James v. Celotex Corp.

461 So. 2d 447, 1984 La. App. LEXIS 10374
CourtLouisiana Court of Appeal
DecidedDecember 11, 1984
DocketNo. 84-CA-431
StatusPublished
Cited by1 cases

This text of 461 So. 2d 447 (James v. Celotex 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
James v. Celotex Corp., 461 So. 2d 447, 1984 La. App. LEXIS 10374 (La. Ct. App. 1984).

Opinion

CURRAULT, Judge.

This appeal arises from a judgment in favor of defendant, Celotex Corporation (Celotex), dismissing an action for worker’s compensation benefits brought by plaintiff, Walter James.

The facts reveal that plaintiff, Walter James, was employed by Celotex for thirty years from 1946 until he retired in 1975 at the age of sixty-five. During that time he worked in the asphalt department as well as the tile and interior products department. Plaintiff’s various duties included working with processes involving the coating of boards with asphalt as well as the turning and stacking of the coated boards. While working in the plant, plaintiff was exposed to some degree of coal tar pitch volatiles, the chemical components of which include medically documented carcinogens. While employed in the interior products department, he was exposed to some level of silica dust particles.

On May 27, 1982, plaintiff filed suit for worker's compensation alleging that he contracted a lung disease related to his employment. He was later diagnosed as having lung cancer.

Trial was held on November 28, 1983, January 18 and January 19, 1984. Plaintiff was unable to attend the trial due to the advanced state of his lung cancer and subsequently died on January 22, 1984. Judgment was rendered on May 10, 1984 in defendant’s favor, dismissing plaintiff’s suit.

Thereafter, an appeal of that judgment was perfected on plaintiff’s behalf.

Appellant specifies as error the trial court finding that plaintiff had not met his burden of proving the causal connection between his employment and his lung cancer.1

Appellant argues that the medical testimony coupled with plaintiff’s deposition testimony satisfied the burden of proof required for a causal connection between the illness and the employment. A plaintiff in a worker’s compensation action must prove he contracted an employment-related disease by a preponderance of the evidence. Howard v. Johns-Manville Sales Corporation, 420 So.2d 1190 (La.App. 5th Cir.1982); Hebert v. Lake Charles American Press, 427 So.2d 916 (La.App. 3d Cir.1983).

The rules relative to causation are set forth in Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982), a case involving a trauma to plaintiff’s arm which ultimately resulted in a cancerous tumor growth. There the Louisiana Supreme Court stated:

[449]*449“The plaintiff-employee in a workmen’s compensation case bears the burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974). Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that the work accident caused the disability. Allor v. Belden Corp., 393 So.2d 1233, 1236 (La.1981); Lucas v. Insurance Company of North America, 342 So.2d 591, 595 (La.1977). “... Furthermore, medical testimony ‘must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability’ Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, 1044-45 (La.1982).”

In determining causal connection, the court distinguished medical causation from legal causation as follows:

“[6] The lower courts based their decisions upon the assertions of Dr. Gun-derson, Dr. Gore and Dr. Romsdahl that in their opinion a trauma could not cause a tumor and that trauma would have no effect upon the eventual progression of the disease. The lower courts believed that the medical evidence was sufficient to deny compensation. They failed to distinguish the ‘medical’ meaning of cause from the ‘legal’ meaning of cause. When the doctors speak of cause they are essentially speaking of etiology — the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff’s disability by making manifest symptoms previously unnoticed. ‘Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.’ Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927, 928 (La.1978).
“Furthermore, ‘[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor....’ Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La.1976). See Allor v. Belden Corp., supra at 1237; Bertrand v. Coal Operators Casualty Co., supra [253 La. 1115, 1146, 221 So.2d 816, 827-28 (1969)].” At pages 832, 833.

In the case of Hebert v. Lake Charles American Press, supra, the plaintiff developed a respiratory ailment following his prolonged exposure to toxic chemicals present in his occupational environment. The defendant employer sought to establish that plaintiff’s occupational lung disease was due to a pre-existing asthmatic condition. There the Louisiana Third Circuit Court applied the Hammond rationale and discounted the argument that the disability could have been brought on by causes other than those related to plaintiff’s employment. The court held that the crucial aspect of the case was that plaintiff was in essentially good health prior to the prolonged exposure to toxic chemicals and that, thereafter, the symptoms of respiratory disease manifested themselves, “thereby creating the presumption of causal connection.” 427 So.2d at page 919.

Thus, appellant argues, pursuant to Hammond, supra, and Hebert, supra, that plaintiff in this case is entitled to the legal presumption of a causal connection between his disabling lung cancer and his occupational exposure to industrial carcinogens at Celotex. Based on these cases, plaintiff submits that the record of this matter clearly establishes that plaintiff was a healthy man when he began his employment with Celotex in 1946 and that following a continuous employment exposure to medically documented carcinogens, the plaintiff’s disabling condition (cancer of the lung) appeared and continually manifested itself.

[450]*450According to plaintiff, asphalt was shipped to the plant to dip or spray building materials manufactured by defendant. He further testified that the fumes and dusts were pervasive throughout the plant during the 1940’s, 1950’s and 1960’s. He stated that in the early years the asphalt coated his clothing to the extent that the clothes were stiff and testified that no masks were provided the workers. He also testified that the inside area was smoky from dust due to the process involved in cutting the boards. When he left in 1975, he stated he was getting short of breath, a condition which ultimately worsened.

Defendant called two witnesses, Mr. Ampton LeCompte and Mr. Harvey Killeen, regarding the plant layout and conditions. Mr. LeCompte became the foreman in the asphalt department in the 1970’s. Prior to then, he worked in maintenance for thirteen years.

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Related

James v. Celotex Corp.
465 So. 2d 733 (Supreme Court of Louisiana, 1985)

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461 So. 2d 447, 1984 La. App. LEXIS 10374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-celotex-corp-lactapp-1984.