ROBERT M. MURPHY, Judge.

In this matter, plaintiffs Vincent E. Johnson1 and his three minor children2 seek reversal of the trial court's judgment that found Motiva Enterprises, L.L.C. ("Motiva") to be plaintiff's statutory employer, thus limiting his remedy against Motiva and its named employees to workers' compensation rather than in tort. Plaintiffs further appealed the trial court's upholding the constitutionality of La. R.S 23:1061(A)(3), the statutory employer immunity provision as amended in 1997 and the denial of plaintiffs' request for declaratory judgment. For the reasons that follow, we affirm the trial court's judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

In 2009, Shell Oil Company as Buyer and AbClean, Inc. as Vendor contracted such that Shell would be entitled to statutory employer status for the tank cleaning work AbClean employees performed in Louisiana. The contract listed Shell and its affiliates including Motiva Enterprises, L.L.C. and included work locations such as the Motiva refinery in Norco, Louisiana.

Plaintiff Vincent Johnson worked as an environmental cleanup truck driver for United States Industrial Services, Inc. ("USIS"), the successor entity of AbClean following a reorganization on December 31, 2009. On January 16, 2010, Johnson drove a USIS cleanup truck to the Motiva Norco refinery to perform tank cleaning. A few minutes into the removal process, Motiva's operator appellee/defendant Anastasia Coleman asked plaintiff to disengage the truck's vacuum line so that she could take a sample. Coleman was soon replaced by Mike Johnson3 before plaintiff had finished his task. The site supervisor, appellee/defendant Corey Bazile, instructed plaintiff to recommence pumping. When vapors collected in the area, Bazile allegedly told plaintiff to move the USIS truck. Plaintiff contended that Mike Johnson assured him that the valves were closed. The valves, which had remained open, allegedly sprayed carcinogenic materials, including benzene, onto plaintiff causing damages. Plaintiff alleged that Motiva failed to report the incident and delayed providing him medical attention. Plaintiff was ordered not to return to work. He contended that the incident caused multiple polyps in his gall bladder which later had to be removed. He further claimed mental anguish and depression caused by the incident.

Plaintiff received workers' compensation benefits from AbClean/USIS; on June 10, 2010, he filed a tort claim in the district court against Motiva and individual employees Coleman and Bazile (collectively "appellees"). Defendants Motiva and Coleman filed exceptions of no cause of action and no right of action, claiming Motiva's statutory employer status and immunity in tort. On November 8, 2010, plaintiff filed a first supplemental and amending petition adding claims of his three minor children and seeking declaratory relief that the statutory provision providing for tort immunity for statutory employers pursuant to a written contract, La. R.S.23:1061(A)(3)4, is unconstitutional as applied here. Plaintiffs claimed that the provision at issue, La. R.S. 23:1061(A)(3)5, violated equal protection, due process, and access to the courts. The defendants reurged their exceptions to the original petition and raised exceptions of no cause of action to the constitutional challenge.

On April 8, 2011 after permitting additional arguments on the exceptions and constitutional issues, the trial court sustained Motiva's exceptions, finding Motiva to be a statutory employer and thus immune to plaintiffs' suit in tort; the trial court declined to reach the constitutional issue and dismissed the case. Plaintiffs appealed.

On May 8, 2012, this Court vacated the trial court's April 19, 2011 judgment in its entirety, found that the trial court should have ruled on the constitutionality of La. R.S. 23:1061(A)(3), and remanded. Johnson v. Motiva Enterprises, L.L.C., 11-949 (La.App. 5 Cir. 5/8/12), 95 So.3d 1086. The parties filed supplemental memoranda; on June 29, 2012, the trial court heard oral argument and took the matter under advisement.

On July 23, 2012, the trial court found the 1997 statutory amendment adding statutory employer tort immunity based on contract to the Louisiana Workers' Compensation Act ("LWCA") to be constitutional; it denied plaintiffs' motion for declaratory judgment and granted Motiva's exceptions of no cause of action and no right of action. The trial court found that defendants were entitled to tort immunity under La. R.S. 23:1032 & 23:1061(A)(3).

ASSIGNMENTS OF ERROR

Appellants assigned the following errors in the trial court's July 23, 2012 judgment:

STANDARD OF REVIEW

No right of action. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo. Caro Properties (A), L.L.C. v. City of Gretna, 08-248 (La.App. 5 Cir. 12/16/08), 3 So.3d 29, 31.

No cause of action. The appellate court reviews a trial court's ruling sustaining an exception of no cause of action de novo because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Guidry v. Hanover Ins. Co., 09-220 (La. App. 5 Cir. 11/10/09), 28 So.3d 426, 429. The Court rejects defendants' position that the trial court's ruling is protected by manifest error.

Constitutionality. The standard of review of a trial court's ruling declaring the constitutionality of a statute is de novo. Louisiana Mun. Ass'n v. State., 04-0227 (La.1/19/05), 893 So.2d 809, 842-43.

LAW AND ANALYSIS

Assignments of error one through six relate to the trial court's finding Motiva to be plaintiff's statutory employer.

No right of action in tort. Appellants contend that appellees have not sustained their burden to prove that appellant does not have a right of action. See Robertson v. Sun Life Financial, 09-2275 (La.App. 1 Cir. 6/11/10), 40 So.3d 507, 512. This Court, on de novo review, is asked to determine whether the appellant belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Caro Prop., supra, 3 So.3d at 32.

Appellants argue that they can sue appellees in tort because Motiva is not entitled to statutory employer status for the following reasons: Motiva was not a party to the contract; that the contract is ambiguous as to whether AbClean's employees are classified as Shell's independent contractors; and that the contract is unenforceable under Prejean, supra.

The appellees contend that the trial court properly held that appellants have no right of action against appellees to recover damages in tort, because a written contract exists identifying Shell affiliate Motiva as appellant's statutory employer under La. R.S. 23:1061(A)(3) and because appellants made no effort to rebut the presumption as required by statute that the principal's work is "not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services." Appellees argue that Motiva is entitled to statutory employer status, precluding appellants' cause of action in tort and restricting appellants' action to workers' compensation.

Statutory employer status. Prior to the 1997 amendment, statutory immunity was based on an evaluation of the relationship of the immediate employer's work to the work or product of the principal. The 1997 amendment to La. R.S. 23:1061,6 which added Subpart (A)(3) and became effective on June 17, 1997, created a presumptive statutory employer status based on a written contract between the principal and immediate employer. After 1997, if the employee could show the immediate employer's work was not an integral part of the principal's work or product, he or she could rebut the presumption of statutory employer status created by the existence of a contract.

The written contract at issue between Shell as Buyer and AbClean as Vendor was executed six months before the incident. It contains a statutory employer provision at Section 32:

Under "Affiliates and Subsidiaries," Motiva Enterprises is listed in the contract as "Buyer's Affiliate," and the "Norco Refinery," owned by Motiva, where the incident occurred, is identified as a "Participating Location." USIS is the surviving entity of a December 31, 2009 merger between AbClean and several other entities.

Appellants seek a strict application of La. R.S. 1061(A)(3) which requires a written contract between the principal and the direct employer. The statutory employer relationship "shall not exist unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer." Id. The appellants argue that the trial court erred in finding that Motiva was entitled to statutory employer status under La. R.S. 23:1061(A)(3), because the contract at issue was between Shell and AbClean and there was no contract between Motiva and USIS. Appellants contend it would lead to absurd consequences if all named and unnamed affiliates are deemed parties to the contract creating statutory employer status.

The appellees argue contrariwise that the contract makes Motiva appellant's statutory employer, as it is a listed subsidiary of Shell. The appellees rely on the language of Section 32 which provides that "BUYER or any of its subsidiaries or affiliates ... shall be considered a Statutory Employer." (Emphasis added). The appellees also contend that AbClean simply changed its name to USIS and thereby did not alter its rights and obligations under the contract. Motiva notes that appellant used the names AbClean and USIS interchangeably: in his petition appellant alleges that he was in the course and scope of his employment with AbClean at the time of the accident. In other instances, his direct employer is noted as USIS, after the AbClean mergers. The trial court held that the change of name here has no effect on the rights and obligations of the parties to the agreement. See Town of Haynesville, Inc. v. Entergy Copr., 42,019 (La.App. 2 Cir. 5/2/07), 956 So.2d 192.

Appellants' suggested rigid application of La. R.S. 23:1061(A)(3) to limit the creation of statutory employer status to the parties executing the agreement is not supported by case law. In St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 09-1420 (La.App. 4 Cir. 5/19/10), 40 So.3d 365, writ denied, 10-1412 (La.9/24/10), 45 So.3d 1082, the Fourth Circuit held that the statutory employer provision executed by the procurement division on behalf of the refinery owner inured to the benefit of the refinery owner, a separate corporate entity from the operator. The St. Angelo court rejected the argument that the agreement, which was not directly between a principal and a contractor, did not bestow statutory employer status. The court thus held a broad view of what constitutes a principal under the statute.

Jurisprudence further recognizes the common intent of the parties in creating statutory employer status. In Fleming v. JE Merit Constructors, Inc., 07-926 (La. App. 1 Cir. 3/19/08), 985 So.2d 141, the First Circuit held that a letter from the principal to the plaintiff's direct employer containing a proposed contractual amendment was sufficient to confer statutory employer status. See also Joseph v. Shell Chemical Co., 07-5489 (E.D.La.6/23/09), 2009 WL 1789422, aff'd sub nom., Joseph v. Shell Chem, LP, 390 Fed.Appx. 401 (5th Cir.2010) (Motiva found to be presumptive statutory employer under substantially similar provision set forth in the instant contract.). Appellees here contend that requiring a separate contract between large corporations by each affiliate and each contractor would be cost prohibitive and is not required by the LWCA.

Based on case law's broader application of principal to include the intent of the parties and USIS having the same rights and obligations as its pre-merger entity AbClean, appellants' argument that La. R.S. 23:1061(A)(3) is not applicable is without merit.

Ambiguity of contract. Appellants argue that the contract's inclusion of a provision regarding independent contractors makes the statutory employer provision ambiguous and unenforceable. Appellants contend that the contract is ambiguous as to whether appellant is an independent contractor or a statutory employee of AbClean and that this ambiguity should be construed against Motiva. Appellants suggest that AbClean and its employees are independent contractors and are therefore excluded from coverage under the LWCA.

Section 31 of the agreement, relating to independent contractors, begins "Except as otherwise set forth herein" and further provides that AbClean and its employees are not considered Buyer's employees or agents and are not eligible to participate in Buyer's employee benefit plans. Appellees contend that appellants are reading the independent contractor provision too narrowly, and that the provision must be read together with Section 32, which provides that AbClean's employees will be considered the statutory employees of Motiva for services performed under the contract in Louisiana. In other words, Section 32's statutory employer status for work performed in Louisiana is one exception to Section 31's independent contractor provision as per the above-cited "[e]xcept as otherwise set forth herein" language.

We find that reading the two provisions together does not render the statutory employer provision ambiguous.7 This holding is consistent with that of the First Circuit in Mitchell v. Southern Scrap Recycling, L.L.C., 11-2201 (La.App. 1 Cir. 6/8/12), 93 So.3d 754, writ denied, 12-1502 (La.10/12/12), 99 So.3d 47. That contract included a statutory employer provision and an independent contractor section which provided that neither the contractor nor any of its employees would be "deemed for any purpose to be the employee" of the principal. The court rejected the plaintiff's argument that the independent contractor provision rendered the statutory employer provision ambiguous and found that the independent contractor provision was "irrelevant" in deciding the specific issue of whether the principal was entitled to tort immunity. Id. at 759. In the instant matter, we find that the express language of Section 32 controls as to whether the appellees are entitled to statutory immunity and that other provisions on different issues are irrelevant in determining the statutory employer status.

Appellants further argue that the seventy-seven page agreement has only one provision, Section 32, pertaining to statutory employer status. Appellees respond that the statute, La. R.S. 23:1061(A)(3), requires only a written agreement providing that the principal will be deemed the statutory employer of the contractor's employees. That contract does so provide at Section 32, that AbClean employees, and by extension those of its corporate successor USIS, will be considered statutory employees of Motiva for services performed under the agreement in Louisiana pursuant to La R.S. 23:1061(A)(3).

Appellants' argument that the contract is ambiguous and should be construed against Motiva is without merit.

Applicability of Prejean. Appellants contend that the contract creating statutory employer immunity status is unenforceable under Prejean, supra. In Prejean, a plurality opinion of the Fourth Circuit, the court determined that Murphy Oil, the alleged principal was not immune in tort despite contractual language that Murphy Oil was the statutory employer. The objectionable contract obligated Murphy Oil to pay workers' compensation benefits only if the direct employer was "unable" to meet their financial obligation under the LWCA:

Based on the complained-of contract language, the Prejean court held that the principal cannot contract to take advantage of statutory employer benefits while repudiating the obligation imposed on statutory employers. Id. The Fourth Circuit found that the contractual language created an unlawful condition in that it required the injured employee to demand workers' compensation benefits from either his direct employer or his statutory employer. Appellants argue that the holding in Prejean is applicable here, as Shell is not responsible for maintaining workers' compensation benefits because AbClean is required to maintain and pay all benefits.

In the instant matter, the appellees contend that there is no such unlawful condition to demand workers' compensation benefits from either his direct employer or his statutory employer as the contract creates no burden on appellant to establish that his direct employer is unable to pay, as was the case in Prejean. Appellees point out that the contract allows appellant to recover workers' compensation benefits from Motiva as his statutory employer or from USIS, his direct employer.

The Legislature has effectively determined that the liability of the principal, who is a statutory employer, and the direct employer is solidary as to the injured worker. La. C.C. arts. 1786 and 1790, and La. R.S. 23:1061; Bowens v. General Motors Corp., 608 So.2d 999, 1003 (La.1992). The injured worker is the obligee to whom the obligation of benefits is immediately and unconditionally owed by either or both. Neither a direct employer nor a statutory employer may, as to the injured worker, contract away its solidary obligation: "No contract rule, regulation, or device whatsoever, shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided." La. R.S. 23:1033. However, the statutory employer and direct employer are not prohibited from contracting as between themselves rights of contribution or indemnification. See, e.g., La. R.S. 23:1031(B) and 1063(A). Prejean, supra; Mitchell, supra.

We find that Prejean does not apply and the exclusive remedy provisions of the LWCA control. The contract at issue does not contain an unlawful condition requiring an initial demand on the immediate employer to the benefit of the statutory employer.

For the reasons above that appellees have complied with the contract requirements of La. R.S. 1061(A)(3), that the written contract is not ambiguous vis-à-vis the independent contractor provision when read together with the statutory employer provision, and that Prejean is inapplicable to the contract here, we find on de novo review that the trial court correctly ruled that Motiva is entitled to statutory immunity status and that appellants have no right of action in tort.

Burden of proving mental injuries. Appellant contends that he has suffered severe mental distress as a result of the incident including fear of cancer and depression. Appellant contends that if an employee is not entitled to a workers' compensation remedy, the employer or statutory employer is not entitled to tort immunity. See O'Regan v. Preferred Enterprises, Inc., 758 So.2d 124, 127 (La. 2000). Appellant argues that to restrict Motiva to a workers' compensation remedy, Motiva must first establish that plaintiff's mental injuries are compensable under the LWCA.

Appellees rely on La. R.S. 23:1021(8)(c)-(d) in support of their position that mental injury is compensable under the LWCA. The appellees concede that the statute establishes a higher burden on the workers' compensation claimant attempting to recover benefits for certain conditions, i.e., mental injuries, heart disorders and perivascular disease, which commonly arise in the general population. However, the appellees contend that La. R.S. 23:1021(8) does not require appellees to meet the burden of introducing evidence that appellant's particular mental injuries are covered under the LWCA before an injured employee can claim mental injury under the Act.

We find no requirement that Motiva was required to prove by "clear and convincing" evidence that appellant's claims for mental injuries are covered by the LWCA. The burden, albeit a higher one for mental injuries under the LWCA, remains with the workers' compensation claimant, despite appellant's assertions to the contrary.

We find that appellants' assignments of error one through six lack merit, that Motiva is entitled to statutory employer immunity in tort, and that appellants' sole remedy is under the LWCA. La. R.S. 23:1032. As a statutory employee, appellants do not belong to that class of persons who have a right of action against Motiva in tort. Additionally, we find that the trial court correctly ruled that appellant has not stated a cause of action in negligence/tort for his and his children's damages.

Assignments of error seven through nine pertain to the declaratory relief sought by appellants, that La. R.S. 23:1061(A)(3) unconstitutionally violates equal protection, due process, and access to the courts. Having remanded the constitutional issue to be addressed by the trial court, we now review its ruling de novo.

Appellants contend that the Supreme Court has not addressed the issue of the 1997 amendment, which added Subpart (A)(3) to La. R.S. 1061. In Moore v. RLCC Technologies, Inc., 95-2621 (La.2/28/96), 668 So.2d 1135, the Supreme Court upheld the granting of tort immunity to principals under the "integral relationship" test. This 1996 decision did not address the 1997 amendment, adding the rebuttable presumption of Subpart (A)(3).

La. R.S. 23:1020.1 sets forth the Legislature's intent and purpose of the Louisiana Workers' Compensation Act and provides, in pertinent part:

Equal protection. The Appellants claim that the statutory employer immunity provision as amended violates equal protection, as it arbitrarily and capriciously discriminates among similarly situated employees. Louisiana Constitution Article I, Section 3 provides:

In Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985), the Supreme Court set forth the criteria to determine whether an equal protection violation has occurred:

Since there is no suspect class issue in the present case, the challenged provision is not subject to the strict scrutiny requirements of Sibley's parts one and two, above. The provision will therefore be reviewed to determine whether the classification is rationally related to a legitimate state purpose, the "rational basis" test. See Frederick v. Ieyoub, 99-0616 (La.App. 1 Cir. 5/12/00), 762 So.2d 144, 148, writ denied, 2000-1811 (La.4/12/01), 789 So.2d 581 (citing Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)).

The trial court recognized the purpose of regulating workers' compensation: (1) by spreading the cost of doing business to the industry as opposed to the individual employer, and (2) to allow for a compromise between the employer and employee where the employer is given tort immunity in exchange for the right of the injured employee to receive benefits, regardless of fault.

We first find that even prior to the 1997 amendment, Section 1032 extended tort immunity to a principal and its employees, although applying a different test.

We find that classifying injured workers with a "statutory employer contract" furthers a legitimate governmental interest by spreading the cost of doing business to the industry as opposed to the individual employer. This spreading of the costs, including the statutory employer's paying into the workers' compensation system through insurance premiums, does not make the individual employer liable for the full cost. By requiring the injured employee to resolve any on-the-job injuries through the LWCA, injured employees receive medical treatment and timely indemnity without regard to fault, in exchange for the statutory employer's receiving tort immunity. We find the rational basis satisfied and that appellant has failed his burden to prove a violation of equal protection.

Due process. The Fourteenth Amendment to the U.S. Constitution prohibits a state from "depriv[ing] any person of life, liberty, or property, except by due process of law." Identical in scope and purpose, La. Const. Art. 1, Section 2 provides that "[n]o person shall be deprived of life, liberty, or property, except by due process of law." The Louisiana Constitution further provides for "open courts." La. Const. Art. I, Section 22. Procedural due process concerns the means or processes used by the State to effect the deprivation of a fundamental right or property interest. Messina v. St. Charles Parish Council, 03-644 (La.App. 5 Cir. 12/30/03), 865 So.2d 158, 161, writ denied, 2004-0285 (La.3/26/04), 871 So.2d 354, cert. denied, 04-279 (2005), 544 U.S. 1060, 125 S.Ct. 2512, 161 L.Ed.2d 2209. Appellant argues that he has been deprived of a vested, fundamental right to sue in tort under La. C.C. art. 2315 and that his access to the court has been denied.

Appellees argue that there is no such deprivation of a fundamental right, as the statute at issue adequately affords procedural due process by the setting up of a specialized workers' compensation court system to handle claims on an expedited basis, to provide proper medical treatment, and to facilitate the prompt return of employees to the workplace. La. R.S. 23:1020.1.

We find that the granting of tort immunity through the statutory employer provision at issue does not deprive appellant of procedural due process and does not restrict his right to be heard at a meaningful time and manner in the workers' compensation tribunal. We find that the workers' compensation courts are the least restrictive means of providing an injured employee direct access to courts without unnecessary delays in receiving medical treatment and benefits.

Appellant contends that the provision violates his substantive due process. To find a violation of substantive due process, a court must find that the government acted arbitrarily and capriciously without any substantial relationship to public health, safety, morals, or general welfare. See State v. Edwards, 00-1246 (La.6/1/01), 787 So.2d 981, 992; Standard Materials, Inc. v. City of Slidell, 96-0684 (La.App. 1 Cir. 9/23/97), 700 So.2d 975, 985. Governmental action does not violate substantive due process if the action is rationally related to a legitimate government purpose. Standard Materials, supra.

We do not find that the Legislature's enactment of La. R.S. 23:1061(A)(3) was arbitrary and capricious. Here, we find that maintaining the health and safety of an injured worker until he is able to return to work and maintaining the welfare of the workers' compensation industry are legitimate government purposes to justify the loss of the injured employee's ability to file a workers' compensation claim in a district court. The finding of a rational relationship of the statutory employer statute and preserving the health and welfare of the injured worker and preserving the workers' compensation industry negates any argument that the Legislature acted arbitrarily and capriciously in enacting La. R.S. 23:1061(A)(3). We therefore conclude that La. R.S. 23:1061(A)(3) does not violate substantive due process.

DECREE

For the foregoing reasons, the Court affirms the trial court's judgment sustaining Motiva's exceptions of no right of action and no cause of action, finding that Motiva is immune in tort as appellant's statutory employer, and upholding the constitutionality of La. R.S 23:1061(A)(3). We affirm the July 23, 2013 judgment of the trial court in its entirety.

AFFIRMED.