Appeal from The Office of Workers' Compensation, District
9 Parish of Ascension, State of Louisiana Trial Court No.
16-05792 The Honorable Elizabeth C. Lanier, Workers'
Compensation Judge Presiding
Hernandez Downsville, Louisiana Claimant/Appellant In Proper
C. Dodart Jeffrey A. Clayman New Orleans, Louisiana Counsel
for Defendant/Appellee, CF Industries Nitrogen, LLC.
BEFORE: GUIDRY, PETTIGREW, McDONALD, HIGGINGOTHAM, AND CRAIN,
workers' compensation proceeding, Benny Hernandez appeals
a judgment sustaining a peremptory exception of prescription
and dismissing his claims against CF Industries Nitrogen,
LLC. We affirm.
September 16, 2014, Hernandez was injured while working at a
plant in Donaldsonville. Hernandez, represented by counsel,
filed a disputed claim for compensation against his employer,
ASAP Employment Services, Inc., and ASAP's insurer,
Louisiana Construction and Industry Self Insurers Fund
("LCI"). The parties negotiated a settlement, which
was approved by the workers' compensation judge (WCJ),
and Hernandez's claim was dismissed with prejudice on May
months later, on September 15, 2016, Hernandez, appearing in
proper person, filed another disputed claim for compensation
based on the same accident, again naming ASAP and LCI as
defendants, but also adding several new parties, including CF
Industries. CF Industries responded with a peremptory
exception of prescription, which, following a hearing, was
granted. In a judgment signed on June 16, 2017,
Hernandez's claims against CF Industries were dismissed
with prejudice. Hernandez appeals.
for workers' compensation indemnity benefits prescribes
one year from the date of the accident or, if benefits have
been paid, one year from the last payment or, for a claim for
supplemental earnings benefits, three years from the last
payment. See La. R.S. 23:1209A; Putman v.
Quality Distribution, Inc., 11-0306 (La.App. 1 Cir.
9/30/11), 77 So.3d 318, 321. A claim for medical benefits
prescribes one year after the accident or, if such payments
have been made, three years from the date of the last
payment. See La. R.S. 23;I2O9C. Prescription is
interrupted by filing a formal claim with the office of
workers' compensation. See La. R.S. 23;1209A(1)
claim against CF Industries was filed about two years after
the accident and does not allege the payment of any benefits.
The claim is thus prescribed on its face. When a workers'
compensation claim is prescribed on its face, the claimant
bears the burden of showing prescription was suspended or
interrupted in some manner. Borja v. FARA, 16-0055
(La. 10/19/16), 218 So.3d 1, 11. When, as here, evidence is
received at the hearing on the exception, the appellate court
reviews the WCJ's factual findings under the manifest
error-clearly wrong standard of review. Theodore v.
Iberville Parish School Board, 12-0746 (La.App. 1 Cir.
1/8/13), 112 So.3d 270, 271.
evidence introduced at the hearing by Hernandez is limited to
three exhibits: a radiology report for a chest x-ray taken
shortly after the accident, a memorandum filed by Hernandez
in opposition to the exception of prescription, and a letter
from Hernandez's attorney in the original proceeding
summarizing a mediation conducted in that proceeding. None of
this evidence establishes an interruption or suspension of
the prescriptive period applicable to Hernandez's claim
against CF Industries. Having failed to satisfy his burden of
proof, Hernandez's claim against CF Industries is
prescribed. See La. R.S. 23;1209A(1); Gomez v.
Our Lady of the Lake Regional Medical Center, 05-1916
(La.App. 1 Cir. 9/15/06), 943 So.2d 499, 499; Ward v.
McDermott, 04-1189 (La.App. 1 Cir. 6/10/05), 916 So.2d
246, 250. The WCJ did not err in sustaining the
exception of prescription and dismissing Hernandez's
claims against CF Industries with prejudice. This memorandum
opinion is issued in accordance with Uniform Rules-Courts of
Appeal, Rule 2-16. IB. Costs of this appeal are assessed to
GUIDRY, J., dissenting.
It is a
well-settled principle that the provisions of the
workers' compensation scheme should be liberally
interpreted in favor of the worker. Gomon v.
Melancon, 06-2444, p. 4 (La.App. 1st Cir. 3/28/07), 960
So.2d 982, 984, writ denied, 07-1567 (La. 9/14/07),
963 So.2d 1005. The standard controlling review of an
objection of prescription requires that the court of appeal
strictly construe the statutes against prescription and in
favor of the claim that is said to be extinguished.
Bernard v. Lafayette City-Parish Consolidated
Government, 11-816, p. 5 (La.App. 3d Cir. 12/7/11), 80
So.3d 665, 669. Louisiana Revised Statute 23:1317(A) provides
that a workers' compensation judge is not bound by
technical rules of evidence or procedure other than as
provided by workers' compensation law. So while all
findings of fact must be based upon competent evidence, the
judge is to decide the merits of a controversy equitably,
summarily, and simply. The jurisprudence states that the
legislative intent behind La. ...