Bibbins v. Boh Brothers Const. Co.

746 So. 2d 154, 99 La.App. 5 Cir. 349, 1999 La. App. LEXIS 2924, 1999 WL 974472
CourtLouisiana Court of Appeal
DecidedOctober 13, 1999
Docket99-CA-349
StatusPublished
Cited by6 cases

This text of 746 So. 2d 154 (Bibbins v. Boh Brothers Const. 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
Bibbins v. Boh Brothers Const. Co., 746 So. 2d 154, 99 La.App. 5 Cir. 349, 1999 La. App. LEXIS 2924, 1999 WL 974472 (La. Ct. App. 1999).

Opinion

746 So.2d 154 (1999)

Walter BIBBINS
v.
BOH BROTHERS CONSTRUCTION COMPANY.

No. 99-CA-349.

Court of Appeal of Louisiana, Fifth Circuit.

October 13, 1999.

*156 Arcenious F. Armond, Jr., Gretna, Louisiana, for appellant.

Richard S. Vale, Blue Williams, L.L.P., Metairie, Louisiana, for appellee.

Panel composed of Judges H. CHARLES GAUDIN, JAMES L. CANNELLA and MARION F. EDWARDS.

CANNELLA, J.

Claimant, Walter Bibbins, appeals from a judgment from the Office of Worker's Compensation (OWC), granting the exception of prescription filed by defendant, Boh Brothers Construction Company (Boh Brothers), and dismissing his claim for worker's compensation benefits. Boh Brothers has answered the appeal, in the event that we reverse the ruling on the prescription exception, seeking review from the court's previous finding that the employee was entitled to worker's compensation benefits. For the reasons which follow, we reverse in part, affirm in part, render and remand.

Bibbins was employed by Boh Brothers for 28 years when, on April 6, 1993, he was injured in a work related accident. More particularly, claimant was in the process of loading aircraft mating onto a truck. As the mats were being loaded by a crane, they swung towards claimant's head. In an attempt to protect himself, claimant raised his left arm which resulted in the mats striking his hand and arm and driving his arm into the truck causing apparent injury to his left hand.

Following the accident, claimant was seen initially in the emergency room by Dr. Robert Segura. Dr Segura referred him to Dr. John McLachlan, an orthopedist, for surgery. Dr. McLachlan became claimant's primary treating physician. The doctor performed debridement and irrigation of both the thumb and the index finger lacerations, sutured the thumb laceration and closed manipulation of the index finger fracture. Splints and a fiberglass cast were used to immobilize the left index finger. On April 24, 1993, when the cast was removed, claimant noted stiffness in the joint of the finger. Exercise was prescribed. Stiffness, pain and swelling persisted. On May 26, 1993, x-rays revealed that the fracture line was still apparent. However, on or about May 19, 1993, claimant alleges that he began to notice lost strength in his left arm. Complaints to Dr. McLachlan of lost strength in the left arm were noted in the reasons for judgment to have commenced on September 10, 1993. In the early part of July of 1993, claimant underwent heart surgery unrelated to his accident. In late July of 1993, claimant was complaining to Dr. McLachlan *157 about stiffness in the uninvolved fingers of his left hand. Dr. McLachlan opined that the stiffness was due to insufficient exercise of his left hand while claimant was recuperating from the heart surgery and prescribed exercise for the hand. Despite these complaints, claimant was released to return to light duty work on August 17, 1993 and benefits were discontinued on August 24, 1993. Claimant was fully released by Dr. McLachlan on October 5, 1993.

In the April 20, 1994 visit, claimant's complaints of loss of strength in his left hand and arm caused Dr. McLachlan to recommend and Electromyography (EMG) and nerve conduction study. Claimant informed Dr. McLachlan that he could not afford the tests. So, even though Dr. McLachlan was not of the opinion that this complication was connected to the work related accident, he felt obligated to rule that out as the cause and requested payment by Boh Brothers for the tests. Boh Brothers refused to pay for the tests. Claimant again presented the same complaints, including atrophy of the arm. Boh Brothers again refused to pay for the tests. The opinion, obtained two years later, of Dr. Robert Applebaum, the consulted neurosurgeon, indicated that the weakness in claimant's arm was consistent with nerve root irritation, a brachial plexus injury or a ruptured cervical disc. As noted by the trial judge in the reasons for judgment, "the diagnostic impression was that claimant sustained an injury to the left arm and possibly his neck, as well as the brachial plexus."

On February 13, 1996, claimant filed a Disputed Claim for Compensation from with the Office of Worker's Compensation against Boh Brothers, asserting an injury to the back of the neck and shoulder and disability of his left arm, resulting from the April 3, 1993 accident. On May 1, 1996, Boh Brothers filed an answer denying claimant's entitlement to any benefits beyond what it had already provided.

Trial on the merits was held on August 21, 1997. On October 31, 1997, judgment was rendered with written reasons in favor of claimant, finding him temporarily totally disabled as a result of an injury to his shoulder, which was causally related to the work accident.

Boh Brothers timely appealed. With its brief, Boh Brothers also filed a Exception of Prescription for the first time in this court. As noted in our earlier opinion in this matter, Bibbins v. Boh Brothers, 98-172 (La.App. 5th Cir.7/28/98), 716 So.2d 467, Boh Brothers offered, in Justification of the belated prescription exception, that it understood that claimant was only seeking supplemental earnings benefits (SEBs) and not temporary total disability (TTD) benefits as were awarded. Boh Brothers acknowledged claimant's entitlement to supplemental earnings benefits, if causation was established, noting that only entitlement to TTD benefits had prescribed. Thus, Boh Brothers contended that it was surprised by the TTD award, requiring them to file the exception in the appellate court. Claimant responded by filing a motion to remand the matter to the OWC for consideration of the exception. Based on La.C.C.P. art. 2163, this court ordered the remand.

On remand, however, it appears that Boh Brothers changed its strategy. Boh Brothers argued to the trial judge that both the right to TTD benefits and SEBs had prescribed. On February 2, 1999, the OWC granted the exception as to both TTD benefits and SEBs and dismissed claimant's suit. It is from this judgment that claimant appeals. Boh Brothers has answered the appeal, reasserting, in the event the judgment on the prescription exception is reversed, as it did in the original appeal, error in the original OWC judgment in which it was found that the arm disability is causally related to the earlier work accident.

PRESCRIPTION

La.R.S. 23:1209(A), addressing the prescriptive periods for bringing a claim *158 for worker's compensation benefits, provides as follows:

A. 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 under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

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Bluebook (online)
746 So. 2d 154, 99 La.App. 5 Cir. 349, 1999 La. App. LEXIS 2924, 1999 WL 974472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bibbins-v-boh-brothers-const-co-lactapp-1999.