Venable v. Rawlings, Inc.

471 So. 2d 1132, 1985 La. App. LEXIS 8996
CourtLouisiana Court of Appeal
DecidedJune 26, 1985
Docket84-541
StatusPublished
Cited by7 cases

This text of 471 So. 2d 1132 (Venable v. Rawlings, Inc.) 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
Venable v. Rawlings, Inc., 471 So. 2d 1132, 1985 La. App. LEXIS 8996 (La. Ct. App. 1985).

Opinion

471 So.2d 1132 (1985)

Elmo VENABLE, Plaintiff-Appellant,
v.
RAWLINGS, INCORPORATED, Defendant-Appellee.

No. 84-541.

Court of Appeal of Louisiana, Third Circuit.

June 26, 1985.

Domengeaux and Wright, Anthony Moroux and Robert Tracy, Lafayette, for plaintiff-appellant.

Allen, Gooch and Bourgeois, Joel E. Gooch, Lafayette, for defendant-appellee.

Before GUIDRY, KNOLL and KING, JJ.

GUIDRY, Judge.

This is a suit for worker's compensation benefits, statutory penalties and attorney's fees. Plaintiff asserts that he is totally and permanently disabled by an occupational disease (chronic bronchitis and asthma).

Plaintiff brought suit against his employer, Orkin Exterminating Company, Inc. (Orkin),[1] on May 25, 1983, alleging that he was suffering from an acute asthmatic condition related to an infection derived from toxocara canis parasite. He further alleged that his exposure to this parasite resulted from his employment with Orkin. Plaintiff claimed that his condition was exacerbated by inhaling any type of noxious *1133 fumes, smoke or dust and that he was totally and permanently disabled.

Orkin answered the suit, denying that plaintiff was suffering from a disabling condition related to his employment. Orkin also filed a peremptory exception of prescription and/or peremption pursuant to La.R.S. 23:1209. The exception was referred to the merits.

This matter was tried on March 6, 1984. In his oral reasons for judgment, the trial judge denied Orkin's exception of prescription and/or peremption. By judgment dated March 27, 1984, the trial court found in favor of defendant, dismissing plaintiff's suit at his cost. Plaintiff appeals.

On appeal, plaintiff assigns the following specifications of error:

1. The trial court erred in ruling that plaintiff was not entitled to compensation benefits either under a theory of occupational disease or aggravating accident; and,
2. The trial court erred in refusing to grant statutory penalties and attorney's fees in light of defendant's unsupported denial of compensation benefits.

In his written reasons for judgment, the trial judge very thoroughly and succinctly set forth the facts of this case and the testimony adduced at trial. We take the liberty of quoting from the trial court's written reasons.

"The uncontradicted facts are that plaintiff, now forty-five (45) years of age, with only a sixth (6th) grade education, was employed by defendant in 1962 as a termite technician. He worked for defendant in that capacity for twenty-one (21) years until he terminated his employment on March 23, 1983. His job required that he mix chemicals which he would apply to slabs and pillars of houses by use of a hose connected to a compressor. A majority of the time, he was required to crawl beneath houses to apply chemicals to the pillars and was exposed to the ground and any substances thereon. He generally worked from 7:00 a.m. to 4:00 p.m. five (5) days per week. During his period of employment, he did not miss work frequently and then only when he was ill. He was considered by defendant to be an outstanding employee.
Plaintiff admitted that he had a cough and shortness of breath at least seven (7) years prior to his termination of employment but he contended that it was never so severe that he could not perform his job with defendant. He attributed the cause of his problem to parasites which he ingested while crawling beneath homes as well as his exposure to the chemicals which he used in his job. For many years he used Primetine Mist when he would develop a cough or shortness of breath. However, plaintiff never mentioned or complained to his employer or to his co-workers that inhaling chemicals or dust exacerbated his condition.
Mrs. Elmo Venable, wife of plaintiff, testified that her husband cannot do any physical activities because of his asthmatic condition due to his shortness of breath, coughing spells and inability to walk any appreciable distance. She further stated that when he returned from work on March 23, 1983, his condition was very bad and much different than his condition was at prior times.
In January of 1983, plaintiff was hospitalized for a routine hermorrhoidectomy after which the treating physician, reviewing plaintiff's chest x-rays, noticed spots on his lungs. He was referred to Dr. Phillip Perret, a physician specializing in lung diseases. At trial, plaintiff testified that on March 9, 1983, he returned to work at his usual job, and while in the course and scope of his employment with defendant while crawling beneath a home, he was exposed to chemical spray, which resulted in heavy wheezing and an asthmatic attack causing heavy bronchial difficulties. He returned to see Dr. Perret who treated him for approximately ten (10) days. Plaintiff also testified that he returned to work on March 23, 1983, and while performing his usual job beneath a house he started coughing as a result of the dust *1134 and chemical spray which he was subjected to. He stopped work and returned to Dr. Perret, who hospitalized him.
Dr. Perret performed lung function studies and in his opinion they showed a continuing deterioration of plaintiff's lung condition with severe spasms and obstruction. Plaintiff has continued under the care of Dr. Perret and was examined by him in June, July, and October, 1983, but his condition has not improved.
Plaintiff admitted that he started smoking cigarettes when he was eighteen (18) years old and has continued to smoke even to the date of this trial although he contends that he no longer smokes cigarettes, but does smoke an occasional cigar. This testimony is refuted by the history that he gave to the various doctors who examined him as well as the results of certain tests that were performed by Dr. William Brooks Emory, a lung specialist, during his examination of plaintiff on September 19, 1983. I therefore find that plaintiff smoked cigarettes on the average of one and a half (1½) packs per day together with an occasional cigar since he was eighteen (18) years of age, although I believe that after his asthmatic attack on March 23, 1983, he did reduce the number of cigarettes and/or cigars that he was smoking but, nevertheless has continued to smoke in spite of instructions to the contrary, given him by the doctors that have treated and/or examined him. Further, plaintiff for a long period of time has experienced coughing spells and shortness of breath, sometimes while performing his job with defendant and at other times when he is not exposed to chemical spray or dirt and dust beneath houses.
After reviewing the medical depositions and considering the lay testimony at the trial, it is clear that plaintiff has an asthmatic condition. The cause of his condition is not known. It may be hereditary or it may have been caused by his continuous exposure to chemicals, dust, or to smoking cigarettes and cigars. Dr. John Fruge, the family physician of plaintiff, has treated plaintiff two (2) or three (3) times for a rash but he had no way of knowing whether it was caused by a parasitic condition which he may (sic) contracted while working beneath houses. He also testified that he was never consulted by plaintiff for treatment of bronchitis or asthma.
Dr.

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Bluebook (online)
471 So. 2d 1132, 1985 La. App. LEXIS 8996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/venable-v-rawlings-inc-lactapp-1985.