STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-1089
MICHAEL J. FONTENOT
VERSUS
REDDELL VIDRINE WATER DISTRICT
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2 PARISH OF RAPIDES, NO. 04-02033 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion, Judges.
Peters, J., dissents and assigns reasons.
AFFIRMED.
Michael B. Miller Attorney at Law P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 Counsel for Plaintiff/Appellant: Michael J. Fontenot
Sammie M. Henry Johnson, Stiltner & Rahman 2237 S. Acadian Thruway Baton Rouge, LA 70808 (225) 231-0916 Counsel for Defendant/Appellee: Reddell Vidrine Water District Louisiana Workers’ Compensation Corporation DECUIR, Judge.
Claimant appeals a determination by the workers’ compensation judge that his
claim for indemnity benefits had prescribed.
FACTS & PROCEDURAL HISTORY
Fontenot was injured while working as a meter reader for Reddell Vidrine
Water District on October 7, 1997. Fontenot filed a claim for benefits in 1999, and
judgment was entered on January 25, 2000, awarding him weekly compensation
benefits at the rate of $244.73 per week and penalties and attorney fees. In a previous
appeal, those penalties and attorney fees were reduced by a panel of this court.
Fontenot v. Reddell Vidrine Water Dist., 00-762 (La.App. 3 Cir. 2/21/01), 780 So.2d
1197. After remand from the supreme court, we affirmed the award of penalties and
attorney fees in an en banc decision. Fontenot v. Reddell Vidrine Water Dist., 00-762
(La.App. 3 Cir. 1/9/02), 815 So.2d 895. On January 14, 2003, the Supreme court
rendered judgment also affirming the award. Fontenot v. Reddell Vidrine Water Dist.,
02-0439 (La.2003) 836 So.2d 14.
During the appeal process, Fontenot was released to light-duty work with
Reddell at a wage higher than his pre-injury wage. His last SEB payment was April
10, 2000, but he continued receiving medical treatment during this period and worked
until he underwent back surgery on March 2, 2004. Fontenot requested indemnity
benefits after his surgery, and Reddell declined. Fontenot filed a disputed claim on
March 19, 2004. Reddell filed an exception of prescription, which was granted by
the workers’ compensation judge. This appeal ensued.
PRESCRIPTION
On appeal, Fontenot alleges that the workers’ compensation judge erred in
granting the exception of prescription. In a markedly similar case, the Supreme court said La.R.S. 23:1209(A) “is the
only prescriptive period setting forth the amount of time a worker has to file a claim
for benefits.” Dufrene v. Video Co-Op, 02-1147, p. 10 (La. 4/9/03), 843 So.2d 1066,
1073. Section 1209 provides in pertinent part:
§ 1209. Prescription; timeliness of filing; dismissal for want of prosecution
A. 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 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). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until 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.
(Footnote omitted.)
In Dufrene, the employee was injured and received TTD benefits for about four
months. Thereafter, she received medical benefits for two and one-half years, at
which time she had neck surgery. She then filed a claim for indemnity benefits, and
the employer filed an exception of prescription. The court found that the claimant’s
action had not prescribed.
In the present case, Fontenot did not file until nearly four years after the last
payment of indemnity benefits. Under the statute, his claim is prescribed on its face.
We are not persuaded by Fontenot’s argument that prescription is governed by the
articles on enforcement of judgments because he is seeking to enforce the previous
judgment rather than initiating a claim. To hold such would be to create an artificial
2 distinction between claims voluntarily paid and those ordered by the workers’
compensation judge and create a disincentive for employers to assert their rights.
Such a position would be inconsistent with Dufrene in that it would create two
separate prescriptive periods. Likewise, we find no merit to Fontenot’s argument that
prescription was interrupted because he could not act to file a claim due to the fact
that he was employed at a wage greater than his pre-injury wage. Such a
circumstance is clearly contemplated by the statute.
CONCLUSION
For the foregoing reasons, the judgment of the workers’ compensation judge
is affirmed. All costs of these proceeding are taxed to the claimant, Michael
Fontenot.
3 NUMBER 04-1089
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
PETERS, J., dissenting.
Both the workers’ compensation judge (WCJ) and the majority rely on the
provisions of La.R.S. 23:1209(A) to conclude that Michael Fontenot’s claim for
benefits against his employer, Reddell Vidrine Water District (Water District), has
prescribed. I respectfully disagree with the application of this particular statute to the
facts of the case.
The procedural history of this litigation is not at issue and is set forth in the
majority opinion. Importantly, the WCJ awarded Fontenot indemnity benefits on
January 25, 2000, which award was ultimately affirmed by the supreme court. During
the appellate process, Fontenot returned to work for the Water District in a light-duty
capacity, yet at higher wages than his pre-injury wages. Accordingly, the Water
District paid weekly benefits until April 10, 2000, although the Water District
continued to pay the medical expenses arising from the accident. However, on March
2, 2004, almost four years after the Water District’s last payment of supplemental
earnings benefits, Fontenot underwent back surgery and was unable to return to even
light-duty work. When he requested that his indemnity benefits be reinstated, the
Water District refused, and Fontenot timely filed a disputed claim. Thereafter, the WCJ granted the Water District’s prescription exception, and this appealed followed.
As pointed out by the majority, the supreme court has made it clear that La.R.S.
23:1209(A) provides “the only prescriptive period setting forth the amount of time
a worker has to file a claim for benefits.” Dufrene v. Video Co-Op, 02-1147, p. 10
(La. 4/9/03), 843 So.2d 1066, 1073 (emphasis added). In Dufrene, the issue involved
whether, after indemnity benefits are terminated, an employee has three years under
La.R.S.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-1089
MICHAEL J. FONTENOT
VERSUS
REDDELL VIDRINE WATER DISTRICT
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2 PARISH OF RAPIDES, NO. 04-02033 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion, Judges.
Peters, J., dissents and assigns reasons.
AFFIRMED.
Michael B. Miller Attorney at Law P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 Counsel for Plaintiff/Appellant: Michael J. Fontenot
Sammie M. Henry Johnson, Stiltner & Rahman 2237 S. Acadian Thruway Baton Rouge, LA 70808 (225) 231-0916 Counsel for Defendant/Appellee: Reddell Vidrine Water District Louisiana Workers’ Compensation Corporation DECUIR, Judge.
Claimant appeals a determination by the workers’ compensation judge that his
claim for indemnity benefits had prescribed.
FACTS & PROCEDURAL HISTORY
Fontenot was injured while working as a meter reader for Reddell Vidrine
Water District on October 7, 1997. Fontenot filed a claim for benefits in 1999, and
judgment was entered on January 25, 2000, awarding him weekly compensation
benefits at the rate of $244.73 per week and penalties and attorney fees. In a previous
appeal, those penalties and attorney fees were reduced by a panel of this court.
Fontenot v. Reddell Vidrine Water Dist., 00-762 (La.App. 3 Cir. 2/21/01), 780 So.2d
1197. After remand from the supreme court, we affirmed the award of penalties and
attorney fees in an en banc decision. Fontenot v. Reddell Vidrine Water Dist., 00-762
(La.App. 3 Cir. 1/9/02), 815 So.2d 895. On January 14, 2003, the Supreme court
rendered judgment also affirming the award. Fontenot v. Reddell Vidrine Water Dist.,
02-0439 (La.2003) 836 So.2d 14.
During the appeal process, Fontenot was released to light-duty work with
Reddell at a wage higher than his pre-injury wage. His last SEB payment was April
10, 2000, but he continued receiving medical treatment during this period and worked
until he underwent back surgery on March 2, 2004. Fontenot requested indemnity
benefits after his surgery, and Reddell declined. Fontenot filed a disputed claim on
March 19, 2004. Reddell filed an exception of prescription, which was granted by
the workers’ compensation judge. This appeal ensued.
PRESCRIPTION
On appeal, Fontenot alleges that the workers’ compensation judge erred in
granting the exception of prescription. In a markedly similar case, the Supreme court said La.R.S. 23:1209(A) “is the
only prescriptive period setting forth the amount of time a worker has to file a claim
for benefits.” Dufrene v. Video Co-Op, 02-1147, p. 10 (La. 4/9/03), 843 So.2d 1066,
1073. Section 1209 provides in pertinent part:
§ 1209. Prescription; timeliness of filing; dismissal for want of prosecution
A. 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 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). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until 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.
(Footnote omitted.)
In Dufrene, the employee was injured and received TTD benefits for about four
months. Thereafter, she received medical benefits for two and one-half years, at
which time she had neck surgery. She then filed a claim for indemnity benefits, and
the employer filed an exception of prescription. The court found that the claimant’s
action had not prescribed.
In the present case, Fontenot did not file until nearly four years after the last
payment of indemnity benefits. Under the statute, his claim is prescribed on its face.
We are not persuaded by Fontenot’s argument that prescription is governed by the
articles on enforcement of judgments because he is seeking to enforce the previous
judgment rather than initiating a claim. To hold such would be to create an artificial
2 distinction between claims voluntarily paid and those ordered by the workers’
compensation judge and create a disincentive for employers to assert their rights.
Such a position would be inconsistent with Dufrene in that it would create two
separate prescriptive periods. Likewise, we find no merit to Fontenot’s argument that
prescription was interrupted because he could not act to file a claim due to the fact
that he was employed at a wage greater than his pre-injury wage. Such a
circumstance is clearly contemplated by the statute.
CONCLUSION
For the foregoing reasons, the judgment of the workers’ compensation judge
is affirmed. All costs of these proceeding are taxed to the claimant, Michael
Fontenot.
3 NUMBER 04-1089
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
PETERS, J., dissenting.
Both the workers’ compensation judge (WCJ) and the majority rely on the
provisions of La.R.S. 23:1209(A) to conclude that Michael Fontenot’s claim for
benefits against his employer, Reddell Vidrine Water District (Water District), has
prescribed. I respectfully disagree with the application of this particular statute to the
facts of the case.
The procedural history of this litigation is not at issue and is set forth in the
majority opinion. Importantly, the WCJ awarded Fontenot indemnity benefits on
January 25, 2000, which award was ultimately affirmed by the supreme court. During
the appellate process, Fontenot returned to work for the Water District in a light-duty
capacity, yet at higher wages than his pre-injury wages. Accordingly, the Water
District paid weekly benefits until April 10, 2000, although the Water District
continued to pay the medical expenses arising from the accident. However, on March
2, 2004, almost four years after the Water District’s last payment of supplemental
earnings benefits, Fontenot underwent back surgery and was unable to return to even
light-duty work. When he requested that his indemnity benefits be reinstated, the
Water District refused, and Fontenot timely filed a disputed claim. Thereafter, the WCJ granted the Water District’s prescription exception, and this appealed followed.
As pointed out by the majority, the supreme court has made it clear that La.R.S.
23:1209(A) provides “the only prescriptive period setting forth the amount of time
a worker has to file a claim for benefits.” Dufrene v. Video Co-Op, 02-1147, p. 10
(La. 4/9/03), 843 So.2d 1066, 1073 (emphasis added). In Dufrene, the issue involved
whether, after indemnity benefits are terminated, an employee has three years under
La.R.S. 23:1209(A) to apply for supplemental earnings benefits or whether the two-
year period of La.R.S. 23:1221(3)(d)(i) applies. In Dufrene, the employee’s injuries
occurred in the course and scope of her employment, and her employer voluntarily
paid temporary total disability benefits for almost four months after she sustained her
injuries. Thereafter, the employer paid no indemnity benefits, but continued to pay
medical expenses. More than two but less than three years after the termination of
indemnity benefits, the employee filed a claim for supplemental earnings benefits.
In reversing the WCJ’s grant of the exception of prescription, the supreme court made
the statement quoted above.
The supreme court’s holding in Dufrene is certainly binding on this court.
However, I find the matter before us to be distinguishable from that decision. In
Dufrene, the employee had not obtained a judgment against her employer. Rather,
the employee’s claim arose after the employer had voluntarily made payments and
then unilaterally stopped those payments. In the matter before us, there is no
unresolved claim or voluntary payment involved. Fontenot has the benefit of a final
judgment awarding him benefits. This fact distinguishes the case from the holding
in Dufrene and requires a reversal of the grant of the prescription exception.
Once Fontenot obtained the final judgment awarding benefits, La.R.S.
2 23:1209(A) no longer applied. Instead, in my opinion, the matter is governed by the
provisions of La.R.S. 23:1310.8, which relates to the continuing jurisdiction of the
WCJ. Louisiana Revised Statutes 23:1310.8(B) specifically provides:
Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
Although it offered Fontenot light-duty work rather than continue to pay
indemnity benefits, the Water District took no steps to have that condition change
recognized by the WCJ. Therefore, the prior judgment remains in full force and
effect, and the Water District cannot ignore its effect by claiming that Fontenot’s
claim has prescribed. To rule otherwise would open the workers’ compensation
system to the possibility of abuse. An employer or insurer who is subject to a
judgment awarding benefits can simply circumvent the long-term effects of the
judgment by providing “light-duty” employment for three years and then dismissing
the injured employee, leaving him without recourse. I would reverse the grant of the
exception of prescription and remand the matter to the WCJ for further proceedings.