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
A. Dunkelman Jessica D. Cassidy Shreveport, Louisiana Counsel
for Defendant/Appellee Xcel Erectors, Inc.
BEFORE: GUIDRY, PETTIGREW, CRAIN, THERIOT, AND PENZATO, JJ.
workers' compensation proceeding, Benny Hernandez appeals
a judgment sustaining peremptory exceptions of prescription
and res judicata, and dismissing his claims against
Xcel Erectors, Inc, with prejudice. We affirm.
September 16, 2014, Hernandez was injured while working at a
plant in Donaldsonville, Louisiana. 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 16, 2016.
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. In an amendment filed on December 5, 2016,
Hernandez included a claim against Xcel. Xcel responded with
peremptory exceptions of prescription and res
judicata, which, following a hearing, were sustained. In
a judgment signed on August 7, 2017, Hernandez's claims
against Xcel were dismissed with prejudice. Hernandez
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, 32l. 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. 23:1209C. Prescription is
interrupted by filing a formal claim with the office of
workers' compensation. See La. R.S.
claim against Xcel was filed more than 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.
introduced the following exhibits at the hearing: a page from
an accident report issued on the day of the accident,
September 16, 2014; a radiology report for a chest x-ray
taken on September 18, 2014; a "Return to Work"
form signed on September 22, 2014; a client contract with his
attorney in the original proceeding dated May 1, 2015; a
memorandum filed by Hernandez in opposition to the exception
of prescription; and a letter from Hernandez's previous
attorney summarizing a mediation conducted in the original
proceeding. Additionally, Hernandez testified that Xcel paid
one of his medical bills after the accident; however, he
later acknowledged he did not know who paid the bill and was
unable to obtain any records confirming such a payment.
was not manifestly erroneous in finding Hernandez failed to
prove an interruption or suspension of the prescriptive
period applicable to his claim against Xcel. Hernandez's
claim against Xcel is thus prescribed and was properly
dismissed with prejudice. 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;
Ward v. McDermott, 04-1189 (La.App. 1 Cir. 6/10/05),
916 So.2d 246, 250. In light of this finding, we pretermit
consideration of the alternative exception of res
judicata. This memorandum opinion is issued in
accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1B.
Costs of this appeal are assessed to Benny Hernandez.
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.
Naquin v. Bollinger Shipyards, Inc., 11-1217, p. 4
(La.App. 1st Cir. 9/7/12), 102 So.3d 875, 878, writs
denied, 12-2676, 12-2754 (La. 2/8/13), 108 So.3d 87, 93.
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 ...