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Dautriel v. American Red Cross of SW Louisiana9/29/2004
compensation with the Office of Worker's Compensation. The court held "Maiden had a 'developing injury' which manifested itself as disabling no earlier than December 28, 1992 and her claim was timely filed on November 24, 1993." Id. at77. The court went on to state; "To further that policy, the phrase 'the time the injury develops' in last sentence of La. R.S. 23:1209(A) is liberally construed where the worker attempts to continue working until no longer able to perform his or her employment duties." Id.
The court refused to find that her disability began prior to December 28, 1992, the date of termination of employment. "However the injury was not disabling and Maiden continued to work until December 28, 1992 when she was fired. Her injury became disabling on or after December 28, 1992 and she did not have a cause of action for a total disability claim until that time. Thus, her claim was timely on November 24, 1993." Id. at 77-78.
Maiden, just as Rita Dautriel, lost her employment position. In Maiden, the court found that she did not become disabled until the date of firing. Using this same analysis, Rita Dautriel did not become disabled until her job position was eliminated; therefore, the one year prescriptive period began to run on that date.
In Aguiar v. Marriott Corp., 93-0563 (La.App. 4 Cir. 1/27/94) 632 So.2d 398, plaintiff began to experience difficulties with her hand in October 1990. In November 1990, the doctor recommended a two-week period off from work. On December 4, 1990, the doctor reported that Aguiar was doing better but should wear a brace and refrain from polishing with her right hand. On December 5, 1990, Aguiar either resigned because she was unable to work or was released because there were no modified duties available. On November 19, 1991, Aguiar filed a claim for compensation in the Office of Worker's Compensation. The defendants argued prescription. The court of appeal held that the claim was timely where claimants legal disability manifested itself as of date employer informed her that no unskilled work other than silver polishing was available.
In all the discussed cases, there was some incident of employment termination either by the employer or the employee, and the court held that the date of termination began the one year prescriptive period.
This same analysis applies to the present claimant. Claimant suffered the second injury on September 22, 2001, and her job was terminated on June 30, 2002. Applying the developing injury rule in the last sentence of the statute, a claimant has one year from the date of termination to file suit. She could file no later than June 30, 2003. The claimant timely filed on March 25, 2003.
Because the claimant's cause of action is not prescribed, we therefore reverse and remand the case. The issue of penalties and attorney fees is reserved for a finding by the Workers' Compensation Judge.
CONCLUSION
We reverse the decision rendered by the Office of Workers Compensation, thus finding that Rita Dautriel's claim for compensation has not prescribed. This case is, therefore, remanded for further proceedings. Costs of this appeal are to be paid by the Defendant.
REVERSED & REMANDED.
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