Baker v. Conagra Broiler Co.

640 So. 2d 494, 93 La.App. 3 Cir. 1230, 1994 La. App. LEXIS 1392, 1994 WL 164708
CourtLouisiana Court of Appeal
DecidedMay 4, 1994
Docket93-1230
StatusPublished
Cited by28 cases

This text of 640 So. 2d 494 (Baker v. Conagra Broiler Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Conagra Broiler Co., 640 So. 2d 494, 93 La.App. 3 Cir. 1230, 1994 La. App. LEXIS 1392, 1994 WL 164708 (La. Ct. App. 1994).

Opinion

640 So.2d 494 (1994)

Edward L. BAKER, Plaintiff-Appellee,
v.
CONAGRA BROILER COMPANY, Defendant-Appellant.

No. 93-1230.

Court of Appeal of Louisiana, Third Circuit.

May 4, 1994.
Writ Denied September 23, 1994.

*495 William B. King, Shreveport, for Edward L. Baker.

Daniel T. Murchison, Natchitoches, for Conagra Broiler Co.

Before YELVERTON and THIBODEAUX, JJ., and CULPEPPER,[*] J. Pro Tem.

THIBODEAUX, Judge.

Conagra Broiler Company, the employer in this workers' compensation case, appeals an adverse judgment which denied its peremptory exception of prescription and granted Edward L. Baker, the employee, a scheduled loss payment for loss of an eye.

For the following reasons, we affirm.

FACTS

On February 23, 1990, Baker walked into the office at Conagra and, after noticing an employee using the telephone against company policy, attempted to notify the supervisor. His enforcement effort was thwarted when the employee struck him twice in the facial area near his left eye.

Baker reported the incident to the personnel director and the attending nurse on duty on that same day. He was told to place an ice pack on his eye and, later that day, was sent to the Wheat Eye Clinic. At the clinic, he was seen by Dr. Margaret Taylor Wheat, an ophthalmologist. Her examination revealed vitreous and subretinal hemorrhaging in his left eye as well as diabetic retinopathy, which is a disease of the blood vessels in the eye due to diabetes. Baker informed Dr. Wheat that he had been diabetic for nine years and had had laser surgery on his left eye in 1989 and in January, 1990 due to problems associated with his diabetic condition. Dr. Wheat testified in her deposition that the purpose of the surgeries was to weld the blood vessels so that they would not bleed.

Baker's vision in his left eye deteriorated to the point where he was only able to see a hand moving in front of him in April, 1990. Dr. Wheat referred him to the V.A. Hospital in Shreveport to see a retinal specialist. Dr. Charles E. Lyon, a retinovitreo specialist, was the doctor who eventually saw Baker concerning the problems with his left eye.

Dr. Wheat also continued to see Baker until June 4, 1992.

Dr. Lyon first documented seeing Baker on May 15, 1990. His examination on that date revealed that Baker had a visual acuity of 20/20 in the right eye and hand motion visual acuity in the left eye. Further, the examination revealed that he had a dense vitreous hemorrhage in the left eye with an underlying traction retinal detachment.

Baker gave Dr. Lyon a history of trauma to his left eye when he related to the doctor the incident occurring on February 23, 1990, as well as his prior surgical treatment.

During treatment for his left eye, Baker was out on disability and received full pay.

*496 On February 27, 1991, Baker filed form 1008 and a claim data form with the Office of Workers' Compensation (OWC), claiming that his employer's workers' compensation insurer was not paying some of his medical bills associated with the injury to his left eye. These forms were filed timely.

On May 2, 1991, he developed a painful left eye and acute glaucoma. From that point on, the left eye was non-functional. On June 24, 1992, Baker's left eye was removed. On November 17, 1992, Baker filed an amended petition requesting compensation benefits pursuant to a scheduled loss due to the loss of his left eye. The amended petition was filed more than two years after the injury.

Conagra claims that any claims for a scheduled loss of an eye had prescribed since the original claim form Baker filed only requested medical bill payment and more than two years had elapsed since the date of the accident. It additionally argues that the injury was not suffered during the course and scope of Baker's employment with Conagra. We disagree.

LAW AND DISCUSSION

A. Prescription

Conagra contends that Baker's claim for a scheduled loss is prescribed pursuant to the workers' compensation laws governing the time for filing suits. Baker, on the other hand, contends that his claim for a scheduled loss due to the removal of his left eye did not arise until June 24, 1992. Therefore, the amended petition filed November 17, 1992, within one year of the eye's removal requesting scheduled loss payments, was timely. Alternatively, Baker claims that his amended petition, pursuant to La.Code Civ.P. art. 1153, relates back to his timely filing of form 1008 and the claims data form even though the amended petition may be outside of the prescriptive period.

The prescriptive periods applicable to Baker's claim for scheduled loss payments are found in La.R.S. 23:1209. This section provides that claims are barred unless filed (1) within one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from last payment for partial disability; or (3) one year from the time the injury develops, if not immediately manifest, but no more than two years after the accident. We shall refer to the third period as the period for bringing an action for "developing disability."

After the accident occurred February 23, 1990, some of Baker's medical expenses were paid and, for a number of days while he was not working, he received full wages under Conagra's disability policy. Baker filed an amended petition for scheduled loss payments due to the loss of his left eye on November 17, 1992, more than two years after the accident. Thus, the suit was prescribed on its face. Because that suit was prescribed on its face, Baker had the burden of showing that prescription was interrupted in some manner. Lynn v. Berg Mechanical, Inc., 582 So.2d 902 (La.App. 2d Cir.1991).

Conagra argues that medical payments do not interrupt prescription and cites several cases to support that argument. However, in the cases cited by Conagra, medical payments were made without the claimant filing suit to obtain those payments. For various reasons those payments stopped. When suit was later filed, two years after the accident for payment of medical expenses and/or disability benefits, the claimants attempted to argue that their untimely filed original petition was interrupted by medical expense payments. The courts held that payments did not interrupt prescription. Bouillion v. Sam Broussard Trucking Co., Inc., 525 So.2d 628 (La.App. 3d Cir.1988); Comeaux v. Delcambre Seafood Market, 346 So.2d 1277 (La.App. 3d Cir.), writ refused, 349 So.2d 1270 (1977). In the case sub judice, Baker is not arguing that the medical payments interrupted prescription but that prescription was interrupted by his timely filed form 1008 and the claims data form. Because his amended petition relates back to the original filing of those forms, the cases cited above are not dispositive of the issue in this case. We agree with Baker.

The relation back issue in this case is governed by La.Code Civ.P. art. 1153 which provides:

*497 When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original pleading.

It is well established that article 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the original fact situation out of which the amended claim arises. Gunter v. Plauche, 439 So.2d 437 (La.1983); Rogers v. Louisiana Oil & Tire Co.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Espree v. Vanoil Completion Sys.
273 So. 3d 1214 (Louisiana Court of Appeal, 2019)
Clark v. East Baton Rouge Parish Department of Public Works
196 So. 3d 142 (Louisiana Court of Appeal, 2016)
Estate of Ehrhardt v. Jefferson Parish Fire Department
108 So. 3d 1223 (Louisiana Court of Appeal, 2013)
Lynch v. a DOOR WORKS, INC.
72 So. 3d 1033 (Louisiana Court of Appeal, 2011)
James Lynch v. a Door Works, Inc.
Louisiana Court of Appeal, 2011
Dore v. S & S COATING SPECIALTIES, INC.
23 So. 3d 1022 (Louisiana Court of Appeal, 2009)
Brock Dore v. S & S Coating Specialties
Louisiana Court of Appeal, 2009
Sartelle v. Footlocker
996 So. 2d 1280 (Louisiana Court of Appeal, 2008)
Shane M. Sartelle v. Footlocker
Louisiana Court of Appeal, 2008
Morris v. Cactus Drilling Co.
982 So. 2d 957 (Louisiana Court of Appeal, 2008)
Jackie B. Morris v. Cactus Drilling Company
Louisiana Court of Appeal, 2008
Mailhes v. District Attorney
967 So. 2d 600 (Louisiana Court of Appeal, 2007)
Todd v. Tate
928 So. 2d 113 (Louisiana Court of Appeal, 2005)
Chaisson v. Philip Services Corp.
917 So. 2d 514 (Louisiana Court of Appeal, 2005)
Winford v. Conerly Corp.
897 So. 2d 560 (Supreme Court of Louisiana, 2005)
Sharbono v. FIRE SAFETY SALES AND SERVICE
883 So. 2d 1066 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
640 So. 2d 494, 93 La.App. 3 Cir. 1230, 1994 La. App. LEXIS 1392, 1994 WL 164708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-conagra-broiler-co-lactapp-1994.