Sept v. City of Baker
| Decision Date | 18 May 1999 |
| Docket Number | No. 98 CA 1190.,98 CA 1190. |
| Citation | 733 So.2d 748 |
| Parties | Timmy O. SEPT v. CITY OF BAKER. |
| Court | Court of Appeal of Louisiana — District of US |
Michelle Sorrells, Baton Rouge, Counsel for Plaintiff/Appellant Timmy 0. Sept.
Marjorie B. Breaux, Lafayette, Counsel for Defendant/Appellee City of Baker.
Before: FOIL, KUHN, and WEIMER, JJ.
This case is on appeal from a ruling of the workers' compensation judge denying claimant's request for supplemental earnings benefits, permanent partial disability benefits, and vocational rehabilitation. For the reasons that follow, we affirm the ruling that denied recovery of benefits and granted the exception of prescription and motion for summary judgment filed by the employer, City of Baker.
The record reflects that Timmie O. Sept1 worked for the City of Baker as a heavy machine operator. He was injured in the course of his employment on July 18, 1994. His employer began paying temporary total disability benefits at that time until he returned to work on January 3, 1995. Mr. Sept worked continuously from that time. On February 13, 1997, he consulted Dr. Thomas B. Flynn with complaints of pain allegedly continuing since the time of the original accident. On March 20, 1997, Dr. Flynn indicated he felt Mr. Sept was partially and permanently disabled. He restricted lifting to 25 pounds and indicated he should not engage in repetitive bending, stooping, climbing, crawling, or operating heavy equipment. The employer did not have any light duty work. Mr. Sept asked to be paid workers' compensation benefits and was told his claim had prescribed.
On April 11, 1997, he filed what is referred to as a Form 1008 "Disputed Claim for Compensation" seeking supplemental earnings benefits, permanent partial disability and rehabilitation. The employer responded that the claim had prescribed pursuant to LSA-R.S. 23:1221(3)(d)(i) because the employee had not received benefits for more than two years from the time temporary total disability benefits had been last paid and supplemental earnings benefits had not been paid during at least thirteen consecutive weeks.
Claimant then filed a petition seeking supplemental earnings benefits at the temporary total disability rate of $276.64, past due compensation, medical benefits during the period of disability, vocational rehabilitation, penalties of 54,000.00, and attorney fees of $6,500.00. His employer, the City of Baker, filed an answer denying that any benefits were due to claimant and contending that all claims are barred by LSA-R.S. 23:1221(3)(d)(i), 23:1209, and 23:1226 E.
The employer later filed a pleading titled: "Exception of Prescription and Motion for Summary Judgment" based on the contention that the claim had prescribed. The exception/motion for summary judgment came before the workers' compensation judge for hearing on September 26, 1997. The workers' compensation judge granted the exception of prescription as to the permanent partial disability at that time and held the case open to allow the parties to obtain medical affidavits or take the depositions of Dr. Thomas B. Flynn and Dr. John Eric Nyboer to determine the extent of Mr. Sept's disability during the time he received compensation benefits from his employer.
At a hearing on January 16, 1998, the depositions of Drs. Flynn and Nyboer were introduced as Joint Exhibits 1 and 2 respectively. After reviewing the evidence and hearing oral arguments, the defendant's exception of prescription and motion for summary judgment were both granted. A judgment to that effect was signed on January 28, 1998.
The claimant timely filed an appeal on all issues covered by the judgment. In brief appellant alleges the workers' compensation judge was manifestly erroneous in determining that the claim for supplemental earnings benefits prescribed pursuant to LSA-R.S. 23:1221(3)(d)(i).
In order to recover workers' compensation benefits, a claimant must prove that a work-related accident occurred. LSA-R.S. 23:1031; Middleton v. International Maintenance, 95-0238, p. 5 (La. App. 1 Cir. 10/6/95), 671 So.2d 420, 423-424, writ denied, 95-2682 (La.1/12/96), 667 So.2d 523. In addition, the claimant must establish the accident caused the injury and the injury caused the disability. Kennedy v. Johnny F. Smith Trucking, 94-0618, p. 6 (La.App. 1 Cir. 3/3/95), 652 So.2d 526, 530.
Claiming that he was unable to continue working in the capacity of a heavy equipment operator, Mr. Sept sought supplemental earnings benefits. Under the provisions of LSA-R.S. 23:1221(3)(d)(i), the right to supplemental earnings benefits terminates as of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks.
It is undisputed that Mr. Sept sustained a work-related injury on July 18, 1994. It is also undisputed that he received workers' compensation benefits from that date until January 3, 1995, at which time he returned to work full time. According to exhibits filed in evidence, Mr. Sept received weekly benefits for temporary total disability in the amount of $257.87. He now claims that he was able to perform light duty work during that period. Therefore, he claims the payments were actually for supplemental earnings benefits as he could not prove entitlement to temporary total disability benefits due to that ability to perform light duty work. Essentially, he is arguing that the temporary total disability benefits he received should have actually been classified as supplemental earnings benefits. Thus, some two years later, an attempt is being made to reclassify how the benefits were contemporaneously classified so as to avoid prescription.
Dr. Nyboer released Mr. Sept to return to work with no restrictions on December 13, 1994. A certificate to return to work on December 31, 1994, with no limitations was prepared by Dr. Rodolfo M. Manaiac's office on December 30, 1994. None of the doctors who treated Mr. Sept between the date of the accident and his release to return to work indicated whether he was totally or partially disabled during that time.
It is critical to determine the type of benefits Mr. Sept received. If he indeed received temporary total disability benefits, his current claim to receive supplemental earnings benefits is now prescribed because more than two years lapsed since discontinuance of temporary total disability benefits. LSA-R. S. 23:1221(3)(d)(i); Smith v. State Department of Health & Hospitals, 94-1533, p. 3 (La.App. 1 Cir. 3/3/95), 652 So.2d 635, 636.
The procedure before the workers' compensation judge involved an exception of prescription filed within a motion for summary judgment. When a peremptory exception is pleaded prior to trial of the case, evidence may be introduced to support or controvert any objections pleaded when the grounds do not appear from the petition. LSA-C.C.P. art. 931. Thus on the trial of the exception, evidence could be introduced to support the exception. On the other hand, summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and mover is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966. For the hearing on the motion for summary judgment, no live testimony is permissible.
Generally, the workers' compensation judge shall not be bound by technical rules of evidence or procedure (other than as specifically provided), but all findings of fact shall be based upon competent evidence. The workers' compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be. LSA-R.S. 23:1317.
The manifest error or clearly wrong standard governs appellate court review of facts in workers' compensation cases. Washington v. Lyon's Specialty Company, 96-0263, p. 6 (La.App. 1 Cir. 11/8/96), 683 So.2d 367, 372, writ denied, 96-2944 (La.1/31/97), 687 So.2d 408. In order to reverse a factual finding of a workers' compensation judge, the appellate court must determine that a reasonable factual basis does not exist in the record to support the finding of the workers' compensation judge and that the record establishes the finding is clearly wrong or manifestly erroneous. Vargas v. Daniell Battery Manufacturing Company, Inc., 93-1249, p. 8 (La.App. 1 Cir. 5/20/94), 636 So.2d 1194, 1198.
Summary judgment, when appropriate under Articles 966 and 967 of the Louisiana Code of Civil Procedure, is available in...
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