Pamela T. Melancon v. Meadow Brook Rehab

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1255

PAMELA T. MELANCON

VERSUS

MEADOW BROOK REHAB

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 03-00785
SAM L. LOWERY, WORKERS COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Edward J. Milligan , Jr.
Post Office Box 90282
Lafayette, LA 70509
(337) 237-6491
COUNSEL FOR PLAINTIFF/RESPONDENT:
Pamela T. Melancon

Bradley J. Gadel
Percy, Smith, Foote & Gadel
Post Office Box 1632
Alexandria, LA 71309-1632
(318) 445-4480
COUNSEL FOR DEFENDANT/APPLICANT:
Health South Rehabilitation

AMY, Judge.

In this workers’ compensation matter, the employer seeks supervisory writs

from a ruling of the Office of Workers’ Compensation, District 4, Parish of Lafayette,

denying its peremptory exception of prescription. We granted the writ for the purpose

of calling up the case for full briefing, argument, and an opinion.

Factual and Procedural Background

Pamela Melancon, a registered nurse and the claimant herein, was hired by

Health South Rehabilitation in January1999.1 The record of the proceedings below

indicates that on June 2, 2000, the date of the accident at issue, she was assigned to

work at an area hospital.2 While on duty, she and other nurses responded to a patient

who had fallen. Ms. Melancon recalled that this particular patient was tall and heavy;

as such, the efforts of several people were needed to lift the transfer board and to

return the patient to her bed. After Ms. Melancon began to hold part of the transfer

board, the nurse to her left dropped his part of the board. Ms. Melancon stated that

she immediately tried to pick it up because she did not want the patient to fall off and

hit her head. In so doing, she smashed a finger and experienced severe pain in her

neck, left shoulder, and the left part of her body due to the “excessive weight.” Health

South concedes that Ms. Melancon was injured in the course and scope of her

employment.

After the accident, Ms. Melancon sought treatment from an orthopedist, a pain

management specialist, and a physical therapist. The record indicates that surgery was

performed on her left shoulder-collar bone area and that she remained in pain-

1
The record indicates that Health South was acquired by Meadow Brook Rehabilitation. The
claimant amended her petition to reflect the change in ownership; however, throughout the
proceedings, the employer has retained the designation “Health South.” Accordingly, we shall refer
to it herein as “Health South.”
2
The facts herein are largely undisputed. The claimant’s deposition, which was entered into
evidence at the hearing on the exception of prescription, forms the basis for this factual recitation.

management therapy as of the date of her deposition. Ms. Melancon noted that her

condition improved with physical therapy, but her workers’ compensation insurance

denied treatment before her course of therapy was completed. She further indicated

that she still experienced pain on her left side that kept her from performing the heavy-

lifting activities required of nurses. Ms. Melancon continued to work for Health

South until August 2001, when she resigned and went to work for Advantage Nursing

Service.

Ms. Melancon filed the instant disputed claim on January 30, 2003, seeking a

determination as to her disability status and her entitlement to vocational

rehabilitation. In addition, she requested supplemental earnings benefits, penalties,

and attorney’s fees. Health South answered and filed a peremptory exception of

prescription, arguing that Ms. Melancon’s claim for supplemental earnings benefits,

filed more than two years after her work-related accident, was time-barred.

A hearing was held on the exception of prescription on August 12, 2003. The

workers’ compensation judge denied the exception, reasoning that Howard v. Trelles,

95-227 (La.App. 1 Cir. 2/23/96), 669 So.2d 605, writ denied, 96-712 (La. 5/3/96), 672

So.2d 90,3 the sole case cited by the parties in their respective arguments, tended to

support the claimant’s position. Health South applied to this court for supervisory

writs, challenging the workers’ compensation judge’s ruling.

Discussion

Health South asserts that the workers’ compensation judge erred in denying its

exception of prescription with respect to Ms. Melancon’s claim for workers’

compensation indemnity benefits. It points out that Ms. Melancon was injured on

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Howard will be discussed later in this opinion.

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June 2, 2000, yet she did not seek supplemental earnings benefits until the instant

disputed-claim form was filed on January 30, 2003. Health South admits that

although it has paid Ms. Melancon’s related medical expenses from the date of the

accident through the present, it maintains that it has not paid any benefits that could

be considered indemnity benefits as defined by statute.4

Health South insists that Ms. Melancon had one year from the date of the

accident to file her claim for indemnity benefits because none of the exceptions to the

one-year rule, outlined in La.R.S. 23:1209,5 are applicable. Health South observes

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Specifically, La.R.S. 23:1221(1), (2), (3), and (4), which provide a schedule for payment
of temporary total disability benefits, permanent total disability benefits, supplemental earnings
benefits, and permanent partial disability benefits, respectively.
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Louisiana Revised Statutes 23:1209 provides as follows:
A. 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 a formal claim has been filed as provided
in Subsection B of this Section and in 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 benefits payable
pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from
the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3),
or (4). Also, when the injury does not result at the time of, or develop immediately
after the accident, the limitation shall not take effect until 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.
B. Any claim may be filed with the director, office of workers' compensation,
by delivery or by mail addressed to the office of workers' compensation. The filing
of such claims shall be deemed timely when the claim is mailed on or before the
prescription date of the claim. If the claim is received by mail on the first legal day
following the expiration of the due date, there shall be a rebuttable presumption that
the claim was timely filed. In all cases where the presumption does not apply, the
timeliness of the mailing shall be shown only by an official United States postmark
or by official receipt or certificate from the United States Postal Service made at the
time of mailing which indicates the date thereof.
C. 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 effect until the expiration of three years from the time of making the last
payment of medical benefits.
D. When a petition for compensation has been initiated as provided in Section
1310.3, unless the claimant shall in good faith request a hearing and final
determination thereon within five years from the date the petition is initiated, same

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that the employer’s notification of injury, Form 1007,was filed on June 7, 2000, five

days after the accident. As such, it argues, the injury was readily apparent and would

not qualify for the two-year prescriptive period for delayed-onset injuries. In addition,

it points out that the exception in which the prescription period is extended to three

years after the date of the last indemnity payment is inapplicable herein because no

indemnity payments were ever made. Health South contends, citing Richardson v.

Tyson Foods, 01-427 (La.App. 3 Cir. 10/3/01), 796 So.2d 827, that because Ms.

Melancon’s claim has prescribed on its face, the burden of proof has shifted to her to

show that prescription was interrupted or suspended. It argues that Ms. Melancon did

not meet this burden of proof and that her claims for indemnity benefits have

prescribed.

In support of her contention that her request for supplemental earnings benefits

was timely, Ms. Melancon maintains that a disputed-claim form filed on her behalf on

March 18, 2002,6 interrupted prescription, citing Howard v. Trelles, 95-227 (La.App.

1 Cir. 2/23/96), 669 So.2d 605, writ denied, 96-712 (La. 5/3/96), 672 So.2d 90. In

Howard, an employee timely filed suit against her employer for payment of medical

expenses related to an at-work accident. The matter was settled, and the presiding

workers’ compensation judge signed an order in which he granted the parties’ joint

motion to dismiss, dismissing the suit with prejudice. Nevertheless, according to the

terms of the settlement as reflected in the order of dismissal, the employee reserved

shall be barred as the basis of any claim for compensation under the Workers'
Compensation Act and shall be dismissed by the office for want of prosecution,
which action shall operate as a final adjudication of the right to claim compensation
thereunder.
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This dispute was resolved and was dismissed without prejudice by the Office of Workers’
Compensation on October 1, 2002.

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the right to file future claims pertaining to medical expenses or indemnity benefits.

Nearly two years after the order of dismissal, the employee sued for medical expenses

and indemnity benefits. The employer filed an exception of prescription, which was

denied by the workers’ compensation judge on the grounds that the prior suit

interrupted prescription as to all workers’ compensation benefits. The first circuit

held that the employee’s claims had not prescribed due to the reservation of rights in

conjunction with the settlement of the first claim, and additionally because the second

claim, which the court viewed as pertaining to a delayed-onset disability, was filed

within two years of the dismissal of the first claim.

Relying on Howard, Ms. Melancon argues that the March 18, 2002 claim was

timely filed, and, as a result, it interrupted prescription as to any claim for indemnity

benefits. She maintains that prescription began to run anew on October 1, 2002, when

the first claim was dismissed, and that therefore, prescription as to claims for any

indemnity benefits would have run on September 30, 2003. She further argues that

because the instant disputed claim was filed on January 30, 2003, it was timely.

In response to Ms. Melancon’s claims that prescription was interrupted, Health

South argues that the prescriptive period as to medical benefits is separate from the

prescriptive period for indemnity benefits. It points out that the subject of the March

18, 2002, disputed claim was the alleged termination of her physical therapy and that

no mention was made of indemnity benefits. As such, it argues, prescription might

have been interrupted as to medical benefits only. Health South points out that the

prior disputed claim was filed more than a year after her injury and that even if

prescription had been interrupted, it would have been without effect because this prior

claim was untimely with respect to indemnity benefits.

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We find that the applicable prescriptive period for Ms. Melancon’s claim for

indemnity benefits was one year from the date of her accident. The record reflects that

her injury was not latent; as such, the two-year prescription period of La.R.S.

23:1209(A) is not applicable. The record further reflects, and the parties have

stipulated, that Ms. Melancon did not receive any indemnity benefits that would

trigger the application of the three-year prescriptive period of La.R.S. 23:1209(A).

Accordingly, Ms. Melancon had one year from the date of her accident to request

indemnity benefits, including supplemental earnings benefits.

The disputed-claim form filed on May 18, 2002, neither interrupted nor

suspended prescription. The claim for medical benefits, filed nearly two years after

the date of the accident, was timely. However, this claim was not timely for purposes

of interrupting prescription as to claims for indemnity benefits. Because La.R.S.

23:1209 establishes different prescriptive periods for different types of workers’

compensation benefits, it can be inferred that interrupting prescription as to only one

type of claim would not interrupt prescription as to every potential claim that an

employee might make. If this were so, each type of benefit would have the same

prescriptive period; however, they do not.

The claimant relies upon the first circuit’s opinion in Howard, discussed above,

in support of her argument that her claim has not prescribed. We do not find Howard

to be persuasive in this case. There is a key distinction between the facts of that case

and those of the instant matter: here, unlike the claimant in Howard, Ms. Melancon

did not expressly reserve any rights to make future claims as to indemnity benefits

after her claim for medical benefits was dismissed. Instead, Ms. Melancon did not

mention indemnity benefits until nearly two and a half years after her accident. This

is clearly outside the one-year time limit outlined for such claims in La.R.S.

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23:1209(A). Accordingly, the workers’ compensation judge erred in denying Health

South’s peremptory exception of prescription as to Ms. Melancon’s claim for

indemnity benefits.

DECREE

For the foregoing reasons, we grant the writ, maintain Health South’s exception

of prescription, and dismiss, with prejudice, Pamela Melancon’s claims against Health

South pertaining to workers’ compensation indemnity benefits. All costs of this

proceeding are assigned to Pamela Melancon.

WRIT GRANTED AND MADE PEREMPTORY.

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