Cedotal v. Wausau Ins. Co.

497 So. 2d 395
Louisiana Court of Appeal·Decided November 5, 1986·No. 85-1120·Published·Cited by 6 cases

Opinion

497 So.2d 395 (1986)

Lucy Faul CEDOTAL, Plaintiff-Appellant,
v.
WAUSAU INSURANCE COMPANY and Huval Bakery, Inc., Defendants-Appellees.

No. 85-1120.

Court of Appeal of Louisiana, Third Circuit.

November 5, 1986.
Writ Denied December 19, 1986.

*397 G. Paul Marx of Marx & Marx, Lafayette, for plaintiff-appellant.

John A. Jeansonne of Jeansonne, Briney, Lafayette, for defendants-appellees.

Before FORET, STOKER and KING, JJ.

KING, Judge.

The issue presented by this appeal is whether or not the trial court committed manifest error in finding that plaintiff's worker's compensation action was barred by prescription.

Lucy Faul Cedotal (hereinafter sometimes referred to as plaintiff) filed suit for worker's compensation benefits against her former employer, Huval Bakery, Inc., and its insurer, Wausau Insurance Company (both hereinafter sometimes referred to as defendants). Defendants filed a peremptory exception of prescription. The trial court rendered judgment in favor of defendants dismissing plaintiff's suit on the grounds that plaintiff's action had prescribed before institution of suit. From this judgment plaintiff timely appeals. We affirm.

FACTS

Plaintiff was employed by defendant, Huval Bakery, Inc. (hereinafter referred to as Huval) from August, 1980 until the end of July, 1984. Initially, she worked as an assistant bookkeeper. In May, 1981, she was assigned to keypunch operator duties in Huval's computer room. In December, 1980, plaintiff had undergone surgery of a gynecological nature, which involved removal of a Bartholin cyst. In November, 1982, plaintiff underwent a grafting operation to decrease discomfort allegedly caused as a result of the 1980 operation.

As a result of these and other medical procedures, plaintiff was absent from work for a substantial amount of time during her employment with Huval. In February, 1984 plaintiff received back surgery involving a chymopapain injection treatment for a disk related problem in her back which caused her to be absent from work until the end of July, 1984. Plaintiff continued to receive her paycheck during this period of her absence, from February, 1984 to the end of July, 1984, just as she had received her paycheck during previous periods of absence. Plaintiff's medical expenses were covered by a group insurance policy provided by Huval, to which plaintiff contributed in part.

When plaintiff returned to work at the end of July, 1984 she was terminated from employment with Huval due to excessive absences, paid wages through July 28, 1984 and paid her accumulated vacation pay. Plaintiff thereafter filed for and received unemployment compensation benefits for approximately six months.

In October, 1984, after being discharged from employment, plaintiff for the first time filed a claim for worker's compensation benefits in accordance with law for an injury allegedly arising out of her employment with Huval. A recommendation was made by the Louisiana Office of Worker's Compensation. The recommendation was rejected by plaintiff and, on January 31, 1985 plaintiff filed a petition with the Fifteenth Judicial District Court, for Lafayette Parish, Louisiana seeking worker's *398 compensation benefits. The petition alleged that, as a result of plaintiff's gynecological problems and complications, plaintiff developed a work-related compensatory scoliosis in her back causing back pain which resulted in her being totally and permanently disabled. Plaintiff sought worker's compensation benefits because she was required to operate keypunch equipment by sitting for long periods of time in a slanted position in her chair due to the pain from her pre-existing medical condition. This sitting in a slanted position in her chair was allegedly the cause of plaintiff's compensatory scoliosis, leading to a compression of the L5 nerve root, which required surgery and allegedly caused plaintiff's disability for which she now claims worker's compensation benefits. Plaintiff in her petition claimed that she was disabled when Huval, her employer, advised her that she would not be permitted to return to work. Alternatively, her claim, as amended, is that she was disabled beginning January 31, 1984, the approximate date on which she stopped working for Huval in preparation for her back surgery involving a chymopapain injection.

A motion for preliminary judgment was filed on behalf of plaintiff due to defendants' failure to timely answer the petition in compliance with LSA-R.S. 23:1315, and a resulting preliminary judgment was rendered on March 8, 1985 ordering defendants to pay plaintiff full compensation benefits and reasonable medical expenses related to the injury alleged in the petition until a hearing on the merits. This preliminary judgment was held in abeyance pending further orders of the court upon defendants' posting bond. Judgment was later rendered by the trial court on April 18, 1985, vacating the March 8, 1985 preliminary judgment, and denying plaintiff worker's compensation benefits and medical expenses based on defendants' motions and exceptions. The April 18, 1985 judgment of the trial court was reversed and set aside by the Third Circuit, Louisiana Court of Appeal and the March 8, 1985 preliminary default judgment reinstated upon writ application filed on behalf of plaintiff in the matter entitled Lucy Faul Cedotal v. Wausau Insurance Company and Huval Bakery, Inc., Our Docket Number 85-449, writ granted and made peremptory on May 10, 1985. A writ application for review of our decision on this matter was denied by the Supreme Court of Louisiana. See Cedotal v. Wausau Ins. Co., 472 So.2d 915 (La. 1985).

Prior to trial on the merits defendants filed two pleadings, which form the basis of this appeal. Defendants filed a peremptory exception of prescription, alleging that the plaintiff filed formal claim with the Louisiana Office of Worker's Compensation more than one year after the alleged accident giving rise to the alleged disability and therefore, the plaintiff's claim had prescribed according to LSA-R.S. 23:1209. Defendants supplemented and amended their exception of prescription to allege that the plaintiff had also filed her petition in court for worker's compensation benefits more than sixty days after her receipt of the recommendation of the Office of Worker's Compensation Administration, and, therefore, her claim had also prescribed according to LSA-R.S. 23:1311. Defendants' exception of prescription was referred to the merits by the trial court. Defendants also filed a Rule to Traverse plaintiff's right to proceed in forma pauperis which was disposed of on the day of trial.

Plaintiff assigns as error on appeal:

(1) The trial court's finding that plaintiff was not entitled to proceed in forma pauperis; and
(2) The trial court's finding that the claim had prescribed one year from the date of the accident instead of one year from the date of the manifestation of the injury; and
(3) The trial court's not finding that plaintiff had a compensable injury by the consistent aggravation of plaintiff's medical condition by her routine work activity; and
(4) The trial court's failure to find that the claimant was totally and permanently *399 disabled as a result of her debilitating, substantial and constant pain which, more probably than not, was caused by her employment.

RIGHT TO PROCEED IN FORMA PAUPERIS

On the morning of the trial on the merits, a hearing was held on plaintiff's right to proceed in forma pauperis.

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Cedotal v. Wausau Ins. Co., 497 So. 2d 395 (La. Ct. App. 1986).

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