Mwd Services, Inc. v. Anthony Humphries

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-668

MWD SERVICES, INC.

VERSUS

ANTHONY HUMPHRIES

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4,
PARISH OF LAFAYETTE, NO. 08-05881
HONORABLE SHARON MORROW, WORKERS’ COMPENSATION JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Elizabeth A. Pickett, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Lawrence Curtis, Attorney at Law
P.O. Box 80247
Lafayette, LA 70598-0247
Counsel for Defendant-Appellant:
Anthony Humphries

Reneé Willis, Attorney at Law
P.O. Box 98001
Baton Rouge, LA 70898-8001
Counsel for Plaintiff-Appellee:
MWD Services, Inc.

PAINTER, Judge.

The Workers’ Compensation Judge (WCJ) maintained an exception of

prescription as to medical benefits sought by claimant, Anthony Humphries.

Humphries appeals, asserting that his employer, MWD Services, Inc. (MWD), did not

present any evidence to establish when the last payment of medical expenses was

made and that the WCJ failed to apply the law that was in effect at the time of

accident. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Humphries was employed by MWD and was injured in an automobile accident

on September 25, 1998, while in the course and scope of his employment. On July

10, 2000, the WCJ rendered judgment awarding Humphries $367.00 per week in

indemnity benefits as well as “all reasonable and necessary medical expenses

occasioned by his injury.” MWD filed a motion for modification of judgment on July

1, 2008, seeking to have the indemnity benefits reclassified as supplemental earnings

benefits (SEB) based on the allegation that Humphries had not seen his treating

physician since June 26, 2003, at which time he was released to light duty work.

MWD’s motion was set for hearing; however, a minute entry signed by the WCJ on

the date of the hearing indicates that “it became apparent that the matter could not

move forward without having the issue of prescription addressed by the court.”

MWD then filed an exception of prescription alleging that the claim for medical

benefits had prescribed pursuant to La.R.S. 23:1209 because more than five years had

elapsed since Humphries’ last medical treatment. The exception of prescription was

heard on January 14, 2009. Counsel for MWD indicated that the adjuster was present

to testify as to the date of the last payment of medical benefits. When asked by the

court whether that date was in dispute, counsel for Humphries responded: “[w]e’re

not fighting about that.” Therefore, no testimony was taken at the hearing. The WCJ

took the matter under advisement, and the parties submitted briefs. On March 11,

2009, the WCJ issued written reasons for judgment and signed a judgment in favor

of MWD, sustaining its exception of prescription and dismissing any and all of

1

Humphries’ claims for medical benefits with prejudice. Humphries appeals, asserting

that MWD did not present any evidence to establish when the last payment of medical

expenses was made and that the WCJ failed to apply the provision of La.R.S.

23:1310.8 in effect on the date of his accident. Humphries alleges that he is entitled

to seek a modification of the judgment to award additional medical expenses.

However, no such assertion has been made by Humphries, and there is no allegation

that any medical expenses have gone unpaid. MWD’s motion for modification of

judgment seeking to have the benefits reclassified remains outstanding.

DISCUSSION

We first address Humphries’ contention that the WCJ erred in sustaining the

exception of prescription, alleging that MWD did not meet its burden of proof.

Specifically, Humphries asserts that MWD did not produce any evidence to support

the allegation that the last payment of medical benefits was for a June 26, 2003 visit.

We note that:

If evidence is introduced at the hearing on the peremptory
exception of prescription, the district court’s findings of fact are
reviewed under the manifest error-clearly wrong standard of review.
Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). If the
findings are reasonable in light of the record reviewed in its entirety, an
appellate court may not reverse even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently. Id., 617 So.2d at 882-83.

Rando v. Anco Insulations, Inc., 08-1163, p. 10 (La. 5/22/09), ___ So.3d ___, ___.

But here, no evidence was introduced at the hearing on the exception.

However, the claims adjuster was present at the hearing and was prepared to testify

to the fact that the last payment for medical benefits was made in 2003. In his

argument, Humphries ignores the fact that his counsel, in response to a specific

question from the WCJ as to whether that fact was in dispute, informed the WCJ that

they were “not fighting about that.” Further, Humphries’ counsel specifically stated:

“His medical is being paid up until the last three or four years when he hasn’t

required any further medical.”

2

Nonetheless, since no evidence was introduced at the hearing, the doctrine of

manifest error does not apply to our review of the WCJ’s legal conclusion. Our

review of questions of law is simply to determine whether the trial court was legally

correct. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d

1358, 1360, writ denied, 96-2586 (La. 12/13/96), 692 So.2d 375. And, in reviewing

a peremptory exception of prescription, we must review the entire record to determine

whether the trial court’s finding of fact was manifestly erroneous. Katz v. Allstate

Ins. Co., 04-1133 (La.App. 4 Cir. 2/2/05), 917 So.2d 443. It is clear that the party

urging the exception of prescription bears the burden of proving facts sufficient to

support the exception. Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918 (La.

11/29/05), 917 So.2d 424. This case is in a unique procedural posture since

Humphries, the claimant, is the defendant and is making no immediate claim for

payment of medical expenses. Thus, there is no pleading on which prescription can

be evident on its face. We agree with the WCJ’s conclusion that:

[a] judgment of the OWC cannot award future medical benefits. As to
the future, such an award can only grant the injured worker the right to
reasonable and necessary medical treatment as it becomes necessary.
The judgment itself cannot act as a continuing interruption of
prescription. The right awarded in the judgment must be exercised by
the injured worker to prevent the loss of that right.

Accordingly, based on the fact that there is no disagreement as to the fact that

the date of the last medical payment was in 2003, we affirm the WCJ’s finding that

any claim by Humphries for medical benefits has prescribed.

We next turn to Humphries argument that the WCJ erred in applying the

provisions of the law that were not in effect at the time of his accident in 1998. At

the hearing on the exception, counsel for Humphries argued that La.R.S. 23:1209 did

not apply to this case because it was not in effect at the time of the accident.

Louisiana Revised Statutes 23:1209(C) provides:

All claims for medical benefits payable pursuant to R.S. 23:1203
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 a formal claim has
been filed with the office as provided in this Chapter. Where such
payments have been made in any case, this limitation shall not take

3

effect until the expiration of three years from the time of making the last
payment of medical benefits.

This particular provision concerning the three-year prescriptive period for medical

benefits became effective September 6, 1985, well before the accident in question.

It was redesignated as subsection (C) by Acts 1985, No. 926, §1, effective January

1, 1986. Although the statute has been amended several times, the three-year

prescriptive period provided therein has not been changed. Realizing his mistaken

argument at the hearing on the exception, Humphries now argues on appeal that

La.R.S. 23:1310.8 was not effective until after the subject accident.

Louisiana Revised Statutes 23:1310.8 (D) provides that: “A petition to modify

a judgment awarding benefits shall be subject to the prescriptive limitations

established in R.S. 23:1209.” This provision did not exist at the time of Humphries’

accident, and Humphries alleges that the WCJ erred in applying it to his case

retroactively. We agree with the WCJ’s finding that this statute has “no bearing on

the applicability of 23:1209 to the present facts,” and we find no merit to this

assignment of error.

DECREE

For all of the foregoing reasons, the judgment of the WCJ is affirmed. All

costs of this appeal are assessed to Defendant-Appellant, Anthony Humphries.

AFFIRMED.

4