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McElwee v. City of Bossier City12/6/2000
heories in an effort to distinguish LaCour. First she urges that R.S. 23:1209 A applies only to "occupational diseases described in this statute" and thus does not regulate this claim. However, in light of our foregoing discussion, this argument lacks merit.
Counsel noted at oral argument that after its opinion in LaCour, the Supreme Court rendered an opinion in Edwards awarding supplemental earnings benefits, and this result is incongruous with the rationale of LaCour. Edwards v. Sawyer Indus. Plastics Inc., 99-2676 (La. 6/30/00), 765 So.2d 328. However, the Supreme Court's Edwards opinion did not address issues of prescription and R.S. 23:1209 A, and is not authority for rejecting the analysis of LaCour. In sum, the Fireman's Heart and Lung Act is considered part of the compensation act and subject to the formal filing requirement of R.S. 23:1209 A.
Second, she urges that prescription was interrupted by the City's conduct which prevented her husband from availing himself of his cause of action. She suggests that the City committed fraud or ill practices. Notably, the WCJ rejected this argument, finding no fraud or ill practice on the City's part.
The concept of contra non valentem prevents the running of prescription under certain jurisprudentially defined situations. Mrs. McElwee contends that the chief misled her husband by saying he could not draw both retirement and workers' compensation disability benefits. However, Mrs. McElwee stated in deposition that her husband inquired about benefits in June 1996 and was told that he would not be receiving any. R.p. 97. There is no evidence that the City suppressed the truth or lulled McElwee into any the false belief as to his right of recovery; he obviously had sufficient information to put him on notice of his cause of action. The record supports the WCJ's conclusion that no fraud, ill practice, or other element of contra non valentem applied to this case.
Third, Mrs. McElwee urges that the payment of retirement benefits interrupted prescription as to this compensation claim. She contends that the city took an offset of retirement benefits against the workers' compensation benefits to which her husband was entitled, and such an offset is illegal under R.S. 23:1125. However, the record does not reflect that the City paid took any offset or paid any compensation benefits to Mr. McElwee other than necessary medical expenses pursuant to R.S. 23:1203; payment of theses benefits does not affect prescription as to indemnity benefits. Love v. East Jefferson Gen. Hosp., 96 1558 (La. App. 1 Cir. 5/9/97), 693 So.2d 1245, and citations therein. This argument lacks merit.
In conclusion, we are unable to distinguish this case from LaCour, supra, and find that the procedural requirements of R.S. 23:1209 A govern claims under the Fireman's Heart and Lung Act. Mr. McElwee was diagnosed with an occupational disease in June 1996 and promptly provided notice to his employer. However, the formal claim form was not filed until October 1998, more than two years after the diagnosis. The action was untimely and the judgment must be reversed.
In light of this conclusion, we pretermit any consideration of the City's second assignment of error.
Conclusion
For the reasons expressed, the judgment is REVERSED and the case is dismissed. Costs are assessed to the claimant, Joyce McElwee.
REVERSED.
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