Dempster v. Avondale Shipyards, Inc.Dempster v. Avondale Shipyards, Inc.
Blue Williams, L.L.P., Christopher M. Landry, Metairie, for defendant/appellee Avondale Shipyards, Inc.
Before KLIEBERT, C.J., and GRISBAUM and CANNELLA, JJ.
CANNELLA, Judge.
In a workers compensation case, plaintiff, Luther Dempster, appeals from a judgment, which granted the Declinatory Exception Of Lis Pendens And Lack Of Jurisdiction оf defendant, Avondale Shipyards, Inc. (Avondale). We affirm the granting of the exception of lack of jurisdiction and the dismissal of plaintiff‘s action. We pretermit ruling on the granting of the exception оf lis pendens.
Appellant was employed by appellee from 1952 until 1993, a period of forty-one years, until his retirement at age sixty-four. Until 1981, when he was diagnosed with asbestosis, appellant was primarily employed as an insulator and exposed to asbestos. Between 1981 and 1993, he worked as an assistant superintendent.
Many of appellee‘s employees fall within the federal Longshorе and Harbor Workers’ Compensation Act (LHWCA),
Appellant was employed by appellee until July, 1993 when, he claims, that he stopped working because of the progression of the disease. Appellee contends that appellant simply retired. In August, 1993, appellant made demand on appellee for workers cоmpensation benefits under the Louisiana Workers Compensation Act,
On appeal, аppellant‘s primary issue is whether the hearing officer erred in determining that, since he is covered by the LHWCA, the claim for workers compensation is foreclosed under
Prior to the enactment of
In 1989, the Louisiana legislature passed Act Number 454 which effectively eliminated the workers’ choiсe of federal or state compensation, as had been set forth in Sun Ship and Logan. The act added
No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer‘s Liability Act, the Longshoremen‘s and Harbor Worker‘s Compensation Act, or any of its extensions, or the Jones Act. (Emphasis added).
For cases occurring after its enactment, if the employеe meets the requirements of
Appellant asserts that he has retаined the right to choose between the LHWCA and the Louisiana Workers Compensation Act because the causative event was the contracting of asbestosis and diagnosis in 1981. Appelleе argues that the operative event is disability under the language of both statutes. The hearing officer determined that the “keystone” to recovery of compensation benefits is disability. Thus, disability is the event which determines which law applies. We agree with the hearing officer.
There are no cases interpreting
Disability is defined as the inability to perform the same or similar wоrk that the employee was performing when injured. LaCoste at 782. In determining when prescription commences in an occupational disease case, the court in LaCoste stated that:
“The fundamental principle for the grant of compensation benefits is disability, i.e. factual disability—for without disability, save in certain special cases, no benefits are due“. LaCoste at 781.
To reach its conclusion, the court relied on the purposes of the act in providing benefits to those injured by the contracting of an occupational disease and on the language of the prescriptive statute,
Mere knowledge that an employee has contacted an occupational disease is not a manifestation of the disability. Freeman v. Poulan/Weed Eater, 618 So.2d 618 (La.App. 2d Cir.1993), reversed in part on other grounds, 630 So.2d 733 (La.1994). And, if the employee continues “earning his full salary in the satisfactory performance of the very duties that he claims he is now disabled to perform“, he is not disabled for purposes of receiving workers compensation benefits. LaCoste at 782. Thus, claims brought prior to disability are dismissed without prejudice. See: LaCoste, id.; Hebert v. Louisiana Department of Transportation and Development, 630 So.2d 318 (La.App. 5th Cir.1993).
We recognize that, for the benefit of the claimant, the workers’ compensation act should bе given liberal construction. See: Gales v. Gold Bond Bldg. Products, 493 So.2d 611, 615 (La.1986). However, the courts have interpreted the language of the workers compensation statute to premise recovery on disability, not simply on the occurrеnce of the injury, or, as appellant would have, on the causative exposure and diagnosis. In many cases, this conclusion benefits the worker, as when prescription is an issue. In others it may not, as in LaCoste and Hebert, where the claims were not ripe. (In LaCoste, plaintiff was denied benefits for silicosis while still working in his occupation as a sandblaster. In Hebert, plaintiff did not show a compensable disability for a lung dysfunction.) Thus, without disability, there can be no recovery. Thеrefore, we hold that a key event in determining whether to apply
In regard to the issue of the hearing officer‘s findings of fact without a trial on the
Finally, we note that appellant did not specify as error the hearing officer‘s granting of the exception of lis pendens. Thus, we will pretermit and not addrеss this issue. Uniform Rules-Courts of Appeal, 2-12.4.
Accordingly, the judgment granting the exception of lack of jurisdiction is hereby affirmed with appellant to bear the costs of appeal.
AFFIRMED.
KLIEBERT, Chief Judge, Dissenting.
I respectfully dissent from the majority opinion.
Although there are no cases under
At the time plaintiff contracted the disease, Louisiana law allowed him to filе a workers compensation claim even though he had a similar claim under the federal law. Thus, his cause of action accrued prior to the 1989 amendment.
In my view, therefore, I would reverse the trial court sustaining the exception.