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Kennedy v. Brookshire Grocery Co.12/7/2001
period, Kennedy cites Dupaquier v. City of New Orleans, 257 So.2d 385 (La. 1972). Kennedy also argues that where an employer initiates payment of disability benefits in the amount equal or greater than maximum workers compensation benefits, it is reasonable for the employee who receives no contrary indication from his employer at that time to believe that payments are in fulfillment of his employer's statutory obligation to compensate him for loss of salary. Also, it is also reasonable that during the period of the payments, the employee would refrain from consulting counsel in the belief that he is receiving the benefits to which he is entitled. Williams v. Intern. Lubicant Corp., 341 So.2d (La. App. 4th Cir. 1977), writ refused 342 So.2d 872 (La. 1977).
Brookshire counters by asserting that there is no merit to Kennedy's argument that the payment of deductibles and co-payments served to interrupt prescription on her workers' compensation claim. All payments were simply benevolent and made in relation to the 1990 accident because the 1995 accident was not reported until 1999. Brookshire argues that it did not lull Kennedy into a false sense of security believing that her workers' compensation claims were suspended.
In Causby v. Perque Floor Covering, 97-1235 (La. 1/21/98), 707 So.2d 23 the Louisiana Supreme Court, reversing the Fifth Circuit, stated that:
until the court of appeal opinion in this case, no reported Louisiana decision has held that an employee has been lulled into a false sense of security which would justify a delay in filing a workers compensation claim where the employer or claims adjuster tells the employee that he is not entitled to further benefits. At that point, the employee is put on notice that his only avenue for recovery is to hire an attorney and file a suit within established time limits.
Dupaquier, supra, is inapposite to the instant case in that Brookshire did not mislead Kennedy regarding the nature of the benefits she received. The record reveals that Kennedy knew the difference between STDB and workers' compensation, and that Brookshire went to great lengths to explain such differences. Moreover, Kennedy received STDB in 1986 and 1991 for non-work related surgeries, so she could not have been confused between workers' compensation benefits and STDB in 1995. In fact, she applied for STDB in 1997 following the removal of a lump in her breast.
The trial court found that the appellant told Brookshire about a 1990 accident for which they told her that her claim for workers' compensation had prescribed. The court stated that even if the appellant is correct in saying she was intentionally told she did not have a claim, she was put on notice to hire an attorney to pursue the matter. The court weighed the evidence and noted serious questions about the appellant's credibility. Of particular concern to the court was the peculiar timing of Kennedy's filing of her workers' compensation claim - ten days after she was fired by Brookshire. Even if Brookshire's actions suspended prescription, the trial court stated that this case is still prescribed because the last day Kennedy received benefits for the accident was October 22, 1995, and her claims for workers' compensation would have prescribed the following year. Finally, the court noted that assuming that prescription was interrupted when Brookshire paid the last deductible on March 7, 1996, at the Orthopedic Clinic, this case is still prescribed because suit was not filed until March 11, 1999. The trial court was not manifestly erroneous. Thus, this assignment has no merit.
CONCLUSION
For the reasons cited above, we affirm the judgment of the trial court.
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