Opinion
No. CA-1379.
March 14, 1984. Rehearing Denied April 25, 1984. Writ Denied June 8, 1984.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE SANFORD LEVY, J.
Judith A. Defraites, Gertler Gertler, New Orleans, for plaintiff-appellant.
Darryl J. Foster, Lemle, Kelleher, Kohlmeyer Matthews, New Orleans, for defendant-appellee.
Before REDMANN, BARRY and WILLIAMS, JJ.
Plaintiff brought this suit in workers' compensation alleging he had contracted an occupational lung disease while in defendant's employ. The trial court awarded 100 weeks compensation at the minimum rate for loss of a physical function, La.R.S. 23:1221(4)(p). Both plaintiff and defendant appeal.
Plaintiff assigns error in the trial court's failure to award benefits for total and permanent or permanent and partial disability, and in failing to include medical expenses and interest in its judgment. Defendant alleges the trial court erred in awarding plaintiff any compensation at all.
At trial, Willie Scott was 56 years old. He had smoked heavily since he was 15 years of age and had habitually drunk a half-pint of whiskey a day. He suffered from a multitude of medical problems: gastrointestinal difficulties, hiatal hernia, liver problems, chronic pancreatitis, colonic diverticulosis, a benign renal cyst in the kidney, glucose intolerance, arthritis, back pain, high blood pressure, angina pectoris, and bronchitis. Evidence as to whether plaintiff could add asbestosis or other pulmonary occupational diseases to this list, however, was conflicting.
Plaintiff's condition was analyzed by five physicians. Plaintiff consulted Dr. Pettit, who referred plaintiff to Dr. Rosenberg, a specialist. Plaintiff's attorneys referred plaintiff to Dr. Brown and Dr. Brach. Defendant's attorneys referred plaintiff to Dr. Weill.
All of the physicians agreed that the latency period between exposure and appearance of symptoms in asbestosis was, at a minimum, eight to twenty years, and that the more intermittent the exposure, the longer the latency period. Plaintiff was only employed with the defendant from 1974 until 1979. Plaintiff admitted that Ryan-Walsh had phased out its asbestos operations while he was employed there, and that the quantity of asbestos they received dwindled and finally ceased long before he left the company. Plaintiff testified to having handled much more asbestos in his previous position with Maloney Car Loading from 1958 to 1970 than he had with defendant.
All of the physicians agreed that pulmonary fibrosis can be traced to a myriad of causes. Dr. Brach stated that 158 different causes had been established; Dr. Brown agreed that there were over 100. Plaintiff's lung scarring was obstructive. All of the physicians agreed this was consistent with plaintiff's bronchitis or his heavy smoking, and that asbestosis, conversely, was considered to cause restrictive lung scarring.
With the exception of Dr. Brown, all of the physicians felt that asbestosis could not be diagnosed by x-ray (unless possibly there was calcification of the diaphragm, which was not evidenced in plaintiff's xrays). Dr. Pettit and Dr. Rosenberg felt that there was no evidence of pulmonary fibrosis. Dr. Brach felt the x-rays showed mild pulmonary fibrosis, but said it was quite natural that the other doctors read the x-rays as normal due to the mildness of the condition. Only Dr. Brown insisted the x-rays clearly showed asbestosis and that any doctor who read them otherwise was, in his opinion, wrong.
Plaintiff underwent a series of pulmonary function tests at East Jefferson Hospital. Dr. Pettit, Dr. Rosenberg, and Dr. Brach all believed they were normal for a man of the plaintiff's age and smoking history. Dr. Brach said that plaintiff's exercise tests were mildly abnormal. Dr. Brach said the mild abnormalities would be compatible with other diagnoses besides asbestos fibrogenic dust exposure, but that he felt they were due to asbestosis because plaintiff's history did not relate another possible cause to him. Dr. Brach did agree that the exercise test results could be caused by cardiovascular or other problems besides pulmonary disease. Dr. Weill conducted pulmonary function studies at Tulane Medical School and found them all normal. Because his test results were normal, Dr. Weill concluded that any disturbance in exercise tolerance or any exertional shortness of breath would be caused by something other than lung disease.
Not one physician could state that plaintiff had developed asbestosis caused by his exposure to fibrogenic dust at Ryan-Walsh. Dr. Pettit, Dr. Rosenberg, and Dr. Weill felt that plaintiff did not have asbestosis. Dr. Brach traced the "mild changes" in plaintiff's lungs to asbestos exposure only in default of other explanations in plaintiff's history. Only Dr. Brown testified with certainty that plaintiff had contracted asbestosis, and even he could only conclude that plaintiff's exposure at Ryan-Walsh "certainly would have an effect, but it would be an additive to the previous." The only point all the doctors could agree on was that plaintiff's exposure to dust at Ryan-Walsh did aggravate plaintiff's condition and that he should work in a non-dusty atmosphere.
The trial judge's reasons read:
"The Court is of the opinion that the plaintiff suffered injury or, at least, the aggravation of a pre-existing condition due to dust inhalation. Although plaintiff's breathing problems are largely attributable to cigarette smoking, as indicated by the nature of the plaintiff's disease, the Court finds a relationship between the plaintiff's respiratory problems and his exposure to dust inhalation during the course and scope of his employment."
The court granted plaintiff the minimum compensation rate set out in R.S. 23:1221(4)(p), providing for 100 weeks payment in cases not considered permanent or temporary partial or total disability, "where the usefulness of a physical function is seriously permanently impaired . . ."
The trial judge evidently felt that whatever disability plaintiff suffered was caused by the sum of his many medical problems and that plaintiff's asbestos exposure alone had not disabled him, because he did not grant plaintiff either partial or total disability. Rather, the judge found that the "relationship" between plaintiff's asbestos exposure and his lung condition merited the bottom award under Provision (p) affording him the shortest period of payment possible.
The application of this provision was legally correct. The court found that asbestos exposure had not disabled plaintiff, but had seriously permanently impaired his respiratory function. Provision (p) has been previously used to compensate victims of impaired lung function. See Chivoletto v. Johns-Manville P. Corp., 319 So.2d 492 (La.App. 4th Cir.), aff'd. 330 So.2d 295 (La. 1976); Landry v. Nat'l. Gypsum Co., 354 So.2d 739 (La.App. 4th Cir. 1978) (Beer, J., dissent from refusal to grant rehearing); Crump v. Hartford Acc. Indem. Co., 367 So.2d 300 (La. 1979), (Supreme Court reversed and reinstated trial court judgment not because (p) provision was inapplicable to nondisabled asbestosis victim, but because plaintiff was in fact disabled). The 1983 amendment of the provision, narrowing the scope of compensation for loss or impairment of physical function to a restricted category, but specifically including "respiratory system," only strengthens the argument for applicability of the broader pre-1983 physical function clause to lung diseases.
The question in this case lies in whether there exists sufficient causation to justify any award at all for a physical condition largely based on a host of unrelated ailments and asbestos exposure occurring primarily before the years the plaintiff was in the defendant's employ. The plaintiff is already receiving benefits through nonworkers' compensation channels. He took an early retirement with the company and received $330.00 a month in pension. The company's insurer pays 80% of the plaintiff's medical expenses. The plaintiff bore the burden of proving a workers' compensation claim by a preponderance of the evidence. Juneau v. Tulane Industrial Laundry, 358 So.2d 347 (La.App. 4th Cir. 1978). The trial court's resolution of the conflicting evidence as to whether asbestosis was present should be respected, however. Billiot v. Bourg, 338 So.2d 1148 (La. 1976); White v. Johns-Manville Sales Corp., 416 So.2d 327 (La.App. 4th Cir. 1982). We cannot find that the trial judge's resolution of the facts was manifestly erroneous and would, therefore, affirm the trial court's judgment.
Defendant conceded that if the award were confirmed, interest would be owed on each past due installment until paid. Accordingly, we affirm the trial court's award, interest on amounts past due to run from due date until paid.
AFFIRMED.
BARRY, J., dissents with reasons.
Apparently the majority affirms based on Scott's asbestos exposure, yet the opinion says that "not one physician could state that plaintiff developed asbestosis caused by his exposure to fibrogenic dust at Ryan-Walsh." The majority missed the point. Scott did not limit his claim to this substance nor the clinical disease "asbestosis"; rather, it was alleged and clearly proved that he was exposed to a variety of fibrogenic dusts which the trial judge correctly found aggravated his diseased lungs.
Willie Scott, 56 years old with a second grade education, has a 20 year work history of exposure to dust from asbestos, carbon black, building gunite, grain and other fibrous substances. He joined the freight handler's union in 1958 and was employed by Ryan-Walsh from January, 1974 until December 24, 1979 when he retired. During his working life Scott loaded and unloaded box cars containing bags of the above substances, some of which were broken and caused an extremely dusty environment.
Scott smoked one and a half to two packs of cigarettes a day from age 15 until 1979, and was smoking "a little" (four cigarettes a day) in April, 1982. For some reason the majority points out that Scott "had habitually drunk a half-pint of whiskey a day". There is no evidence that whiskey caused or contributed to his lung disease.
In December, 1979 Dr. George Pettit hospitalized Scott for extensive tests which revealed his primary ailments were a chronic lung problem, hypertension, and arthritis. He opined Scott was disabled and unable to do strenuous physical activity.
During Scott's hospitalization Dr. Pettit consulted Dr. Eugene Rosenberg, a pulmonary specialist, who detected an abnormal lung condition which is common in heavy smokers and not generally found in chronic interstitial diseases. He said the x-rays appeared normal but "one could read in a little bit of increase in interstitial markings . . . which could reflect some type of dust inhalation." Dr. Rosenberg felt the obstructive changes were not caused by the work environment and Scott's "mild" impairment was not disabling. Importantly, Dr. Rosenberg said the dust condition where Scott worked "was an aggravating factor."
On July 17, 1981 Dr. Morton Brown, pulmonary specialist, found Scott had interstitial fibrosis of the lung due to fibrogenic dust. Dr. Brown saw Scott regularly up to the trial and said the x-rays revealed increased interstitial markings and the breathing tests showed evidence of moderate obstruction of the small airways which is one of the first signs of interstitial fibrosis. While the literature classically characterizes fibrogenic dust disease as restrictive, Dr. Brown stated he had seen instances in non-smokers where the changes were obstructive. It was his opinion that in some cases (as here) small airway obstruction is characteristic of interstitial fibrosis, but he acknowledged it might be due to prolonged cigarette smoking. He disagreed that Scott's pulmonary function studies ruled out restrictive disease; however, he concurred that the function studies indicated the lung disease was moderately obstructive. Regarding the latency period, Dr. Brown said it was possible the disease was too advanced to have begun since 1974 when he started working for Ryan-Walsh. The doctor noted that it generally takes 10 years for scarring to develop, but it is difficult to pinpoint a term because people react differently. Significantly, he said Scott's years at Ryan-Walsh had an additive effect on his lung disorder.
Dr. Bernard Brach, pulmonary specialist, saw Scott once on September 21, 1982 and he agreed with Dr. Brown. Dr. Brach testified the x-rays revealed pleural thickening which is generally associated with fibrosis. He also stated the x-rays indicated an increase in linear and non-linear markings in the mid to lower lung zones, the area usually affected in occupational diseases. When asked whether the markings are the type expected in a person who smoked for 30 years, he stated "no" because he had seen many patients who smoked that much without the markings. He added: "I have never seen pleural changes associated with smoking." Dr. Brach stated the exercise test clearly showed the reason for Scott's shortness of breath was not his heart (the cardiac response was normal) but his lung problems. He unequivocally stated Scott's problems were from exposure to fibrogenic dust — not from smoking. Dr. Brach agreed with Dr. Brown that while fibrogenic diseases are generally considered restrictive, he had seen asbestosis patients with mild obstruction. Regarding the latency period, he stated while time is generally known for a single agent (asbestos), the effect of a combination of multiple dust exposures is not known. Dr. Brach opined that Scott could handle only light work, but not where he would be exposed to dust.
Dr. Hans Weill, defendant's pulmonary specialist, examined plaintiff on July 26, 1982 and found sounds suggestive of bronchitis, but no pleural thickening or interstitial changes. Dr. Weill opined there was no lung disease, but stated he could not comment on the pleural surfaces or rule out restrictive disease which had no clinical significance. Regarding the latency period, Dr. Weill stated asbestos took 20 years to appear, but he was not asked about the effect of any other agent or a combination of dusts.
While the majority opinion correctly points out occupational diseases are generally restrictive, it overlooks the fact that all the pulmonary experts agreed that an occupational disease could contribute to lung obstruction, i.e., be obstructive. Three of the four specialists noted evidence of at least mild obstructive disease. Only defendant's Dr. Weill found no evidence of lung impairment. Dr. Rosenberg attributed the obstruction to smoking but felt dust exposure contributed to Scott's problems. Dr. Brown and Dr. Brach said Scott's condition was the result of occupational dust exposure.
The trial judge found Scott "suffered injury or, at least, aggravation of a pre-existing condition due to dust inhalation. Although plaintiff's breathing problems are largely attributable to cigarette smoking . . . the Court finds a relationship between the plaintiff's respiratory problems and his exposure to dust inhalation . . . ."
There is certainly sufficient medical evidence to conclude that Scott's lung condition was causally connected to his employment with Ryan-Walsh. Even if the obstruction pre-dates that employment, the record supports the trial judge's finding that the condition was aggravated by his employment and is compensable. Lofton v. Louisiana Pacific Corporation, 410 So.2d 1171 (La.App. 3d Cir.) writ denied 412 So.2d 1094 (La. 1982). Compensation is due "even though the disease or condition might have brought about the disability in any event in its ordinary course . . . ." Allor v. Belden Corporation, 393 So.2d 1233 (La. 1981). It is immaterial that the disability could have been brought on by causes other than work-related exposure if the occupational exposure is in fact a disabling factor.
The trial judge awarded the minimum benefit (100 weeks) based on impairment of a physical function under R.S. 23:1221(4)(p). This provision applies where the impairment is "less than disabling . . . is more than a mere triviality and yet does not rise to the dignity of a disability." Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3d Cir. 1981); Malone and Johnson, La. Civil Law Treatise, Workers' Compensation, Vol. 13, Section 286 at 666 (1980).
None of the doctors said Scott was totally disabled. However, the evidence does establish that he could not perform strenuous physical labor and will never be able to work in an environment of fibrous dusts.
Dr. Brown testified Scott's disease would be progressive even outside of a dusty environment and his prognosis guarded since the lungs were damaged. Dr. Brach and Dr. Pettit said Scott could not do moderate or heavy labor — only light clerical type work. There is no evidence that he is so disabled as to make him a marginal employee to be classified as an "odd lot." Unquestionably, he is capable of holding some "gainful occupation."
Under LSA-R.S. 23:1221(3) as amended, an employee who is unable "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ..." is classified as partially disabled.
A preponderance of the medical evidence shows that Scott cannot resume manual labor, or return to work where he would be exposed to fibrous dust, and his condition will deteriorate. His impairment is obviously permanent and he is partially disabled under LSA-R.S. 23:1221(3).
Dr. Brown diagnosed Scott's condition on July 17, 1981 and legal interest should be paid on each benefit payment from that date. Shatoska v. International Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir. 1983). Scott is entitled to the stipulated medicals: West Jefferson Hospital — $2,222.02; Dr. Brown — $619.00; Avenue C Clinic — $179.00; and East Jefferson Hospital — $290.00.
I therefore respectfully dissent.