Opinion
2021 CA 0965
02-25-2022
Deborah MORSE v. LOUISIANA VETERINARY REFERRAL CENTER, LLC
Lawrence J. Centola, III, Scott R. Bickford, Jason Z. Landry, New Orleans, Louisiana, Counsel for Plaintiff/Appellant Deborah Morse Patrick F. Cole, Douglas R. Nielsen, Shreveport, Louisiana, Counsel for Defendant/Appellee Louisiana Veterinary Referral Center, LLC
Lawrence J. Centola, III, Scott R. Bickford, Jason Z. Landry, New Orleans, Louisiana, Counsel for Plaintiff/Appellant Deborah Morse
Patrick F. Cole, Douglas R. Nielsen, Shreveport, Louisiana, Counsel for Defendant/Appellee Louisiana Veterinary Referral Center, LLC
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
LANIER, J. In this workers' compensation case, the claimant, Deborah Morse, challenges a judgment of the Office of Workers' Compensation ("OWC"), finding that her claims were prescribed and dismissing, with prejudice, her claims against defendant, Louisiana Veterinary Referral Center, L.L.C. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This action arises out of a work-related accident that occurred on September 30, 2015, when Ms. Morse was employed by defendant as a veterinary emergency room technician. According to Ms. Morse, she suffered a head trauma when the 70-pound dog she was holding down for a procedure slammed its head into her face and head multiple times. As a result of the incident, Ms. Morse sustained a nasal fracture, a laceration to the bridge of her nose, and a concussion. Ms. Morse alleges that following the accident, she received workers' compensation indemnity benefits and medical benefits until February 1, 2017, when her benefits were terminated.
Although Ms. Morse sought treatment for her injuries with a neurologist, Dr. Rex Houser, Ms. Morse maintains her condition never improved. In December 2016, defendant sought a second medical opinion, and Ms. Morse was evaluated by a second neurologist, Dr. Daniel Trahant. According to Dr. Trahant's report, Ms. Morse did not suffer any significant head injury, but rather only suffered a mild concussion. He noted that her ongoing symptomatology, such as vertigo and head pain since returning to work, were strongly influenced by psychogenic pre-existing factors. Dr. Trahant further opined that, from a neurological standpoint, Ms. Morse could to return to work at full duties without restriction, adding that Ms. Morse "seems to have significant underlying psychological or emotional problems, which have prevented her expected recovery." Ms. Morse's treatment with Dr. Houser ended in February 2017.
Apparently, when Ms. Morse learned that her benefits were going to be terminated, Ms. Morse sought information regarding the arbitration process in an attempt to move the matter forward "to the state level." Ms. Morse sent two separate emails regarding this inquiry. There is nothing in the record concerning defendant's response to these emails. However, in brief Ms. Morse alleges that she was told by an adjuster "that her case was closed and that she had no other options." Ms. Morse argues the actions of the adjuster "lulled [her] into a false sense of security."
Thereafter, Ms. Morse sought treatment with additional doctors, who, according to Ms. Morse, refused to order an MRI with contrast even though she "begged" them to do so. When Ms. Morse began losing her vision in the summer of 2018, her ophthalmologist sent her to another neurologist. Finally, in November 2018, Ms. Morse underwent an MRI with contrast. Ms. Morse asserts that she was diagnosed with carotid artery dissection on November 9, 2018. On October 21, 2019, Ms. Morse filed a request for a medical review panel, naming the various physicians who treated her prior to her November 9, 2018 diagnosis, as well as Ochsner Clinic Foundation, who employed some of the named physicians. Ms. Morse alleged that had the physicians who treated her prior to November 2018 ordered the MRI with contrast, the carotid artery dissection would have been diagnosed because the carotid artery dissection was caused by the 2015 work-related trauma. She further asserted that had she been diagnosed sooner, her treatment for the condition would have been considerably less invasive.
Ms. Morse subsequently filed a disputed claim for compensation against defendant on November 2, 2020, claiming that the 2015 work accident caused the carotid artery dissection and that she is now permanently disabled. She requested back pay of indemnity benefits and medical benefits, along with penalties against defendant for failing in its obligations to see that she was "correctly diagnosed, cared for, and cured."
In response thereto, defendant filed an answer and an exception raising the objection of prescription. Defendant acknowledged that Ms. Morse was involved in a work-related accident in 2015, but specifically denied that any workers' compensation benefits were owed for the 2020 claim. Rather, defendant alleged that the condition claimed by Ms. Morse was the result of "other injuries or causes not associated with her employment." Defendant further asserted that any alleged disability that Ms. Morse had was "the result of degenerative processes or other injuries or illnesses, which [were] not related to her employment, nor were these conditions aggravated by her employment activities."
On March 11, 2021, after hearing argument from the parties, and considering the documentary evidence introduced into the record, the OWC judge agreed that Ms. Morse's claim was prescribed. In a judgment rendered March 29, 2021, the OWC judge sustained defendant's prescription exception, dismissing, with prejudice, Ms. Morse's claims against defendant.
It is from this judgment that Ms. Morse has appealed. The sole issue for our review is whether the OWC judge erred in sustaining defendant's prescription exception and dismissing Ms. Morse's claims.
DISCUSSION
Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiff's claim has prescribed, the burden shifts to the plaintiff to demonstrate that the running of prescription was suspended or interrupted. Johnson v. Shafor, 2008-2145 (La. App. 1 Cir. 7/29/09), 22 So.3d 935, 938-939, writ denied, 2009-1921 (La. 11/20/09), 25 So.3d 812. At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. Code Civ. P. art. 931.
If evidence is introduced at the hearing on the peremptory exception raising the objection of prescription, the OWC judge's findings of fact are reviewed under the manifest error or clearly wrong standard of review. Theodore v. Iberville Parish School Bd., 2012-0746 (La. App. 1 Cir. 1/8/13), 112 So.3d 270, 271 ; see Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-883 (La. 1993). Essentially, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Oil Ins. Ltd. v. Dow Chemical Co., 2007-0418 (La. App. 1 Cir. 11/2/07), 977 So.2d 18, 23, writ denied, 2007-2319 (La. 2/22/08), 976 So.2d 1284.
Louisiana Revised Statutes 23:1209 addresses the prescriptive period for workers' compensation claims, providing, in pertinent part, as follows:
A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within three years from the date of the accident.
...
C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
Ms. Morse's claim against defendant was filed over five years after her work-related accident. Thus, her claim was prescribed on its face, and the burden shifted to Ms. Morse to show that prescription was suspended or interrupted. Johnson, 22 So.3d at 938-939. Ms. Morse asserts on appeal that defendant and her former treating physicians are solidary obligors, such that the timely filed request for medical review panel against the physicians interrupted prescription as to her workers' compensation claim against defendant. Alternatively, Ms. Morse alleges that defendant should not be entitled to the benefit of prescription because she was lulled into a false sense of security by the actions of the adjuster.
In this case, although documentary evidence was adduced at the hearing, no testimony was presented. The evidence consisted of the entire workers' compensation record, which was introduced by defendant, and four exhibits introduced by Ms. Morse: Dr. Trahant's January 2017 report; copies of the two emails Ms. Morse sent regarding her inquiry into the arbitration process; a copy of the Request for Medical Review Panel; and a copy of a petition for damages filed against Dr. Houser.
According to the record, as of the time of the hearing on the exception, the petition for damages against Dr. Houser had been dismissed, without prejudice, as premature.
After considering the evidence and hearing argument from the parties, the OWC judge sustained the prescription exception and dismissed, with prejudice, Ms. Morse's claims against defendant, offering the following oral reasons for judgment:
[T]he Court finds that the 1008 dispute filed by [Ms. Morse] in this case, is clearly prescribed on its face.
Therefore, and by the exception filed on behalf of [defendant] alleging that the matter has prescribed, the burden of proof falls on [Ms. Morse] to show that the dispute is not prescribed. The Court finds [Ms. Morse's] position that [she] was misled or lulled into a sense of false security is without merit as the copies of the e-mails submitted and admitted to the Court as Claimant's exhibit do not support this contention.
The Court finds that no evidence as to citation, as to Louisiana jurisprudence, or caselaw has been presented to the Court to show that the employer in this Workers' Compensation dispute is solidary — is a solidary obligor with Dr. Carruthers in the [medical malpractice] suit filed against him at the 22nd JDC in 2019 or the request for a Medical Review Panel which was filed with the Louisiana Patients Compensation Fund in 2018.
And this Court has not been presented with any evidence, argument, or citation to show that the timely filed suit against a [medical malpractice] defendant effectively interrupts prescription against a Workers' Compensation defendant employer. This Court finds that [Ms. Morse] has failed to meet the shifted burden of proof.
Reviewing these findings under the manifest error standard of review as we are required to do, we find no error in the OWC judge's ruling. One of the jurisprudential exceptions to prescription is estoppel on the basis that the employee was "lulled into a false sense of security" by the employer/insurer and thus induced to forego the filing of her claim until the prescriptive period has expired. See Landry v. Ferguson, 279 So.2d 185, 187 (La. 1973). To invoke this estoppel exception, the claimant is required to establish the employer's/insurer's words, action, or inaction induced her to withhold suit until the prescriptive period has elapsed. Reese v. Sedgwick Claims Management Services, Inc., 54,120 (La. App. 2 Cir. 9/22/21), 326 So.3d 980, 984, writ denied, 2021-01839 (La. 2/8/22), 332 So.3d 666.
The only evidence submitted by Ms. Morse in support of her claim that she was lulled into a false sense of security were copies of emails dated February 21, 2017, and February 23, 2017, in which Ms. Morse requested information regarding arbitration. In the February 21st email, Ms. Morse inquired as to the "next step in the process of arbitration" and asked what was required to move "forward with this to the state level." In her follow-up email on February 23rd, Ms. Morse pressed for a response to her request and for her "paperwork to move forward." In brief to this court, Ms. Morse alleges that she "was told by the adjuster that her case was closed and that she had no other options."
We first note that Ms. Morse introduced no evidence to prove what the adjuster told her. Assertions in brief do not constitute evidence. American Bank and Trust v. Singleton, 2017-0480 (La. App. 1 Cir. 11/1/17), 233 So.3d 730, 739. In any event, such a statement by an adjuster would not support Ms. Morse's claim that she was lulled into a false sense of security. In fact, if this conversation between Ms. Morse and an adjuster actually occurred, Ms. Morse should have been put on notice that she should seek legal advice regarding her workers' compensation benefits.
[A] statement by an employer's representative that the employee has no valid claim is the equivalent of the employer's denial of the claim. Such a statement would serve to notify the employee that he cannot rely on receiving compensation
without suit and that he must seek legal advice or pursue his claim otherwise than through amicable settlement with the employer.
Causby v. Perque Floor Covering, 97-1235 (La. 1/21/98), 707 So.2d 23, 27 (citing Drane v. City of New Orleans, 328 So.2d 752, 754 (La. App. 4 Cir. 1976) ). Based on our review of the record, we agree with the OWC judge and find no merit to Ms. Morse's argument that she was lulled into a false sense of security.
Because Ms. Morse claims that prescription was interrupted as to defendant based on solidary liability between defendant and her former treating physicians, Ms. Morse bore the burden of proving that such solidarity exists. See Kelley v. General Ins. Co. of America, 2014-0180 (La. App. 1 Cir. 12/23/14), 168 So.3d 528, 534, writs denied, 2015-0157, 2015-0165 (La. 4/10/15), 163 So.3d 816, 816. We agree with the OWC judge that Ms. Morse failed to meet this burden.
"Prescription that has commenced to accrue, but has not yet run, may be interrupted." Sadler v. Midboe, 97-2120 (La. App. 1 Cir. 12/28/98), 723 So.2d 1076, 1083 (citing Lima v. Schmidt, 595 So.2d 624, 631 (La. 1992) ).
Pursuant to La. Civ. Code art. 1799, the interruption of prescription against one solidary obligor interrupts prescription against all solidary obligors. However, Louisiana jurisprudence provides that "[t]imely suit against one solidary obligor does not interrupt prescription that has run against another solidary obligor." Nordgren v. Trojan Contractors, Inc., 94-417 (La. App. 5 Cir. 12/14/94), 648 So.2d 980, 981.
Under Louisiana law, "[a]n obligation is solidary for the obligors when each obligor is liable for the whole performance." La. Civ. Code art 1794. Importantly, "[s]olidarity of obligation shall not be presumed." La. Civ. Code art. 1796. Further, "[a]n obligation may be solidary though it derives from a different source for each obligor." La. Civ. Code art. 1797. The Louisiana Supreme Court has established that a solidary obligation exists when the obligors "(1) are obliged to the same thing, (2) so that each may be compelled for the whole, and (3) when payment by one exonerates the other from liability toward the creditor." Bellard v. American Cent. Ins. Co., 2007-1335 (La. 4/18/08), 980 So.2d 654, 663-664 (citing Hoefly v. Government Employees Insurance Company, 418 So.2d 575, 579 (La. 1982) ).
The timeline in this case is quite clear. Ms. Morse was injured at work on September 30, 2015. She received workers' compensation indemnity benefits and medical benefits until February 1, 2017, when all of her benefits were terminated. Based on the applicable law, Ms. Morse's November 2, 2020 claim for indemnity benefits is prescribed.
As set forth in La. R.S. 23:1209(A)(2), when indemnity benefits have already been paid, the prescriptive period is one year from the date of the last payment. Prescription had already run on Ms. Morse's claim for indemnity benefits at the time her request for the medical review panel was filed in October 2019, and thus could not be interrupted. Ms. Morse's claim for indemnity benefits is clearly prescribed. With regard to Ms. Morse's claim for medical benefits, La. R.S. 23:1209(C) provides that if medical benefits have been paid, as in this case, all claims for medical benefits shall be forever barred unless brought within three years of the date of the last payment made. As noted, the request for medical review panel was filed on October 21, 2019, before prescription on the claim for medical benefits had run. However, the filing of the request for the medical review panel can only serve to interrupt prescription as to Ms. Morse's claim for medical benefits against defendant if Ms. Morse meets her burden of proving solidary liability between defendant and her former treating physicians.
We note that even if Ms. Morse's alleged carotid artery dissection were determined to be a developing injury, her claim for indemnity benefits would still be prescribed. Louisiana Revised Statutes 23:1209(A)(3) provides "the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within three years from the date of the accident."
As previously mentioned, the only evidence submitted by Ms. Morse consisted of Dr. Trahant's January 2017 report; copies of the two emails Ms. Morse sent regarding her inquiry into the arbitration process; a copy of the Request for Medical Review Panel; and a copy of a petition for damages filed against Dr. Houser. Ms. Morse has introduced no evidence demonstrating that defendant is solidarily liable with her former treating physicians. See Bellard, 980 So.2d at 663-664. Not only did Ms. Morse fail to produce any medical records to confirm her alleged diagnosis of carotid artery dissection, she also failed to produce any records to connect that alleged condition to the work-related accident that occurred on September 30, 2015. We further note that on multiple occasions during argument before the OWC judge, counsel for Ms. Morse referred to Ms. Morse's carotid artery dissection diagnosis as a "new injury." Ms. Morse's conclusory assertion that defendant and Ms. Morse's former treating physicians are solidary obligors is insufficient to establish solidarity. Thus, because Ms. Morse did not meet her burden of proving that defendant and her former treating physicians are solidary obligors, the timely filed request for the medical review panel did not interrupt the prescriptive period for her claim for medical benefits against defendant. Ms. Morse's claim for medical benefits is prescribed.
DECREE
For the above and foregoing reasons, we affirm the March 29, 2021 judgment of the Office of Workers' Compensation judge. We assess all costs associated with this appeal against claimant/appellant, Deborah Morse.