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Jonise v. Bologna Brothers9/28/2001
Fitzsimmons, J. concurs without reasons.
Downing, J. agrees in part, dissents in part and assigns reasons.
Plaintiff, Letell Menyoun Lee Jonise, widow of Derrick Dewayne Jonise, appeals a judgment granting an exception of prescription filed on behalf of defendants, Bologna Brothers and the Louisiana Workers' Compensation Corporation. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Derrick Jonise was employed by Bologna Brothers. On July 30, 1998, while at work on a delivery truck in Hammond, Louisiana, he collapsed or passed out. He was transported to North Oak Hospital where he was pronounced dead on arrival. The East Baton Rouge Parish Coroner's Report indicated the date and time of death as July 30, 1998, at 4:03 p.m. The cause of death is listed as: "Respiratory Arrest, Status Asthmaticus, Bronchial Asthma."
On August 3, 1999, his widow filed a disputed claim for compensation requesting compensation benefits and seeking reimbursement for funeral expenses. The defendants filed a peremptory exception of prescription based on Louisiana Revised Statute 23:1209. The matter was scheduled for hearing before the workers' compensation judge on November 5, 1999. Following the hearing, the judge ruled in favor of the defendants and granted the exception. The judgment in conformity with the court's ruling was signed on November 10, 1999.
Plaintiff filed a motion to compel answers to interrogatories as well as an application for a new trial and in the alternative, a motion to reopen the case on November 10, 1999. On the same day, plaintiff also filed a request for findings of fact and written reasons for judgment. The judge denied the motion to compel with the notation, "Claim was dismissed pursuant to grant of exception of prescription." The motion for a new trial was "denied pursuant to La. R.S. 23:1310.5 A(2) and B." There was no response to the request for reasons.
Plaintiff appealed the judgment of the court listing as error the granting of the exception of prescription, the denial of the motion to compel and the denial of the motion for a new trial.
DISCUSSION
Appellant argues the judge erred in granting the exception of prescription filed by defendants. It is her contention that alternate dates for the beginning of the prescriptive period apply and, therefore, her claim was timely and not prescribed. Those dates relied on by plaintiff include August 28, 1998, the date the certificate of death was issued by the coroner; September 17, 1998, the date her attorney received a copy of the autopsy report; and November 5, 1999, the date her attorney first became aware the defendants' adjuster received medical records of decedent on November 13, 1998.
Louisiana Revised Statute 23:1209(A) provides in 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."
There is no question that Derrick Dewayne Jonise died on July 30, 1998. Under the provisions of section 1209(A), a claim for death benefits must be filed within one year of the death. The statute providing for death benefits within the workers' compensation provisions specifically states that the date of death is the critical date for determining whether death benefits are payable. Thus, the claim for benefits should have been filed on or prior to July 30, 1999, which was a Friday. The record reflects the claim was filed on Tuesday, August 3, 1999.
When a workers' compensation claim to recover benefits has p
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