to the employee for the employer's arbitrary refusal to pay benefits or medical expenses. Relying on Boudoin v. Bradley, 549 So.2d 1265 (La.App. 3d Cir.1989), and Banes v. American Mut. Liab. Ins. Co., 544 So.2d 700 (La.App. 3d Cir.1989), the court reasoned that the Legislature had fairly balanced the exchange of rights between the employer and the employee in the Act by providing the employee with the recovery of a twelve-percent penalty and reasonable attorney's fees when the employer arbitrarily and capriciously refuses to pay a claim. 608 So.2d at 1018-19.

We granted certiorari to review the decisions of the lower courts. 612 So.2d 88.

Under the Workers' Compensation Act, the employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of employment. La.Rev.Stat. 23:1031. The employer is also liable for all necessary medical expenses. La.Rev.Stat. 23:1203. An employee who is disabled because of contracting an occupational [93-0062 La. 5] disease or sickness, attributable to causes and conditions characteristic of the particular employment, is also entitled to compensation benefits and necessary medical expenses, just as if he had been injured by an employment accident. La.Rev.Stat. 23:1031.1. The rights and remedies under Chapter 10 of the Act, La.Rev.Stat. 23:1021-1415, provide the employee's exclusive remedy against the employer for such injury or disease. La.Rev.Stat. 23:1032. When the employer seeks to avail itself of tort immunity under Section 1032, the employer bears the burden of proving entitlement to the immunity. Mundy v. Department of Health & Human Resources, 593 So.2d 346 (La.1992).

The function of the peremptory exception of no cause of action is to determine whether the law affords any remedy to the plaintiff under the allegations of the petition. Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984); Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). For purposes of the determination, the allegations of the petition are accepted as true, and any doubts are resolved in favor of the sufficiency of the petition. Id. No evidence can be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ.Proc. art. 931. Of course, the plaintiff at trial must prove the allegations of the petition essential to his cause of action in order to prevail.

Two separate and distinct incidents, according to the allegations of the petition, caused two separate and distinct injuries to the employee. The first incident was the employee's contraction of an occupational disease which caused his permanent disability. This incident gave rise to the employer's statutory obligation to pay compensation benefits and medical expenses, which the employer paid for four years. The recovery of these benefits and medical expenses was the employee's exclusive remedy against the employer for the first [93-0062 La. 6] incident.

The second and separate incident, which caused a separate injury to the employee, was the employer's conduct four years later during the administrative handling of the compensation claim. According to the petition, the employer arbitrarily refused to pay the medical expenses for a heart transplant necessitated by the employee's condition for which the employer was paying benefits. The second incident did not produce the original compensable injury. However, according to the petition, the employee had a chance of survival if the employer had fulfilled its statutory obligation to pay necessary medical expenses, and the employee's second and separate injury was his loss of that chance of survival caused by the employer's breach of its statutory obligation. 4

The incident that caused this additional injury to the employee, over and above the injury that he suffered as a result of the incident of contracting the occupational disease on the job, did not occur during the course of his employment and only indirectly arose from his employment. 5 When the incident [93-0062 La. 7] occurred, the employee had not been in the course of employment on the job premises during working hours for four years. Moreover, the risk of the injury suffered was, at best, only marginally incidental to his employment in that the employer, but for the employment, would not have been obligated to pay the medical expenses in the first place and the employee would not have died as he did but for the occupational disease he contracted on the job. In other words, the injury was causally related to employment only because it involved a relationship to the employee's previous work-related injury. Accordingly, the second injury resulting from the second incident appears not to be covered by the compensation act, since it did not occur during the course of employment and only marginally arose out of employment.

The State contends, however, that the remedy for this very conduct (arbitrarily refusing to provide necessary medical treatment) is provided by the Act which imposes penalties and attorney's fees for such conduct. The State argues that the exclusivity principles of the Act would soon be washed away in the tide of lawsuits if the courts allowed an employee to file a tort suit seeking damages for a worsened condition or for mental anguish caused by the employer's delays in paying compensation benefits or medical expenses.

A tort is a breach of duty which results in damages. Here, the employer allegedly breached its duty to furnish necessary medical expenses and caused Weber to lose his chance of survival. Ordinarily, this breach would result in tort liability because the injury did not occur in the course of employment and, at best, only marginally arose out of employment. However, the duty breached by the employer was a duty imposed by the Workers' Compensation Act and was [93-0062 La. 8] one for which the Act arguably imposed a penalty for the breach thereof. The issue turns on a determination of legislative intent regarding the scope of the penalty provision.

In enacting the penalties and attorney's fees provisions in La.Rev.Stat. 23:1201 E and...

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