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Kennedy v. Brookshire Grocery Co.12/7/2001
. She also alleged that Brookshire altered documents to bolster its case that a 1995 accident never occurred.
The controversy surrounding Brookshire's alteration of documents pertains to the addition of "D/A 9/1/95" by Brookshire's claims adjustor, Eddie Crawford, to the accident report filled out by Kennedy long after she completed it. Crawford explained that he only added the date because a date needed to be input into the computer in order to get checks issued to pay Kennedy's deductibles, and September was the month Kennedy first contacted them. Apparently, the trial court found Crawford's explanation credible.
Additionally, the trial court found that the medical evidence presented placed serious doubt on Kennedy's contention that she suffered a work related injury on July 27, 1995. The trial court recognized that although Kennedy's accident was unwitnessed, that factor alone could not bar her from meeting her burden of proof. The court found that Kennedy's actions following September 27, 1995, did not support her contention that she had a work related accident. Of particular concern to the court was the fact that Kennedy did not inform any of the doctors who treated her from 1995-1999 about a September 1995 accident. Ultimately, the court found that she did not meet her burden of proof. We find no manifest error in the court's findings. This assignment is without merit.
Prescription
Assuming arguendo that Kennedy met her burden of proof that she did suffer a work related injury on July 27, 1995, we find that her claim fails on the basis of prescription. La. R.S. 22:1209(A), provides in pertinent part:
In case of personal injury , including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this chapter or unless within one year after the accident a formal claim has been filed as provided in Sub-section B of this section and this chapter. If such payments have been made in any case, the limitations shall not take effect until the expiration of one year from the time of making the last payment..." (Emphasis added).
Likewise, La. R.S. 22:1208(C) provides that all claims for medical benefits shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this chapter. The burden falls upon the claimant to show that the running of prescription was interrupted or suspended in some manner. Lima v. Schmidt, 595 So.2d 624 (La. 1992).
Kennedy argues that she was lulled into a false sense of security by Brookshire that prescription on her workers' compensation claim was suspended while she received STDBs and cites Brookshire's behavior as misleading. For instance, Kennedy asserts that Brookshire took advantage of her lack of ability to communicate clearly in English and led her to file for STDBs instead of workers' compensation. Next, Brookshire's misleading behavior was supported because the amounts awarded under workers' compensation and STDB were exactly the same. Additionally, Brookshire labeled Kennedy's benefits as "sick pay" rather than workers' compensation or STDB. Finally, Kennedy contends that the 1995 injury was merely an aggravation of the injury incurred in 1990, and that she should have been offered workers' compensation.
In support of her argument that an employer may not lull an employee into a false sense of security and thereby cause him to withhold suit until after the prescriptive
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