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McElwee v. City of Bossier City12/6/2000
Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP.
The employer, City of Bossier City, appeals a judgment awarding workers' compensation indemnity benefits to the claimant, Joyce McElwee, on behalf of her late husband, Jackie N. McElwee, who had been a Bossier City fireman. Finding that the claim has prescribed, we reverse.
Factual and procedural background
Jackie McElwee was employed by the City of Bossier City as a fire fighter for 30 years; by the late 1980s he was senior assistant fire chief. In 1988 or 1989, he suffered a seizure "of unknown etiology." Never fully recovering from the effects of the seizure, he resigned his position on August 31, 1991. He promptly began receiving retirement benefits of $3,201.24 per month and never earned any wages thereafter.
In June 1996, McElwee was diagnosed with lung cancer. He notified the City of his condition and the City began paying workers' compensation medical benefits under The Fireman's Heart and Lung Act, La. R.S. 33:2582, which presumes lung disease to be an occupational disease of fire fighters. However, the chief advised the McElwees that the city would not pay indemnity benefits because McElwee had not been engaged in any occupation for wages for over four years. McElwee took no further steps to obtain indemnity benefits.
McElwee died from complications of lung cancer on September 11, 1998. The city promptly began paying his widow workers' compensation death benefits. However, on October 13, 1998 Mrs. McElwee filed the instant disputed claim, seeking benefits of $323 per week from the time her husband was diagnosed with lung cancer, June 1996, until his death.
The City filed an exception of prescription, urging that McElwee failed to file a disputed claim form within one year as required by La. R.S. 23:1209 A. At a hearing in April 1999, the WCJ ruled from the bench that Edwards v. Sawyer Indus. Plastics, 26,320 (La. App. 2 Cir. 12/7/94), 647 So.2d 449, governed the case: the occupational disease statute, R.S. 23:1031.1 E, requires only notice to the employer within six months of the date the disease manifests itself, disables the employee, or gives the employee reasonable grounds to believe the disease is work-related; the statute does not set forth an obligation to file a formal claim within one year, as is normally required by La. R.S. 23:1209 A. Since McElwee provided the requisite notice, the WCJ held the disputed claim filed over two years later was timely.
The matter proceeded to trial in November 1999; the WCJ made an oral ruling in February 2000. She found that McElwee retired "of his own volition" and was still able to work. To deny him benefits because he chose not to work would be tantamount to saying he cannot draw retirement and compensation benefits at the same time; R.S. 23:1225 "does not prohibit" dual recovery. She therefore awarded Mrs. McElwee her husband's temporary, total disability benefits at the maximum rate of $323 per week for 27 months. She denied claims for penalties and attorney fees.
The City has appealed, advancing two assignments of error: the WCJ erred in denying the exception of prescription; alternatively, the WCJ erred in basing McElwee's benefits on his wages at the onset of disability rather than at the time of retirement.
Discussion
By its first assignment of error the City urges that the WCJ erred in rejecting the exception of prescription, specifically by dispensing with the requirement that the claimant file a formal claim within one year of the date that the disease manifested itself or became disabling, under R.S. 23:1209 A. The City concedes t
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