Smith v. Fruehauf Trailer Operations

666 So. 2d 1246, 1996 La. App. LEXIS 20, 1996 WL 23403
CourtLouisiana Court of Appeal
DecidedJanuary 24, 1996
Docket27864-CA
StatusPublished
Cited by7 cases

This text of 666 So. 2d 1246 (Smith v. Fruehauf Trailer Operations) 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
Smith v. Fruehauf Trailer Operations, 666 So. 2d 1246, 1996 La. App. LEXIS 20, 1996 WL 23403 (La. Ct. App. 1996).

Opinion

666 So.2d 1246 (1996)

Charles Roger SMITH, Plaintiff-Appellee,
v.
FRUEHAUF TRAILER OPERATIONS, Defendant-Appellant.

No. 27864-CA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 1996.

*1248 Mayer, Smith & Roberts by Alex S. Lyons, Shreveport, for Defendant-Appellant.

A. Michael Boggs, Bossier City, for Plaintiff-Appellee.

Before MARVIN, NORRIS and STEWART, JJ.

NORRIS, Judge.

Fruehauf Trailer Operation and its insurer, Transportation Insurance Company, appeal the hearing officer's rulings that Charles Smith's claim had not prescribed, that his disability is related to his on-the-job injury at Fruehauf, and the failure to give credit for the disability payments Fruehauf funded. Finding that Smith's claim for weekly and medical benefits had prescribed, we reverse and render.

Factual History

On September 6, 1988 Charles Smith, at the time a welder and mechanic for Fruehauf, slipped in some grease and twisted his back at work. He felt immediate pain in his lower back and went to see the company doctor, family practitioner Dr. Marcus Spurlock, that same day. Dr. Spurlock diagnosed severe lumbar strain, prescribed anti-inflammatory medication and sent him to Tietjen Physical Therapy. Smith completed the six week course of physical therapy and on October 14, 1988, Dr. Spurlock felt the strain had resolved and released him to return to full duty. Smith received weekly disability benefits through October 18, and medical expenses through November 7, 1988.

According to Smith, his back pain persisted even after the treatment, though he was able to work. On May 21, 1991, Smith's back pain became so bad that he went to the Bossier Medical Center emergency room. According to the medical report, Smith stated he strained his back lifting a Weed Eater the day before, and a subsequent coughing fit resulted in more severe pain and the trip to the emergency room. Smith was again diagnosed with muscle strain. Despite the referral to an orthopedic surgeon, for financial reasons Smith chose to see a chiropractor, Dr. Louie Ballis. Dr. Ballis treated Smith from May 23 to July 17, 1991, and released him with no residual problems expected. On April 14, 1992, Smith returned to the emergency room complaining of severe lower back pain. This medical record reflects that his low back pain intensified when he helped his friend set a large light pole the day before. Dr. Ballis treated Smith again from May 7 to July 31, 1992. As of July 31, 1992 the pain became so severe that Smith could no longer work; he has not worked since. On August 3, 1992, Smith returned to the Bossier Medical Center emergency room for back pain, and was referred to an orthopedic surgeon, Dr. Michael Acurio. On August 5, based on Smith's long history of back pain, Dr. Acurio diagnosed lumbar strain with a herniated disc; subsequent MRI results confirmed a herniated disc at L4-5, for which Smith underwent a diskectomy and laminectomy. The defendants denied Smith's request for benefits and medical expenses related to treatment for the herniated disc, and on October 22, 1992 Smith filed the instant claim.

In March 1993, defendants filed an exception of prescription, urging that Smith's claim for compensation and medical benefits, allegedly based on an accident at work over four years ago, had prescribed. Defendants denied that the "developing injury" theory of La.R.S. 23:1209 A applied because Smith knew of his injury and resulting disability immediately after the accident. Regardless, they argued the statute requires action within two years of the accident. Smith, apparently attempting to avoid the two-year limitation for developing injuries, argued that because the injury was immediately apparent the matter was governed by one-year prescription, which was "interrupted" until he knew of the resulting disability or August 1992. In any event, he argued the two-year period under § 1209 A was also subject to interruption or suspension. On March 29, 1994, the hearing officer overruled the exception of prescription, but provided no written or oral reasons for the decision.

*1249 The parties submitted the case on written stipulations and the depositions of Smith, Dr. Acurio, Dr. Ballis and Dr. Spurlock. On September 22, 1994, the hearing officer rendered judgment finding that Smith's herniated disc, subsequent back surgery and continuing related medical treatment were related to and arose out of his on-the-job accident in September 1988. She awarded weekly temporary total disability benefits and all related medical expenses, subject to a credit for any medical expenses previously paid. From this judgment, the defendants have appealed, urging as error the denial of the exception of prescription, the finding that the herniated disc is related to the September 1988 accident at work, and finally, the calculation of the award.

Prescription

La.R.S. 23:1209 A provides three prescriptive periods for the filing of compensation claims: (1) one year from the accident when the injury is immediately manifest; (2) one year from the last payment of compensation benefits (three years for supplemental earnings benefits); and (3) one year from the time the injury develops, but not more than two years from the accident, when the injury does not result at the time of or develop immediately after the accident.[1]Lynn v. Berg Mechanical, Inc., 582 So.2d 902 (La. App. 2d Cir.1991). The third period is commonly known as the "developing injury" rule. In addition, § 1209 C provides that claims for medical benefits prescribe one year from the date of the accident unless payments have been agreed upon, but in any event, three years from the date of the last payment of medical benefits.

Defendants first contend that Smith's claim, filed more than three years after the date of the last payment of weekly disability and medical benefits, has prescribed. They strongly urge that we apply the one-year prescriptive period, contending that Smith's injury "developed" immediately after the accident.

This case falls squarely within the rubric of developing injuries, mirroring a case decided recently by the Supreme Court. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La. 4/10/95), 652 So.2d 1323. There, Ms. Sevin sustained an on-the-job injury on December 20, 1988. After a brief recuperative period, during which her employer paid benefits and medical expenses, she returned to work. In December 1989 she was diagnosed with a herniated disc, but continued to work in pain. She worked until April 1990 when the pain became severe; a neurosurgeon eventually discovered two bulging discs for which she underwent several surgeries. She instituted her claim for benefits on August 31, 1990.

The employer claimed prescription because more than one year had elapsed since the last payment of weekly benefits. The hearing officer sustained the exception and the appellate court affirmed. The Supreme Court reversed, however, finding that this was a developing injury and that she timely filed her claim within one year from the date the disability developed and within two years of the accident.[2]

Similarly, Smith was injured on-the job on September 6, 1988. After a brief recuperative period he returned to work despite continued pain; he worked until July 31, 1992, when he could work no longer. Dr. *1250 Acurio's subsequent finding of a herniated disc confirmed Smith's disability. The developing injury rule applies here.

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666 So. 2d 1246, 1996 La. App. LEXIS 20, 1996 WL 23403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-fruehauf-trailer-operations-lactapp-1996.