Batiste v. Johns-Manville Sales Corp.

478 So. 2d 1276, 1985 La. App. LEXIS 10221
CourtLouisiana Court of Appeal
DecidedNovember 12, 1985
DocketNo. 85-CA-334
StatusPublished
Cited by3 cases

This text of 478 So. 2d 1276 (Batiste v. Johns-Manville Sales Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Batiste v. Johns-Manville Sales Corp., 478 So. 2d 1276, 1985 La. App. LEXIS 10221 (La. Ct. App. 1985).

Opinion

CHEHARDY, Judge.

Plaintiff instituted this suit for total and permanent disability benefits, penalties and attorney’s fees under the provisions of the Louisiana Workers Compensation Act. Named defendants were Johns-Manville Sales Corporation, a/k/a Johns-Manville Products Corporation, and Avondale Shipyards, Inc.

[1277]*1277Following trial on the merits judgment was rendered in favor of defendants dismissing plaintiff's suit. Thereafter plaintiff settled his claim against Johns-Man-ville, and has appealed to this court only against Avondale.

The following facts are not in dispute:

Earl Batiste, Sr., was employed at Johns-Manville from May 15, 1965 to April 13, 1970 as a punch press feeder in the shingle department. When he was laid off for lack of work, he earned $2.60 per hour. From 1970 to 1983 plaintiff was employed by Avondale as a grinder and shipper at a wage of $9.70 per hour. He was discharged in January 1983 due to a general reduction of the work force.

Thereafter plaintiff filed this suit against both of his former employers under LSA-R.S. 23:1031, the occupational disease section of the compensation act, alleging he had contracted a painful and debilitating lung disease performing his duties in the immediate area of asbestos dust, silica and other harmful dusts.

Testimony at the trial was given by plaintiff; two medical experts in the field of internal and pulmonary medicine, Dr. Morton Brown and Dr. Robert N. Jones; and Bill Koch, manager of workers compensation at Avondale.

Plaintiff testified as follows:

He was 47 years old at the time of trial (September 12, 1984). He described his duties at Avondale as using a loud vibrating chipping gun to chip the walls of the boats, and then taking a grinder to smooth the iron.

Other people work around the same area, some welding, others insulating pipes, and some cleaning up and burning debris. Sometimes, but not often, other men. did sandblasting in the area. The sandblasters were 40 to 50 feet away from the chippers. When plaintiff first worked for Avondale the sandblasters used white sand, but later they used only black sand known as black beauty. Plaintiff himself did no sandblasting. While performing his duties as a chipper and grinder plaintiff wore a protective mask.

Plaintiff described his duties at Johns-Manville from 1965 to 1970 as a punch press feeder, picking up asbestos shingles and putting them into a machine. He also worked in the pipe plant during that time for three or four months taking pipe as it came out of a machine and putting it in a tray filled with sand. The sand kept the pipe from rolling around. He also helped to unload boxcars containing cement and asbestos on infrequent occasions and if the bags broke he would have to clean up with a broom and shovel.

Plaintiff complains of health problems at the present time principally involving shortness of breath, and a dry cough. He was seen by Dr. Brown and hospitalized for tests at West Jefferson Hospital in June, 1982. After the tests Dr. Brown released him to return to work. Plaintiff admitted he has been a heavy smoker for 25 years, smoking about a pack a day. He has not looked for a job since his unemployment benefits were discontinued.

Dr. Brown, plaintiffs expert, testified he first saw Mr. Batiste on June 7, 1982. He complained of shortness of breath after having five years of exposure to asbestos and silica at the Johns-Manville plant and exposure to dust, welding fumes, and sandblasting particles.

A chest X ray disclosed an infiltrative mass in the upper lobe and scattered nodules throughout both lungs. The doctor concluded the mass represented infection with a mycobacterium-like tuberculosis. Because of a history exposure to silica, the doctor concluded this represented a silico-tuberculosis (silicosis with tuberculosis) or silicomycobacteriosis (silico combined with bacteria).

In his opinion there was a connection between the exposure to silica and contraction of tuberculosis. He felt the scattered nodules around the lung indicated plaintiff had a generalized accumulation, or a reaction in his lungs.

The tests performed in the hospital consisted of a bronchoscopy which was negative and a heart pulmonary function study. [1278]*1278Plaintiff had evidence of a weakened heart muscle.1

Plaintiff returned to see the doctor on July 11, 1982 because of the tubercular lesion in the right upper lobe. He was placed on TB therapy, although the TB skin test was negative and the organism was not found. He was treated for 18 months to prevent any progression of the tuberculosis.

When seen on August 81, 1982, tests were made on the liver to insure that plaintiff did not have a liver reaction to the TB therapy drugs. On October 14, 1982 a chest X ray was taken and a breathing test performed. The X ray showed improvement in the inflammatory reaction.

Plaintiff continued to see the doctor at intervals until shortly before the trial. His final diagnosis is that plaintiff had silicosis and silicomycobacterosis.

The doctor stated that to contact silicosis a person would have to be in an environment where there are fine particles of silica in the air. Silicosis is generally a progressive, as opposed to a reversible disease.

Silicomycobacteriosis is to some degree reversible and Dr. Brown concluded a person with occupational exposure to silica would be predisposed to contracting tuberculosis or a similar related lung disease.

The doctor could not apportion the contribution of each job (i.e., plaintiffs work at Johns-Manville as opposed to his work at Avondale) to occupational lung disease. Either employment could have caused the problem and it would be impossible to differentiate.

On cross-examination the doctor stated black beauty is a silicate (a salt). It is not a silica which is pure white. Asbestos is a silicate which has abrasive potential. Certain silicates cause a disease of much lower intensity and longer duration and are not as severe as silica or asbestos; nor do they cause scarring damage to the lung. The doctor could not say with certainty that black beauty causes silicosis or pneumoco-niosis.

Following plaintiffs discharge from the hospital Dr. Brown permitted him to return to work because he knew black beauty was being used at Avondale. Dr. Brown said unless exposure to sandblasting is very extensive, such exposure is not significant.

On August 31, 1982 the doctor reported to plaintiffs attorney that pending further studies plaintiff had possible pneumoconio-sis caused by his work at both corporations.

Dr. Brown testified plaintiff indicated he smoked two pack of cigarettes per day. This contributed to his problem, as well as the dust he was exposed to in his work. He said not everyone exposed to silica gets silicosis and that plaintiff could have developed silicosis without working at Avondale and the pulmonary function studies show only small airway problems which could also be caused by cigarette smoking. Someone who smoked two packs a day for 15 or 20 years could have small airway obstruction with no history of exposure to silica.

The doctor concluded plaintiff could do some type of light or moderate work, but could not do any work involving fibrogenic dust, chemicals or fumes that would be irritating to his lungs.

Dr.

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Bluebook (online)
478 So. 2d 1276, 1985 La. App. LEXIS 10221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batiste-v-johns-manville-sales-corp-lactapp-1985.