Iverstine v. Albemarle Corp.

852 So. 2d 492, 2003 WL 21513380
CourtLouisiana Court of Appeal
DecidedJuly 2, 2003
Docket2002 CA 2555
StatusPublished
Cited by5 cases

This text of 852 So. 2d 492 (Iverstine v. Albemarle Corp.) 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
Iverstine v. Albemarle Corp., 852 So. 2d 492, 2003 WL 21513380 (La. Ct. App. 2003).

Opinion

852 So.2d 492 (2003)

Russell C. IVERSTINE
v.
ALBEMARLE CORP. and Travelers Insurance.

No. 2002 CA 2555.

Court of Appeal of Louisiana, First Circuit.

July 2, 2003.
Rehearing Denied August 13, 2003.

*494 Randy P. Zinna, Baton Rouge, Counsel for Plaintiff/Appellant Russell Iverstine.

J. Alan Jordan, Baton Rouge, Counsel for Defendants/Appellees Albemarle Corporation and Travelers Indemnity Company.

Before: KUHN, DOWNING and GAIDRY, JJ.

GAIDRY, J.

In this workers' compensation case, the plaintiff-appellant, Russell C. Iverstine, appeals a judgment rendered by the Office of Workers' Compensation (OWC) in favor of the defendants-appellees, Albemarle Corporation and Travelers Indemnity Company, sustaining their peremptory exception of prescription.[1] For the following reasons, we affirm the judgment of the OWC.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed a disputed claim for compensation on September 7, 2001, claiming a work-related injury to his back and neck on June 6, 2000, while carrying two 55pound aluminum cylinders. He further asserted that the accident was reported to his supervisor on July 17, 2000. Defendants, his employer and its workers' compensation insurer, filed an exception of prescription, contending that plaintiff's claim, filed fifteen months after his alleged injury, was prescribed pursuant to La. R.S. 23:1209(A). Defendants further argued that since plaintiff's claim was prescribed on its face, the burden of proof shifted to him to demonstrate that prescription had been interrupted in some manner.

Plaintiff responded to the exception of prescription, arguing that his claim was not prescribed because he did not realize that his back problems were related to his June 6, 2000 on-the-job injury until April 23, 2001.

Defendants' exception of prescription was heard on June 21, 2002. The parties submitted the matter on the memoranda that had been filed, along with the deposition of plaintiff transmitted to the OWC judge on June 19, 2002.[2] These materials demonstrated that Russell C. Iverstine was a 54-year-old employee of Albemarle Corporation when he was involved in an on-the-job accident on June 6, 2000. On that day, he was working with John Borne, who was assigned to light duty because of *495 a recent surgery. Mr. Iverstine was carrying two 55-pound aluminum alkyl cylinders to a loading dock, one in each hand. He described the accident in the following terms in his deposition:

... [I]t was like a funnybone type of thing: you know, tingling in the arms, numbness, basically like paralysis, just lost all control over my arms and hands, you know. What I did, I dropped the cylinders on the ground, as a matter of fact, right past the safety shower.

There were no witnesses to this incident. Afterwards, plaintiff told Mr. Borne what had occurred. He continued to work that day, but did not do any further loading or lifting. Mr. Borne, who had been on light duty, then assumed Mr. Iverstine's heavy work. Plaintiff explained in his deposition testimony:

... [W]hen it happened, I knew, I knew something had happened. I said, something's wrong here. And it was a matter of time, like a week to ten days, before I started having certain symptoms. So, no. You know, I was a little leery about what happened. It's like a funny thing, you know. You know, we more or less reversed roles there after that. (Our emphasis.)

Plaintiff insisted that he had no back complaints before the June 6, 2000 incident. After the June 6, 2000 incident, he never resumed his previous heavy work activities. Moreover, he testified that soon after he experienced more serious complaints:

... [A]fter about a week to ten days, I started having certain symptoms, meaning tingling all over the side of my face and neck, weakness, you know, in my arms and my legs, my limbs. You know, you start, like you walk with a club foot, you know, like your foot is dragging behind. Well, these were the initial symptoms that happened after the incident.... I'd be sitting at my desk, and all of a sudden, I could feel tingling. I said, there's something wrong. Something was going on with my body.

Plaintiff claimed that he was not sure that his continuing complaints were related to the June 6 incident, but admitted that he thought about it. When he consulted the company nurse, he told her he was not sure whether his difficulties were employment-related. He went to a local emergency room on July 14, 2000, complaining of the same type of symptoms he experienced immediately after the incident and in the weeks following it. According to plaintiff, he thought he might perhaps have had a stroke. However, he was never diagnosed as having had a stroke. The emergency room doctor suggested that he see his primary care physician for follow-up evaluation. When he did so, his primary care physician prescribed additional medication for a pre-existing high blood pressure problem and recommended a nutritional consultation, which plaintiff concluded was unnecessary and did not obtain. There is no competent evidence in the record to suggest that the high blood pressure treatment or nutritional recommendations were in any way prompted by plaintiff's complaints of tingling in his extremities and clubfoot symptoms. There is no evidence that any actual diagnosis was rendered at that time as to the cause of these complaints.

Plaintiff failed to give any of the physicians who were treating him a history of his work-related injury, even though he admittedly entertained its possible relationship to his symptoms. Significantly, only three days after his visit to the emergency room, he reported the June 6, 2000 accident to his supervisor. Thus, the record clearly suggests that at least as of that date, plaintiff associated his medical condition *496 and the onset of his symptoms with the June 6, 2000 accident.

When plaintiff's complaints worsened, he eventually sought the opinion of a neurologist. He was diagnosed with a cervical disc problem and underwent neck surgery in October 2000. He still did not disclose to his doctors that he had suffered a job-related accident. During his three-month recovery from surgery, plaintiff received disability benefits through an insurance policy provided by his employer.

Plaintiff returned to work after surgery in January 2001, but did not resume his normal, pre-accident duties. On April 23, 2001, he had a consultation with his surgeon and his employer's physician. For the first time, plaintiff reported the June 6, 2000 incident to those physicians. He claimed that although it had been his intention to discuss this earlier, he just had not done so. He further claimed that he was only told at that time that the June 6, 2000 incident might have caused his cervical problems. After this consultation, plaintiff did not return to work and was placed on long-term disability status. He also qualified for Social Security disability payments.

In opposition to defendants' exception of prescription, Mr. Iverstine argued that prescription did not commence until April 23, 2001, when his physician informed him that the June 6, 2000 accident might have caused his cervical problems. The OWC judge rejected plaintiff's argument that prescription was for that reason interrupted until April 23, 2001. His oral reasons for judgment reflect his factual findings:

Mr. Iverstine alleges that on June 6, 2000 he sustained an injury in the course and scope of his employment.

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Bluebook (online)
852 So. 2d 492, 2003 WL 21513380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iverstine-v-albemarle-corp-lactapp-2003.