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Dufrene v. Video Co-Op3/28/2002
in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks. . . .
Because Ms. Dufrene was paid benefits pursuant to La. R.S. 23:1221(1) through March 11, 1997, she had one year from that date to file her claim for any type of workers' compensation benefits except supplemental earnings benefits. Additionally, her claim for supplemental earnings benefits is barred by the two year limitation of La. R.S. 23:1221(3)(d)(i). Because appellant never received supplemental earnings benefits, her suit should have been filed on or before March 11, 1999, within two years of the date temporary total disability benefits were discontinued. Since appellant received temporary total disability, her current claim to receive supplemental earnings benefits is now prescribed because more than two years lapsed since discontinuance of temporary total disability benefits. Sept v. City of Baker, 733 So.2d at 750. Had supplemental earnings benefits been payable to her for at least thirteen consecutive weeks during the two years following the termination of temporary total disability, Ms. Dufrene could have availed herself of the longer prescriptive period of three years as provided in La. R.S. 23:1209. See Smith v. State Through Department of Health & Hospitals, 652 So.2d at 636-37.
Although Ms. Dufrene contends there is no two-year prescriptive period and she had three years to make a claim for supplemental earnings benefits pursuant to La. R.S. 23:1209, we disagree. In order to avail herself of the three-year prescriptive period to file a claim for supplemental earnings benefits as set forth in La. R.S. 23:1209(A), appellant first had to have been paid supplemental earnings benefits for thirteen consecutive weeks during the two-year period commencing after the termination of her temporary total disability benefits as set forth in La. R.S. 23:1221(3)(d)(i). Ms. Dufrene was never paid supplemental earnings benefits. Thus, she no longer has a right to indemnity benefits.
CONCLUSION
For the foregoing reasons, the decision of the OWC judge is affirmed. Having found no merit in claimant/appellant's arguments, her request for attorney fees is denied. Costs of this appeal are assessed to Pamela Dufrene.
AFFIRMED.
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