Reeves v. Reeves Dirt Pit

606 So. 2d 881, 1992 WL 233341
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1992
Docket23947-CA
StatusPublished
Cited by4 cases

This text of 606 So. 2d 881 (Reeves v. Reeves Dirt Pit) 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
Reeves v. Reeves Dirt Pit, 606 So. 2d 881, 1992 WL 233341 (La. Ct. App. 1992).

Opinion

606 So.2d 881 (1992)

Luckett M. REEVES, Claimant/Plaintiff-Appellant,
v.
REEVES DIRT PIT, et al., Defendants-Appellees.

No. 23947-CA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1992.

Graves, Graves & Hanna by Robert M. Hanna, Shreveport, for claimant/plaintiff-appellant.

Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for defendants-appellees.

Before MARVIN, NORRIS and HIGHTOWER, JJ.

NORRIS, Judge.

In this workers compensation case, claimant Luckett Reeves appeals the hearing officer's Memorandum Opinion and Order sustaining defendants' exception of prescription and dismissing his claim for weekly indemnity benefits, medical costs, statutory penalties and attorney fees. For the reasons expressed, we reverse and remand.

FACTS

Reeves and his wife, Vicki, serve as president and secretary of Reeves Dirt Pit, Inc., a family-owned corporation; they are the company's only two directors. Mrs. Reeves keeps the books, handles the bidding, signs checks and generally manages the business. Until October 1989, Reeves *882 supervised the physical operations of the business.

On the morning of October 26, 1989, Reeves was working with his crew blacktopping a road leading to the dirt pit. About noon, Reeves apparently became overheated and experienced "life threatening ventricular arrhythmias." R. p. 24. He required "major resuscitive efforts" as he was transported by ambulance to the hospital. R. pp. 17-18. He was treated for some days before being released to his home. In addition to the effects of this cardiac dysfunction, which required additional hospitalization in December 1989, Reeves developed a "Parkinsonian tremor" in his right arm, hand and face which has grown progressively worse over time. Reeves's tremors are probably the result of anoxia suffered during the emergency team's efforts to resuscitate him (R. p. 20); at least one physician indicated that some organic brain damage may have resulted from the October incident as well. Reeves has not worked since the incident.

As secretary of the corporation, Mrs. Reeves continued to pay Reeves his full salary from the onset of his illness through May 1990, when she applied for Social Security disability benefits in his behalf.

Mrs. Reeves initially sought payment for her husband's medical expenses through the company's group health insurance carrier. No payments were made by the insurance company before it became insolvent in mid-1990.

In June 1990, Mrs. Reeves asked Don Whitlock, the company's insurance agent, if a workers compensation claim could be filed on behalf of her husband. Whitlock filled out and filed a claim, which was sent to Travelers Ins. Co., Reeves Dirt Pit, Inc.'s compensation carrier. Travelers sent the claim to an adjustment company. On July 10, the company sent Reeves a computer-generated letter informing him that his claim had been received and that Dana Clavin had been assigned to handle it. Ms. Clavin contacted the Reeveses by telephone, verified their address, and told Mrs. Reeves to keep receipts for her husband's medical expenses in case they were found to be reimbursable. Ms. Clavin testified that she told Mrs. Reeves that the claim was "questionable." R. p. 42.

In August, Ms. Clavin contacted Conservco for assistance in determining if Reeves's illness was work-related. Conservco assigned the claim investigation to Disability Case Manager Linda Hunt on August 28, 1990. She met with the Reeveses on September 10. In addition to questions about his medical condition, Ms. Hunt was required to ask about Reeves's sources of income. The referral form from the adjuster had a workers compensation figure already filled in; Mrs. Reeves testified that Ms. Hunt had presumed from this that Reeves was already receiving workers comp benefits, but Ms. Hunt stated she did not remember whether she and Mrs. Reeves discussed the comp benefits or not. R.p. 65. Ms. Hunt testified that at this meeting, and on several occasions thereafter, Mrs. Reeves told her that a lawyer might be necessary to "expedite" settlement of the claim; Ms. Hunt stated she neither discouraged nor encouraged Mrs. Reeves from taking legal action.

According to Ms. Hunt, attempts to get medical records from Reeves's treating physicians took some time, although she testified that both Mr. and Mrs. Reeves cooperated fully. Dr. Richard Shehane, who had treated Reeves in the Emergency Room, sent his report on October 25. On December 7, Ms. Clavin received a report from Dr. Russell Tynes, another of Reeves's treating physicians.

In December, Ms. Hunt was instructed by her supervisors to set up independent medical examinations for Reeves. Dana Clavin received reports from these examinations on January 16 and 28, from Drs. Richard Haynie and Tommy Brown, respectively.

Also in December, Ms. Clavin's supervisors told her to get a legal opinion on the case. She received a letter on January 18, 1991, advising her that Reeves's claim had prescribed. She called Mrs. Reeves on January 21 to tell her that the claim was denied.

*883 Reeves filed a claim with the Office of Workers Compensation on February 6, 1991. Defendants Travelers and Reeves Dirt Pit, Inc. answered, asking that the claim be dismissed since Reeves's claim had prescribed on its face.

At the hearing, held June 25 and 26, Reeves argued that his claim had not prescribed for three reasons: 1) his employer continued to pay him wages in lieu of compensation; 2) he was lulled into inaction by the actions of the claims adjuster; and 3) prescription did not begin to run until he became aware that his injury was medically related to his work. The hearing officer found that none of these defenses tolled the prescriptive period, and dismissed the case in an order signed August 12, 1991. On appeal, Reeves urges the same arguments presented to the hearing officer and claims in a single assignment that the hearing officer erred in sustaining defendants' exception of prescription.

DISCUSSION

La.R.S. 23:1209 provides three different time limitations on workers compensation claims: one year from the date of the accident, one year from the last payment made in lieu of compensation for total or partial disability or three years from the last payment of supplemental earnings benefits, or one year from the time the injury develops if not immediately manifest, but no more than two years after the accident.

Reeves became ill on October 26, 1989 and the illness manifested itself immediately; he filed his claim on February 6, 1991, obviously more than one year after the incident. However, Reeves reiterates on appeal that prescription was suspended while his employer paid him wages in lieu of compensation.

Generally, "the payment of unearned wages during disability is treated as workmen's compensation," and the one-year prescription runs from the last payment. Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385, 387 (1972). The test to determine if wages were paid in lieu of compensation is whether the wages are actually earned by the employee. Warren v. H & W Steel Erectors Inc., 569 So.2d 178 (La.App. 1st Cir.1990), and citations therein; Carter v. Belle Chasse State School, 451 So.2d 63 (La.App. 4th Cir.), writ denied 458 So.2d 120 (1984), and citations therein.

The instant record includes copies of payroll checks from Reeves Dirt Pit to Reeves for the pay periods between the date of his injury and May 4, 1990.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nickerson v. Finance America of LA
110 So. 3d 1216 (Louisiana Court of Appeal, 2013)
City of Bossier City v. Colvin
36 So. 3d 1207 (Louisiana Court of Appeal, 2010)
Boseman v. Orleans Parish School Bd.
727 So. 2d 1194 (Louisiana Court of Appeal, 1999)
Krieg v. Krieg Bros. Terrazzo Co., Inc.
645 So. 2d 661 (Louisiana Court of Appeal, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
606 So. 2d 881, 1992 WL 233341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeves-v-reeves-dirt-pit-lactapp-1992.