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McElwee v. City of Bossier City12/6/2000
hat Edwards v. Sawyer Industrial Plastics Inc., supra, upon which Mrs. McElwee and the WCJ relied, dispensed with the timely filing requirement of R.S. 23:1209 A for claims made under the Occupational Disease Statute, R.S. 23:1031.1 E. The City shows, however, that after the WCJ's decision was rendered, the Supreme Court considered and rejected the rationale of Edwards and held that occupational disease claimants, like all other compensation claimants, must also comply with the filing requirement of R.S. 23:1209 A. LaCour v. Hilti Corp., 98-2691 (La. 5/18/99), 733 So.2d 1193. This argument has merit; we conclude that LaCour implicitly yet effectively overrules our decision in Edwards.
The Supreme Court noted, with this court, that R.S. 23:1031.1 E requires a claimant to notify his employer of his occupational disease claim, but is silent as to any formal filing requirement. The Supreme Court asked:
question remains - what is the time period for filing a formal disputed claim with the Office of Workers' Compensation. The argument has been made that since the legislature did not provide for a prescriptive period in the statute, then no time limit exists for filing suit after the employer is notified that the claimant has suffered an occupational disease. See Edwards, 647 So.2d at 451; Juge, La. Workers' Compensation, Issue 5 at ยง 9:5. Often statutes creating a cause of action contain no prescriptive period. Instead, it is determined by reference to other statutes.
The court next noted that under 23:1031.1 A, occupational disease claims are to be treated the same as personal injury arising out of and in the course of employment. Relating this to the general filing requirement of 23:1209 A, the court concluded:
Therefore, it would seem only logical to conclude that the legislature intended that the prescriptive statute of Chapter 23 apply to a claim for an occupational disease. Moreover, application of La. R.S. 23:1209 A to an occupational disease claim would prevent the filing of stale claims by the employee and give an employer an opportunity to satisfy its obligations under the Act. Hence, we conclude that the prescriptive period of La. R.S. 23:1209 A applies to claims under La. R.S. 23:1031.1.
The Fireman's Heart and Lung Act, La. R.S. 33:2581, creates a legal presumption that heart or lung disease is an occupational disease for fire fighters:
Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all the rights and benefits as granted by the laws of the State of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment. (Emphasis added)
In short, the Fireman's Heart and Lung Act expressly, and in precise words, subjects firemen's heart and lung claims to the provisions of the compensation act. See Coats v. City of Bossier City, 31,164 (La. App. 2 Cir. 10/30/98), 720 So.2d 1281, writ denied 99-0019 (La. 2/12/99), 738 So.2d 581. This imposes the obligation of filing a formal claim in accord with R.S. 23:1209 A.
In brief, Mrs. McElwee offers three t
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