Smith v. Gretna MacH. and Iron WorksSmith v. Gretna MacH. and Iron Works
Peter L. Hilbert, Jr., Dorothy S. Watkins, McGlinchey, Stafford, Lang, New Orleans, for defendant/appellee, Gretna Mach. & Iron Works.
JOHN C. BOUTALL, Judge Pro Tem.
Plaintiff/appellant, Perry Smith, appeals a judgment of the Office of Worker‘s Compensation granting an exception of lack of jurisdiction over the subject matter in favor of defendant, Gretna Machine and Iron Works (now part of Trinity Industries, Inc.). We affirm.
FACTS
Plaintiff was employed as a sandblaster for thirteen years, which employment ended with his diagnosis of silicosis and related disease in 1991. He filed a disputed worker‘s compensation claim against Trinity in 1991 and later against its insurer. An exception of lack of subject matter jurisdiction was filed by defendants asserting that under
That judgment was appealed to this Court in Smith v. Gretna Machine and Iron Works, 617 So.2d 144 (La.App. 5 Cir.1993).
In September of 1993, defendants renewed their jurisdictional exception. Along with its supporting memorandum, defendants attached a portion of plaintiff‘s deposition, which excerpt showed that Smith‘s employment had been as a sandblaster and painter of barges. Also attached was an affidavit from Kenneth Boothe, plant manager at defendant‘s company, to the effect that plaintiff‘s employment at Gretna had been as a sandblaster/painter working on new construction and repairing existing vessels. Finally, medical reports from Dr. Morton Brown diagnosed Smith as suffering from silicosis, rheumatoid arthritis, and a “lupus type of reaction.” The report stated that all conditions are known to be caused by silica crystals. Smith did not introduce any evidence to rebut his employment status.
Following argument on the exception, the trial court again granted judgment in favor of defendants. No reasons for judgment or other findings were made.
The second appeal on the same exception is now before us. Because the case was originally remanded to permit the taking of necessary and pertinent evidence, we will now dispose of the matter on whatever evidence the parties have chosen to submit.
In the present action, Smith urges that the court was erroneous in that it retroactively applied
ANALYSIS
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.
This statute was added by Acts 1989 and became effective January 1, 1990.
Prior to enactment of
Under the above cited jurisprudence, plaintiff, Perry Smith, a sandblaster/painter of vessels, fell into the “twilight zone” of concurrent jurisdiction of federal and state courts.
In the very recent case of Dempster v. Avondale Shipyards, Inc., 643 So.2d 1316 (La.App. 5 Cir.1994), a panel of this Court had before it the question which we entertain in this appeal. There, the plaintiff was a victim of asbestosis whose claim for worker‘s compensation had been dismissed on an exception of lack of jurisdiction. The court discussed the contraction of occupational diseases and disability in order to determine when a claimant is eligible for benefits. After examining the pertinent jurisprudence, we recognized that in compensation cases, recovery is premised on disability, “... not simply on the occurrence of the injury, or, as
Appellant avers that he could prove at a hearing that he contracted the disease before the effective date of the statute, citing Faciane v. Southern Shipbuilding Corp. 446 So.2d 770 (La.App. 4 Cir.1984) for the proposition that a cause of action for a latent occupational disease accrues upon contraction of the disease. Faciane involved an executive officer tort suit, and dealt with accrual of a delictual cause of action for silicosis. Unlike the present case, it did not involve determination of a cause of action in compensation, nor did it involve
Cole v. Celotex Corp. 599 So.2d 1058 (La. 1992) also dealt with occupational disease, but as in Faciane, here the Supreme Court did so in connection with an executive officer tort suit. While the Cole case has its roots in compensation, that particular suit involved a claim against executive officers and their insurers. In tort, the mere fact of injury suffices to give rise to a cause of action. The court found that the “key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, ongoing damages, although the disease may not be considered contracted or manifested until later.” (emphasis supplied). The Cole court specifically left open the scenario with which we are presently concerned. (See Id. at 1076 n. 54). Therefore, Cole is not dispositive of the present case.
Accordingly, adhering to the principles enunciated in Dempster, supra, and White, supra., we again declare that the relevant date for determining a claim in worker‘s compensation is the date that the worker becomes disabled due to his condition caused by his employment. Based on all the evidence presented for the hearing on the exception, it appears that plaintiff‘s disease became disabling in July, 1991, when he received his diagnosis, or in May, 1991, the date plaintiff gave on his petition for compensation as the date of his injury/illness.
Therefore, for purposes of worker‘s compensation, plaintiff became disabled after the effective date of the amendment and is barred from pursuing a claim for Louisiana Worker‘s Compensation benefits. The trial court correctly granted defendant‘s exception of lack of subject matter jurisdiction.
For the foregoing reasons the judgment appealed from is affirmed. Costs are assessed to appellant.
AFFIRMED.