Marcantel v. Gulf Coast Food Stores, Inc.

300 So. 2d 566, 1974 La. App. LEXIS 4549
CourtLouisiana Court of Appeal
DecidedSeptember 11, 1974
DocketNo. 4664
StatusPublished
Cited by4 cases

This text of 300 So. 2d 566 (Marcantel v. Gulf Coast Food Stores, Inc.) 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
Marcantel v. Gulf Coast Food Stores, Inc., 300 So. 2d 566, 1974 La. App. LEXIS 4549 (La. Ct. App. 1974).

Opinions

FRUGÉ, Judge.

Plaintiff instituted this suit for workmen’s compensation benefits against her employer, Gulf Coast Food Stores, Inc., and her employer’s insurer, Insurance Company of North America. She claims total and permanent disability due to contact dermatitis, resulting from repeated contact with detergents, dishwater and other job-related materials. The defendants answered denying liability and later filed a peremptory exception of prescription under the provisions of LSA-R.S. 23:1209 and peremption under the provision of LSA-R.S. 23:1031.-1(D).

A hearing was held, evidence was adduced, and a judgment was rendered sustaining the peremptory exception. A de-volutive appeal was taken by plaintiff from the judgment sustaining the peremptory exception of the defendant. We reverse and remand.

Plaintiff first complained about her hand condition when she contracted dermatitis in December of 1970, at which time she had been working for her employer for more than one year. Shortly after contracting the condition, plaintiff notified her employ[568]*568er who referred her to Dr, Irving M. Bor-delon for treatment. This took place on January 11, 1971. The doctor diagnosed the plaintiff’s disease as contact dermatitis caused by contact with job-related materials used in washing dishes. Plaintiff continued to work, except for a period lasting from March, 1971t through June 4, 1971, during which time she was off from work and paid workmen’s compensation benefits, until she terminated her employment on May 16, 1972. She continued to see the doctor from time to time during this period until her last consultation on.May 16, 1972, the day she terminated her employment. Plaintiff’s employer was continuously aware of her condition during this period of time.

On May 16, 1972, the compensation insurer received a letter from plaintiff’s physician containing his opinion that certain precautionary measures would have to be taken for the plaintiff while working, or she would be rendered incapable of working for various periods of time. The plaintiff also testified that she was contacted in May or June of 1972, by an adjuster for the compensation insurer who informed her that she would be reimbursed for medical expenses, but that workmen’s compensation benefits would not be paid. Suit was filed on May 14, 1973, within a year of termination of employment. Defendant’s first exception was based on Louisiana Revised Statute 23:1209 which provides as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless 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 proceedings have been begun as provided in Parts III and IV of 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. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Defendant argued that the plaintiff did not terminate her employment because of her hand condition, and, though not expressly stated in brief, implied that prescription had begun to run at some earlier point in time. Plaintiff contended that she terminated her employment because of her hand condition and argued that prescription did not begin to run until the disease forced her to terminate her employment on May 16, 1972.

The plaintiff testified at the hearing on the exception that she went to the doctor on May 16, 1972, at which time she was told by him that she could no longer continue to work under the present conditions. She terminated her employment that day. Mr. LaFleur, the plaintiff’s immediate supervisor, who was called as the defendant’s witness, was consistent during direct and cross-examination in stating that he could not recall what reason the plaintiff gave for her termination. He testified that it was possible that compensation was brought up on that day, but that he could not recall what was discussed. Later during redirect examination, his testimony varied, and he testified that he thought she gave as her reason for quitting the fact that she was to be married within a short period of time. Dr. John C. Stubblefield, the doctor visited by the plaintiff on May 16, 1972, was not called as a witness at the hearing on the exception. The letter from Dr. Stubblefield to the Insurance Company of North America written on May 25, 1972, and introduced into evidence by the defendant at the hearing, indicated that it was imperative that the plaintiff wear rubber gloves while working, or she would become incapacitated. No mention was made [569]*569of any advice to the plaintiff. There is no evidence on the question of what Dr. Stub-blefield advised the plaintiff on May 16th, other than the plaintiff’s testimony. It was uncontradicted by the evidence placed in the record by the defendant and supports the plaintiff’s contention that she terminated her employment because of her hand condition. The testimony of Mr. LaFleur indicates only that there is some question as to what reasons were given by the plaintiff for leaving her job. This testimony is pertinent on the issue of notice to the employer of the reasons for termination but is not determinative of the reason for the plaintiff terminating her employment.

The trial court held that since an agreement as to compensation benefits had been reached, prescription began to run from the date payment of compensation benefits was discontinued.

In Bernard v. Louisiana Wildlife and Fisheries Commission, 152 So.2d 114 (La. App. 3rd Cir., 1963), the plaintiff contracted pneumonitis in December, 1958. He received compensation and later returned to work. His second attack occurred in July, 1960, but plaintiff continued to work until a third attack in March, 1961, at which time he terminated his employment. This court held in that case that the plaintiff was not disabled for purposes of the workmen’s compensation statute until he terminated his employment because of his occupational disease. See also Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952); and Fontenot v. Great American Indemnity Co., 127 So.2d 822 (La.App. 3rd Cir. 1961).

The trial court’s holding on the issue of when the prescriptive period began for purposes of LSA-R.S. 23:1209 is not consistent with the reasoning in the above-cited cases. Prescription began in this case when the plaintiff was forced to terminate her employment because of the occupational disease from which she was suffering. The evidence presented by the defendant, as discussed above, dealt with the issue of notice to the employer, not with the issue of whether the plaintiff was forced to terminate her employment because of the occupational disease. Since the plaintiff’s suit was instituted within one year of the date when the disease manifested itself into disability and forced the plaintiff to terminate her employment, her cause of action had not prescribed.

Defendant’s second exception was based on LSA-R.S. 23:1031.1(D):

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300 So. 2d 566, 1974 La. App. LEXIS 4549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcantel-v-gulf-coast-food-stores-inc-lactapp-1974.