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Dufrene v. Video Co-Op3/28/2002
This case is on appeal from a ruling of the Office of Workers' Compensation ("OWC") denying claimant's request for supplemental earnings benefits. For the reasons that follow, we affirm the ruling granting the exception of prescription filed by the defendant employer, Video Co-Op, and its insurer, Louisiana Workers' Compensation Corporation (hereinafter "LWCC"), and denying recovery of benefits.
FACTS AND PROCEDURAL HISTORY
The record reflects that Pamela Dufrene was employed by Video Co-Op. On November 13, 1996, while working the checkout counter, and during the course and scope of her employment, Dufrene was beaten and stabbed by an assailant, who was eventually arrested and prosecuted. Temporary total disability benefits were paid by the defendants from November 14, 1996, through March 11, 1997. No further indemnity benefits were paid. On or about October 7, 1999, Ms. Dufrene underwent a cervical fusion surgical procedure. On October 27, 1999, she filed a claim with the OWC seeking to have indemnity benefits reinstated. Ms. Dufrene's employer and LWCC filed a peremptory exception of prescription.
At a hearing on July 14, 2000, the claimant's deposition was introduced as Defendant's Exhibit One. After reviewing the evidence and hearing oral arguments, the OWC judge granted the exception of prescription and concluded that the claimant was not entitled to any further indemnity benefits. A judgment to that effect was signed on July 27, 2000.
Ms. Dufrene timely filed an appeal maintaining the OWC judge erred in finding her claim had been prescribed. Ms. Dufrene also seeks attorney fees for the hearing of the matter and the appeal.
ANALYSIS
In her brief to this court, claimant/appellant acknowledges that there are two cases decided by this court, Sept v. City of Baker, 98-1190 (La. App. 1st Cir. 5/18/99), 733 So.2d 748, and Smith v. State Through Department of Health & Hospitals, 94-1533 (La. App. 1st Cir. 3/3/95), 652 So.2d 635, which support the proposition that her claim has prescribed. However, she asserts that those cases have been decided erroneously and are an incorrect statement of the law.
Appellant argues that both Smith and Sept incorrectly rely on La. R.S. 23:1221(3)(d)(i) as a prescriptive period. Instead, she asserts that this statute sets forth a period of entitlement to supplement earnings benefits and does not set forth a prescriptive period for filing a claim to receive those benefits. She asserts that under La. R.S. 23:1209(A), when any benefit payable under La. R.S. 23:1221(1), (2), (3), or (4), has been paid, a claimant has three years to file a formal claim asserting a right to indemnity benefits.
Louisiana Revised Statutes 23:1209 provides, in pertinent part:
A. 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 by 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.]
Louisiana Revised Statutes 23:1221(3) provides, in pertinent part:
(d) The right to supplemental earnings benefits pursuant to this Paragraph shall
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