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Alexander v. Medical Staffing Network, Inc.

Court of Appeals of Louisiana, Second Circuit

May 20, 2015

MACHELLE ALEXANDER, Plaintiff-Appellant
v.
MEDICAL STAFFING NETWORK, INC., Defendant-Appellee

As Corrected June 12, 2015.

Page 387

Appealed from the Office of Workers' Compensation, District 1W, Parish of Caddo, Louisiana. Trial Court No. 1204835. Patrick F. Robinson, Workers' Compensation Judge.

JACK BAILEY LAW CORPORATION, By: Jack M. Bailey, Jr., Mary S. Bylsma, Counsel for Appellant, Machelle Alexander.

PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, By: Robert A. Dunkelman, Jessica L. Thornhill, Counsel for Appellee, Medical Staffing Network, Inc. and Travelers Property Casualty Co. of America.

HAILEY, McNAMARA, HALL, LARMANN & PAPALE, By: Gabriel J. Veninata, Counsel for Appellee, Shawn M. Murray.

Before BROWN, STEWART and PITMAN, JJ. BROWN, C.J., dissents with written reasons.

OPINION

Page 388

[49,774 La.App. 2 Cir. 1] STEWART, J.

In this workers' compensation action, the claimant, Machelle Alexander (hereinafter referred to as " Alexander" ), appeals a judgment in favor of the defendants, Medical Staffing Network, Inc., and Travelers Property Casualty Company of America (hereinafter referred to as the " defendants" or " Medical" and/or " Travelers" ), sustaining a peremptory exception of prescription. For the reasons set forth in this opinion, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 5, 2010, Alexander, who was employed by Medical, injured her lower back while assisting a doctor in lifting a patient. She was initially treated at the Willis Knighton Work Kare, and released back to work performing sedentary duty on August 10, 2010. Medical offered a position to Alexander that met her restrictions, but she did not return to work. Believing she could not perform the job due to her suffering from substantial pain, Alexander retained counsel for her workers' compensation claim on August 16, 2010.

Alexander designated Dr. Pierce Nunley as her choice of physician. On November 4 and November 10, 2010, Traveler's issued checks for temporary total disability (" TTD" ) benefits based on comments in Dr. Nunley's October 22, 2010, narrative report:

I had a lengthy discussion with Mrs. Alexander about her pains. She reports even at the maximum benefit of the injections and the good core stability program while she was having her best pain relief is still was not enough pain relief to a point that she could perform a few of her normal daily home activities and certainly did not feel like she could get back to work at that continued pain level.

[49,774 La.App. 2 Cir. 2] Michelle Broome, the adjuster for Travelers, subsequently received an actual work status indicating that Alexander was released to light duty. On November 12, 2010, Broome contacted Alexander's counsel at the time, Shawn Murray, to inform them that the two checks were issued in error, and asked that they be returned. Murray agreed, and on November 15, 2010, returned the second check that was issued on November 10, 2010. The check issued on November 4, 2010, had already been deposited in a trust account, but Murray did issue a check to Travelers on December 1, 2010, for the full amount of the original check. No other indemnity payments were issued.

On July 9, 2012, Alexander filed a disputed claim for compensation. In response thereto, the defendants filed a peremptory exception of prescription, or in the alternative, a motion for summary judgment on October 11, 2012. On March 16, 2013, Alexander filed an amended disputed claim for compensation, adding medical treatment as a dispute. On June 30, 2014, the defendants filed a motion for summary judgment, asserting that there is no genuine issue of material fact that prescription was not suspended or interrupted in any manner. On July 24, 2012, trial on the exception of prescription was held. On July 31, 2014, the WCJ sustained Travelers exception of prescription, dismissing Alexander's claim.

Alexander appeals.

LAW AND DISCUSSION


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