Plаintiff, Nelson Gaspard, instituted this action against his employer, Petroservice, Inc., and its insuror, The Travelers Insurance Company, seеking workmen’s compensation benefits for total and permanent disability. Following a trial on the merits the district court rejected his сlaim and he appealed.
The evidence shows that for the last few months of his employment, plaintiff operated a dеvice referred to as a “screening machine”. This machine contains a screening platform that vibrates orbitally at the rаte of 1,750 times per minute. In the course of his duties plaintiff was required to be in physical contact with the vibrating portion of the machine for periods of time, the length and frequency of which is disputed. Plaintiff alleges that the nature of his duties required him to be in frequent and рrolonged physical contact with the vibrating portion of the machine. This allegation is strongly disputed by the defendants but for purposes of this discussion we accept plaintiff’s assertion that his physical contact with the vibrations was almost continuous during his working hours.
As timе passed plaintiff noticed that his hands would become swollen and painful, and that he would have diminished sensation in them, but with rest the cоndition would alleviate itself. Eventually, however, the numbness, swelling, etc. became permanent and it was then that plaintiff ceased working and sought medical attention.
The physicians who testified were in general agreement that plaintiff was disabled by a neurolоgical disorder. His condition was said to result from Raynaud’s, Phenomenon, or sympathetic dystrophy, re-; suiting in a loss of sensation in the hands. Thus plaintiff was unable to feel heat,
The term “accident”, for purposes of the workmen’s compensation law, is defined in LSA R.S. 23:1021 as follows:
(1) “Accident” meаns an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objeсtive symptoms of an injury.
(7) “Injury” and “Personal Injuries” includes only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.
Plaintiff does not attempt to point to any single event which caused his disаbility, but instead argues that each vibration that he received from the screening machine constituted a separate aсcident, the cumulative effect of which was his disability. In support of this theory of what constitutes an accident, he cites but one Louisiana case, i. e. York v. E. I. DuPont De Nemours & Co., La.App.,
The York case, decided by the First Circuit in 1948, held a manual laborer who had developеd a ruptured disc as a result of “repeated trauma” to be disabled and eligible to receive benefits under the workmen’s compensation law. .
Professor Wex S. Malone criticized the York case as being “. . . inconsistent with the generally accepted position denying compensation for cumulative injuries where the symptoms appear gradually and become progrеssively worse.” Malone, Louisiana Workmen’s Compensation Law and Practice, § 215, p. 272. Subsequently, the First Circuit Court of Appeal declared its previous opinion in the York case to be “. . . against the weight of the jurisprudence.” Circello v. Haas & Haynie Corp., La.App.,
We agree that any further extension of the rule enunciated in the York and Harris cases, [Harris v. Southern Carbon Co., La.App. 2 Cir.,162 So. 430 ], supra, would constitute judicial amendmеnt of the definition of the term “accident” contained in LSA-R.S. 23:1021(1). Moreover, the York and Harris cases, supra, are inconsistent with the wеight of our jurisprudence to the effect that compensation must be denied where injuries are the result of cumulative injuries resulting in the gradual appearance of symptoms which become progressively worse, as distinguished from an accident ocсurring suddenly, unexpectedly or violently.
We cited the Hargrave and Circello cases with approval in Lee v. Southern Maid Paper Company, supra. In Lee, the plaintiff claimed that the repeated inhalation of paper dust, in the course of his employment as a paper bag bundler, constituted a series of accidents that caused or aggravated a condition of bronchitis and emphysema citing, inter alia, the York case. His contentions were rejected on the authority of the Circello and Hargrave cases, supra.
Accordingly, we are constrained to conclude that the plaintiff’s exposure to the
If plaintiff was indeеd disabled as a result of his employment, the decision reached herein may appear harsh. It is, however, necessary undеr the constitutional division of governmental power as between the executive, the legislative, and the judiciary. For us to hold оtherwise would be an invasion of the realm of the legislature. Should the legislature consider a situation such as this to be inequitable, it hаs the power to change it, and since only it has that power, only it may exercise it.
For the above and foregoing reasons the judgment of the district court is affirmed at plaintiff-appellant’s costs in both this and in the district court.
Affirmed.