Faucheux v. Hooker Chemical Corp.

• Decision Date: 09 November 1983
• Docket Number: No. 83-CA-466,83-CA-466
• Citation: 440 So.2d 1377
• Parties: Glenn FAUCHEUX v. HOOKER CHEMICAL CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

Page 1377

440 So.2d 1377

Glenn FAUCHEUX v. HOOKER CHEMICAL CORPORATION.

No. 83-CA-466.

Court of Appeal of Louisiana Fifth Circuit.

Nov. 9, 1983.

Rehearing Denied Dec. 19, 1983.

Paul G. Aucoin, Vacherie, for plaintiff-appellee.

Darryl J. Foster, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-appellant.

Before CURRAULT, GAUDIN and GRISBAUM, JJ.

CURRAULT, Judge.

Plaintiff, Glenn Faucheux, brought an action in worker's compensation for mental injuries sustained while in the course and scope of his employment with defendant, Hooker Chemical Corporation.

Plaintiff, a cell operator, was injured on or about June 29, 1979, when he was struck by high voltage electricity from a cell block. Plaintiff was taken to the emergency room at a local hospital where he was treated and sent home. He stayed at home for approximately seven days. After returning to work, he was given no duty for a period of about two weeks, at which point in time he returned to the cell block as an operator.

At this point plaintiff discovered that, as a result of the accident, he had developed fear of working in the cell block. He attempted to perform his job as an operator in the cell block for three or four days, but on July 31, 1979, discontinued working. No worker's compensation benefits were paid as a result of the accident.

This suit was filed on August 22, 1980, alleging total and permanent disability due to fear and anxiety engendered by the accident of June 29, 1979.

Defendant Hooker Chemical Corporation (Hooker) filed an exception of prescription prior to trial on the merits, which was denied by the trial court. The case proceeded to trial on December 9, 1982, at which time the plea of prescription was reurged. After taking the matter under advisement, a judgment was rendered on March 29, 1983, in which the trial court again denied the exception of prescription and, further, found plaintiff totally and permanently disabled.

From that judgment, defendant Hooker perfects this appeal.

Appellant, Hooker, presents the following issues for our consideration:

(1) Whether the trial court erred in overruling Hooker's plea of prescription; and

(2) whether the trial court erred in finding plaintiff totally and permanently disabled as a result of the June 29, 1979 accident.

Suit in this case was filed on August 22, 1980. Appellant contends that the action prescribed either (1) because the accident occurred on July 29, 1979; (2) because plaintiff's last working day was July 31, 1979; or (3) because the payroll records reflect the date of termination as August 6, 1979.

Appellee, while admitting the correctness of the date of the accident and the date he discontinued working, claims his employment was not terminated until September 15, 1979. That date under the law, he argues, is the one from which prescription began to run.

The Workermen's Compensation Act of 1975 in LSA-R.S. 23:1209 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, except that in cases of partial disability this limitation shall not take effect until three years 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."

More than one year had elapsed between the accident and the date suit was filed; however, since the injury herein did not develop immediately, the issue must be resolved under the "development of the injury" rule.

In determining the date that the injury develops, the Louisiana Supreme Court stated in Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 526 (La.1956):

"Development, as applied to a compensable injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer."

See also Mottet v. Libby-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (La.1952); Hobley v. Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir.1970); Palmer v. Carter Federal Credit Union, 397 So.2d 50 (La.App. 2d Cir.1981); Gipson v. Dresser Industrial Valve Operations, A Division of Dresser Industries, Inc., 428 So.2d 1338 (La.App. 3d Cir.1983).

In Bolden v. Georgia Casualty and Surety Company, 363 So.2d 419 (La.1978), the Louisiana Supreme Court further discussed the holding in Wallace as follows:

"In context, this statement in Wallace was primarily applicable to the case of the retained employee, who continues to work with symptoms which might have been held to be disabling (if litigated) but which did not become manifestly disabling to the employee until he was forced to quit his work. We held that the disability did not become manifest or 'develop' until that date, because to select an earlier date 'would be dealing in conjecture.' 86 So.2d 525.

"In subsequent jurisprudence applying Wallace, the intermediate courts, in overruling pleas of prescription, held that the injury or disability did not 'develop' until the employee actually becomes unable to perform his former duties. This test is appropriate when, under the facts, the issue is whether the injured employee who returns to work is disabled at some conjectural time before the day when he actually is unable to continue at work due to his disability." (Citations omitted at pages 421-422.)

Thus, when the employee returns to work, but is forced to terminate his employment because of the injury, prescription begins to run from that date. Meche v. Gulf Coast Pre-Mix Trucking, Inc., 383 So.2d 77 (La.App. 3d Cir.1980); Palmer, supra; Burleigh v. Argonaut Ins. Co., 347 So.2d 13 (La.App. 3d Cir.1977); Harris v. Seaboard Fire & Marine Ins. Company, 337 So.2d 262 (La.App. 2d Cir.1976).

Appellant contends plaintiff-appellee quit work on July 31, 1979 when he gave into his anxiety and did not return to work; or, at the latest, August 6, 1979, the termination date on the payroll records. Appellee Faucheux testified, however, that although he physically stopped working for defendant corporation on or about July 31, 1979, at that time, he was asked by his supervisor, Jack Hurst, to get some type of medical report indicating that he was not able to work in the cell block. He testified that he was told that if he obtained such a report he could work in some other area of the plant. Plaintiff then went to see Dr. Phemester who had originally treated him for the electrical shock and Dr. Phemester referred him to Dr. Sidney Montz, a psychiatrist, who saw plaintiff on August 24, 1979. Plaintiff obtained a note from Dr. Montz which stated that he should not work in the cell block at Hooker, but should work in some other area of the plant. Appellee stated that he had to wait until September 15 to present this note to Jack Hurst because Mr. Hurst wasn't available until then. When he did present the note, appellee testified that Mr. Hurst indicated that the note was meaningless and Mr. Faucheux then quit his job since he felt he would not be able to work again in the cell block due to his fear of electrocution.

The evidence presented by appellant to dispute the sequence of events, as set forth by plaintiff, was the testimony of George Haas, Manager of Employee Relations for appellant. The testimony is clear that he spoke not from personal observation or knowledge, but simply from records in his possession. He stated that appellee had resigned and that the last date of employment for Hooker, according to Payroll, was August 6, 1979. Appellee argues that this is not a contradiction to his testimony, but merely reflects the end of a pay period.

In brief, appellant also argues that a note signed by Dr. Montz which was introduced into evidence without objection is evidence of the implausibility of appellee's story since the note was dated 1980. However, the testimony of Dr. Montz indicates he in fact did write such a note in August, 1979. On rebuttal, appellee explained that the document introduced was a duplicate requested for trial since the original was given to Mr. Hurst and was not available.

While the record lacks the trial judge's reasons for finding that the claim had not prescribed, the trial judge apparently believed plaintiff-appellee's version of the story and our review does not mandate a different result. Appellee apparently was forced to resign due to his anxiety in September, 1979; therefore the legal manifestation of the injury under the jurisprudence was in September, 1979. The suit filed August 22, 1980 was not prescribed.

Appellant submits secondly that the trial court was clearly wrong in finding appellee, Faucheux, totally and permanently disabled as a result of the June 29, 1979 accident. Appellee asserts contrarily that the evidence was sufficient to prove that the electrocution he suffered on July 29, 1979 caused plaintiff to develop anxiety (fear of injury) while working for Hooker which has continued to date and affects him in his present job.

Mental disabilities are compensable under the Louisiana Workmen's Compensation Law. Victoriana v. Orleans Parish School Board, 346 So.2d 271 (La.App. 4th Cir.1977); Murphy v. Employers Mutual Insurance Company of Warsaw, et al, 248 So.2d 623 (La.App. 3d Cir.1971); Peavy v. Mansfield Hardwood Lumber Company, 40...