Gray v. Mounir

746 So. 2d 746, 1999 WL 994138
CourtLouisiana Court of Appeal
DecidedNovember 3, 1999
Docket99-538
StatusPublished
Cited by3 cases

This text of 746 So. 2d 746 (Gray v. Mounir) 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
Gray v. Mounir, 746 So. 2d 746, 1999 WL 994138 (La. Ct. App. 1999).

Opinion

746 So.2d 746 (1999)

Theodor GRAY, Plaintiff-Appellant,
v.
Mike MOUNIR, M.D., Defendant-Appellee.

No. 99-538.

Court of Appeal of Louisiana, Third Circuit.

November 3, 1999.

*747 Lee Ann Barker Iles, Lafayette, for Theodor Gray.

John A. Bivins, Harmon F. Roy, Lafayette, for Mike Mounir M.D.

Patrick S. Ottinger, Lafayette, for Medical Review Panel.

BEFORE: THIBODEAUX, COOKS and WOODARD, Judges.

THIBODEAUX, Judge.

Theodor Gray timely filed a claim for workers' compensation benefits relating to a heart condition with the Office of Workers' Compensation (hereinafter "OWC"). After being treated by Dr. Mike Mounir for this condition, Mr. Gray sued Dr. Mounir to recover medical malpractice damages. The suit was filed more than one year following the date of the alleged malpractice. The defendant, Dr. Mounir, filed a peremptory exception of prescription and/or peremption. The trial court granted the exception of prescription. Mr. Gray appeals this judgment, contending that the suit timely filed for workers' compensation benefits interrupted prescription on the medical malpractice claim. For the reasons which follow, we affirm the judgment of the trial court granting Dr. Mounir's exception of prescription.

I.

ISSUES
We shall consider:
1. whether the Office of Workers' Compensation is a "court of competent jurisdiction" so that a filing therein interrupts prescription under La.Civ.Code art. 3462;
2. whether the trial court committed manifest error in finding that Theodor Gray failed to prove a workrelated heart attack so that solidary liability against Dr. Mounir would be defeated and prescription in the medical malpractice suit would not be interrupted; and,
3. whether a consent judgment entered into between Mr. Gray and his employer's insurer is proof of solidary liability.

II.

FACTS

On June 16, 1994, Theodor Gray experienced a burning sensation in his chest while working on the job. On June 18, 1994, Dr. Mike Mounir administered a stress test to Mr. Gray at the Cardiology Clinic of Lafayette. The test indicated *748 some arterial blockage. Dr. Mounir scheduled an angiogram for June 20, 1994.

Although we do not have the benefit of Mr. Gray's testimony, the record suggests that he performed six hours of machinery repair work and left the job site at approximately 1:00 p.m. on June 18th because of chest pains. He arrived at the emergency room at Lafayette General Hospital at approximately 10:00 p.m., reporting chest and arm pains, and nausea. He was taken to the catheter lab, where a balloon angioplasty was performed. Mr. Gray was discharged from the hospital on June 21, 1994, and returned to work on June 27, 1994. He again returned to the hospital on July 15, 1994 with chest pains. He was released on July 18th and subsequently suffered an angina attack. Mr. Gray ultimately underwent a triple bypass surgery at the V.A. hospital in Houston, Texas on August 3, 1994.

On April 20, 1995, Mr. Gray filed a claim for workers' compensation benefits, alleging that he suffered a compensable injury while on the job. Mr. Gray filed a first supplemental and amending petition for workers' compensation benefits. That petition specifically detailed his work activities on June 18, 1994. A Petition to Convene Medical Review Panel was filed by Mr. Gray against Dr. Mounir on June 16, 1997. Mr. Gray alleged that Dr. Mounir breached the standard of care applicable to a cardiologist in failing to restrict the activities of Mr. Gray after a positive stress test on June 18, 1994. Mr. Gray claims that Dr. Mounir's negligence exacerbated his illness. Dr. Mounir filed a peremptory exception of prescription and/or peremption seeking to dismiss the malpractice claim of Mr. Gray.

The trial court concluded that the condition for which Mr. Gray had been treated by Dr. Mounir in June, 1994 was not workrelated. Therefore, solidary liability did not exist. Because of the lack of solidarity, prescription on the claim against Dr. Mounir was not interrupted by the filing of plaintiffs workers' compensation claim. Consequently, the trial court granted Dr. Mounir's exception of prescription and dismissed the medical malpractice claim.

III.

LAW AND ARGUMENT

Court of Competent Jurisdiction

Article 3462 of the Louisiana Civil Code states that:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

Dr. Mounir asserts that the Office of Workers' Compensation is not a court of competent jurisdiction. He cites Albe v. Louisiana Workers' Compensation, 97-0581, 97-0014 (La.10/21/97); 700 So.2d 824; Spencer v. Gaylord Container Corp., 96-1230 (La.App. 1 Cir. 3/27/97); 693 So.2d 818; and, Walker v. ConAgra Food Services, 28,205 (La.App. 2 Cir. 4/3/96); 671 So.2d 1218.

In Albe, 700 So.2d 824, the supreme court decided only the narrow question of whether the Office of Workers' Compensation had authority to determine constitutional issues. The Louisiana Supreme Court explicitly held that workers' compensation judges of the Office of Workers' Compensation Administration lack subject matter jurisdiction to determine constitutional issues. In Walker v. ConAgra, 671 So.2d 1218, the court did not dispute the authority of the Office of Workers' Compensation or its judges to decide workers' compensation claims; rather, the concern was the terminology being used to describe the OWC's power. The court suggested that, stripped of all subterfuge, the power embodied in the OWC, whether called a court or an administrative body, is *749 indeed the power to hear all claims arising out of work-related injuries.

In Williams v. Sewerage & Water Board of New Orleans, 611 So.2d 1383 (La.1993), the Louisiana Supreme Court concluded that prescription is interrupted with regard to an injured employee's claims against a third-party tortfeasor who was solidarily liable when the employee filed a timely suit seeking workers' compensation benefits from his employer. As the trial court aptly observed, Williams was relied upon in Gary v. Camden Fire Ins. Co., 96-0055 (La.4/2/96), 676 So.2d 553 where the supreme court impliedly reaffirmed its holding that filing a claim with the OWC was sufficient to interrupt prescription against a third-party tortfeasor who was solidarily liable with the employer.

In this case, Mr. Gray indisputably filed a timely claim with the OWC. Because the OWC is the only forum where an employee can bring a claim for a work-related injury, we conclude that the OWC is a court of competent jurisdiction for the purposes of interrupting prescription against a third-party tortfeasor who is jointly or solidarily liable.

Solidary Liability

Ordinarily, when dealing with prescription, the burden of proof is on the party pleading prescription; however, when the plaintiff's petition has clearly prescribed on its face, as it has here, the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted. Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).

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