Jonise v. Bologna Bros.

820 So. 2d 460, 2002 WL 1352436
Supreme Court of Louisiana·Decided June 21, 2002·No. 2001-C-3230·Published·Cited by 22 cases

Opinion

820 So.2d 460 (2002)

Letell Menyoun Lee Jonise, widow of Derrick Dewayne JONISE
v.
BOLOGNA BROTHERS and The Louisiana Workers' Compensation Corporation.

No. 2001-C-3230.

Supreme Court of Louisiana.

June 21, 2002.

*461 Otha C. Nelson, Sr., Nelson & Nelson, Baton Rouge, Counsel for Applicant.

Lisa A. Murray, Counsel for Respondent.

KNOLL, Justice.[*]

The single issue in this workers' compensation case concerns prescription for death benefits and burial expenses. On July 30, 1998, Derrick Dewayne Jonise collapsed while working and was transported to a hospital and pronounced dead on arrival. On August 3, 1999, more than a year after his death, Letell Menyoun Lee Jonise, widow of Mr. Jonise, filed a disputed claim for compensation with the office of workers' compensation, requesting death benefits and reimbursement for burial expenses. In response, Bologna Brothers, decedent's employer, and Louisiana Workers' Compensation Corporation (LWCC), the employer's workers' compensation insurer (collectively defendants), filed an exception of prescription, asserting Ms. Jonise's claim for death benefits and her claim for burial expenses are prescribed pursuant to LSA-R.S. 23:1209(A). The workers' compensation judge granted defendants' exception of prescription and the court of appeal affirmed. Finding no error in the rulings below, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Jonise was employed by Bologna Brothers as a delivery truck driver. On July 30, 1998, after exiting a delivery truck in Hammond, Louisiana, Mr. Jonise collapsed and passed out. He was then transported to North Oaks Medical Center and pronounced dead on arrival. The East Baton Rouge Parish Coroner's Report indicates the date and time of death as July 30, 1998, at 4:03 P.M. The report *462 also lists the cause of death as: "Respiratory Arrest, Status Asthmaticus, Bronchial Asthma."

On August 3, 1999, more than a year after Mr. Jonise died, Ms. Jonise filed a disputed claim for compensation with the office of workers' compensation, seeking death benefits and reimbursement for burial expenses totaling $7,891. In response, defendants filed an exception of prescription, asserting Ms. Jonise's claim for death benefits and her claim for burial expenses are prescribed pursuant to LSA-R.S. 23:1209(A). Following a hearing, the workers' compensation judge granted defendants' exception of prescription. The First Circuit affirmed. See Jonise v. Bologna Bros., 00-0485 (La.App. 1st Cir.09/28/01), 809 So.2d 352. We granted Ms. Jonise's writ application to consider whether a claim for burial expenses is governed by the one year prescriptive period provided by LSA-R.S. 23:1209(A). See Jonise v. Bologna Bros., 01-3230 (La.03/15/02), 811 So.2d 890.

DISCUSSION

Claim for Death Benefits

Ms. Jonise continues to argue her claim for death benefits is not prescribed. She maintains alternate dates for the beginning of the prescriptive period apply and thus her claim for death benefits was timely filed.[1] We disagree and find Ms. Jonise's claim for death benefits is prescribed for the reasons below.

LSA-R.S. 23:1231 through LSA-R.S. 23:1255 set forth the provisions relating to compensation for the death of an employee. Pursuant to LSA-R.S. 23:1231, death benefits are recoverable only if an employee's death occurs within two years of the last treatment resulting from the accident by personal injury or occupational disease upon which the claim is based.[2] This two year time period is neither a prescriptive nor peremptive period. Rather, it "is a condition precedent to the accrual of the right of action for the dependents." H. Alston Johnson, III, 14 Louisiana Civil Law Treatise, Workers' Compensation Law and Practice, § 302, at 6 (1994). Thus, if an employee's death occurs within two years of his or her last treatment resulting from the work related accident, the employee's dependents have a right of action for death benefits pursuant to LSA-R.S. 23:1231. See Tran v. Avondale Shipyards, Inc., 95-542 (La. App. 5th Cir.11/15/95), 665 So.2d 507; Estate of Bell v. Timber, 28,333 (La.App. 2nd Cir.05/08/96), 675 So.2d 284.

The prescriptive period for a dependant's claim for death benefits is generally provided by LSA-R.S. 23:1209(A) when the employee's death resulted from a personal injury by accident. This statute provides in part:

In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless *463 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).

LSA-R.S. 23:1209(A) requires that in order for a dependent to preserve his or her right to death benefits, he or she must enter into an agreement on such benefits with the decedent's employer or employer's workers' compensation insurer within at least a year of the employee's death or file a claim for such benefits with the office of workers' compensation within a year of the employee's accident which resulted in death. However, jurisprudential interpretation on this statute holds that a dependent has one year from the employee's death to file a claim for death benefits. While we have implicitly sanctioned this jurisprudence in our prior decisions, we now do so explicitly.

In Hoy v. T.S. Grayson Lumber Co., 15 La.App. 176, 130 So. 651 (La.App. 2nd Cir.1930), the court aptly stated why the general prescriptive period then in existence should be interpreted as providing that a dependent has one year from the employee's death, not accident, to file a claim for death benefits:

Counsel for defendant contends that plaintiffs action is barred under the letter of the law. His contention is that, in all cases where dependents were entitled to compensation under the act, they must bring their action for such within one year from the date of the accident, or be forever barred. We do not think so. To hold that, under section 31 of the act, suits by dependents are barred by one year from the date of the accident, would be in effect to hold that in some cases, at least, they could not recover at all. To illustrate: Suppose an employee received an injury in the course of his employment which produced death one hour before the expiration of one year. The act provides that dependents are entitled to compensation where death ensues within one year after the accident. In such cases, the dependent widow for the benefit of herself and minor children, if she had any, or the dependent mother, as the case may be, would have just one hour in which to bring suit or be "forever barred." Or to reduce the proposition to an absurdity, let us suppose that death occurred five minutes previous to the expiration of the year. In such case, it would be impossible for a widow or a mother to bring suit within one year. They would therefore have a right without a remedy.

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Jonise v. Bologna Bros., 820 So. 2d 460, 2002 WL 1352436 (La. 2002).

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