author: LEMMON, Justice.

text:
    Honorable Richard A. MEDLEN, Marshal, City Court of Plaquemine, La., et al. v. The STATE of Louisiana, et al.
    No. 81-CA-2437.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, Milton Osborne, Jr., City Prosecutor, for plaintiffs-appellees.
    Jack T. Marionneaux, Asst. Dist. Atty., James P. Dore, Borron, Delahaye, Dupont, Edward & Dore, Plaquemine, Carmack M. Blackmon, Mary Catherine Cali, Asst. At-tys. Gen., Prentice L. G. Smith, Jr., Smith & Smith, Baker, for defendants-appellants.
   LEMMON, Justice.

This is an appeal by the State of Louisiana and other defendants from a judgment declaring unconstitutional R.S. 13:2488.61 B, as enacted by Act 456 of 1972, and R.S. 13:2488.61 et seq., as enacted by Act 498 of 1980. The judgment in favor of the Marshal of the City Court of Plaquemine also declared that the City Court of Plaquemine had lawful existence under R.S. 13:1872 and 1951 and that the court’s territorial jurisdiction consisted of all of Wards 2, 3, 6 and 8 of Iberville Parish.

Facts

The following facts were outlined by the trial judge and accepted by appellants:

“The Town of Plaquemine was created by Act 109 of 1878. Section 6 of this Act created a Mayor’s Court and granted the Mayor the power of a committing magistrate in all cases arising under town ordinance, granted him the power to try cases involving violation of town ordinances, and gave him civil jurisdiction to the same extent as a Justice of the Peace. All fines imposed by the Mayor were to be paid into the town treasury at least once a month. Section 7 of this Act created the appointed position of Town Marshal. Section 9 of the Act gave the Town Marshal authority to attend on the Mayor’s Court, the powers of a peace officer to execute warrants, writs, summons, and other orders of Court, and the power to make arrests for violations of state laws or local ordinances to the same extent as a Sheriff.

“By Act No. 32 of 1960, which was amended by Act No. 130 of 1964, (R.S. 13:1872[A]), the legislature of Louisiana created a general procedure for the creation of City Courts, and it was no longer necessary that a specific act be passed, so long as the guidelines set forth in Act No. 32 were followed. In 1964, by Act No. 201, the legislature amended the legislative charter of the Town of Plaquemine (Act 109 of 1878) to change its name to the City of Plaquemine. However, Section 2 of Act 201 contained the following language:

“ ‘Notwithstanding the provisions of any laws of the state to the contrary, it shall not be mandatory upon said city to create the office of city judge, it being specifically herein provided that the city of Plaquemine shall have an option to create said office of city judge at such time as the mayor and board of selectmen of said city shall deem the creation thereof necessary and to the best interest of the city of Plaquemine.’

“Although the legislature had established general provisions governing the creation of City Courts, and although the City of Plaquemine had a population exceeding 5,000 persons and was the parish seat of Iberville Parish, in 1972 specific legislation was passed to create a City Court of Plaquemine. Act 455 of 1972 had the purpose of amending the legislative charter of the City of Plaquemine (Act 109 of 1878) by removing provisions pertaining to the May- or’s Court. Act 455 amended Section 6 of Act 109 of 1878 by deleting the last two sentences of the Section, which in effect withdrew the power of the Mayor to act as a Mayor’s Court. Section 8 of Act 109 of 1878 was amended to provide that the Marshal shall attend the City Court of Plaque-mine rather than the Mayor’s Court, and. Section 10 was amended to remove from the Secretary of the Board of Selectmen the power to certify copies of proceedings before the Mayor’s Court. Unfortunately, Section 6 of Act 109 of 1878, as contained in Act 455, also provided that ‘The Mayor and Selectmen of said city shall hold their offices for one year, as herein provided, or until their successors are duly qualified .... ’ (Emphasis added.) The purpose of Act 456 of 1972 was to abolish the Mayor’s Court in the City of Plaquemine and create in its place a City Court presided over by a Judge. (R.S. 13:2488.61-13:2488.63, the original numbers contained in Act 456 of 1972 were re-designated pursuant to R.S. 24:253). Section B of R.S. 13:2488.61 provides that ‘The City Court of Plaquemine is created and shall have territorial jurisdiction throughout the City of Plaquemine. ’ [Emphasis supplied.] Section E of R.S. 13:2488.61 provides that the first Judge and Marshal of the City Court of Plaquemine shall be elected at the congressional elections in 1972 provided that the qualifying period for the election shall not be closed until 5:00 o’clock p. m. on September 1, 1972. Section D of R.S. 13:2488.62 provides that the Clerk of the City Court or the Marshal, as designated by the Judge, shall collect all fines, forfeitures, penalties, and costs, and all funds so collected, excluding costs, shall be paid into the city treasury. Pursuant to the authority of R.S. 13:2488.63 and R.S. 13:1885 the Clerk of the City Court has authority to certify all documents of the City Court. Both Acts 455 and 456 were certified as emergency legislation by the Governor and went into effect on July 12, 1972.

“Shortly after Acts 455 and 456 went into effect, it was discovered that through error the terms of office of the Mayor and Selectmen of the City of Plaquemine were reduced from four years to one year. On July 27, 1972, the Mayor and Board of Selectmen of the City of Plaquemine, pursuant to the authority of R.S. 33:1181, adopted Ordinance No. 847, which had the purpose of amending the City’s legislative charter to return the terms of the Mayor and Board of Selectmen to four years and re-instating the Mayor’s Court. This ordinance sought to re-enact Sections 6,8,9 and 10 of Act 109 of 1878 as they existed prior to Act 455 of 1972. This Ordinance stated that in the general election held on June 13, 1972, the Mayor and Board of Selectmen of the City of Plaquemine were elected for terms of four years under Act No. 109 of 1878, that Act 455 of 1972 reduced that term of the Mayor and Board of Selectmen to one year and abolished the Mayor’s Court, and that ‘it would be greatly unjust, unethical, and immoral to deprive the Mayor and five Board of Selectmen of their four years terms which they rightfully won in an election.’ Pursuant to R.S. 13:1181 the ordinance was published, approved by the Attorney General on October 2, 1972, and approved by the Governor on October 9, 1972. R.S. 33:1181 provides that when the procedure contained therein is followed such an amendment to a legislative charter ‘shall have the force and effect of law.’ No elections were held for City Judge and City Marshal for the City Court of Plaquemine in 1972, and the Mayor and Board of Selectmen of the City of Plaquemine continued to serve the four year terms to which they were elected in June of 1972. The Mayor continued to operate his Mayor’s Court.

“By opinion dated June 15, 1973, the Attorney General advised the Governor that there were more than five thousand people in the City of Plaquemine and that the mandatory provisions of R.S. 13:1872 required that a City Judge be elected. By a second opinion dated June 28, 1973, the Attorney General advised the Governor that all of the people living in the various wards which were in whole or in part in the city limits of the City of Plaquemine should be allowed to vote for the City Judge and Marshal of the City Court and that the City Court would have territorial jurisdiction over the unincorporated areas of the wards as well as within the city limits, citing as authority R.S. 13:1872 and R.S. 13:1951. The City of Plaquemine contains portions of Wards 2, 3, 6 and 8 of Iberville Parish, which wards are also known as election districts B, C, E, and F, respectively. On October 3,1973, the Governor issued a proclamation calling for a general election of City Judge and City Marshal for the City Court of Plaquemine to be held on December 18, 1973. The primary election was held on November 10,1973, in Wards 2, 3, 6, and 8 of Iberville Parish, which includes the unincorporated area outside of the City limits of Plaquemine as well as the city. Joseph B. Dupont, Sr. and Richard A. Medien were elected Judge and Marshal respectively. Joseph B. Dupont, Sr. was and is residing in the unincorporated area of Ward 8 (election district F). Richard A. Medien was and is residing in the unincorporated area of Ward 6 (election district E). The Judge and Marshal thereafter were duly commissioned to their respective offices by the Governor, took their oaths of office, and have served as Judge and Marshal of the City Court of Plaquemine until the present date. During all of this time, the City Court of Plaquemine has in fact exercised territorial jurisdiction over the unincorporated areas of Wards 2, 8, 6 and 8 of Iber-ville Parish as well as the territory within the city limits of Plaquemine. Judge Du-pont was not opposed for re-election in 1978. On September 16, 1978, Richard A. Medien was re-elected to the position of City Marshal. Their elections were duly certified by the Secretary of State on December 7, 1978, and thereafter, they were duly commissioned to their respective offices for six (6) years terms by the Governor and took their oaths of office as required by law.

“On January 15,1980, the City of Plaque-mine filed suits for writs of quo warranto directed against the Judge and Marshal of the City Court of Plaquemine requesting that they show by what authority they held their respective offices, claiming that the territorial jurisdiction of the Court was the city limits of Plaquemine and that, since the Judge and Marshal lived in the unincorporated area of the wards, they were not residing in the jurisdiction of the Court and could not hold office. Hearings were held on these applications on January 28, 1980. On February 28, 1980, this Court sustained exceptions of no right and no cause of action filed by the Judge and Marshal and dismissed the petitions of the City of Plaquemine. By supplemental judgment of this Court dated April 8, 1980, pursuant to the authority of Small v. Guste, 383 So.2d 1011, this Court also sustained the exception of the Judge to the jurisdiction of the Court. The City of Plaquemine appealed these rulings. The Court of Appeal for the First Circuit affirmed the ruling on the exception of lack of jurisdiction and dismissed the appeal with reference to Judge Dupont. City of Plaquemine v. Dupont, 388 So.2d 127 ([La.App.] 1st Cir. 1980). The Court of Appeal also affirmed the sustaining of the exceptions of no right and no cause of action filed by Marshal Medien. City of Plaquemine v. Medien, 393 So.2d 301 ([La.App.] 1st Cir. 1980).

“During the regular session of the 1980 legislature, Act 498 was adopted. This Act was signed by the Governor on July 22, 1980, and became effective September 12, 1980. Art. 3, Section 10, La.Const. of 1974. The purpose of this Act was to amend and re-enact R.S. 13:2488.61-13:2488.63 (Act 456 of 1972). The effect of this Act was to re-state that the territorial jurisdiction of the City Court of Plaquemine shall not extend beyond the city limits of Plaquemine; to reduce the staff of the Court to a Judge, a Marshal, and a Clerk, and no other personnel; to reduce the compensation of the Judge; to reduce the compensation of the Marshal; to reduce the compensation of the Clerk; to require that all fines, forfeitures, penalties, and civil and criminal costs be deposited monthly into the city treasury; and to limit the appropriations of the City of Plaquemine for the operational expenses of the City Court to the amount of funds deposited. By letter dated January 14, 1981, the Board of Review of the Municipal Police Officers Supplemental Pay of the Louisiana Department of Public Safety advised the City of Plaquemine that the request for supplemental pay of LeRoy Thomas, Jr., a Deputy City Marshal, was denied because the City Court of Plaquemine was not entitled to a Deputy City Marshal pursuant to Act 498 of 1980. (See Exhibit P-7.) By letter dated February 23, 1981, the Department of Labor of the State of Louisiana advised the Iberville Parish Police Jury that Comprehensive Employment and Training Act (CETA) employees could not be placed with the City Court of Plaquemine because of the provisions of Act 498 of 1980. This letter also advised that if no other work sites were available, that these participants may be placed on leave without pay until such time as a work site is available. (See Exhibit P-8.j”

The Marshal then filed this action for declaratory judgment, seeking to declare Act 498. of 1980 unconstitutional. Other parties intervened, and other issue were raised, and the trial judge commendably undertook to resolve all issues in one action.

Creation and Existence of the City Court

The lawful existence of the City Court of Plaquemine and the validity of the elections of the Judge and Marshal of that court were called into question by the strange series of events related above. The trial court correctly decided that the City Court was validly created by Act 456 of 1972.

La.Const.Art. 7, § 51 A (1921) vested the Legislature with the power to create city courts. In Act 32 of 1960 (R.S. 13:1871 et seq.), the Legislature established uniform general provisions for the creation of city courts, and in Act 201 of 1964 the Legislature gave the City of Plaquemine the option to create the office of City Judge when the Mayor and Board of Selectmen deemed the creation necessary. Then in Act 456 of 1972 (R.S. 13:2488.61—13:2488.63), the Legislature established the City Court of Plaquemine by a specific legislative act.

R.S. 13:2488.63, enacted by Act 456 of 1972, provided that the general city court provisions of law contained in R.S. 13:1871 et seq. were applicable to the City Court of Plaquemine, except as otherwise specifically provided for therein. However, 15 days after the effective date of Act 456 of 1972, the Mayor and Board of Selectmen adopted Ordinance No. 847, which purported to amend and reenact the City’s legislative charter so as to return the terms of office of the Mayor and Board of Selectmen to four years and to reinstate the Mayor’s Court.

We are first faced with the conflict between the legislative creation of the City Court of Plaquemine by Act 456 of 1972 and the earlier grant by Act 201 of 1964 to the City of Plaquemine of the power to create the office of City Judge. Even if the Legislature could validly vest this power in a municipality, this authority was revoked when the Legislature created the City Court of Plaquemine by Act 456 of 1972. The trial court correctly decided that the City Court of Plaquemine was validly created by Act 456 of 1972.

We next address the effort by the City of Plaquemine in Ordinance No. 847 to reinstate the Mayor’s Court. R.S. 33:1181 authorized that portion of Ordinance No. 847 which made changes in the terms of office of the city officials. As to the portion reinstating the Mayor’s Court, however, a mayor’s court cannot be created by municipal ordinance, because the Constitution vested the power to create courts in the Legislature. Gautreaux v. City of Baker, 270 So.2d 221 (La.App. 1st Cir. 1972), cert. denied, 272 So.2d 377. The trial court correctly held that Ordinance No. 847 had no effect on the valid existence of the City Court of Plaquemine.

The next question is the validity of the election of the judge and marshal, after no election was held at the 1972 Congressional elections as required by Act 456 of 1972.

There was no objection made to the failure to call the election in 1972, as required by Act 456 of 1972, or to the proclamation and the election held in 1973 under the general election law. The present judge and marshal were elected in 1973, were reelected in 1978, and are presently serving their terms of office. At this point in time, it is far too late to challenge the failure to call the election in 1972 or the validity of the election held in 1973.

Territorial Jurisdiction of the City Court

Perhaps the most difficult issue in the ease is the territorial jurisdiction of the City Court of Plaquemine.

The City of Plaquemine (now and in 1972) lies within portions of Wards 2, 3, 6 and 8 of Iberville Parish. Act 456 of 1972, which created the City Court of Plaquemine and fixed the territorial jurisdiction as the area within the city limits, was enacted pursuant to La.Const.Art. 7, § 51 A, quoted in footnote 1.

Defendants contend that if the court was validly created pursuant to Act 456 of 1972 (R.S. 13:2488.61), then the territorial jurisdiction must be “throughout the City of Plaquemine”, as provided in R.S. 13:2488.61 B. On the other hand, plaintiffs contend (and the trial court held) that La.Const.Art. 7, § 51 A (1921) fixed the territorial jurisdiction of city courts created by the Legislature pursuant to that constitutional authority and that a legislative act could not authorize the creation of city courts of less than ward-wide jurisdiction.

Over the years, the several Constitutions have provided that judicial power is vested in a supreme court and in various inferior courts. The 1845 Constitution and subsequent ones (until 1921) have provided for justices of the peace as part of the Judiciary Department and defined their subject matter jurisdiction. The 1852 and 1864 Constitutions authorized the Legislature to establish other inferior courts, but that provision was not repeated in the 1879 Constitution, which vested judicial power “in a Supreme Court, in courts of appeal, in district courts and in justices of the peace”. See La.Const.Art. 61 (1852); La.Const.Art. 69 (1864); and La.Const.Art. 80 (1879).

The 1898 and 1913 Constitutions, after declaring that the judicial power is vested in “a Supreme Court, in Courts of Appeal, in District Courts, in justices of the peace, and in such other courts as are herein provided for”, authorized the Legislature to abolish justice of the peace courts in wards containing cities of more than 5,000 inhabitants and to create courts of limited jurisdiction in their stead. La.Const.Art. 84 and 96 (1898) and La.Const.Art. 84 and 96 (1913).

The 1921 Constitution vested the judicial power “in a Supreme Court, in Courts of Appeal, in District Courts, and in such other courts as are hereinafter provided”, eliminating the reference to justices of the peace. La.Const.Art. 7, § 1 (1921). (The jurisdiction of the justices of the peace was stated in Section 48.) The 1921 Constitution also authorized the Legislature to abolish justice of the peace courts and to establish courts of limited jurisdiction in their stead “in wards embracing the parish seat, or containing cities of more than five thousand inhabitants”, thus adding the authority for wards which embrace the parish seat. La.Const.Art. 7, § 51 A (1921).

When the Town of Plaquemine was created in 1878, the 1868 Constitution, then in effect, provided in part:

“No judicial powers, except as committing-magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities;” La.Const.Art. 94 (1868).

This provision has been held to be sufficient authority for creation of a mayor’s court. Berry v. Bass, 157 La. 81, 102 So. 76 (1924).

Thus, when the City Court of Plaquemine was created in 1972, a Mayor’s Court and justices of the peace were validly exercising limited civil and criminal jurisdiction in Wards 2, 3„ 6 and 8 of Iberville Parish. At the time the Legislature was authorized to change mayors’ courts and justices of the peace by legislative act. La.Const.Art. 7, §§ 46, 48 and 51 (1921); see L. Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, footnote 76 (1977). Act 456 of 1972 abolished the Mayor’s Court in the four wards which embraced the parish seat and created the City Court in its stead, pursuant to La.Const. Art. 7, § 51 A (1921). The Mayor’s Court had exercised civil jurisdiction to the same extent as a justice of the peace, and the territorial jurisdiction of the Mayor’s Court had been throughout the City of Plaque-mine. Significantly, Act 456 did not abolish the offices of justice of the peace and constable of Wards 2, 3, 6 and 8, but expressly left those offices in existence.

The Legislature may do everything which the Constitution does not prohibit. Joint Legislative Committee of Legislature v. Strain, 263 La. 488, 268 So.2d 629 (1972). While the Legislature could have abolished the Mayor’s Court and the justice of the peace courts and created a court of limited jurisdiction with a territorial jurisdiction encompassing the entire four wards, the Legislature chose to abolish only the May- or’s Court and to create a City Court with a territorial jurisdiction only throughout the City of Plaquemine, which encompassed only portions of the four wards.

The Constitution did not expressly fix the territorial jurisdiction of courts of limited jurisdiction created pursuant to Section 51 A of Article 7. Nothing in the Constitution required the Legislature to exercise the full extent of its power, and nothing prohibited the Legislature from abolishing only the Mayor’s Court and leaving the offices of justices of the peace in existence in the four wards. Thus, there is no conflict between Act 456 of 1972 and La.Const.Art. 7, § 51 (1921).

While R.S. 13:1872 does require the abolishing of the office of justice of the peace in the ward or wards containing the city upon the election of a city judge to a court created pursuant to that statute, the City Court of Plaquemine was created pursuant to special legislation and not to R.S. 13:1872. Moreover, Act 456 of 1972 was special legislation which in the event of conflict prevails over R.S. 13:1872, which is earlier and general legislation.

We conclude that Act 456 of 1972 validly fixed the territorial jurisdiction of the City Court of Plaquemine throughout the City of Plaquemine.

Constitutionality of Act 498 of 1980

Although Act 456 of 1972 fixed the territorial jurisdiction of the City Court of Plaquemine as the city boundary, the judge and marshal were elected by voters throughout the four wards. Since that time, the City Court has exercised jurisdiction over all of the unincorporated areas of Wards 2, 3, 6 and 8.

Act 498 of 1980 purported to restrict the territorial jurisdiction of the City Court to the city limits, to limit the number of court personnel to a judge, a marshal, and a clerk, and to reduce the salaries of the present judge, marshal and clerk.

We have decided not to pass upon the arguments that Act 498 is unconstitutional for failure to publish notice of a local or special law and other possibly meritorious technical contentions. Counsel for plaintiffs points out that Act 627 of 1981 practically reenacted Act 498 of 1980. In the interest of judicial economy and efficiency, we will address the substantive issues in the instant proceeding, rather than require the trial judge to readjudicate the issues in an already filed new proceeding and the parties to bring the same issues up on another appeal.

As to the compensation of the judge and marshal, Act 498 of 1980 reduced the salaries of the judge and marshal. The Act also required that all costs collected by the court be paid monthly into the city treasury, although costs and fees received from civil litigation form part of the judge’s and marshal’s compensation. R.S. 13:1874(A) and 1883(D).

Compensation of a judge (and of an elected public official) cannot be decreased during the terms for which he is elected. La. Const.Art. V, § 21 and Art. X, § 27 (1974). Act 498 is therefore unconstitutional insofar as the Act decreased the compensation of the judge and marshal during their terms.

While conceding the correctness of the trial court’s judgment in this regard, the State argues that we should afford Act 498 prospective application and rule that the Act is effective at the end of the present terms.

When Act 498 was enacted, the effective date of Act 498 was to be September 12, 1980. Since we cannot say that the Legislature would have voted in the same way on the bill if the effective date had been different, we decline to declare that the Act can be given prospective validity effective at the end of the present terms.

The other major attack on the validity of Act 498 involves the limitation of court personnel. The court personnel prior to Act 498 included a judge, a marshal, three deputy marshals, a clerk, a deputy clerk and a court reporter. Act 498 reduced the personnel to a judge, a marshal and a clerk, and the Act further prohibited the court’s having any other personnel. The Act also reduced the salaries of the personnel.

The trial court held Act 498 of 1980 violated the constitutional concept of separation of powers by reducing the number of personnel and the salaries to a level below that necessary for the operation of such courts. As a basis for the holding the court observed that one branch of government cannot constitutionally exercise its power so as to arbitrarily preclude another branch from performing its constitutional function.

Apparently in response to the trial court’s decision, the Legislature enacted Act 627 of 1981, which amended the statute to provide for one additional employee and to delete the prohibition against employing any other personnel. The amendment essentially conforms with the findings of the trial court by allowing for the employment of a deputy clerk and by deleting the prohibition of employment of other personnel, thus allowing for employment of a court reporter when necessary pursuant to R.S. 13:1892. Because the 1981 amendment made substantial changes in those portions of Act 498 of 1980 which were attacked in this suit on the ground of violation of separation of powers, it is unnecessary to pass on the trial court’s judgment relating to that phase of the constitutional attack.

Other Issues

The trial court, in extensive and exceptionally comprehensive reasons for judgment, decided many other issues raised in the proceedings. Although some of these other issues are discussed in the briefs of some parties, the brief of the only appellants does not raise these issues as assignments of error and does not argue the incorrectness of the judgment in respect to these issues.

Decree

The judgment of the trial court is set aside only insofar as the judgment declares Act 456 of 1972 unconstitutional in part and declares the territorial jurisdiction of the City Court of Plaquemine to be the entirety of Wards 2, 3, 6 and 8 of Iberville Parish. Judgment is rendered declaring that the territorial jurisdiction to be throughout the City of Plaquemine, pursuant to Act 456 of 1972. In all other respects, the judgment of the trial court is affirmed.

      . Section 51 A provides in part:
      “The legislature shall have the power to abolish justice of the peace courts in wards embracing the parish seat, or containing cities of more than five thousand inhabitants, and to create in their stead courts with such civil jurisdiction as is now vested in justices of the peace, provided that such courts in cities of not in excess of ten thousand inhabitants shall have civil jurisdiction, concurrent with that of the district court, where the amount in dispute or the value of the movable property involved does not exceed five hundred dollars, exclusive of interest and attorney fees; and with criminal jurisdiction which shall not extend beyond the trial of offenses not punishable by imprisonment at hard labor under the laws of this state; and said courts shall have jurisdiction for holding of preliminary examinations in cases not capital, for the requiring of bonds to keep peace and for the trial of cases covering the violations of municipal and parochial ordinances; and the judges of such courts shall have authority to perform marriage ceremonies. (Emphasis supplied.)

      . The 1868 Constitution vested the judicial power in parish courts, as well as a supreme court, the district court, and the justices of the peace. La.Const.Art. 73 (1868).

      . The 1974 Constitution vests the judicial power “in a supreme court, courts of appeal, district courts, and other courts authorized by this Article”. La.Const.Art. V, § 1 (1974). The 1974 Constitution also retained the existing district, family, juvenile, parish, city and magistrate courts, but authorized the establishment of other courts of limited jurisdiction only with parish-wide territorial jurisdiction and with subject matter jurisdiction that is uniform throughout the state. La.Const.Art. V, § 15 (1974). Existing mayors’ courts and justice of the peace courts were also retained. La.Const. Art. V, § 20 (1974).

      . La.Const.Art. 7, § 51 E (1921) authorized the Legislature to vest mayors and other municipal officers with jurisdiction over the violations of municipal ordinances.

      . Several other city courts have been established with territorial jurisdiction according to city boundaries rather than ward boundaries. See, for example, R.S. 13:1952 (18), pertaining to the territorial jurisdiction of the City Court of New Iberia within the corporate limits of the City.

      . Several legislative acts in various parishes abolished both the mayor’s courts and the offices of justice of the peace, when city courts were created. See, for example, R.S. 13:2488.-71, creating the City Court of the Town of Breaux Bridge.

      . This election was called pursuant to an Attorney General’s opinion, which stated that the establishment of a city court in Plaquemine was mandatory under R.S. 13:1872 and that the territorial jurisdiction extended to the boundaries of the four wards.

      . Because the City Court actually exercised jurisdiction throughout the four wards, as opposed to throughout the City, Act 498 of 1980 apparently attempted to reconfirm the territorial jurisdiction as provided in Act 456 of 1972. However, since we have held that Act 456 of 1972 validly fixed the territorial jurisdiction as the city boundary, it is not necessary to address the validity of that portion of Act 498 of 1980.

      . The title indicated that the bill provided in part for the repeal of R.S. 13:2488.61, 2488.62 and 2488.63 on January 1, 1985, but the body of the Act contained no such provision.

      . The trial court found that a deputy clerk and a court reporter are absolutely essential to the efficient operation of the court and held that the statute unconstitutionally prohibited the employment of any personnel other than a judge, marshal and clerk.


source: Caselaw Access Project

author: CALOGERO, Justice. DIXON, Chief Justice WATSON, Justice, BLANCHE, Justice

license: Public Domain

text:
    Mrs. Alcide GUIDRY, Indiv., etc. v. SLINE INDUSTRIAL PAINTERS, INC. et al.
    No. 81-C-3116.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.

      Christopher M. Trahan, Raggio, Cappel, Chozen & Bernard, Lake Charles, for applicant.
    Bernard H. McLaughlin, Jr., Robert S. Dampf, Stockwell, Sievert, Viccelio, Clements & Shaddock, Lake Charles, for respondent.
   CALOGERO, Justice.

Plaintiff’s husband, an industrial painter, died shortly after suffering a heart attack on his job. It was an acute myocardial infarction secondary to atherosclerotic heart disease.

The narrow question in this workmen’s compensation case is whether the admitted accident (heart attack) which caused Mr. Guidry’s death, to be compensable, must in some degree have been causally related to physical stress, strain, or exertion of the job; and if so whether Guidry’s heart attack was related, in part, to work stress, strain, or exertion.

Alcide Guidry, a fifty-three year old industrial painter, suffered an acute myocardial infarction secondary to atherosclerotic heart disease minutes after pausing for a smoke break while at work. After a trial on the merits, the judge denied recovery both for compensation benefits and for penalties and attorney’s fees. The Third Circuit Court of Appeal was inclined to affirm the district court judgment in favor of the defendant, but declined to do so because they believed that Adams v. New Orleans Public Service, Inc., (La.1982), No. 81-C-0784 was controlling and required a holding for the plaintiff in all cases where death from a myocardial infarction occurs on the job. Guidry v. Sline Industrial Painters, Inc., 406 So.2d 303 (La.App. 3rd Cir. 1981). Between the time of the Court of Appeal opinion in this case and the application by the defendant for writs, we granted a rehearing in the Adams case. Because the Court of Appeal had resolved this case on the strength of the non-final Adams decision of this Court, we granted relator’s writ application.

We affirm the Court of Appeal judgment in favor of plaintiff, not for the reason relied upon by the Court of Appeal and espoused originally in Adams (that the accident happened on the job and nothing more is required) but rather for the reason that Guidry’s myocardial infarction both occurred on the job and was causally related in some measure to physical stress, strain or exertion of his job. We disagree with the trial judge’s determination that Guidry’s accident (heart attack) was unrelated to his work on December 28, 1979. In achieving this result in the case under consideration, we expressly reject the following language in Adams on original hearing: “where an injury occurs suddenly or unexpectedly it is compensable despite the absence of any physical stress or exertion,” and “[t]he only pertinent inquiry is whether in fact, the accident [heart attack] happened on the job.”

The requirements for a successful claim for workers’ compensation as set out in La.R.S. 23:1031 are as follows:

If an employee . . . receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. (Emphasis supplied.)

An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973); Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932). Such a showing alone, however, does not satisfy Louisiana’s dual requirement, although it will assist the worker over the first hurdle. There is the additional requirement that the accident “arise out of the employment.” Arising out of employment contemplates the accident’s being the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Lisonbee, supra at 9, citing Kern, supra 141 So. at 21. Furthermore, this risk of employment from which injury resulted should be one greater than that occasioned by a person not engaged in the employment. Lisonbee, supra, citing Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917).

Subsequent appellate decisions have applied jointly the time, place and circumstance test of the Kern case, and the increased risk doctrine of the Myers decision. Turner v. United States Fidelity & Guaranty Company, 339 So.2d 917 (La.App. 3rd Cir. 1976); Mitchell v. Employers Mut. Liability Ins. Co., 341 So.2d 35 (La.App. 3rd Cir.), writ refused 342 So.2d 1121 (La.1977).

Malone and Johnson, with credit to Professor Larson, interpret the court’s recognition of the mutual dependence of the dual requirements “in the course of” and “arising out of” as an adoption of the “positional risk doctrine.” Malone and Johnson, supra at 289. So, as relates to ordinary traumatic incidents, such as being struck by a car or by lightning or by being assaulted by a stranger, being on the job is an aid to establishing that an ordinary traumatic incident because it arose out of employment was likewise in the course of employment. Malone and Johnson, supra §§ 191-200, 382 et seq.; Kern, supra.

A class of accidents defying definition under the “positional risk doctrine”, however, are those which, while occurring when the employee is undeniably performing the duties for which he was hired, are related partly to the employee’s personal physical condition. Malone and Johnson conclude therefore, supra at 289, “[r]esorting to Larson’s phrase-making again, recovery under the positional risk doctrine is limited to neutral risks, risks that are unrelated to the worker’s bodily deficiencies . .. and are also unaffected by the nature of his particular job or his working environment.”

To deny compensation to those workers who bring a personal risk to the job, however, contravenes the tradition that the employer takes his employee as he finds him. Chism v. Kaiser Aluminum and Chemical Corp., 332 So.2d 784 (La.1976).

In the face of this dilemma, Louisiana courts have relied upon the “increased risk” approach to such claims Malone and Johnson, supra at 292. The pertinent justification is couched in Lisonbee supra at page 9 quoting 259 So.2d 374, 377 (La.App. 2d Cir.).

The principle underlying the enactment of the workmen’s compensation statute— that those who enjoy the product of a business should ultimately bear the cost of injuries incident thereto — makes sense only if the injuries bear some significant relationship to the business operation. Such a relationship must be determined with reference to the particular facts of each case inasmuch as there is no exact rule for such determination.

Myocardial infarctions (heart attacks) have been found to satisfy the statutory requirements of personal injury by accident. Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2d Cir.), cert. denied 345 So.2d 902 (La.1977); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975); Brown v. Kaiser Aluminum & Chem. Corp., 250 So.2d 99 (La.App. 4th Cir.), cert. denied 259 La. 807, 253 So.2d 66 (1971); Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625 (1946). Likewise it is undisputed that the worker who experiences his heart attack/accident during an authorized rest period does so in the “course of his employment”. Smith v. Walker, 35 So.2d 766 (La.App. 2d Cir. 1948); St. Alexandre v. Texas Co., 28 So.2d 385 (La.App.Orl.Cir.1946).

The more difficult question is whether the heart attack must be the consequence of some increased job associated risk; in that sense, whether it can be said to arise out of the employment. This focus on the heart accident and the need for a causal connection with the work is consistent with the cases decided by this court.

We will undertake to review the jurisprudence of this Court in that area.

In awarding compensation based on heart incidents, the early decisions focused on physical exertion and heat. In Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625 (1946), a carpenter’s normal activities for the day in question required him to carry four 95 pound rolls of composition paper up a ladder to the roof and work there in the sun. When he finished the job, he complained of severe chest pains and died forty five minutes later on his way home from visiting the doctor. The Court found supra at 626-627 that:

Since this case does not involve an accident causing external injuries or producing objective symptoms, we must look to the testimony of the medical experts to determine whether this is one of those cases that comes within our well-settled jurisprudence that the legal requirements are present to constitute an accident and an injury is compensable where excessive heat, heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition. (Citations omitted) (Emphasis supplied)

Other similar cases followed. Sepulvado v. Mansfield Hardwood Lumber Co., 75 So.2d 529 (La.App. 2d Cir. 1954); Clifton v. Arnold, 87 So.2d 386 (La.App. 1st Cir. 1957); Talbot v. Trinity Universal Ins. Co., 99 So.2d 811 (La.App. 1st Cir. 1958); Brian v. Employers Casualty Co., 111 So.2d 161 (La.App. 2d Cir. 1959); McKnight v. Clemons, 114 So.2d 114 (La.App. 1st Cir. 1959); Andrepont v. Calcasieu Paper Co., 131 So.2d 585 (La.App. 3d Cir. 1961); Spivey v. Aetna Casualty & Surety Co., 127 So.2d 297 (La.App. 4th Cir. 1961); Young v. Old Colony Insurance Co., 150 So.2d 892 (La.App. 4th Cir.) cert. refused 244 La. 472, 152 So.2d 564 (1963).

What might be referred to as the current jurisprudence in this Court in heart attack worker compensation cases begins with Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (La.1969), the leading case insofar as establishing the rebut-table causation presumption between the occurrence of an accident and the onset of disability. That case in no way lessened the requirement of proving a causal relationship between the employment and the accident. Bertrand was a laborer who, this Court noted, supra at 825, “[a]s a principal part of his employment .. . was required to mix concrete, transport it by wheelbarrow, pour it into forms and otherwise perform heavy labor.” The court said plaintiff’s hard work and exertion caused the disabling disease to manifest itself. More particularly, the exertion, even though usual for Bertrand and the job duties he had performed for some fifteen years, combined with his arteriosclerosis and a pre-existing defective artioventricular node, caused a conduction fault in his heart. Review of the jurisprudence by Chief Justice Fournet, dissenting from the majority view on original hearing in Bertrand, highlighted the Hemphill distinction between instances of real although usual and customary exertion on the one hand, and instances involving external trauma on the other. The Bertrand majority on rehearing accented that exertion from usual and customary activities may serve as a cause of a vascular accident. That finding is certainly not a determination that there need be no relationship between the work and the accident. Rather it is just the contrary.

Three years later, Bertrand was cited in Ferguson v. HDE, Inc., 210 So.2d 867 at 869 (La.1972) for the proposition that

extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present.

Ferguson was a mental stress/stroke case which overruled Danziger v. Employers Mutual Liability Insurance Company of Wisconsin, 245 La. 33, 156 So.2d 468 (1963) and held that physical disability resulting solely from extraordinary mental or emotional causes qualified as an injury by accident, and was compensable.

Since then, the two cases, Bertrand and Ferguson, have been cited for the general proposition that only the “usual and customary actions, exertions ... of the employment” are required. Leleux v. Lumbermen’s Mutual Insurance Co., 318 So.2d 15 (La.1975); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). Interestingly, in each of these cases, the usual and customary actions, constituted real and significant instances of exertion and stress which would under any analysis constitute more than the exertion and stress associated with the more or less sedentary activities of the average non-worker. Leleux involved an obese truck driver with a history of high blood pressure who suffered a cerebral vascular accident, or stroke, and was found near the rear of his truck. Besides shoveling rice he hacl hauled four loads of rice and was at the time having his truck filled with a fifth load. The Roussel plaintiff was a machinist and although the Court repeated the now familiar language of “usual and customary,” the facts and the conclusions of the Court did not represent any extension of the earlier jurisprudence.

In the instant case, the record reveals that decedent was engaged in manual labor as a machinist in the refinery at the time'of the fatal heart attack. He was performing the usual and customary duties of his employment. We have no hesitancy in concluding that these activities were strenuous in nature. There is no dispute that decedent did, in fact, have a history of hypertension and that he did suffer a myocardial infarction resulting in immediate death while performing the duties of his employment. It is established by the medical testimony that the myocardial infarction suffered by decedent on the job which resulted in his death could have been caused or precipitated by the usual and customary actions and exertions of decedent’s duties as a machinist. Causal connection was thus clearly established by a preponderance of evidence in this case. Roussel, supra. (Emphasis supplied)

That brings us to our Adams decision on original hearing and more particularly, the Court of Appeal’s application of that decision to the facts in the instant case.

Contrary to the language in Adams (and the Court of Appeal reference to that language ), the cases out of this Court, however liberal they might occasionally have been insofar as finding sufficient the amount of stress or exertion which has contributed to a given heart accident, have nonetheless never before taken the position the absence of physical stress or exertion is of no moment, or that the occurrence of a heart attack on the job is the only relevant inquiry.

In summary the jurisprudence of this Court has been fairly liberal in linking ensuing disability to admitted work accident (for example, there is the Bertrand presumption of causal connection between accident and disability), and insofar as linking work accident to work stress and exertion without the necessity for a traumatic incident. But there has been in this Court’s jurisprudence no determination that there exists a presumption that a heart accident sustained at work is caused by the employment. Also, except for Adams on original hearing (and see the Court of Appeal decision in Beaty v. Thiokol Corp., 414 So.2d 1292 (La.App. 2d Cir. 1982) (writ denied, 416 So.2d 114, 1982: “Result Correct”), the cases in this Court have always required that there be some causal relation between employment and accident. This conclusion that a heart accident must be causally related in part, however slight, to the employment, is no new or novel approach to applying the compensation law. It is implicit, and occasionally express, in the cases discussed hereinabove. Professors Malone and Johnson observe in their treatise, supra at 437-39: “[t]he required ‘injury by accident’ has thus been found to have occurred in instances of heart attack .. . even when these occur during the employee’s regular work in the regular way, if a causal relationship between working conditions and disability can be found,” (emphasis supplied). The authority given for this statement include our Roussel and Hemphill opinions and intervening appellate decisions.

There is admittedly real difficulty in proving or disproving work related causation in heart accidents because of the fact that a pre-existing vascular infirmity can produce disability irrespective of outside influences. Nonetheless, considering the often divergent and uncertain views of medical practitioners and the necessarily different perspectives of doctors and lawyers on this problem in compensation cases, we have decided in prior cases that work related stress or exertion preceding a heart attack bears a causal relationship to that heart attack, at least in part, even where there is a pre-existing heart disease.

There is no presumption, however, that a vascular accident occurring on the job is caused by the employment. There must be a causal link between the employment, or the work, and the accident. And of course, the law imposes upon the plaintiff in compensation cases, as it does in other civil cases, the burden of proving that causal link by a preponderance of the evidence. Prim v. City of Shreveport, 297 So .2d 421 (La.1974).

This burden of plaintiff’s is to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to the heart accident. Anything less and it can hardly be said that the accident arose out of the employment or that the employment in any measure contributed to the accident.

If the physical exertion, stress, or strain on the job, and preceding the infarction, is no more than the worker would likely have experienced in a non-work situation, the attack may be the result of the natural progression of the pre-existing disease rather than the result of the employment activity.

This reality has led Professor Larson to suggest a rule which we draw upon to resolve this amorphous legal problem. See generally: 1B. A. Larson, Workmen’s Compensation § 38.88, 7-233 (1980)

For the heart accident to arise out of or be connected with the employment, the exertion stress or strain, acting upon the pre-existing disease, must be of a degree greater than that generated in everyday non-employment life (e.g., as compared to the more or less sedentary life of the average non-worker).

In other words if the activities in which the worker with a pre-existing heart disease is engaged, whether for his job usual and customary or not, entail exertion, stress or strain greater than would be involved in everyday non-employment life and he experiences a heart accident, he has made a prima facie showing that the accident arose out of or was connected with, the employment.

However, simply being at work on the job is not enough, since at the time of and for an appreciable period before the accident such worker (i.e., with a pre-existing heart disease) may not have been engaged in his usual stressful activities, or his usual work may have been of a . sedentary nature, or may have involved no physical stress or exertion beyond that generated in everyday non-employment life. In either of these latter cases, it is difficult to say that the accident arose out of the worker’s employment rather than that the accident arose out of or was prompted simply by the preexisting heart disease.

Now we turn to the facts of this case. Guidry was fifty-three years old. He had done manual work most of his life. He was employed as an industrial painter through the union by Sline Industrial Painters and assigned to Cities Service Refinery in Calca-sieu Parish, Louisiana. On December 28, 1979, the day he sustained the myocardial infarction Guidry had reported for work at 7:30 a. m., as was customary. He and a Mr. Duplechain were assigned the task of painting large rolling doors on a warehouse. They were using a single ladder ten to twelve feet tall. The top portions of the doors which were out of reach to a painter working on the ground were painted by Duplechain, Guidry’s role being to brace the ladder to assure Duplechain’s safety, and to move the ladder as required. The areas of the doors accessible from the ground were painted by the two men. The pair had worked non-stop from 7:30 a. m. until the noon lunch break, with only a ten minute break during that time at 10:00 a. m. The pair again commenced working after the lunch break and worked until approximately 2:00 p. m.

At 2:00 p. m. the pair, along with some of the other workmen in the area, went inside the building that was being painted to a rest area for a work break. It was at this time that Guidry suffered the heart attack. It caused him to fall from his chair to the ground, unconscious. Mr. Guidry never regained consciousness and died seven days later in the hospital.

Guidry’s co-workers, in testifying, stated that Guidry seemed in good health that day and showed no signs of illness. Guidry did not regain consciousness after the incident, so he was unable to tell anyone of any ill feelings he might have been having earlier in the day.

The trial court relied upon the testimony of the treating physicians, Drs. Reichert, Seale and Turner, who were of the opinion that the heart attack was not causally related to the decedent’s usual and customary actions or exertions on the job. However, Drs. Reichert and Seale are not heart specialists, the former being a specialist in family practice and the latter a surgery specialist. And Dr. Turner, a heart specialist, when presented with a more accurate hypothetical of Mr. Guidry’s activities on the day in question, admitted that there could be some relationship between the described physical activity and the heart attack.

Furthermore, the testimony that the heart attack was not work related was contradicted by the testimony of a cardiovascular specialist presented by plaintiff, Dr. Fastabend. Dr. Fastabend stated that in his opinion the physical exertion of the decedent on that day was such that there was no question in his mind but that the physical activity in which the deceased had been involved triggered the heart attack. Although it is true that Dr. Fastabend was not the decedent’s treating physician, he was no less qualified than the other medical witnesses to render an opinion concerning stress and exertion, infarction, and the causal relationship, particularly inasmuch as the patient’s unconsciousness and inability to communicate following the accident would tend to reduce the advantage a treating physician might otherwise have had.

Guidry came to work early that morning. He had performed physical and fairly strenuous work for most of the day. He had returned to his duties right after lunch and he continued to work-until minutes before the attack. Our appreciation of the evidence in this case prompts us to conclude that Guidry’s activities while working on the fateful day of his heart attack, were marked by stress, exertion, and strain greater than that generated in everyday non-employment life, and greater than that generated in the more or less sedentary life of the average non-worker.

We conclude that Guidry’s myocardial infarction, and ensuing death, arose out of his employment. His widow, the plaintiff, is therefore entitled to such workers’ compensation benefits as the law provides.

There remains an unresolved issue in this case, and that is, whether plaintiff is entitled to penalties and attorney’s fees.

When the Court of Appeal reversed the trial court judgment and awarded compensation benefits, they chose to remand the case to the district court for determination of whether or not statutory penalties and attorney’s fees should be awarded. The defendant’s writ application in this Court complains of the Court of Appeal opinion and may fairly be construed as protesting alternatively that attorney fees and penalties should not be awarded.

The record as presently made up is sufficiently complete to permit this Court to decide this issue. Therefore we will do so rather than remand the case to the trial court for this determination, as the Court of Appeal did.

Considering the serious legal question of causation between employment and accident, which is the main issue addressed in this opinion, and considering the facts of the case, and the varying results in the trial court, Court of Appeal and this Court, we do not find that the defendant was arbitrary and capricious in their neglect to pay compensation benefits.

Accordingly, penalties and attorney fees are denied.

Decree

For the foregoing reasons, the judgment of the Court of Appeal is affirmed insofar as it awards compensation benefits to the plaintiff, but amended to deny plaintiff penalties and attorney’s fees.

COURT OF APPEAL JUDGMENT AFFIRMED IN PART AND AMENDED IN PART, AND RENDERED.

DIXON, C. J., concurs in the result with reasons.

WATSON, J., concurs in part, dissents in part and assigns reasons.

BLANCHE, J., dissents, and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur in the result.

In the court’s original opinion in the Adams case, in the discussion of the question of “causation” by the Court of Appeal, we stated: “the only pertinent inquiry is whether, in fact, the accident happened on the job.” When not taken out of context, the statement was and remains correct. An on-the-job accident which causes injury is without doubt or question an “accident arising out of and in the course of his employment” (R.S. 23:1031) and is compensable if, as the statute notes, the employee is not otherwise eliminated from the benefits of the act. The employment need not cause the heart trouble, nor the bad back, nor the arthritis, but if there is an accident on the job, it arises in the course and scope of the employment, and if the accident causes the personal injury no other inquiry into causation need be made.

Neither does the act, nor do the cases, require “any physical stress or exertion” to be compensable. If there is an accident arising out of and in the course and scope of the employment, which injures the employee, he could be asleep, or performing only the normal functions of his job, or otherwise passive, and yet recover. Or the employee could, as Guidry was, be seated at a table in a smoking area taking a break, after several hours at work doing nothing but bracing the lower end of a twelve foot aluminum ladder while his partner was on it, moving the ladder three times and painting one-third of time while standing on the ground. Even in response to leading questions, none of plaintiff’s witnesses would acknowledge any stress in Guidry’s employment.

Needed clarity and simplicity is not here accomplished. We only furnish fodder for claims adjusters, lawyers and expert witnesses in future cases — was there stress or no stress? It would be preferable to say, simply, that a disabling on-the-job accident is compensable.

If there is an accident which injures, arising in the course and scope of the employment, it is compensable. It is only the tort doctrine of causation in the jurisprudence, not the statutes, which has caused the present confusion of the court.

WATSON, Justice,

concurring in part and dissenting in part.

I concur in the majority’s award of compensation benefits, but dissent from denial of penalties and attorney’s fees.

I disagree with the majority’s analysis of causal relationship. Instead of referring to Professor Larson for the analysis used, a simple reference to the law of our state is in order. As noted by the Chief Justice in his concurring opinion in which I join, the question is whether the employee suffered an accident in the course and scope of his employment. Here, Guidry obviously did. To analyze whether there was more strain and stress than experienced by ordinary citizens or sedentary office workers is an idle pursuit, which does not answer the question. It serves only to deny, or at least delay, compensation to deserving employees or their dependents.

There is no question that Guidry suffered an acute cardiac infarction (a heart attack) in the course and scope of his employment. Compensation should have been paid without delay and, because it was not, the defendants should be cast for penalties and attorney’s fees.

Therefore, I respectfully concur in part and dissent in part.

BLANCHE, Justice

(dissenting).

I respectfully dissent. Plaintiff’s myocardial infarction, although occurring on the job, was not even remotely related to the physical stress, strain or exertion required by his job. Guidry’s primary duty on the job was to stand on the ground at the bottom of the ladder being used by his co-employee to assure that the bottom of the ladder did not slide out from under the co-employee. The co-employees testified that plaintiff’s duties did not entail any stress, strain or other exertion. At a smoking break while seated at a designated smoking area, smoking a cigarette and talking with other employees, plaintiff suffered a sudden heart attack which caused his death. Prior to the onset of this attack, plaintiff displayed no evidence of exertion, stress or any other physical problem. Being unable to show any causal connection between the employee’s heart attack and the employment, the accident is not compensa-ble.

The purpose of the workmen’s compensation law is to provide compensation for industrial accidents. It was not intended to be a pension for those who suffer from diseases not caused by an accident. Considering the purpose of the act, an accidental heart injury would be compensable but a heart injury solely attributable to the natural physiological progression of disease would not be compensable.

To have an accident, there should at least be an event which is identifiable, either in space or time, and one that can be regarded from a commonsense viewpoint of the average man as an accident. Surely Guidry’s fellow workers would be amused to learn that Guidry suffered an accident while smoking and drinking coffee during a work break.

Following this simple test, Guidry should not recover because he had no accident. Guidry’s work was not sufficiently strenuous so as to classify as an accident which could have caused him to have an acute myocardial infarction. Stated another way, there was no accidental event and, in the absence thereof, no causal connection between his employment and the heart attack which resulted in his death.

I respectfully dissent.

      . Two other cases contemporaneously before this Court deal with related issues concerning employees with heart conditions, their disability and their eligibility for workers’ compensation: Adams v. New Orleans Public Service, Inc. (On rehearing) No. 81-C-0784 pending before this Court, presents the outset question of whether an accident occurred on the job. Guillory v. U. S. F. & G. Ins. Co., 420 So.2d 119 (La.1982), No. 81-C-2471, rendered this day, addresses the issue of whether there was a causal connection between the accident which admittedly arose out of and in the course of Guillory’s employment, and Guillory’s subsequent disability.

      . The question of whether this Court will overrule the Adams decision on original hearing will await the outcome of the rehearing pending before this Court.

      . Compare Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975); Landreneau v. Travelers Ins. Co., 345 So.2d 177 (La.App.1977) and Soileau v. Chet & Kennys Auto Parts, Inc., 337 So.2d 604 (La.App. 4th Cir.), cert. denied 340 So.2d 994 (La.1977).

      . Both Professors Malone and Johnson and Professor Larson suggest that the legislative choice of “arising out of” was deliberate, and meant to distinguish compensation law from the proximate cause concepts of tort law. See: Malone and Johnson, Worker’s Compensation § 143, 13 La.Civ. Law Treatise 280, and 1, A. Larson Workmen’s Compensation Law § 6.60 at 3-7 through 3-10 (1978) respectively.

      . For a thorough discussion of the evolution of the classifications of risks under Louisiana’s workers’ compensation scheme, see Malone and Johnson, supra. Chapter 7, 271 et seq.

      . Also included in the exception to the “positional risk doctrine” are those accidents which are outgrowths of events peculiar to the employee’s private life. Malone and Johnson, supra at 289 et seq. The facts of this case, however, relate solely to the employee’s personal physical condition.

      . That presumption (not at issue in this case) is that when there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability.

      . The plaintiff workman became angry when his paycheck was less than expected and suffered a cerebral thrombosis or cerebral hemorrhage while arguing over the amount.

      . It is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. Roussel, supra. 318 So.2d at 39. (Citations omitted) (Emphasis supplied)

      . Compare Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4th Cir. 1975) which did expand upon the jurisprudence. That of course was not an opinion of this Court, but one of the Fourth Circuit Court of Appeal. Trial court judgment awarding compensation benefits for the death of a clerical city employee who died in bed at home from a myocardial infarction was upheld by the Court of Appeal. That decision is not controlling, and there has not been a similar case handed down by this Court.

      . In an effort to be complete, it should be noted that three other cases which approach the causation question from a slightly different, though related, perspective have been decided by this Court since Roussel and Leleux. In Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976), the question was whether a “personal injury by accident” had been shown by the plaintiff whose pre-existing respiratory difficulties had been aggravated by her inhaling dust and lint in the course of her employment as a seamstress for a ready to wear garment manufacturer. In Guidry v. Serigny, 378 So.2d 938 (La.1979) the Court preter-mitted the heart inquiry by concluding that the plaintiff’s accident was the fall itself “regardless of the precipitating reason therefor.” Supra at 940. Most recently, McDonald v. International Paper Company, 406 So.2d 582 (La.1981) placed the Ferguson decision in perspective as precedent for the proposition that death by heart attack produced by extraordinary mental or emotional work-related stress is compensable.

      . “Where any injury occurs suddenly or unexpectedly it is compensable despite the absence of any physical stress or exertion,” and “[t]he only pertinent inquiry is whether in fact, the accident [heart attack] happened on the job.” Adams, supra.

      . See the contrary observation, citing as authority the Leleux decision, Beaty v. Thiokol Corp., 414 So.2d 1292 (La.App. 2d Cir. 1982), writ denied 416 So.2d 114, 1982: “Result Correct”. The presumption in Leleux, however, was a reiteration of the Bertrand presumption, i.e., that when there is proof of an accident and an ensuing disability with no intervening cause, it is presumed that the accident caused the disability. This presumption is unrelated to the outset question of whether the accident arose out of the employment. With respect to the causal connection between the work and the accident, Leleux created no legal presumption. leleux simply “inferred” from the facts [Leleux was the trucker who hauled four loads of rice] “including the heat and physical exertion” that the work had a causal relation to the accident.

        . See Kostamo v. Marquette Iron Mining Co., 405 Mich. 105, 274 N.W.2d 411 (1979) for thorough analysis of medical-legal interrelationship in heart compensation cases. 1B. A. Larson, Workmen’s Compensation § 38.30, 7-48. n. 51 (1981).

      . In particular, Professor Larson notes at 7-237.
      If there is some personal causal contribution in the form of a previously weakened or diseased heart, the employment contribution must take the form of an exertion greater than that of rionemployment life.... Note that the comparison is not with this employee’s usual exertion in his employment but with the exertions of normal nonemployment life of this or any other person.
      If there is no personal causal contribution, that is, if there is no prior weakness or disease, any exertion connected with the employment and causally connected with the collapse as a matter of medical fact is adequate to satisfy the legal test of causation. This is the heart-case application of the actual risk test: This exertion in fact causally contributed to this collapse.
      In both situations, with or without prior personal weakness or disease, the claimant must also show that medically the particular exertion contributed causally to the heart attack.

      . It should be noted that this standard does not relieve the plaintiff of the necessity of presenting evidence of medical causation. This recognizes, however, that the courts are the ultimate decision makers and must decide legal causation questions definitively where proof of medical causation may be at best indefinite. See note 13, supra.

      . We underscore the fact that our discussion in this case and that of Guillory concern questions of physical stress, strain or exertion. As noted in footnote 11, supra, the standard for heart compensation cases involving mental or emotional stress was enunciated in McDonald v. International Paper Company, 406 So.2d 582 (La.1981) and Ferguson, supra.

      . “Arising out of” is hardly ever employed in Louisiana jurisprudence, except when there is doubt whether the accident happened in the course and scope of employment, when an “arising out of” theory may be used to reinforce a decision that the employee was not in the course and scope of employment. See the discussion in Malone & Johnson, Workers’ Compensation, Section 193, p. 393 (1980), where it is stated:
      “. .. That test, simply stated, is that where — as in Kern — the employee is actively at work or standing by for an immediate return to his task and thus is squarely within the course of his employment, virtually any risk will be considered as arising out of the employment, whether it is an ‘increased risk’ or not. .. .”


author: PER CURIAM.

text:
    STATE of Louisiana v. L. C. NASH.
    No. 81-KA-3181.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., Bobby Culpepper, Asst. Dist. Atty., for plaintiff-appellee.
    Douglas L. Stokes, Emmons & Stokes, Jonesboro, for defendant-appellant.
   PER CURIAM.

In view of the apparent expectation of a two-year penitentiary sentence in return for the defendant’s plea, the eight-year term imposed herein for carnal knowledge of a juvenile is set aside and the case is remanded for further consideration.

CONVICTION AFFIRMED; SENTENCE VACATED.


author: DIXON, Chief Justice. DENNIS, Justice, CALOGERO, Justice,

text:
    Emmette J. GREMILLION v. BABST SERVICES, INC. and U S F & G Insurance Company.
    No. 81-C-3201.
    Supreme Court of Louisiana.
    July 2, 1982.
    Dissenting Opinion July 16, 1982.
    Rehearing Denied Sept. 3, 1982.

      Albert S. Dittmann, Jr., Charles A. Kron-lage, Jr., Kronlage, Dittmann & Maselli, New Orleans, for applicant.
    S. Frazer Rankin, Montgomery, Barnett, Brown & Read, New Orleans, for respondent.
   DIXON, Chief Justice.

This is a workmen’s compensation case involving a claim of total and permanent disability from an acute brain syndrome followed by a conversion reaction.

Recovery was denied by both lower courts. The trial court concluded plaintiff failed to prove that his disability was causally related to his employment. On appeal the decision was affirmed on the ground that an employment accident was not established by plaintiff. 405 So.2d 675 (La.App. 1981).

Plaintiff was employed by Babst Services, Inc. as a heavy equipment operator. For about a year and a half prior to the alleged accident, he had operated a crane, known as a cherry picker. The driver of a cherry picker sits immediately in front of a turntable to which a boom is anchored. Behind the turntable is the engine; the exhaust is expelled at the back of the engine. The distance between the operator and the exhaust pipe on the machine used by the plaintiff was variously estimated at between six and fifteen feet. The particular machine driven by plaintiff was manufactured by Gabon, with a six cylinder gasoline powered engine and a forty foot boom. Babst also owned several Pettibone cherry pickers which had Diesel engines. Unlike the Pettibone machines, the Gabon had no cab or windshield to protect the driver from inclement weather. Gremilbon testified that he worked with the cherry picker five days a week for eight hours a day. Bulton Brindall, plaintiff’s supervisor, stated that plaintiff was the primary operator of the Gabon and that the cherry pickers were in operation an average of five to six hours each day.

On December 10, 1974 plaintiff began feeling weak, and made several mistakes on the job; he believed that he must have “passed out” because he urinated on himself. He apparently recovered from the incident enough to keep working until quitting time. However, on December 11, 1974 Gremilbon again felt weak and dizzy. He told Brindall that he “couldn’t go no more.” Brindall testified that he remembered plaintiff telling him he was sick. Since Brindall had received complaints from a couple of men in the same crew as Gremil-bon that he almost dropped a load of pipe on them, Brindall suggested that the plaintiff take some time off from work. Plaintiff left the job site in St. Rose, Louisiana and headed toward home in his automobile. He lost consciousness in a parking area in Kenner, Louisiana. When he regained consciousness, Gremilbon telephoned his wife and told her he was “feeling bad.” He was taken to Flint-Goodridge Hospital.

Dr. Joseph Braud, a general practitioner, examined plaintiff in the emergency room. At that time, plaintiff was weak, confused, talking irrationally and complained about his head, back and legs. An electroencephalograph, x-rays and a Babinski test were run. The test results were normal, although the Babinski test was equivocal.

Plaintiff had a history of hypertension. Although not contained in the emergency room report, Dr. Braud testified that he “felt at the time the fellow had an acute brain syndrome.” This diagnosis was actually recorded after plaintiff’s next visit to Dr. Braud on December 13, 1974. Dr. Braud continued seeing Gremillion up until trial. Plaintiff persistently complained of headaches, dizziness, weakness in his legs and nervousness. Dr. Braud prescribed tranquilizers, muscle relaxants, medicine for dizziness and headaches, as well as blood pressure medicine at various times during his treatment. According to index cards kept by Dr. Braud, plaintiff was examined on June 16, 1975 and again on June 20, 1975. An entry in between these dates states that plaintiff operated a machine at work and had been inhaling fumes. Dr. Braud explained that this information was not supplied earlier because plaintiff was incoherent during the first examinations, “similar to a vegetable,” and gradually improved his ability to express himself. On June 25, 1976 Dr. Braud concluded that Gremillion “may” have a conversion reaction. In his opinion, plaintiff is totally disabled.

In 1976 plaintiff was evaluated by two clinical psychologists, Dr. Charles Moan and Dr. Judith Feldman. Dr. Moan found that Gremillion had chronic borderline mental retardation. He did not conduct a personality test to determine whether plaintiff had a conversion reaction; he stated that a conversion reaction is generally triggered by an overwhelming crisis such as a death in the family or the loss of a limb. When questioned as to the effect of inhalation of exhaust fumes, Dr. Moan opined that intellectual functioning might be temporarily worsened. He explained that inhalation of a toxic substance usually has a shotgun effect; that is, it affects some areas of the brain but not all. In those affected areas, a depressed level of functioning would be found. Thus, in the instant case, Dr. Moan testified that he would expect to find some impairment to certain areas such as the frontal lobe. However, no evidence of organic brain damage was seen in the frontal area. Dr. Feldman’s findings corroborated those of Dr. Moan in that she concluded plaintiff was mentally retarded (borderline) and that this condition was of long-standing. She did not diagnose a conversion reaction, although she stated that this reaction would be “consistent.”

Dr. Robert Davis, a psychiatrist, examined Gremillion on three occasions, in 1976, 1977 and 1979. His initial impression was organic brain syndrome. After receiving normal results on a CAT scan and brain x-rays, Dr. Davis decided that there was no organic cause for plaintiff’s symptoms. Rather, Gremillion’s brain damage was of long-standing. In light of an evaluation by Dr. Maria Palmer, a neurologist, Dr. Davis revised his diagnosis to conversion reaction (this diagnosis is not written in any of Dr. Davis’ reports). Dr. Davis noted that although the claimant believed his condition was caused by the exhaust fumes, he could not make a causal connection between plaintiff’s condition and the inhalation of fumes. He felt that the brain damage was definitely not caused by the fumes.

Dr. Palmer saw the claimant in 1977. She found that plaintiff had suffered an acute organic brain syndrome. On the basis of the history supplied by Gremillion, she concluded that the syndrome was caused by the fumes “or by any other cause.” She could not say whether plaintiff’s condition was caused by the brain damage itself or by psychological factors associated with his illness in December of 1974. In her opinion, the exposure to carbon monoxide “can be or cannot be” cumulative depending on the duration and concentration of the exposure.

Dr. Raeburn Llewellyn, a neurosurgeon, saw Gremillion in May of 1975. Dr. Llewellyn was impressed by plaintiff’s “uncomfortableness” and thought plaintiff was incapacitated. He diagnosed hypertension and opined that Gremillion might have a hypertensive cardiovascular disorder; he felt the claimant should be hospitalized so that his blood pressure could be studied. When asked hypothetically if plaintiff’s condition could have resulted from inhalation of carbon monoxide, Dr. Llewellyn qualified his answer, stating that if the smoke caused the episodes in December of 1974, then the residual effects a year later might be related.

Dr. Tom Oelsner, an internist who saw plaintiff in May of 1976, found that plaintiff suffered from hypertension and obesity. He reviewed the reports of five other doctors, including that of Dr. Braud, plaintiff’s physician. The reports of two doctors who saw plaintiff in 1968 revealed back problems. The history given by the claimant to Dr. Oelsner was weakness, dizziness and headaches due to exhaust fumes. At the time of the examination, Dr. Oelsner recorded plaintiff’s weight at 203 pounds, height 5' 8", blood pressure of 150/100. His diagnosis was cardiovascular disease due to hypertension which might have impaired the circulation to the brain and caused the symptoms. He noted that Gremillion was never overcome by fumes while actually exposed; in his opinion, it would be extremely difficult to be overcome by fumes in an open environment. Dr. Oelsner considered it important that plaintiff was never in a closed area with the machine and that no other workers got ill from the same exposure. Once removed from the exposure, Dr. Oelsner felt that the symptoms should disappear in twenty-four hours. Dr. Oelsner testified that these facts indicated the symptoms experienced by Gremillion were not related to carbon monoxide exposure.

The findings of Dr. William Martin, a neurologist, confirm those of Drs. Llewellyn and Oelsner. Dr. Martin examined plaintiff in January of 1979. At that time, Dr. Martin found no evidence of a conversion reaction. He stated that carbon monoxide poisoning would not be cumulative unless an individual was continuously exposed for long periods of time. Further, if there was severe carbon monoxide poisoning, it would show up on an EEG taken shortly after the exposure. The fact that a normal EEG was taken on December 11, 1974 mitigated strongly against any serious condition involving the brain.

Aside from the medical testimony, several witnesses testified about conditions on the job site. Emile Babst, the president of Babst Services, testified that the Gabon cherry picker did not smoke abnormally. No complaints had been received from any of the workers about the machine smoking and no repair records existed for the machine. Babst said that Gremillion came to his office a few months after he had left and talked to Babst about the financial troubles he was having; he confided to Babst that he was in “absolute financial distress.” Gremillion appeared depressed. Due to Gremillion’s past work performance, Babst tried to get him to return to work in some other capacity. He loaned plaintiff some money to help plaintiff out.

Bulton Brindall also testified that he had not received any complaints about the Gal-ion machine. He unequivocally stated that the Gabon did not smoke excessively; the other cherry pickers which had Diesel engines smoked much more than the machine operated by Gremillion. The testimony of Harr.y Kovner, another superintendent at Babst, corroborated that of Brindall. Kov-ner testified that he never saw the Gabon smoking. His workers used the Gabon after plaintiff left and no complaints were received; during this time period, Kovner was at the job site once or twice each week.'

Edward Coon, Gremilbon’s foreman during the Tank Terminal job, testified that the Gabon cherry picker gave off “excessive amounts of smoke” either because the muffler was broken or because of a hole in the exhaust pipe. He stated that he had complained about the machine. Although not sure, Coon said that the Gabon machine had a windshield and might have been a Diesel. Both of these statements were contradicted by all of the other witnesses. On cross-examination, Coon retreated somewhat from his earlier testimony, stating that the machine smoked when started up and when accelerated.

The theory of recovery advanced by plaintiff is that the initial symptoms experienced on the job were caused by the inhalation of exhaust fumes from the cherry picker. In response to these symptoms, Gremil-lion suffered an acute brain syndrome. Due to his inability to cope with this mental condition, plaintiff underwent a conversion reaction. Plaintiff does not suggest that the inhalation of carbon monoxide fumes caused brain damage; indeed, it is undisputed that plaintiff’s mental retardation is of longstanding. Rather, he argues that the weakness, dizziness and blackouts caused him to become hysterical or delirious, a condition later manifested by a conversion reaction.

An acute brain syndrome is commonly called delirium and results from an overwhelming stress; according to Dr. Braud, the patient voices “bizarre complaints and we don’t know what exactly is causing them.” A conversion reaction is a psychological response to stress; it is a neurotic condition characterized by psychosomatic complaints. The most common example of a conversion reaction is paralysis of a limb. The reaction is used by the individual subconsciously as a defense mechanism by which he can cope with stress. It may be more prevalent among unsophisticated individuals who are less able to deal with emotional problems.

The medical testimony reveals that the plaintiff is a borderline mentally retarded person, and that this condition was not caused by an work related incident. Also, the consensus of medical opinion is that Gremillion is totally disabled, for whatever reason. There is much dispute, however, as to whether anything on the job caused or contributed to the disability. The only connection between the conversion reaction and plaintiff’s employment is the episodes of dizziness, weakness and unconsciousness which Gremillion experienced while at work. The questions then become: do these episodes constitute an employment accident, and is the disability causally related to the accident?

As in any other civil suit the plaintiff in a workmen’s compensation case has the burden of establishing the disability and the causal relation between it and the accident by a preponderance of the evidence. A claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appearing after the accident and manifesting themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

In the instant case, there is insufficient evidence that Gremillion suffered an employment accident. A claimant is entitled to compensation benefits only where he has sustained “personal injury by accident arising out of and in the course of his employment.” R.S. 23:1031. The term “by accident” involves an examination of whether there is an accidental result or effect on the employee, rather than whether the disability had an accidental cause. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). See 1B A. Larson, Workmen’s Corn-pensation Law, § 38.10 (1980). The evidence is not convincing that there was an accidental injury to Gremillion occasioned by exposure to toxic fumes. The evidence reveals that Gremillion was doing the same work under the same conditions which he had carried out without complaint for over a year prior to the episodes. None of the other workers, exposed to the same amount of carbon monoxide fumes (or perhaps more, if working with the Pettibone cranes) for approximately the same length of time, manifested any adverse effects. The medical testimony does not tie the symptoms reported by Gremillion in December of 1974 to the inhalation of fumes. Indeed, the testimony indicates that carbon monoxide poisoning would have to be of prolonged duration and high concentration in order to cause side effects of more than momentary significance. Both the EEG and the CAT scan were negative for brain damage. As Dr. Martin characterized them, Gremillion’s symptoms resembled flu as much as any other ailment. Gremillion did become ill on the job. Except for “occupational diseases” and cardiovascular or cerebral accidents which meet the requirements of “personal injury by accident” (R.S. 23:1031), illnesses are not compensable merely because they manifest themselves while on the job.

In Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974), this court stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.... ”

The preponderance of the evidence refutes the plaintiff’s theory that the inhalation of carbon monoxide fumes played any part in the episodes related by him. There has been no showing that plaintiff was injured by accident.

For these reasons, the decision of the Court of Appeal is affirmed at plaintiff’s costs.

DENNIS,. J., concurs with reasons.

CALOGERO, J., dissents and assigns reasons.

WATSON, J., dissents.

DENNIS, Justice,

concurring.

I concur in the result reached by the majority. I choose not to join with the majority because of the following language contained in the opinion:

Except for “occupational diseases” and cardiovascular or cerebral accidents which meet the requirements of “personal injury by accident” (La.R.S. 23:1031), illnesses are not compensable merely because they manifest themselves while on the job.

This sentence implies that a cardiovascular or cerebral accident which meets the requirements of “personal injury by accident” is compensable merely because it manifested itself while on the job. Such a statement ignores the statutory requirement that the accident arise out of the employment, La.R.S. 23:1031, and is contrary to this court’s holding in Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982) rendered on the same day as this opinion.

CALOGERO, Justice,

dissenting.

Plaintiff Emmette J. Gremillion was a most conscientious worker according to his supervisors, Bulton K. Brindall and Edward A. Coon, and his employer, Emile M. Babst, who specifically described Gremillion as being a good worker who was enthusiastic and dependable.

He had been employed by Babst Service, Inc. for about five years as a heavy equipment operator. He had only a fifth grade education and was a borderline retardate. He operated the same machine (a crane, commonly referred to as a cherry picker) for about a year and a half prior to December 10 and 11, 1974, the last day on which he worked. There was testimony that Gremillion was a very accommodating employee, always trying to do what his foreman and other supervisors wanted him to do. He occasionally stayed after hours to practice with his crane to improve his work performance.

According to all of the evidence in this record there is no question but that Mr. Gremillion is not now malingering. He is genuinely suffering from a mental disorder, diagnosed as conversion reaction. He is completely disabled. The jurisprudence indicates that a worker can receive worker’s compensation benefits for a disability resulting from mental disorder provided there is a causal connection between the disorder and the work accident. Carter v. Avondale Shipyards, Inc., 308 So.2d 472 (La.App. 4th Cir. 1975); Miller v. United States Fidelity and Guaranty Co., 99 So.2d 511 (La.App. 2d Cir.), writs denied (La.1957); Dupre v. Wyble, 85 So.2d 119 (La.App. 1st Cir. 1955).

While the majority’s view is not an implausible one based on this record (that there was no work accident), I find the more plausible conclusion to be that there was a work accident that has left this plaintiff permanently and totally disabled.

There is testimony in the record to the effect that Mr. Gremillion had been suffering with headaches at night when he got home from work for about five months prior to the accident. On such occasions he took aspirin. Gremillion believed his headaches were caused by exposure, during the workday, to an excessive amount of fumes emitted from the crane he operated five days a week, for six to eight hours a day. Both he and his foreman, Edward A. Coon, testified that this particular crane smoked excessively. Plaintiff testified that his coworkers used to tease him about the smoke. Coon testified that the crane smoked excessively because of a hole in either the muffler or the exhaust pipe. Coon further testified that he had complained about the machine, but that it had never been repaired. Contrary testimony was given by some supervisory personnel, but these persons were not on the work site with the regularity of either Coon or Gremillion. One of the supervisors, Bulton K. Brindall, testified that although he did not think there was anything wrong with the machine plaintiff operated, that Coon and Gremillion would be in a better position to know about that.

On December 10, 1974, after working a good part of the day, plaintiff testified that he began feeling weak and dizzy and began making a number of mistakes. (Mr. Brin-dell testified that his co-workers had complained that Gremillion had almost dropped a load on them.) He testified that he must have passed out because he found that he had urinated on himself. Plaintiff believed that these ill feelings were due to the excessive amount of smoke. The next day, December 11, 1974, plaintiff began working. At some point he again started feeling dizzy and weak and he stopped working to tell his supervisor about his feeling ill. He testified that he asked to be allowed to go home. On his way home from the jobsite he passed out. He telephoned his wife from a pay phone on the side of the road. He was taken to the hospital that evening. He has been totally disabled since that time.

There is no dispute over whether the incident took place. His supervisor confirmed plaintiff’s testimony that plaintiff had reported his feeling ill on December 11, 1974. The questionable point is whether the illness was brought on by the inhalation of smoke. Plaintiff believes they were. He has since that time been suffering from a conversion reaction and is totally disabled. As already indicated plaintiff is not malingering. Minimally, plaintiff suffered some symptoms of an. illness while on the job. He is now diagnosed as suffering from a conversion reaction. A conversion reaction is used subconsciously by an individual, usually with limited intelligence, as a defense mechanism by which he can cope with stress. The conversion reaction from which he is now suffering has been associated with the ill feelings plaintiff experienced on December 10th and 11th, at work or is a result of them. It therefore may be irrelevant whether the dizziness, etc. was brought on by the smoke inhalation or not, since the illness manifested itself at work, causing plaintiff severe stress which has resulted in his disability.

As pointed out by the majority, plaintiff herein benefits from the presumption of causation established in Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980):

A claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appear after the accident and manifest themselves continuously af-terwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition.

In this case, plaintiff was in good health prior to this occurrence. Since then he has been totally disabled. At trial defendants did not show that plaintiff’s dizziness and weakness were not brought on by the inhalation of the fumes. On the contrary plaintiff presented the testimony of Dr. Joseph Braud, plaintiff’s treating physician, who gave the following testimony:

I felt that the fellow’s condition was caused by inhaling toxic fumes. I think he had been inhaling toxic fumes for a period of time, which I don’t know how long. All I know is that he tried to do something for himself. I didn’t get a history where he had gone to any other doctors or what have you. He had been taking B.C.’s on his own trying to make it and then he got to the place where he couldn’t make it anymore. I think it was because he had inhaled these fumes over this period of time.

The majority seems to rely heavily on the testimony of two other doctors who testified that plaintiff’s present symptoms were not related to carbon monoxide poisoning. However, that testimony is really irrelevant, because plaintiff does not contend that his present symptoms are caused by carbon monoxide poisoning. Rather, plaintiff contends that the initial symptoms experienced on the job (dizziness, weakness and fainting), were caused by the inhalation of the smoke from the machine he was operating. In response to these symptoms, Gremillion experienced a great deal of stress (possibly caused in part by a dangerous mistake he had made while operating his crane on the day in question where he almost dropped a load of pipe on his coworkers, for which he was reported and called to his supervisor’s office.) The stress reaction was diagnosed, by Dr. Braud, as acute brain syndrome. Then, because of plaintiff’s limited mental capacity, he was unable to cope with the stress. This precipitated the conversion reaction which has left him totally disabled. Furthermore, the two doctors who testified unfavorably did not see the plaintiff until May of 1976 and January of 1979, two and five years after the accident, whereas Dr. Braud, whose testimony supported plaintiff’s claim that the inhalation of the fumes caused the initial symptoms, was the treating physician who saw plaintiff the evening of the occurrence.

As stated in the majority opinion, “[t]he term ‘by accident’ involves an examination of whether there is an accidental result or effect on the employee, rather that whether the disability had an accidental cause.” From all of the evidence in the record, especially the fact that plaintiff has been totally disabled since the dates of these incidents at work, I would conclude that there was a work related “accidental result or effect” on this plaintiff which occurred on December 10 and 11, 1974 and thereafter. In my opinion plaintiff has proven his entitlement to worker compensation benefits.

      . On cross-examination, it was brought out that the date “6-1-78” appears next to this notation. Dr. Braud was unable to remember why this entry is found in between visits or why this date was written on the card. He guessed he might have conversed with Gremil-lion over the telephone or made the notation during the prior visit.

      . Psychiatric Dictionary 123 (2d ed. Hinsie & Shatzky 1953). See Dorland’s Medical Dictionary 340 (24th ed. 1965).

      . See the testimony of Dr. Davis. A conversion reaction is a psychologic process in which the patient defends himself against painful feelings by developing physical symptoms. In other words, the patient unconsciously “converts” a psychologic problem into a physical one. The physical symptoms replace and distract the patient from painful emotions. Imboden & Urbai-tis, Practical Psychiatry in Medicine, ch. 13, pp. 166-167 (1978).

      . The testimony of Dr. Moan.

      . See generally Cecil, Textbook of Medicine, 15th ed., vol. 1, pp. 82-84 (1979). On page 83 it is stated: “... Repeated episodes of mild acute poisoning can occur without cumulative effects. ... In mild cases clearance of carbon monoxide from the blood is spontaneously accomplished if respiration is sustained. Fresh air and absolute rest are sufficient in such cases; ...”