LaCour v. Hilti Corp.

733 So. 2d 1193, 1999 WL 330393
Supreme Court of Louisiana·Decided May 18, 1999·No. 98-C-2691·Published·Cited by 14 cases

Opinion

733 So.2d 1193 (1999)

George G. LaCOUR
v.
HILTI CORPORATION.

No. 98-C-2691.

Supreme Court of Louisiana.

May 18, 1999.

Steven Thomas Richard, Metairie, Counsel for Applicant.

William Chad Stelly, Scott William McQuaig, McQuaig & Stelly, Metairie, Counsel for Respondent.

*1194 MARCUS, Justice.[*]

In this workers' compensation proceeding, we are called upon to address whether plaintiff's claim for compensation has prescribed.

The following facts were adduced at the trial on the prescription issue. George G. LaCour was employed by Hilti, Inc. beginning in March of 1988 as a sales representative. His job required the sale, service and demonstration of power actuated and pneumatic power tools, like jackhammers and machines that drive bolts through steel. Beginning in 1989, Mr. LaCour began experiencing physical problems with his wrists and upper extremities. In 1989, he underwent a carpal tunnel release on his right wrist. In 1991, he began seeing Dr. James Gosey, Jr., an orthopedic surgeon. Mr. LaCour complained of pain in his left wrist and upper extremities. In April of 1992, Dr. Gosey performed a carpal tunnel release on Mr. LaCour's left wrist. During the recuperation period following the surgery, Mr. LaCour received short-term disability benefits through Hilti's disability insurer, Sun Life of Canada. He was released to return to work about six weeks later and he resumed his normal job duties. In 1992 through 1993, he experienced elbow tendinitis and Dr. Gosey performed a left elbow release in 1993. Mr. LaCour was told by Dr. Gosey at that time that if he went back to the same kind of work his problems would reoccur. In March of 1993, he filed a compensation claim with Crawford and Company, the compensation administrator for Hilti. Hilti was self-insured. The claim was denied. He received short-term disability benefits and then returned to his normal work duties. From 1993 through 1995, Mr. LaCour continued to perform his normal work duties, but he experienced progressive problems with his elbows and wrists and continued to see Dr. Gosey who noted the need for future surgery on the right lateral epicondyle (right elbow). In August of 1995, a right lateral epicondyle release as well as a medial epicondyle release on the right was performed by Dr. Gosey. Mr. LaCour's use of his right arm was limited for the next six weeks. He again received short-term disability benefits from Hilti. Mr. LaCour testified that during the fall of 1995, he continued to perform some work duties from his home. He spoke to his supervisor about his work status in the fall of 1995 at which time he expressed his desire to return to his normal employment duties. Mr. LaCour reached maximum improvement in November of 1995. At that time Dr. Gosey discussed with him the need to modify his job or not return to the same kind of work. Mr. LaCour testified that during December of 1995, he finally realized that he was unable to return to Hilti and assume the duties that he had been performing for them.

On November 14, 1995, Hilti wrote a letter to Mr. LaCour informing him that he had used up his short-term disability benefits and was being transferred to inactive status. The letter further stated that if he was physically unable to return to work by January 11, 1996, he would no longer be carried as an employee of record. Mr. LaCour did not return to work. The record contains a letter written by Dr. Gosey to Sun Life stating that Mr. LaCour "will never-ever-be able to return to his current job using power actuated tools" due to a medical condition and further stating that he is disabled from his current job. On January 31, 1996, Dr. Gosey wrote another letter to Sun Life stating once again that Mr. LaCour's previous employment caused his problems with his elbows and that he could not return to his employment because it would cause further destruction and deterioration to his elbows. Mr. LaCour filed this disputed claim for compensation on September 5, 1996, alleging that he suffered from an occupational disease with injury to his right and left elbows and carpal tunnel syndrome. Hilti answered, generally denying *1195 the allegations set forth in the claim and specifically pleaded that Mr. LaCour's claim had prescribed.

The workers' compensation judge found that Mr. LaCour's claim had prescribed. Accepting January 11, 1996, as the last date of employment and the date that disability began, the judge found that the claim was not filed until September of 1996, more than six months from the commencement of disability arising from an occupational disease. Mr. LaCour appealed. The court of appeal affirmed.[1] We granted certiorari to review the correctness of that decision.[2]

La. R.S. 23:1031.1 governs workers' compensation claims for occupational disease. La. R.S. 23:1031.1(E) provides:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

In Bynum v. Capital City Press, Inc., 95-1395 (La.7/2/96), 676 So.2d 582 (1996), this court held that the existence of all three factors is necessary to trigger the running of the six month prescriptive period for claims of disability arising from an occupational disease.

The first issue we must address is whether the workers' compensation judge was correct in determining that Mr. LaCour became disabled as a result of an occupational disease on January 11, 1996. Hilti argues that Mr. LaCour suffered from problems associated with carpal tunnel syndrome and elbow degeneration as early as 1992 and that he was aware that the diseases were a direct result of demonstrating the use of power actuated and pneumatic tools associated with his work. Therefore, a claim for workers' compensation made in September of 1996 would be prescribed.

The compensation judge found that January 11, 1996 was the last date of employment and the date upon which Mr. LaCour's disability began for purposes of commencing the time period pursuant to La. R.S. 23:1031.1(E). January 11, 1996 was the date Hilti set forth in a letter to Mr. LaCour to either return to work or consider his employment with the company terminated. We agree with the trial judge that it was not until January 11, 1996 that all three factors set forth in Bynum were satisfied. There is no doubt that the diseases had manifested themselves and Mr. LaCour had reason to know he suffered from these diseases for many years. Mr. LaCour had been treated for carpal tunnel syndrome and elbow problems since 1989. From 1991 to 1995, he was seen and treated periodically for these problems by Dr. Gosey and had surgeries performed. Each time he had surgery Hilti would place him on shortterm disability but he always resumed his normal work duties. After the surgery in August of 1995, Mr. LaCour intended to resume his work duties as he had always done after his prior surgeries and he did continue to work out of his home. In November of 1995, when he had reached maximum recovery from his last surgery, he was told by Dr. Gosey that he could no longer perform the functions associated with his work.

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LaCour v. Hilti Corp., 733 So. 2d 1193, 1999 WL 330393 (La. 1999).

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