White v. Johns-Manville Sales Corp.

416 So. 2d 327
CourtLouisiana Court of Appeal
DecidedJune 8, 1982
Docket5-242
StatusPublished
Cited by17 cases

This text of 416 So. 2d 327 (White 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
White v. Johns-Manville Sales Corp., 416 So. 2d 327 (La. Ct. App. 1982).

Opinion

416 So.2d 327 (1982)

Rayfield WHITE, Sr.
v.
JOHNS-MANVILLE SALES CORPORATION, a/k/a Johns-Manville Products Corporation.

No. 5-242.

Court of Appeal of Louisiana, Fifth Circuit.

June 8, 1982.
Rehearing Denied July 13, 1982.

*328 Gertler & Gertler, David Gertler, New Orleans, for plaintiff-appellee.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, New Orleans, for defendant-appellant.

Before BOUTALL, DUFRESNE and GRISBAUM, JJ.

GRISBAUM, Judge.

This is a workers' compensation suit in which plaintiff, Rayfield White, Sr., was awarded benefits for permanent total disability pursuant to La.R.S. 23:1221(2) in the amount of One Hundred Forty-Eight and no/100 dollars ($148.00) per week commencing June 30, 1980, with legal interest thereon from date due until paid. Past due medical expenses in the amount of One Thousand Eight Hundred Thirty-Three and 10/100 dollars ($1,833.10) and future medical expenses were also awarded by the trial court. From this judgment, defendant, Johns-Manville Sales Corporation, appeals claiming the trial court erred in (1) awarding any benefits to plaintiff because he did not suffer a compensable occupational disease under Louisiana Workmen's Compensation Act, La.R.S. 23:1031.1; in (2) finding plaintiff is in the "odd-lot" category and denying defendant an opportunity to prove that substantial employment opportunities exist for plaintiff; and finally in (3) determining the date of compensation from the date the disability was discovered, June 30, 1980, rather than from the date of last injurious exposure which would be 15 to 20 years prior to the date in which the alleged disease manifested itself.

We affirm the trial court's judgment.

The record reflects that Rayfield White, Sr. at the time of trial was a 53 year old man with a fifth grade education who had worked for Johns-Manville Sales Corporation (hereinafter known as Johns-Manville) in Marrero, Louisiana for approximately 33 years (from June 1948 until June 1980). During those years he worked in various departments of Johns-Manville including the transite pipe plant where he was exposed to asbestos fibers and silica, the asbestos shingle plant where he was exposed to asbestos fibers, and the roofing plant where he was exposed to silica. During his years of employment he used respirator masks intermittently. After experiencing shortness of breath in May 1980, Mr. White was examined by Dr. Morton Brown who performed chest X-rays. According to Dr. Brown, Mr. White's X-rays indicated evidence of emphysema, interstitial reaction, and pleural plaques along the chest walls. In June 1980, Mr. White was hospitalized for five days to undergo further testing by Dr. Brown. Dr. Brown diagnosed Mr. White's condition as interstitial fibrosis (commonly known as asbestosis when asbestos is the substance causing the fibrosis) and found that Mr. White also had pleural plaques along the chest walls. Dr. Brown recommended that Mr. White not return to work. Mr. White stopped working in July 1980. In August 1980, Mr. White was hospitalized after complaining of chest pains. Dr. Charles Steiner, a cardiologist, diagnosed Mr. White's condition as primary cardiomyopathy, a disorder of the heart muscle wherein the heart muscle is dilated. After treatment of this condition, Dr. Steiner set no limitations on Mr. White's activities.

At the request of Johns-Manville, Mr. White was examined by Dr. Hans Weill in November 1980. Dr. Weill found that Mr. White had pleural plaques along the lateral chest wall and diaphragmatic plaques. These plaques were both calcified and uncalcified. Dr. Weill attributed these plaques to asbestos exposure. However, Dr. Weill did not find evidence of interstitial fibrosis (asbestosis).

Meanwhile Mr. White had made demand for workmen's compensation payments from Johns-Manville in August 1980. When this demand was refused by Johns-Manville, he filed suit on September 11, 1980.

*329 The central issue is whether Rayfield White is unable "to engage in any gainful occupation for wages" within the meaning of La.R.S. 23:1221(2) (Supp.1975) and therefore should be awarded compensation for permanent total disability. In order to answer this question this court must decide:

(1) Whether Rayfield White has interstitial fibrosis (asbestosis);
(2) If White does have interstitial fibrosis, whether plaintiff has made a prima facie case that he should be included in the "odd-lot" category;
(3) If plaintiff has made out a prima facie case that he fits within the "odd-lot" category, may this case be remanded in order that defendant, Johns-Manville, may present evidence that work is available to plaintiff; and finally,
(4) What is the appropriate time for determination of the rate of compensation for recovery benefits under the Louisiana Workmen's Compensation occupational disease statute, La.R.S. 23:1031.1.

After listening to the testimonies of both plaintiff's and defendant's experts, reading depositions of defendant's experts, and reviewing hospital and Johns-Manville's medical records of Mr. White which were introduced into evidence, the trial judge answered the first issue by concluding that Rayfield White was suffering from asbestosis, an occupational related disease whereby the inner lining of the lungs scars due to exposure to asbestos dust. In addressing the first issue of whether plaintiff suffers from the occupational disease of asbestosis, we are guided by Canter v. Koehring Co., 283 So.2d 716 (La.1973) which sets forth the standard by which this court must review the trial judge's factual finding that Mr. White suffers from asbestosis. The court in Canter, 283 So.2d 716, 724 stated:

"When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error."

According to Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978), "manifestly erroneous" means "clearly wrong." After review of the entire record, we do not find the trial judge's conclusion that Rayfield White is suffering from asbestosis as clearly wrong. It is true that there is conflicting testimony in which the trial court chose to believe one expert's opinion over another expert's opinion as to Mr. White's lung condition. Dr. Morton Brown, an expert in pulmonary diseases, testified that Mr. White's X-rays revealed clear evidence of interstitial fibrosis. Based on the existence of the fibrosis, the pleural plaques, and Mr. White's history of exposure to asbestos, Dr. Brown made a diagnosis of asbestosis. Moreover, Dr. Brown's testimony is not the only evidence upon which the trial court could have based its finding that Mr. White had contracted asbestosis. Plaintiff introduced into evidence a report from a radiologist from West Jefferson Hospital which stated:

"There are chronic lung changes noted with calcification of the left diaphragm. The possibility of pneumoconiosis should be considered." (Plaintiff's Exhibit # 10)

Also important are the notations of Johns-Manville's own company physician. (Defendant's Exhibit # 1) The employees of Johns-Manville were annually sent for physical examination which included chest X-rays read by Johns-Manville's physicians. In 1962, Mr. White was X-rayed at Johns-Manville; the notation "slight reticulation suggestive of early asbestosis" was written on Mr. White's medical report.

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416 So. 2d 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-johns-manville-sales-corp-lactapp-1982.