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Dronet v. E-Z Mart12/23/2003
PUBLISHED
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Cooks, J., concurs in part and dissents in part and assigns written reasons.
Woodard, J., dissents and assigns written reasons.
In this workers' compensation case, Linda Dronet appeals a judgment denying her claim for indemnity benefits on the basis that the claim had prescribed. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
DISCUSSION OF THE RECORD
Linda Dronet began employment with E-Z Mart as a manager on June 1, 1996. Allegedly, she injured her hands during the course of her employment on September 14, 1998. Thereafter, she was diagnosed with carpal tunnel syndrome in both hands and reflex sympathetic dystrophy of the right hand. Ms. Dronet's injury necessitated medical treatment, including two surgeries on her right hand. E-Z Mart paid medical benefits and indemnity benefits in connection with the carpal tunnel syndrome.
Ms. Dronet returned to work at E-Z Mart in July of 1999, resulting in E-Z Mart discontinuing payment of indemnity benefits on August 3, 1999. Still, Ms. Dronet continued to undergo regular medical examinations and treatment, and E-Z Mart continued to pay her medical expenses.
Ms. Dronet claims that in August of 2001 she reinjured her right hand in the course of her employment with E-Z Mart while "mopping the floors" with an "industrial-sized mop." Following this alleged reinjury, Ms. Dronet continued to maintain her monthly appointments with her orthopedic surgeon. However, although Ms. Dronet testified that she did inform the doctor that she reinjured her hand, the doctor did not record the new work accident. The doctor did, however, limit Ms. Dronet to part-time work on August 27, 2001. Ms. Dronet discontinued working on January 21, 2002, but E-Z Mart refused to pay indemnity benefits.
On February 18, 2002, Ms. Dronet filed the instant 1008 claim for indemnity benefits, penalties, and attorney fees, but she alleged September 14, 1998, as the date of her injury. E-Z Mart filed a peremptory exception of prescription. The WCJ held a hearing on only the exception of prescription and thereafter granted the exception. Ms. Dronet now appeals.
OPINION
Louisiana Revised Statutes 23:1209(A) provides in part:
In case of personal injury . . . 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 Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(Footnote omitted.)
Ms. Dronet appeals the judgment of prescription on the basis that she sustained a new injury in August 2001 from a work accident, although the new injury was an aggravation of her pre-existing injury. Thus, she contends that because she sustained a new injury, her claim is not subject to an exception of prescription based on the September 1998 injury. E-Z Mart contends that Ms. Dronet's "current medical conditions are clearly a continuation of the conditions diagnosed back in 1998 according to the medical evidence."
Initially, even assuming
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