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Marco Sperandeo v. Sydran Food Services12/12/2001
Sperandeo told Dr. Gallagher that he slipped and fell. His condition was essentially unchanged at that time, and thus the option of surgery was discussed. On November 30, 1999, plaintiff underwent a two level diskectomy.
Shortly after the surgery, Mr. Sperandeo informed Dr. Gallagher that he had been hit when the ceiling fell on September 15, 1998. On December 10, 1999, Dr. Gallagher wrote a letter on behalf of Mr. Sperandeo, in which he opined that the plaintiff's spinal condition and need for surgery were related to the September 15, 1998 accident, which caused his asymptomatic back condition to become symptomatic.
At trial, Mr. Sperandeo testified that he did not initially tell defendant that he was injured as a result of the work related accident because he feared he would lose his job . He admitted, however, that he had not been told by anyone that this would occur.
Mr. Sperandeo filed a claim for workers' compensation benefits, which was received by the Office of Workers' Compensation on February 8, 2000, more than one year after the accident and more than one year after receiving his last regular paycheck. Mr. Speradeo alleges that as a result of the accident, he suffered injury to his head, back, neck, and shoulders, and aggravated a pre-existing asymptomatic back condition which has caused him to be totally disabled.
In this appeal, the plaintiff argues that the workers' compensation judge "committed clear error by ignoring the corrected diagnosis of the treating physician dated December 10, 1999." Plaintiff contends it was on that date that his treating physician determined that his injury was work related, and therefore prescription did not begin to run until that time.
Under La. R.S. 23:1209(A), a workers' compensation claim is barred unless asserted either one year from the date of the accident or one year from the time the injury develops, when the injury does not result at the time of the accident or does not develop immediately after the accident. In such cases, the claim is forever barred unless instituted within two years of the accident. Blanchard v. Tulane Medical Center, 97-1111 (La. App. 5 Cir. 3/11/98), 708 So.2d 1232.
The party pleading prescription generally bears the burden of proving it. However, when a suit has prescribed on its face, the claimant has the burden of proving that prescription was interrupted in some manner. Blanchard, supra.
Plaintiff here contends that prescription did not run until he was informed by Dr. Gallagher on December 10, 1999, that his back condition was caused by the accident. Therefore, he argues, prescription did not begin to accrue until that time and his claim for workers' compensation is timely.
"Development of the injury " actually means development of disability, and disability marks the time from which the employee can no longer perform the duties of his employment in a satisfactory manner. Sevin v. Schwegmann Giant Supermarkets, 94-1859 (La. 4/10/95), 652 So.2d 1323. In this case, Mr. Sperandeo was unable to perform his duties almost immediately after the accident, and within two months had completely ceased working. Accordingly, at that time his injury was sufficiently developed to start the running of prescription.
Even though the disability may be apparent, prescription does not usually start to run where the cause of action is not known or reasonably knowable by the plaintiff. Stevens v. Wal-Mart Stores, Inc., 27,977 (La.App. 2 Cir. 11/1/95), 663 So.2d 543. In the context of workers' compensation, this means that prescription will not begin to run until the claimant is aware, or should have been aware, that the injury and its result
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