United States Court of Appeals,

Fifth Circuit.

No. 92-3504.

Gary Michael BECKER, Sr., Plaintiff-Appellant,

v.

CHEVRON CHEMICAL COMPANY, Defendant-Appellee.

Feb. 10, 1993.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, SMITH and DeMOSS, Circuit Judges.

REAVLEY, Circuit Judge:

Gary M. Becker appeals an adverse summary judgment dismissing his tort action against

Chevron Chemical Company. The district court concluded that a statutory employment relationship

existed between Becker and Chevron, and that Chevron is immune from Becker's action. We affirm.

I. BACKGROUND

In 1990, Chevron contracted with Marec, Inc. to replace the walkways located above storage

tanks at Chevron's Oak Point Plant. Chevron employees use the overhead walkways daily to gain

access to hatches located above the storage tanks. The walkways were being upgraded to comply

with revised industry standards.

While performing structural fitting work on an overhead walkway, Becker, an employee of

Marec, inhaled fumes from one of the storage tanks. Becker filed this negligence lawsuit against

Chevron to recover for injuries he suffered from inhaling the fumes. The district court granted

Chevron's motion for summary judgment on the ground that, as Chevron's statutory employee,

Becker was barred by the Louisiana Worker's Compensation Act from asserting a tort claim against

Chevron.

II. DISCUSSION

Under the Louisiana Worker's Compensation Act, a "principal" who engages a contractor

to perform work that is "a part" of the principal's "trade, business, or occupation" is liable to pay worker's compensation benefits to the contractor's employees. LSA-R.S. 23:1061. Principals who

fall within 23:1061 (known as "statutory employers") enjoy immunity from tort actions brought by

their statutory employees for work-related injuries. LSA-R.S. 23:1032.

For several years, courts used the three-level analysis outlined in Berry v. Holston Well

Service, Inc.,

(La. 1986) to determine if a statutory employer relationship existed. In

1989, the Louisiana Legislature amended 23:1061 by adding the following sentence:

The fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal's direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal's trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.

The 1989 amendment rejects the Berry three-level analysis and returns the law to the old "integral

relation" test. Harris v. Murphy Oil, U.S.A.,

(5th Cir. 1992); Salsbury v. Hood

Indus. Inc., --- F.2d ----, ----, ---- (5th Ci r. 1993). Under the integral relation test, a statutory

employer relationship exists when the contract work is an integral part of the trade, business, or

occupation of the principal. Salsbury, --- F.2d at ----. The Berry factors may no longer be used to

defeat statutory employer status.

at ----.

Here, Chevron decided to replace its overhead walkways to comply with stricter safety

standards. The overhead walkways were used daily to access hatches located above the storage

tanks. Chevron employees needed access to such hatches so that they could sample and test the

chemical product stored in the tanks. For purposes of determining statutory employer status under

the integral relation test, the "work" at issue is the replacement of the overhead walkways. We

believe that such "work" was an integral part of Chevron's business. The fact that this work might

be considered extraordinary construction work, as asserted by Becker, is irrelevant under the

amended version of 23:1061.

Becker contends that because the Louisiana Legislature did not amend 23:1032 as it did

23:1061,1 the Berry analysis should still apply in cases where the principal is seeking tort immunity

1 LSA-R.S 23:1032 provides tort immunity to statutory employers. Whereas, 23:1061 obligates statutory employers to pay compensation. under 23:1032. According to Becker, Louisiana now has two definitions for statutory

employer—one under 23:1032 and one under 23:1061. We do not agree. In applying tort immunity

to statutory employers, courts have always read the two provisions together, and we will continue

to do so.2 We doubt that the Legislature intended to create two definitions of statutory employer.

See

at ---- n. 5.

Becker has also failed to demonstrate that the Louisiana worker's compensation scheme is

unconstitutional with respect to the tort immunity accorded to statutory employers who have not

actually paid compensation. See Williams v. Gervais F. Favrot Co.,

(La.App.

4th Cir. 1986), writ denied,

(La. 1987); Guinn v. Progress Drilling, Inc.,

(La.App. 3d Cir.), rev'd on other grounds,

(La. 1981).

III. CONCLUSION

We conclude that Chevron was Becker's statutory employer, and therefore, the district court

properly granted Chevron's motion for summary judgment.

AFFIRMED.

2 In 1976, the Louisiana Legislature amended 23:1032 to explicitly grant immunity to statutory employers. See Rowe v. Northwestern Nat'l Ins. Co.,

(La. 1985) (Lemmon, J., concurring). The 1976 amendment was essentially a codification of the case law which used 23:1061 to grant immunity to statutory employers. See 13 Wex S. Malone & H. Alston Johnson, III, Louisiana Civil Law Treatise—Workers' Compensation § 128 (2d ed. 1980).