Michelle O'REGAN and Ryan O'Regan
v.
PREFERRED ENTERPRISES, INC. d/b/a Number One Cleaners, et al.
Supreme Court of Louisiana.
*126 Christine S. Tenley, John J. Hainkel, III, Frilot, Partridge, Kohnke & Clements, New Orleans, Counsel for Applicant.
George Brian Recile, Chehardy, Sherman, Ellis, Breslin & Murray, Metairie; Jonathan Beauregard Andry, Andry & Andry, New Orleans; Gary Mark Zwain, Duplass, Zwain & Bourgeois, Metairie; Dominic Joseph Gianna, Marshall Joseph Simien, Jr., Middleberg, Riddle & Gianna, New Orleans; Stephen Nolan Elliott, Bernard, Cassisa & Elliott, Metairie; Robert Edward Barkley, Jr., Nicholas Dale Doucet, Barkley & Thompson, New Orleans; David B. Bartel, Michael L. Zaleski, Quarles & Brady, Counsel for Respondent.
ON REHEARING
KNOLL, Justice.[*]
At issue before us is the question of whether an employee who has a disease presumed to be non-occupational under LA. REV. STAT. 23:1031.1(D)[1] is barred *127 from pursuing a remedy in tort against her former employer by the exclusivity of rights and remedies provision recognized in LA. REV. STAT. 23:1031.1(H).[2] Finding that the presumption of non-occupational disease excludes plaintiff from the remedies available under the Louisiana Workers' Compensation Act, we affirm this State's longstanding jurisprudence that when there is no remedy, there is no immunity in tort for the employer. Boyer v. Crescent Paper Box Factory,
FACTS AND PROCEDURAL HISTORY
Preferred Enterprises, d/b/a Number One Cleaners, (Preferred) employed Michelle O'Regan (O'Regan) from July 1990 through November 1990. O'Regan worked at the counter and plied a chemical (methoxyethanol) with her bare hands into the clothing to remove spots. In 1993, after she left the employ of Preferred, O'Regan was medically treated for sinus problems and was diagnosed with severe anemia. She was diagnosed as suffering from myelodysplasia, a form of aplastic anemia which causes the bone marrow to produce abnormal cells.[3] The disease can take many years to manifest itself and exposure to toxic chemicals can cause the disease.
In a worker's compensation action against Preferred, O'Regan contended that she was exposed to a chemical during her four-month employment at Preferred and that as a result of her exposure she contracted myelodysplasia. Originally, a hearing officer denied O'Regan workers' compensation benefits, finding that O'Regan did not meet her burden of proving her claim by an "overwhelming preponderance of the evidence," and thus failed to overcome the statutory presumption that the disease was "non-occupational and not to have been contracted in the course of and arising out of [her] employment." The hearing officer properly determined that O'Regan was held to this higher burden of proof because she had to overcome the presumption required by LA. REV. STAT. 23:1031.1(D), because she was employed by Preferred for less than twelve months. The Court of Appeal, Fifth Circuit, affirmed the hearing officer's determination. O'Regan v. Number One Cleaners,
O'Regan next pursued a timely filed tort suit against Preferred alleging negligence and intentional misconduct.[5] Preferred *128 answered the petition with a general denial and further urged that O'Regan failed to state a cause of action because her exclusive remedy was in workers' compensation. Thereafter, Preferred filed a motion for summary judgment on the negligence claims, urging that plaintiffs sole remedy was limited to a workers' compensation action.
After the trial court denied Preferred's motion for summary judgment, Preferred perfected a supervisory writ to the Court of Appeal, Fifth Circuit. The appellate court summarily denied the writ, stating that "[o]n the showing made we find no error in the trial court's ruling." After Preferred filed a writ application with this court, we remanded the case to the appellate court for briefing, argument, and an opinion. O'Regan v. Preferred Enters., Inc., 98-0060 (La.3/13/98),
On remand, the appellate court affirmed the ruling of the trial court, finding that Preferred's tort immunity was inapplicable because O'Regan's injury did not fit into the workers' compensation scheme. We granted Preferred's writ application to resolve this issue: Whether an employee who has suffered a disease presumed to be non-occupational under LA. REV. STAT. 23:1031.1(D) is entitled to sue her employer in tort. O'Regan v. Preferred Enters., Inc., 98-1602 (La.10/30/98),
ANALYSIS
In essence, we are called upon in this suit to construe LA. REV. STAT. 23:1031.1(D), supra n. 1, in the context of the Workers' Compensation Act. Accordingly, it is appropriate for us to review the general rules of statutory interpretation and to recall what we have specifically stated regarding the interpretation of the Workers' Compensation Act.
Legislation is a solemn expression of legislative will; therefore, interpretation of a law is primarily the search for the Legislature's intent. LA. CIV. CODE art. 2; Cat's Meow v. City of New Orleans, 98-0601 (La.10/20/98),
Furthermore, as we have cautioned before, when interpreting the Workers' Compensation Act, courts must take into account the basic history and policy of the compensation movement. Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La.3/21/94),
Overview of the Workers' Compensation Act
In interpreting the statute at issue, it is likewise appropriate for us to observe Atchison v. May,
The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who became disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families. It was also deemed advisable to provide for compensation, in cases of death, to the persons dependent upon the employee for support so that these persons *129 would not be entirely bereft of funds during the period of time following the employee's death when they, of necessity, were compelled to reconstruct their lives and seek a means of support,thus avoiding the possibility that these persons would become public charges. In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee was required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of his disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the amount stipulated in the statute as compensation during the period of disability.
History of Occupational Diseases under the Workers' Compensation Act
It is noteworthy that although 1914 La. Acts 20 introduced Louisiana to a system which addressed the claims of injured workers free from tort analysis, it was not until 1952 that the Legislature established statutory authority allowing for the coverage of occupational diseases under Louisiana's workers' compensation law. With the passage of 1952 La. Acts 532, every employee who was "disabled because of the contraction of an occupational disease" was entitled to workers' compensation "the same as if said employee received personal injury by accident arising out of and in the course of his employment." The statute provided a definition of an "occupational disease," which stated, in pertinent part, that "[a]n occupational disease shall include only those diseases hereinafter listed when contracted by an employee in the course of his employment as a result of the nature of the work performed." LA. REV. STAT. 23:1031.1(A) (1952). This exclusive list included diseases caused by contact with specific substances, namely the diseases of contact poisoning from enumerated sources, asbestosis, silicosis, dermatosis, and pneumoconiosis. LA. REV. STAT. 23:1031.1(A) (1952). Coverage was also provided for diseased conditions caused by exposure to X rays or radioactive substances. Subsequently, in 1958 La. Acts 39 the Legislature added tuberculosis as one of the specified occupational diseases, if it was "contracted during the course of employment by an employee of a hospital or unit thereof specializing in the care and treatment of tuberculosis patients." LA. REV. STAT. 23:1031.1(A) (1958). It was further stated in Paragraph F of 1952 La. Acts 532 and 1958 La. Acts 39 that the rights and remedies granted to an employee for occupational diseases for which "he [was] entitled to [workers'] compensation shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives."
It was with the enactment of the 1952 legislation that the Legislature also made provision for occupational diseases contracted by employees who had worked for the employer for less than twelve months. That provision, enacted as LA. REV. STAT. 23:1031.1(B) of 1952 La. Acts 532,[6] survives today without any change as LA. REV. STAT. 23:1031.1(D), the statute which is the core of our present discussion. That statute reads as follows:
Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months' limitation as set out herein shall become compensable *130 when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by an overwhelming preponderance of evidence. (emphasis added)[7]
Initially, we recall this legislative history because it highlights and helps us resolve an issue regarding a seeming anomaly caused by the 1975 amendment to other portions of LA. REV. STAT. 23:1031.1. As LA. REV. STAT. 23:1031.1(D) is worded, the employee's heightened burden of proof is applicable only to those occupational diseases "as herein listed."
Although the 1952 and 1958 enactments listed specific occupational diseases, 1975 La. Acts 583 revised LA. REV. STAT. 23:1031.1(A) to amend the definition of occupational disease by removing the list of specific diseases for which there was coverage under workers' compensation and substituted the following:
An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.[8]
No changes were made to LA. REV. STAT. 23:1031.1(D) at that time. As a result, it is evident that the non-occupational presumption was retained for an exclusive list of specific diseases which no longer exists. Thus, before we reach the core question before us, we must ascertain what occupational diseases the non-occupational presumption affects.[9]
It is well-recognized and a long-established rule of statutory construction that a statute should be interpreted as a whole to effect the legislative intent and should be construed in such way as to reconcile, if possible, apparent inconsistencies so that each part is given effect. State v. Cazes,
In construing a statute, the primary object is to ascertain and, if possible, give effect to the intention and purpose of the legislature as expressed in the statute. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together; each must be considered with respect to, or in the light of, all the other provisions, and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately. Meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered.
Utilizing this rule of statutory construction, it is clear that LA. REV. STAT. *131 23:1031.1(D) cannot be restricted to the list of occupational diseases originally provided in the 1952 and 1958 enactments, because such a narrow construction of this provision would result in its nullification. Rather, it is clear that the Legislature's substantive revision of the definition of an occupational disease, which eliminated the list of specified diseases, is a clear indication that it made a fresh start with respect to this definition. Accordingly, we conclude that LA. REV. STAT. 23:1031.1(D) should be interpreted so that it has continued meaning and applicability. Therefore, we hold that LA. REV. STAT. 23:1031.1(D) must be read with reference to the broader definition of "occupational disease" enacted in the 1975 revision of LA. REV. STAT. 23:1031.1(A), and that its non-occupational presumption and heightened burden of proof are applied to those diseases which fit that revised definition. Having addressed this preliminary matter, we now turn to the question which prompted us to grant this writ.
Impact of LA. REV. STAT. 23:1031.1(D)
Under the broad concept of workers' compensation, the employer is responsible for compensation benefits to "an employee not otherwise eliminated from the benefits of this Chapter [who] receives personal injury by accident arising out of [the employment] and in the course of his employment." LA. REV. STAT. 23:1031(A) (emphasis added).[10] We have highlighted the words, "accident arising out of and in the course of his employment" because they are terms of art in the context of the Workers' Compensation Act.[11] Words of art and technical terms "must be given their technical meaning when the law involves a technical matter." LA. CIV. CODE art. 11. These phrases were carefully chosen by the Legislature and have been utilized by the courts to decide the threshold issue of whether the particular risk involved falls within the protection of the compensation act. 13 H. ALSTON JOHNSON, LOUISIANA CIVIL LAW TREATISE, WORKERS' COMPENSATION § 141 (3d. ed.1994). Succinctly stated, compensation benefits are only available if an injury results from an accident which arises out of the employment and occurs in the course of the employment. Mundy v. Department of Health & Human Resources,
It is no surprise that when the Legislature broadened the concept of "accident"[12] by providing for occupational diseases in the workers' compensation system, it engrafted the same phrases in its treatment of occupational diseases in LA. REV. STAT. 23:1031.1(A) and (B). Generally, an employee who becomes disabled because of an occupational disease will be entitled to workers' compensation benefits "if said employee received personal injury by accident arising out of and in the course of his employment," LA. REV. STAT. 23:1031.1(A) (emphasis added), the employee has performed work for a particular employer in which he has been engaged for more than twelve months, LA. REV. STAT. 23:1031.1(D), and he can show by a preponderance of the evidence that the "disease or illness ... is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease," LA. REV. STAT. 23:1031.1(B).
However, if an employee becomes disabled because of an occupational disease contracted within the first twelve months of employment, the occupational disease "shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment." LA. REV. STAT. 23:1031.1(D) (emphasis added). It is only if an employee can show by an overwhelming preponderance of evidence that the occupational disease was contracted within the twelve months' limitation and that it fits the definition of occupational disease as provided in LA. REV. STAT. 23:1031.1(B) that the occupational disease "shall become compensable." LA. REV. STAT. 23:1031.1(D) (emphasis added); see Dibler v. Highland Clinic, 27,274 (La.App. 2 Cir. 9/27/95),
This analysis makes two points very clear. First, although the Workers' Compensation Act provides coverage for occupational diseases pursuant to LA. REV. STAT. 23:1031.1(A), LA. REV. STAT. 23:1031.1(D) creates a category of employees who are "otherwise eliminated from the benefits of this Chapter," LA. REV. STAT. 23:1031(A), by virtue of their employment for less than a year. This elimination is created by virtue of the legislatively crafted presumption that in such an instance the disease is non-occupational and presumed "not to have been contracted in the course of and arising out of such employment." The statute further provides that it only "become[s] compensable" if a heightened burden of proof is reached. LA. REV. STAT. 23:1031.1(D). Simply stated, by virtue of the presumption that is operative because of the Legislature's creation of the temporal requirement, such disease has been identified as a risk that falls outside the protection of the compensation act. In this regard, we find that the Legislature has not only imposed a higher burden of proof, it has created a category which presumptively eliminates certain employees from workers' compensation benefits. Cf. LA. REV. STAT. 23:1021(7)(b) (mental injury caused by *133 mental stress), LA. REV. STAT. 23:1021(7)(c) (mental injury caused by physical injury), and LA. REV. STAT. 23:1021(7)(e) (heart-related or perivascular injuries) for examples of a legislatively crafted higher burden of proof (clear and convincing standard) without a non-occupational presumption.[13] Second, if an employee attempts to be brought under the Act and fails to meet the heightened burden of proof, the disease remains "to be non-occupational and not to have been contracted in the course of and arising out of such employment." LA. REV. STAT. 23:1031.1(D). Such conclusion is inescapable by virtue of the presumption and the specific words that the Legislature has chosen to use in this statute. "[I]f the employee fails to demonstrate that the injury arose out of and occurred in the course of employment the Act has no applicability and he may proceed in tort." 14 H. ALSTON JOHNSON, LOUISIANA CIVIL LAW TREATISE, WORKERS' COMPENSATION § 366, at 226 (3d. ed.1994). Therefore, if such an employee has been eliminated from the benefits of the Workers' Compensation Act by virtue of the presumption, his rights and remedies on account of his disease against his employer are not restricted to compensation benefits as provided in LA. REV. STAT. 23:1031.1(H) because he is not entitled to the protection of the compensation act as a direct result of the operation of LA. REV. STAT. 23:1031.1(D).
O'Regan attempted to fall under the workers' compensation scheme, but her claim was easily defeated because she could not meet the heavy burden of proof and thus was unable to overcome the legislatively created presumption against her. As noted in Johnson's commentary on workers' compensation:
[T]he primary concern of the Act is to assure that employment-rooted injuries and diseases are compensated, and equally that injuries and diseases not rooted in employment be excluded from coverage. Seen in this light, the occupation disease section is essentially concerned with the claimant's proof that there is a relationship between the employment and his disease, to the extent that we think it is fair that the employment enterprise should bear the cost of his disability.
13 H. ALSTON JOHNSON, LOUISIANA CIVIL LAW TREATISE, WORKERS' COMPENSATION § 220, at 516 (3d. ed.1994). In order to reach this objective, the Legislature has intentionally adopted the temporal presumption of LA. REV. STAT. 23:1031.1(D) and has assigned a particularly stringent burden of proof to overcome it.[14] Significantly, other workers' compensation injuries are covered under the no-fault quid pro quo by a claimant's showing that injuries occurred more probably than not. There is no temporal element that must be satisfied before benefits enure to the laborer; he could be injured within the first five minutes of employment and be as fully covered as one who had been employed for thirty years. Thus, it is that the temporal presumption of LA. REV. STAT. 23:1031.1(D) stands alone in the workers' compensation scheme.
*134 LA. CONST. art. 1, § 22 inscribes in our Constitution that "[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." Nonetheless, it has long been the jurisprudence of this Court that the Legislature has the authority to limit codal remedies as long as it does not leave the injured party entirely without a remedy.[15]See, e.g., Colorado v. Johnson Iron Works,
The exclusive remedy provision refers only to injuries for which the employee or his dependent is entitled to be compensated, and the Act becomes the exclusive remedy for employees against their employers only for such diseases. See LA. REV. STAT. 23:1031.1(H). Accordingly, injuries non-compensable under the Act by LA. REV. STAT. 23:1031.1(D) are also excluded from the shield against tort liability provided to employers by the exclusivity clause in LA. REV. STAT. 23:1031.1(H). Because O'Regan's injuries were presumptively excluded from coverage under the Act by LA. REV. STAT. 23:1031.1(D) by presuming that they were "non-occupational and not to have been contracted in the course of and arising out of" her employment, and her inability to overcome this presumption by an "overwhelming preponderance of evidence," we conclude that she is not precluded from bring a suit in tort against her employer. Simply stated, the presumption throws the employee outside of the act; therefore, the exclusivity provision of LA. REV. STAT. 23:1031.1(H) is not applicable to the employee, and the employee may proceed in tort against her employer.
The jurisprudence and those who comment on the theory of workers' compensation repeatedly emphasize that compromise is the quintessential characteristic of the workers' compensation movement. See Roberts,
Our determination today is consistent with long-established judicial precedent in this State and does not introduce any new concept. In Boyer v. Crescent Paper Box Factory,
Not only has the Boyer principle not been repudiated, it has served as the underpinning for decisions in the area of occupational diseases prior to their coverage under the Workers' Compensation Act in 1952. In Clark,
In addition, the result we reach today is consistent with that of our common-law sister states. All states are unanimous in that the compensation remedy is exclusive of all other remedies by the employee if the injury falls within the coverage formula of the workers' compensation act. If the injury does not, however, then states are also unanimous that the compensation act does not disturb any existing remedy, *136 i.e., one's right to sue for damages in tort, because no quid pro quo has taken place where they have actually provided no compensation liability. See LARSON'S WORKERS' COMPENSATION LAW, §§ 100.01[1] & 100.01[4], at 100-2 & 100-8 (1999).
The Workers' Compensation Act provides basic coverage for injuries sustained in the course of employment. The Act was a compromise between labor and industry pursuant to which laborers received guaranteed no-fault recovery and industry was relieved of the possibility of large damage awards in the tort system. That is, the employer agreed to pay on some claims for which there might have been no liability in exchange for the limited liability, and the employee agreed to give up available tort actions and remedies in exchange for sure and certain relief under the Act. This quid pro quo between employers and employees is central to the Act. Thus, it is a fundamental principle that the employee must have the possibility of recovery under the Act for this compromise to hold and for the scope of immunity from tort liability granted by the exclusivity provisions to hold. Barring a tort action without providing a substitute remedy under the Act would abrogate the quid pro quo compromise between the employee and the employer. The exclusivity provisions of the Act are part of the compromise.
Professor Larson, long an authoritative scholar on workers' compensation, explains:
If ... the exclusiveness defense is a "part of the quid pro quo by which the sacrifices and gains of employees and employers are to some extent put in balance," it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee's point of view, rights of action for damages should not be deemed taken away except when something of value has been put in their place.
LARSON'S, § 100.04, at 100-22.
It is a fundamental principle that the Act does not contemplate that an employee's rights and remedies can be abolished without providing a substitute. Thus, for example, under our former occupational disease act which provided a scheduled list of compensable diseases, employees allegedly suffering from diseases not among the listed diseases were not barred from bringing an action under the general law by the act's exclusive remedy provisions because such diseases were not within the purview of the act. See, e.g., Samson v. Southern Bell Tel. & Tel. Co.,
If the claimant must qualify under the Act, as one must under LA. REV. STAT. 23:1031.1(D), or is given the option to qualify, see, e.g., LA. REV. STAT. 23:1035 (providing that certain bona fide officers of corporations, certain partners in partnerships, certain members in a limited liability company, or certain sole proprietors of a sole proprietorship may elect by written agreement not to be covered by the Act), the claimant will not be barred by the exclusivity provisions of the Act unless he actually qualifies. That is, the possibility of qualifying under the Act does not itself bar one's rights and remedies under the general law. See, e.g., Latimer v. Western Mach. Exch.,
Thus, for example, in McClendon v. Mid-City Discount Drugs, Inc.,
We must also distinguish these cases from cases where a covered claim fails because the employee does not meet his burden of proof as to a component of his case other than for basic coverage of the Act. See LARSON'S, § 100.05[3][d] at 100-37. Thus, for example, in Decius v. Marriott Corp.,
We are mindful of the effect this decision could have in cases where employees who pursue a compensation remedy are denied benefits and subsequently seek redress in tort, or vice versa. However, an unsuccessful compensation claim does not necessarily bar a tort suit and an employee who sues unsuccessfully in tort is not necessarily barred from bringing a subsequent compensation claim. LARSON'S, § 102.03[1] and cases cited therein. The reason why such a course of conduct does not bar subsequent suits is that the "election of a remedy which proves to be nonexistent is no election at all." LARSON'S, *139 § 102.03[1], at 102-18. That is, the "election of remedies" doctrine from Roman law has no place in compensation cases because it undermines the Act's fundamental policy: to provide speedy recovery to employees, without proof of fault, for accidental injuries that occur from their employment. Our holding today, however, does not mean that the employee can always seek a subsequent remedy after unsuccessfully pursuing the first. Courts should distinguish between cases which fail because the Act does not apply and cases which fail because the employee does not pursue his compensation claim adequately. In the former cases, election did not take place because there was a misconception of one right when only another in fact existed. In the latter cases, however, election is a choice between two valid but inconsistent remedies. Whether or not a subsequent action may be brought, therefore, depends on the grounds of the denial. If, for example, the employee pursues a compensation claim but that claim is denied on the grounds that the injury is not compensable under the Act, then the claimant may maintain an action in tort. If, however, the compensation claim is denied not because it is not covered under the Act but because the employee failed to prove an element of the claim (other than for basic coverage), then the claimant is precluded from bringing a subsequent suit in tort on the same allegations.
In determining whether a subsequent remedy is barred, courts should consider whether the claimant was successful[19] in his former compensation or damage remedy. This is because to do such will effectuate the purpose of workers' compensation: to provide employees a security system. The Act was not intended to give the employer a windfall and relieve him of all responsibility toward injured employees. Likewise, it was not intended to work as a gamble, where the result is a complete win for one side and total loss for the other. The injured employee should not be forced to gamble with his rights "under the guise of enforcing a supposed penalty against the employer." LARSON'S, § 102.03[1], at 102-19; cf. James v. Caterpillar Inc.,
Our holding today should not be interpreted to shift the burden from the employee to the employer. In a case such as the one sub judice, which allegedly involves injuries arising out of an employment relationship, if the employee seeks and is denied workers' compensation, the *140 employee still has the burden of proving that the compensation claim was rejected on the ground that the injury or disease was not within the exclusive coverage provisions of the Act.[20] That is, he must establish for the court that, under the facts and circumstances of the case, his particular disease or injury was not compensable under the Act. See, e.g., McCarthy v. Department of Soc. & Health Servs.,
DECREE
For the foregoing reasons, the judgments of the lower courts are affirmed. This case is remanded to the trial court for further proceedings consistent with this opinion.
AFFIRMED AND REMANDED.
LEMMON, J., concurs and assigns reasons.
MARCUS, VICTORY, and TRAYLOR, JJ., dissent for reasons assigned on original hearing.
LEMMON, J., Concurring.
When the Louisiana Workers' Compensation Act provides basic coverage for the employee's claim, compensation is the exclusive remedy, even if the claim is denied because of the employee's failure to meet the burden of proof as to another element of the claim.
This employee's claim was based on contracting myelodysplasia, a disease that can be caused by exposure to toxic chemicals, and her claim therefore was a covered claim under the definition of occupational disease in La.Rev.Stat. 23:1031.1. Causation was an essential element of this employee's covered compensation claim, and her claim was denied (in the earlier compensation action) because she failed to prove causation, and not because her claim was not covered by the Act.
The issue thus becomes whether the Legislature's raising the burden of proof for certain employees with occupational disease claims either unconstitutionally discriminates against those employees or substantially departs from the 1914 trade-off that gave rise to the Workers' Compensation Act. Pretermitting the constitutionality issue, I conclude that the Legislature's raising the burden of proof for certain employees eliminated the compensation remedy for those employees, making the employer subject to tort liability.
If La.Rev.Stat. 23:1031.1 contained only the presumption that a covered occupational disease contracted by an employee who worked for the employer for less than twelve months was not contracted in the course of and arising out of employment, but the standard for the burden of proof for causation were the normal preponderance of the evidence, then the employee clearly would have a remedy under the Louisiana Workers' Compensation Act that would be the exclusive remedy. Under such a statute, the fact that the employee cannot meet the burden of proof of causation by a preponderance of the evidence does not mean that the employee (whether on the job more than twelve months or less than twelve months) does not have a remedy under the Workers' Compensation Act; the Act clearly provides a remedy, but the employee cannot meet the standard of the normal burden of proof that applies in every compensation action.[1] When the Workers' Compensation *141 Act provides a remedy under the normal standard of proof, this is the employee's exclusive remedy, and that rule does not change simply because the employee loses the suit filed in pursuing that remedy, whether because of failure of proof of causation, prescription or some other reason not related to coverage under the Act.
The thing that makes this case different is the higher burden of proof (especially when combined with the presumption of non-causation). An employee who can prove employment-rooted causation of a covered occupational disease by a preponderance of the evidence, but cannot prove that causation by clear and convincing evidence (the interpretation of "an overwhelming preponderance of the evidence" by the court of appeal in this case[2]), has been denied a remedy under the Act because the Legislature has eliminated that employee's compensation remedy by raising the burden of proof.[3] Such an employee therefore is entitled to a remedy in tort.
Of course, we do not know in the present case whether the employee (who filed a compensation action and lost under the higher burden of proof) could have proved causation by a preponderance of the evidence.[4] Since the Legislature never gave this employee a chance to prove causation by a simple preponderance of the evidence, she has been denied a remedy under the Workers' Compensation Act, and the tort remedy is therefore available to her if she can prove causation (and negligence) by a preponderance of the evidence.[5]
NOTES
Notes
[*] Johnson, J., not on panel. Rule IV, Part 2, § 3.
[1] LA. REV. STAT. 23:1031.1(D) provides as follows:
Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months' limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months' employment by an overwhelming preponderance of evidence. (emphasis added)
[2] LA. REV. STAT. 23:1031.1(H) provides as follows:
The rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives. Although the plaintiffs reference the general
provision contained in LA. REV. STAT. § 23:1032 with regard to the exclusivity of the workers' compensation remedy, we choose to analyze the exclusivity argument in this case by utilizing LA. REV. STAT. § 23:1031.1(H), the exclusivity provision particularly tailored to the question of occupational diseases. Paragraph H was enacted in 1952 and its content has remained unchanged.
[3] In brief, O'Regan stated that the disease has caused her to undergo a bone marrow transplant and that she will be unable to bear children. She also indicated that her medical expenses have exceeded $200,000.
[4] The Fifth Circuit also recognized that "there is a presumption [in LA. REV. STAT. 23:1031.1(D) ] that [plaintiff's] disease is non-occupational and was not contracted in the course of and arising out of her employment." O'Regan v. Number One Cleaners, 96-769 (La. App. 5 Cir. 2/12/97),
[5] In addition to Preferred, O'Regan brought suit against thirteen chemical manufacturers and distributors. Only O'Regan's negligence action against Preferred is before us.
[6] This provision was repeated in 1958 Acts 32 without any change in substance.
[7] Aplastic anemia, the disease which afflicts O'Regan, was not one of the exclusive diseases specified in the 1952 and 1958 list of occupational diseases.
[8] All states provide compensation coverage for occupational diseases, however, how they are covered differs markedly. Namely, occupational diseases are covered either: (1) by a general definition of the term; (2) by a broad use of the term "injury"; (3) by an unrestricted coverage of the disease; (4) by a separate act; or (5) by a schedule list followed by a catch-all provision. The abandonment of the scheduled list scheme to the general definition scheme should be recognized as an attempt by the Legislature to broaden, not restrict, those diseases compensable under the occupational disease act. The important distinction today is to distinguish those occupational diseases covered under the act, because they are peculiar to the nature of the employment, from common diseases not covered by the act, because they are not associated with the employment. See generally LARSON'S WORKERS' COMPENSATION LAW (1999).
[9] Although we raise this issue sua sponte, we find it important to address this question because a literal reading of the statute leads to questions regarding the scope of the provision.
[10] The use of the phrase "accident arising out of and in the course of employment" can be traced to 1914 La. Acts 20, when Louisiana first adopted a workers' compensation system.
[11] Commenting on these phrases, we stated in Weber v. State, 93-0062 (La.4/11/94),
This court has considered the terms "arising out of" and "in the course of" in Section 1031 as dual requirements that cannot be considered in isolation from each other. In a close case, a strong showing with reference to one requirement may compensate for a weak showing with reference to the other requirement. Raybol v. Louisiana State University,
In the "course of employment" requirement, the court focuses on whether the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer's premises or at a place contemplated by employment activities. Williams v. Regional Transit Authority,
In the "arises out of employment" requirement, the court inquires into the character or origin of the risk suffered by the employee and determines whether this risk was incidental to the employment. Williams v. Regional Transit Authority,
[12] Originally, it was found that occupational diseases were not covered under the Workers' Compensation Act because such injuries did not arise from an accident. Accordingly, it was determined early on that such workers could maintain a tort claim against their employers. Clark v. Southern Kraft Corp.,
[13] This conclusion distinguishes n. 17 in our earlier decision in Charles v. Travelers Ins. Co.,
[14] In addition, the provisions relative to occupational diseases recognize the applicability of a special prescriptive period, shorter than that for injuries by accident.
[15] By "codal remedies" we mean nothing more than what our sister states, under their common law system, call "common-law remedies." Being a civil law jurisdiction, the rights and remedies granted to our citizenry are expressed in the Code. Other jurisdictions, we note, likewise provide that the legislature cannot limit common-law remedies such that an injured party is left without a remedy. See, e.g., Hale v. Port of Portland,
[16] The legislative narrowing of the concept of occupational disease in 1989 prompted the following comments:
[T]o the extent that a similar narrowing of occupational disease occurs by excluding certain things from occupational disease, then these excluded ... maladies might be made the subject of a tort recovery.
13 H. ALSTON JOHNSON, LOUISIANA CIVIL LAW TREATISE, WORKERS' COMPENSATION § 221, at 519 (3d. ed.1994).
[T]he zeal with which certain interests pursued the narrowing of the compensation remedy was matched with equal fervor by the willingness to open tort avenues again for work-related but non-compensable injuries.
14 H. ALSTON JOHNSON, LOUISIANA CIVIL LAW TREATISE, WORKERS' COMPENSATION § 366, at 233 (3d. ed.1994).
[17] These cases must be conceptually distinguished from those where the particular element of damage is not compensable. For example, in Rushing v. Employers' Liab. Assur. Corp.,
[18] This class is the one germane to the case sub judice as, under LA. REV. STAT. 23:1031.1(D), one who fails his heightened burden is presumed to have not contracted the disease in the course of and arising out of the employment.
[19] Furthermore, Larson defines "successful" to mean success not only in obtaining a compensation award, but also in collecting it. LARSON'S, § 67.32, at 12-174.
[20] Of course if the employee pursues a claim in tort initially and the employer seeks to avail itself of tort immunity under the Act, the employer has the burden of proving entitlement to immunity. Mundy,
[1] Without the higher burden of proof contained in La.Rev.Stat. 23:1031.1, the presumption is inconsequential. An employee with less than twelve months on the job has the same burden of proof of causation as an employee with over twelve months on the jobthat is, to prove causation by a preponderance of the evidence (more probable than not).
[2] In my concurring opinion on original hearing, I noted that I would construe "overwhelming preponderance of the evidence" simply as more probable than not, rather than above the normal standard. However, that solution is not available for this employee, who allegedly has more than $200,000 in medical bills, because the judgment denying her compensation under the higher standard of proof is res judicata. I therefore must address the consequences of the legislative raising of the burden of proof.
[3] The Legislature, whether intentionally or not, denied certain employeesthose who can prove causation of a covered occupational disease by a preponderance of the evidence the compensation remedy when the employee cannot prove causation by clear and convincing evidence. Such an employee has been denied the advantage contemplated in the 1914 trade-off of a tort remedy (with greater recovery, subject to proof of negligence with several defenses) for a compensation remedy (with lesser, but more certain, recovery).
[4] When the district court had original jurisdiction over both tort actions and workers' compensation action, an injured employee could cumulate alternative demands in the same action. Under the present jurisdiction rules, these demands could not be cumulated in the present action.
[5] Stated otherwise, the employer should not be entitled to immunity against the tort claims of an employee who can prove causation by a preponderance (but not an overwhelming preponderance) of the evidence, because the employer has been legislatively absolved of liability for that employee's valid compensation claim which the employee never had an opportunity to assert.