McDonald v. New Orleans Private Patrol

• Decision Date: 11 October 1990
• Docket Number: No. 90-CA-0250,90-CA-0250
• Citation: McDonald v. New Orleans Private Patrol, 569 So.2d 106 (La. App. 1990)
• Parties: Lina McDonald, Widow of Cheston McDONALD v. NEW ORLEANS PRIVATE PATROL. 569 So.2d 106
• Court: Court of Appeal of Louisiana

Page 106

569 So.2d 106

Lina McDonald, Widow of Cheston McDONALD v. NEW ORLEANS PRIVATE PATROL.

No. 90-CA-0250.

569 So.2d 106

Court of Appeal of Louisiana Fourth Circuit.

Oct. 11, 1990.

Marcia Finkelstein, New Orleans, for plaintiff/appellee.

Charles R. Capdeville, Metairie, for defendants/appellants.

Before CIACCIO, WILLIAMS, and BECKER, JJ.

BECKER, Judge.

Defendants/appellants, New Orleans Private Patrol and Continental Insurance Company, appeal the judgment of the trial court awarding plaintiff worker's compensation disability and death benefits. Plaintiff's husband, the late Cheston McDonald, worked as a security guard under the employ of New Orleans Private Patrol, at the Johns-Manville plant from 1957 until he retired in 1975. Plaintiff instituted this action for worker's compensation benefits on May 20, 1985, alleging that Cheston McDonald's death on March 7, 1984 was either caused or contributed to by the exposure to asbestos dust experienced by Mr. McDonald during his employment with New Orleans Private Patrol.

After a trial on the merits, the trial court awarded plaintiff total disability benefits from May 16, 1975 through March 7, 1984, along with death benefits from March 7, 1984 through June 21, 1986, together with medical benefits of $47,285.00, burial expenses $2,904.20, and legal interest thereon.

Defendants now seek review of this judgment alleging that the trial court erred in (1) not finding the claim for disability benefits prescribed; (2) not finding the claim for death benefits preempted; and (3) not according great weight to the testimony of Dr. Grimstad, one of Mr. McDonald's treating physicians.

Defendants argue that plaintiff's claim for disability benefits had prescribed when suit was filed in May, 1985. L.S.A.-R.S. 23:1031.1(E) provides in pertinent part,

"All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:

(a) The disease manifested itself.

(b) The employee is disabled from working as a result of the disease.

(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

Notice filed with the compensation insurer of such employer shall constitute a claim as required herein."

The jurisprudence interpreting this statute has consistently held that all three conditions must exist for prescription to commence. Thornell v. Payne and Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983) writ denied, 445 So.2d 1231 (La.1984); Naquin v. Johns-Manville Sales Corp., 456 So.2d 665 (La.App. 5th Cir.1984); Brown v. City of Monroe, 521 So.2d 780 (La.App. 2nd Cir.1988).

In the present case, plaintiff alleges that decedent did not know that his respiratory problems were related to his employment until November 28, 1983 when Dr. Velma Campbell examined him and determined that Mr. McDonald's "exposure to asbestos contributed significantly to his present condition." A review of the trial record indicated that Dr. Campbell was the first physician to inform Mr. McDonald that his respiratory problems were employment related. Thus, Mr. McDonald had no knowledge or reasonable belief that his illness was employment related until November 28, 1983.

Mr. McDonald, through his attorney, notified New Orleans Private Patrol on December 5, 1983 of his intent to seek worker's compensation disability benefits. Clearly, this notice was provided to the employer within six months of Dr. Campbell's diagnosis. Thus, we can not say that the trial court erred in denying defendants' exception of prescription.

Defendants also argue that the trial court erred in denying their exception of peremption in regards to plaintiff's claim for death benefits. Defendants rely upon L.S.A.-R.S. 23:1231, which provides in pertinent part,

"For injury causing death within two years after the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as herein after provided...."

Defendants contend plaintiff's claim for death benefits is perempted since Mr. McDonald's death occurred more than two years after his retirement. However, defendant's reliance on R.S. 23:1231 is misplaced.

L.S.A.-R.S. 23:1231 is a general statute within the section of the worker's compensation act concerning the entitlement of benefits. L.S.A.-R.S. 23:1031.1 specifically pertains to the benefits available to those employees suffering from occupational diseases. R.S. 23:1031.1(F) provides that

"All claims for death arising from an occupational disease are barred unless the dependent or dependents as set out herein file a claim with the deseased's employer within six months of the date of death of such employee or within six months of the date claimant has reasonable grounds to believe that the death resulted from an occupational disease. Notice filed with the compensation insurer of such employer shall constitute a claim herein."

The general rule is that in cases of conflict between general and specific statutes, the special statute prevails. Giroir v. South Louisiana Medical Center, 453 So.2d 949 (La.App. 1st Cir.1984), affirmed in part; reversed in part on other grounds, 475 So.2d 1040 (La.1985). Furthermore, it is well settled that the worker's compensation statute is to be liberally interpreted in favor of the employee. Winzor v. Augenstein Const. Co., Inc., 378 So.2d 470 (La.App. 3rd Cir.1979), writ denied 379 So.2d 1103 (La.1980); Huett v. Insurance Company of North America, 329 So.2d 222 (La.App. 4th Cir.1976), writ denied, 332 So.2d 863 (La.1976); Grey v. Avondale Service Foundry, 305 So.2d 639 (La.App. 4th Cir.1974); Simmons v. Liberty Mutual Insurance Company, 185 So.2d 822 (La.App. 3th Cir.1966). Therefore, we find that R.S. 23:1031.1 is the applicable statute in setting out time limitations on death claims arising from occupational diseases. Plaintiff, in this case, notified decedent's employer approximately one month after decedent's death, of her intent to seek death benefits available under R.S. 23:1031.1. Accordingly, the trial court was correct in denying defendants' exception of peremption.

Defendants further contend that the trial judge erred in not according great weight to the testimony of Dr. Grimstad, one of Mr. McDonald's treating physicians. Plaintiff acknowledges that Dr. Grimstad began treating Mr. McDonald for his respiratory problems in 1981. He attended Mr. McDonald during McDonald's last illness and signed the death certificate, certifying the cause of death to be chronic obstructive pulmonary disease. Dr. Grimstad was of the opinion that Mr. McDonald suffered from obstructive lung disease or emphysema with a bronchitic component.

It is well settled that the testimony of the treating physician is to be given more weight than the testimony of a physician who examines the patient only one or twice. However, the treating physician's testimony must also be weighed in light of other credible evidence. The weight to be afforded such testimony is largely dependent upon the physician's qualifications and the facts upon which his opinion is based. Schouest v. J. Roy McDermott, 411 So.2d 1042 (La.1982); Latiolais v. Jernigan Bros. Inc., 520 So.2d 1126 (La.App. 3rd Cir.1987); Walker v. Marcev, 427 So.2d 678 (La.App. 4th Cir.1983), writ denied, 433 So.2d 182 (La.1983); Vicknair v. Southern Farm Bureau Casualty Insurance Company, 292 So.2d 747 (La.App. 4th Cir.1974), writ denied, 296 So.2d 838 (La.1974).

In the present case, it appears that Dr. Grimstad was not fully aware of the factors which contributed to Mr. McDonald's condition. Dr. Grimstad acknowledged at trial that he...