Bennett v. SOILEAU ANIMAL HOSP.

943 So. 2d 1250, 6 La.App. 3 Cir. 597, 2006 La. App. LEXIS 2381, 2006 WL 3093163
CourtLouisiana Court of Appeal
DecidedNovember 2, 2006
Docket06-597
StatusPublished

This text of 943 So. 2d 1250 (Bennett v. SOILEAU ANIMAL HOSP.) 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
Bennett v. SOILEAU ANIMAL HOSP., 943 So. 2d 1250, 6 La.App. 3 Cir. 597, 2006 La. App. LEXIS 2381, 2006 WL 3093163 (La. Ct. App. 2006).

Opinion

943 So.2d 1250 (2006)

Cheryl BENNETT
v.
SOILEAU ANIMAL HOSPITAL.

No. 06-597.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2006.
Rehearing Denied December 20, 2006.

Marshall J. Simien, Jr., Simien Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Cheryl Bennett.

Frank R. Whiteley, John V. Quaglino, Juge, Napolitano, Guilbeau, Ruli, Frieman *1251 & Whiteley, Metairie, LA, for Defendant/Appellant, Sears, Roebuck & Company.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.

COOKS, Judge.

Defendant, Soileau Animal Hospital, appeals the denial of its Exception of Prescription by the Office of Workers' Compensation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cheryl Bennett worked for Soileau Animal Hospital from August 1992 through November 1993. Her duties included cleaning pens, feeding animals, and grooming/bathing animals. To bathe the animals, Ms. Bennett was required to dip them in various pesticides. Ms. Bennett testified, through the course of the day, her clothing would become soaked from various pesticides.

Ms. Bennett claims she began developing health problems during her employment at Soileau Animal Hospital. She testified she eventually became physically weak and began suffering memory loss. Although she began to gradually experience these health problems, at the time she did not suspect they were caused by her employment.

Ms. Bennett first sought treatment for her alleged symptoms on October 2, 1995, with Dr. Andrew Campbell, a toxicologist located in Houston. During this time, Ms. Bennett was a plaintiff in breast implant litigation and learned of Dr. Campbell at a seminar in conjunction with that litigation. Dr. Campbell diagnosed her as suffering from a series of autoimmune system disorders, chronic fatigue syndrome, and multiple chemical sensitivity. Dr. Campbell believed Ms. Bennett's problems were related to her breast implants, although Defendant argues Dr. Campbell did advise Ms. Bennett her problems could be related to her working with pesticides. Ms. Bennett eventually had her breast implants removed in 1998.

Despite the implant removal surgery, Ms. Bennett continued to experience health problems. She testified that while reading the Houston Chronicle's December 6, 2001 edition she came upon an article discussing how the U.S. Environmental Protection Agency was going to phase out Dursban, the most widely used pesticide in the country, and one used extensively in her work at Dr. Soileau's clinic. The article discussed how certain pesticides, including Dursban, caused human health risks.

After reading the article, Ms. Bennett informed Dr. George Matewere of her concerns. Dr. Matewere ordered an MRI of Ms. Bennett's brain, which was taken on March 27, 2001. The MRI revealed a deterioration of the myelin sheath of nerve tissue. Ms. Bennett then saw Dr. Thomas Calendar, a toxicologist, who believed her current medical problems could have been caused by or related in part to her exposure to pesticides at Soileau Animal Hospital.

Ms. Bennett then filed suit against Defendant in state district court on June 5, 2001, alleging that Dr. Soileau intentionally exposed her to chemicals whose dangerous propensities he either knew or should have known; thus, he failed to provide her a safe working environment.

Shortly thereafter, on August 28th, 2001, she filed the present claim in the Office of Workers' Compensation seeking medical treatment and wage benefits. She asserted she contracted an occupational disease *1252 while engaged in the course and scope of her employment with Soileau Animal Clinic. On April 30, 2004, the employer filed an Exception of Prescription alleging claimant's suit had prescribed pursuant to the time limitation for occupational disease claims set forth in La.R.S. 23:1031.1(E). The trial court, after reviewing the evidence, determined that Ms. Bennett did not have knowledge that her injuries were occupationally related until December 6, 2000, and her suit filed on August 23, 2001 was not prescribed.

The employer lodged this appeal, contending the trial court erred as a matter of law in denying the Exception of Prescription because Ms. Bennett's claim for occupational illness was not filed within six months of the time she knew or had reasonable grounds to believe her disease was occupationally related.

ANALYSIS

Initially, the Defendant argues the trial court incorrectly applied a one-year prescriptive period rather than a six-month prescriptive period. La.R.S. 23:1031(E), as it existed at the time Ms. Bennett was allegedly injured, provided:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

Subsection (E) of La. R.S. 23:1031.1 was amended by Acts 2001, No. 1189, § 1, and now provides a one-year prescriptive period for notice of occupational disease claims. This amendment became effective June 29, 2001.

Louisiana Civil Code article 3462 provides that prescription is interrupted when an action is commenced in a court of competent jurisdiction and proper venue. In regard to a workers' compensation claim, La.R.S. 23:1031.1(E) provides:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

In LaCour v. Hilti Corp., 98-2691 (La.5/18/99), 733 So.2d 1193, the Louisiana Supreme Court concluded that La.R.S. 23:1031.1(E) requires only that notice be given of an occupational disease to the employer within the six-month period rather than the actual filing of a claim with the Office of Workers' Compensation. The LaCour court stated as follows:

[La.R.S. 23:1031.1(E)] requires that the employee file a claim with his employer within six months of the date that the disability commences or the claim is barred. The statute does not say that a formal disputed claim must be filed with the Office of Workers' Compensation within the six month period. In Duplechain v. Gulf States Utility Co., 468 So.2d 1386, 1389 (La.App. 3d Cir.1985), the third circuit concluded that the language of the statute suggests that its time limitation applies only to the "notification" *1253 of an employer of an occupational disease rather than the actual filing of a petition to recover compensation benefits. It reasoned:
From a liberal reading of this phrase, as we are mandated to do in interpreting the workmen's compensation laws, it appears that the statute does not contemplate a lawsuit against an employer but merely the notification of such employer.

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

Related

Riley v. Avondale Shipyards
305 So. 2d 742 (Louisiana Court of Appeal, 1974)
Edwards v. Sawyer Indus. Plastics, Inc.
647 So. 2d 449 (Louisiana Court of Appeal, 1994)
LaCour v. Hilti Corp.
733 So. 2d 1193 (Supreme Court of Louisiana, 1999)
Duplechain v. Gulf States Utility Co.
468 So. 2d 1386 (Louisiana Court of Appeal, 1985)
Winzor v. Augenstein Const. Co., Inc.
378 So. 2d 470 (Louisiana Court of Appeal, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
943 So. 2d 1250, 6 La.App. 3 Cir. 597, 2006 La. App. LEXIS 2381, 2006 WL 3093163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-soileau-animal-hosp-lactapp-2006.