Hernandez v. Asap Emp't Serv., Inc.
Hernandez v. Asap Emp't Serv., Inc.
Dissenting Opinion
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),
Thus, considering the summary nature of the proceedings below and the fact that Mr. Hernandez has litigated this matter as a self-represented party, I believe the majority errs in failing to consider the objection of prescription in light of the entire record. See Sprowl v. Taylor, 07-857 (La. App. 3d Cir. 1/30/08),
Hence, as the record reveals the existence of a previously-filed, timely tort suit based on the September 16, 2014 accident, I believe the majority's affirmance of the judgment sustaining the peremptory exception raising the objection of prescription is clear error, and for these reasons, I respectfully dissent.
The documentation introduced into evidence by Xcel included reasons and a judgment dated February 22, 2017, wherein the Twenty-Third Judicial District Court (23rd JDC) dismissed with prejudice Mr. Hernandez's tort claims against SPX Cooling Technologies, Inc., Excel Erectors, Inc., and James Meidl. Although Xcel is referred to as "Excel" in the tort proceedings, it was indicated that both companies are one and the same at the hearing before the WCJ.
While the party named in the petition was not Xcel and that party was eventually dismissed from the tort suit on July 8, 2016, the record also reveals that prior to the tort suit, Mr. Hernandez's filed a worker's compensation action on November 14, 2014, which was not dismissed until May 16, 2016. It has been held that a workers' compensation suit can likewise interrupt prescription on a tort suit, and that solidary liability can exist as to direct and statutory employers. See Parker v. Southern American Insurance Co.,
Opinion of the Court
In this 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.
On 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.
Four months later, on September 15, 2016, Hernandez, appearing in proper person, filed another disputed claim for compensation *366based 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 appeals.
A claim 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),
Hernandez'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),
Hernandez 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.
The WCJ 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),
AFFIRMED.
Guidry, J., Dissents and assigns reasons.
Pettigrew, J., dissents
Certain exceptions, not applicable herein, apply to injuries that do not immediately manifest after the accident. See La. R.S. 23:1209A(3)-(4).
We note the suit record contains references to a tort suit filed by Hernandez against Xcel apparently based on the same accident. Although a timely-filed tort suit may, in some instances, interrupt prescription for a workers' compensation claim arising out of the same circumstances, the record contains no evidence of the filing date for the tort claim against Xcel. Instead, the record contains only a copy of a petition filed against an unrelated party who was later dismissed from that proceeding. The record does not reveal when Xcel was added as a party to that suit. Hernandez thus failed to prove he timely filed a tort suit against Xcel that interrupted prescription for his workers' compensation claim. Compare Isaac v. Lathan, 01-2639 (La. App. 1 Cir. 11/8/02),
Case-law data current through December 31, 2025. Source: CourtListener bulk data.