Statutory Provisions: (Accidents) La. Rev. Stat. 23:1209
Claims for medical benefits are barred by prescription after one (1) year from the date of the accident IF NO MEDICAL BENEFITS HAVE BEEN PAID. In cases in which any medical benefits have been paid, the claim for medical benefits prescribes after three (3) years from the last payment of medical benefits.
Claims for temporary total, permanent total, permanent partial and supplemental earnings or death benefits are barred by prescription after one (1) year from the date of the accident IF NO INDEMNITY BENEFITS HAVE BEEN PAID. In cases in which any indemnity benefits have been paid, the claims for TTD, PTD and PPD must be filed within one (1) year of the last payment of benefits and the claim for supplemental earnings benefits must be made within three (3) years of the last payment of any indemnity benefits.
The Act recognizes that there are circumstances in which an individual will be injured at work by an accident but may not be “disabled” from the injury until several months later. Under those circumstances, the Act provides that the employee is permitted to file the claim for benefits within one (1) year that the injury results in a disability BUT no later than two (2) years from the date of the accident. The “developmental injury” is deemed sufficiently developed to begin the running of prescription whenever the disability prohibits the worker from substantially performing the duties of the employment [Palmer v. Carter Federal Credit Union, 397 So2d 50 (La App 2d Cir 1981)]. If an employee dies from injuries caused by a job accident, a claim by the dependents must be filed within two years of the date of the last medical treatment. Prior to June 19, 1992, the death had to have occurred within two years of the date of the accident for the dependents to be entitled to benefits. The date of death, and not the date of accident, determines which rule applies.
Separate Prescriptive Periods
The Act establishes separate prescriptive periods for indemnity and medical benefits. The decisions of the appellate courts have recognized that the payment of medical expenses DOES NOT interrupt prescription on the claim for weekly compensation benefits [Devillier v. Hartford Accident and Indemnity Co., 219 So2d 338 (La App lst Cir 1969); Rowley v Lumberman’s Mutual Casualty Co., 247 So2d 1135 (La App 4th Cir 1977); Young v. American Marine Corp. , 458 So2d 549 (La App 4th Cir 1984)].
(Occupational Diseases) La.Rev.Stat.23:1031.lE
Claims for disability resulting from a compensable occupational disease are barred unless the employee files a claim with the employer within six (6) months of the date (whichever is latest) that:
- The disease manifested itself;
- The employee is disabled from working as a result of the disease, or;
- The employee knows or has reasonable grounds to believe that the disease is occupationally related.
All claims for death arising from an occupational disease are barred unless the dependent or dependents file a claim with the deceased’s employer within six (6) months of the date of the death of such employee or within six (6) months of the date the claimant has reasonable grounds to believe that the death resulted from an occupational disease. An employer who fails to post this time limitation at a conspicuous place at work will be subject to an additional six (6) months of time limitations for occupational disease claims to be filed [La. Rev. Stat. 23:1031.1 I].
Claims for medical benefits in occupational disease cases will be governed by the same statutory limitations as are claims for accidents (La. Rev. Stat. 23:1209). It may be difficult to determine the prescriptive period if no medical benefits have been paid because there is no identifiable “accident” date that one can use to establish the one year prescriptive period. There are no appellate cases dealing with this unusual issue, and we can only assume that the courts would apply the same method for establishing the “accident” date as it has in determining a date for purposes of calculating the average weekly wage. The court in Hawkins v. Johns-Manville Corp., 418 So2d 725 (La App 4th Cir 1982) held that the rate of pay in effect in the last year of the claimant’s employment with the defendant would be the proper rate to apply for purposes of calculating average weekly wage.
Notice to Employer
Unlike the claims for “accidents”, a claim for benefits due to an occupational disease is interrupted by providing notice to the employer (or insurer) and does not require the filing of the claim with the Office of Workers’ Compensation to interrupt the prescriptive period.
Wages Paid in Lieu of Compensation
For purposes of determining whether any indemnity benefits have been paid to an employee (thus extending the prescriptive period for indemnity claims), the courts have held that unearned wages paid to the employee will be considered as if workers’ compensation benefits had been paid. The test for determining whether wages were paid in lieu of compensation is whether the wages were ACTUALLY EARNED by the employee. Earned benefits, such as sick leave and vacation pay, should not be considered wages in lieu of compensation as these have been earned by the employee through past services rendered to the employer [Ebbs v. Kelly Services, 520 So2d 1320 (La App 4th Cir 1988); Lester v, Rebel Crane and Service Co., 394 So2d 1230 (La 1981); Blanchard v. Liberty Mutual Insurance Company, 280 So2d 592 (La App 3rd Cir 1973)].