Dufrene v. VIDEO CO-OP, LA. WORKERS'COMP.

• Decision Date: 09 April 2003
• Docket Number: No. 2002-C-1147.,2002-C-1147.
• Parties: Pamela DUFRENE v. VIDEO CO-OP and LOUISIANA WORKERS' COMPENSATION CORPORATION.
• Court: Louisiana Supreme Court

843 So.2d 1066

Pamela DUFRENE v. VIDEO CO-OP and LOUISIANA WORKERS' COMPENSATION CORPORATION.

No. 2002-C-1147.

Supreme Court of Louisiana.

April 9, 2003.

Michael L. Hebert, Baton Rouge, Counsel for Applicant.

Merilla B. Miller, Counsel for Respondent.

CALOGERO, Chief Justice.

At issue in this case is the proper construction of two workers' compensation statutes dealing with an employee's right to collect supplemental earnings benefits ("SEB"). Louisiana Revised Statute 23:1209(A) provides that an employee may file a claim for SEB within three years of the date of the last indemnity benefit payment.¹ Louisiana Revised Statute 23:1221(3)(d)(i), on the other hand, states that the right to SEB shall terminate at the end of any two-year period commencing after termination of temporary total disability payments ("TTD"), unless SEB has been payable for at least thirteen consecutive weeks.² Plaintiff filed the current claim for SEB after two years, but before the expiration of three years, from the discontinuance of TTD; thus, her claim falls between the time periods set forth in the two statutes.

The First Circuit Court of Appeal below held that § 1221(3)(d)(i) served as a two-year prescriptive period, which abrogated plaintiff's right to file her claim within the three-year provision of § 1209(A), because SEB had not been payable to her for thirteen consecutive weeks during the two-year period commencing after TTD payments had ended. Another state appellate circuit, the Fifth Circuit Court of Appeal, treats § 1221(3)(d)(i), not as a prescriptive period cutting off a worker's right to file a claim for SEB, but as a provision setting forth the duration, and subsequent termination, of SEB payments once a worker has filed a claim for SEB. We granted certiorari to resolve the conflicting interpretations by the courts of appeal. We reverse the court of appeal below, adopt the statutory interpretation espoused by the Fifth Circuit Court of Appeal, and hold that plaintiff's claim for SEB has not prescribed under § 1209(A).

FACTS AND PROCEDURAL HISTORY

Ms. Pamela Dufrene ("plaintiff") was employed by the defendant Video Co-op on November 13, 1996. While working at the checkout counter, Ms. Dufrene was beaten and stabbed, and thus severely injured by an assailant. The parties do not dispute that Ms. Dufrene was injured in the course and scope of her employment. She received TTD payments from November 14, 1996 through March 11, 1997. No further indemnity benefits were paid, but Ms. Dufrene continued to receive reimbursement for medical expenses. On October 7, 1999, Ms. Dufrene underwent cervical fusion surgery made necessary by the November 13, 1996 injury. On October 27, 1999, about two and a half years after her TTD payments ended, she filed a claim with the Office of Workers' Compensation seeking to have indemnity benefits reinstated in the form of SEB.

Video Co-op and the Louisiana Workers' Compensation Corporation ("defendants") filed a peremptory exception of prescription, alleging that La. Rev. Stats. 23:1209(A) and 23:1221(3)(d)(i) bar plaintiff's claim for SEB. Specifically, defendants admit that plaintiff's claim falls within the three-year prescriptive period of § 1209(A), yet they urge that § 1221(3)(d)(i) sets forth another, more specific two-year prescriptive period or, they say, peremptive period, which cuts off plaintiff's right to file a claim for SEB under § 1209(A). Because plaintiff has not alleged, and cannot prove, that SEB was payable for thirteen consecutive weeks during the two-year period after termination of her TTD payments, defendants contend that her right to file a claim for SEB has prescribed or perempted under § 1221(3)(d)(i).

Plaintiff contends, however, that peremption is not involved in this situation, and that § 1209(A) is the only prescriptive statute governing the time in which a party must file a claim for indemnity benefits. According to plaintiff, § 1221(3)(d)(i) is neither a prescriptive nor a peremptive statute. Rather, it establishes the period of entitlement to SEB once a claim is filed. In other words, plaintiff contends that § 1221(3)(d)(i) addresses the length of time a claimant can receive SEB payments, and the conclusion or end period of such entitlement under specified circumstances.

The Office of Workers' Compensation granted defendants' exception of prescription and dismissed plaintiff's claim for SEB with prejudice. The workers' compensation hearing officer agreed with plaintiff's contention that § 1221(3)(d)(i) did not set forth a prescriptive period and that plaintiff's claim was timely under § 1209(A); however, hearing officer stated that she was bound to rule in accordance with First Circuit precedent supporting defendants' position. The First Circuit Court of Appeal thereafter affirmed the decision of the hearing officer, choosing to follow its prior decisions in Smith v. State of Louisiana through Dept. of Health and Hospitals, 94-1533 (La.App. 1st Cir.3/3/95), 652 So.2d 635, and Sept v. City of Baker, 98-1190 (La.App. 1st Cir.5/18/99), 733 So.2d 748.

The court of appeal held that plaintiff's claim was prescribed under § 1221(3)(d)(i), reasoning that this statute required her to file the claim within two years of the discontinuance of TTD payments. The court additionally noted that, had SEB been payable to plaintiff for at least thirteen consecutive weeks during the two-year period following termination of TTD, § 1221(3)(d)(i) would not have been applicable, and plaintiff could have availed herself of the three-year prescriptive period of § 1209(A). Dufrene v. Video Co-op & La. Workers' Compensation Corp., 01-0261, p. 4 (La.App. 1st Cir.3/28/02), 813 So.2d 619, 621.

In a controlling case from the First Circuit Court of Appeal, the Smith court was faced with a claimant who, like Ms. Dufrene, filed a claim for SEB within the three-year period of § 1209(A), but outside the two-year period of § 1221(3)(d)(i). See Smith, 94-1533, p. 2, 652 So.2d at 636. That court held that the claimant's request for SEB (on August 20, 1993) was barred by the two-year limitation of § 1221(3)(d)(i). The claimant had previously received SEB, but only for a seven-week period within the two-year period following termination of TTD, which is less than the thirteen weeks stipulated in § 1221(3)(d)(i). See Smith, 94-1533, p. 3, 652 So.2d at 636-37. The Smith court went on to note that, had SEB been payable to the claimant for thirteen consecutive weeks within the two-year period after TTD payments ended (April 22, 1991 to April 22, 1993), she could have taken advantage of the longer three-year prescriptive period provided in § 1209(A).³

The precise issue before the Sept court, on the other hand, does not necessarily command the result reached by the court of appeal in the present case. In Sept, the claimant, who had previously received benefits classified as TTD, argued that these very benefits should have been classified as SEB because he was able during that time to perform light-duty work.⁴Sept, 98-1190, p. 3, 733 So.2d at 749. Essentially, the claimant was making an attempt to reclassify the TTD benefits as SEB to avoid prescription. Sept, 98-1190, p. 4, 733 So.2d at 750. The Sept claimant apparently conceded, correctly or not, that § 1221(3)(d)(i)'s two-year period was a prescriptive one. Id. The court applied the manifest error standard of review and upheld the lower court's findings that the claimant's benefit payments were TTD rather than SEB. Sept, 98-1190, p. 9, 733 So.2d at 752. The Sept opinion focused on the nature of the payments received by claimant and did not address the relationship between §§ 1209(A) and 1221(3)(d)(i) or the accuracy of the Smith court's holding. Instead, the Sept court applied the law of Smith regarding prescription of claims for SEB, presumably because that was the applicable precedent in the First Circuit. Sept, 98-1190, p. 5, 733 So.2d at 750 (citing Smith, 94-1533, p. 3, 652 So.2d at 636).

Therefore, in the First Circuit, beginning with the decision in Smith, a claimant must prove that SEB had been payable to him for at least thirteen consecutive weeks during the two-year period commencing after termination of TTD to take advantage of the three-year prescriptive period of § 1209(A).⁵

The Fifth Circuit Court of Appeal has also addressed the relationship between the time periods of §§ 1209(A) and 1221(3)(d)(i). In Bibbins v. Boh Construction, 99-349 (La.App. 5th Cir.10/13/99), 746 So.2d 154, a worker filed a claim for SEB more than two years after the termination of TTD benefits, but before the lapse of three years. The defendant in that case, like the defendant in the instant case, asserted that § 1221(3)(d)(i) terminated the worker's right to receive SEB because thirteen consecutive weeks of SEB had not been payable in the two-year period commencing after the last payment of TTD. Bibbins, 99-349, p. 7, 746 So.2d at 158. The court rejected the defendant's argument, finding that the three-year prescriptive period of § 1209(A) is the only statute governing a claimant's right to file a claim for SEB. Bibbins, 99-349, p. 8, 746 So.2d at 159. The court further held that § 1221(3)(d)(i) addresses itself to the termination of SEB once entitlement has been proven and the benefits have been awarded, but does not pertain to the case where a claimant is asserting his outset entitlement to SEB. Id. Because he filed his claim within three years of the last indemnity benefit payment (TTD in this case), the Bibbins plaintiff's claim for SEB was timely under § 1209(A). Id.

We granted certiorari to resolve this split in the First and Fifth Circuits and to determine the proper application of two confusing, if not conflicting, SEB statutes. We hold that the court of appeal below erred in finding that plaintiff's claim for SEB is prescribed through the application of § 1221(3)(d)(i). The Fifth Circuit's analysis in Bibbins v. Boh Brothers...