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Jonise v. Bologna Brothers9/28/2001
rescribed on its face, the claimant has the burden of showing that prescription has been interrupted in some manner. Love v. East Jefferson General Hospital, 96-1558, p. 5 (La.App. 1 Cir. 5/9/97), 693 So.2d 1245, 1248; Brown v. Caddo Career Center, 28,111, p. 2 (La.App. 2d Cir. 2/8/96), 669 So.2d 712, 714, writ denied, 96-1042 (5/31/96), 674 So.2d 262.
The applicable prescriptive period within which to file death benefit claims under workers' compensation law is either one year from the death of the employee or six months from the death when the death is from occupational disease. Tran v. Avondale Shipyards, Inc., 95-542, p. 7 (La.App. 5 Cir. 5/8/96), 665 So.2d 507, 510, writ denied, 95-2993 (3/8/96), 669 So.2d 406. Since the case before the court now did not involve a death from occupational disease, the date of death is the critical date for the running of prescription.
The provisions of LSA-R.S. 23:1209(A) make no reference to the employer's knowledge of the injury as having an effect on the time limits within which a claim for benefits must be made. Love, 96-1558 at 7, 693 So.2d at 1249.
Review of the record indicates plaintiff failed to prove the existence of a valid reason to alter the commencement date of the prescriptive period. Although plaintiff argued that a delay occurred in obtaining a death certificate and the autopsy report, ample time remained in which to file a claim for workers' compensation death benefits after the death certificate and autopsy report were received. Plaintiff failed to prove any interruption of prescription or any action on the part of the employer or the insurer designed to lull her into a false sense of security regarding the filing of the claim.
In the present case, there were no letters written or statements made that an offer would be forthcoming. There were no settlement negotiations entered into before or after July 30, 1999, the end of the prescriptive period. There were no written or verbal statements made that the prescriptive period was waived. The only communication from the adjuster to the plaintiff, through her attorney, was a letter of August 28, 1998, asking for medical records, and stating that no determination could be made until LWCC received the medical documentation. There was no mention concerning any future offers or that prescription was waived. The plaintiff had the benefit of the services of an attorney. Given these facts, the filing of a timely suit would be the only way for th e plaintiff to protect her interests if an adverse decision was made or a decision was not communicated timely. The plaintiff could not sit on her rights indefinitely. See Causby v. Perque Floor Covering, 97-1235, p. 6 (La. 1/21/98), 707 So.2d 23, 26. The workers' compensation judge was correct in his ruling that the claim prescribed. This assignment lacks merit.
Plaintiff also assigned error to the decision of the workers' compensation judge to deny the request for a new trial. Hearing and appellate procedure for workers' compensation cases is provided in LSA-R.S. 23:1310.5 which specifically provides that " otions for new trial shall not be entertained in disputes filed under this chapter." LSA-R.S. 23:1310.5(B). This assignment lacks merit.
Plaintiff's motion for appeal does not include the denial of the motion for discovery. That issue is not properly before this court.
CONCLUSION
For the above reasons, the decision of the workers' compensation judge granting defendants' exception of prescription is affirmed.
Costs of the appeal are assessed to appellant.
AFFIRMED.
DOWNING, J., agreeing in part and dissenting in part.
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