Opinion
No. 4969.
April 4, 1972.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 495-229, DIVISION "B", CLARENCE DOWLING, J.
Harry R. Cabral, Jr., Metairie, for plaintiff-appellee.
Paul B. Deal, New Orleans, for defendants-appellants.
Before REDMANN, LEMMON and BAILES, JJ.
Defendants, an employer and its workmen's compensation insurer, appeal an award of $10 a week for 300 weeks to plaintiff employee in connection with her claim that carrying 80-pound mail sacks in her employment caused disability hernia.
Plaintiff was employed by D. H. Holmes in February, 1967 and ultimately was discharged in December, 1968.
Medical evidence indicates that plaintiff underwent abdominal surgery in 1962. After the surgery, the doctor diagnosed either a ventral hernia, or a pendulous abdomen. However, in April 1967 (two months after the commencement of plaintiff's employment with D. H. Holmes) the doctor noted "ventral hernia present", and in June, 1968 he noted "large ventral hernia present." The ventral hernia found was an incisional hernia in the area of the 1962 abdominal surgery.
Although counsel argues that a pre-employment medical examination by defendant's physician showed plaintiff did not then have a hernia, that physician testified he never examined females for hernia, and plaintiff's testimony was only that "I can't remember at this moment whether he was the one that made me cough or whether it was Dr. Lyons, Holmes' insurance doctor, but I didn't see Holmes' insurance doctor until I was away from the job * * *" (in 1969).
Plaintiff testified that she had abdominal problems within four months after she began to carry the mail bags, and her doctor advised her at the June 1968 examination to discontinue carrying these heavy objects because she had a hernia which would require surgery.
This suit for compensation benefits was filed on July 15, 1969.
While other questions are presented, we conclude the suit must be dismissed as untimely filed because it was filed more than a year after plaintiff was advised by her physician of the hernia. There is no evidence of any salary in lieu of compensation or other suspension of the one-year limitation of R.S. 23:1209, and defendants' plea of prescription (or peremption) must therefore be maintained.
The judgment is reversed and plaintiff's suit dismissed at her cost.
Reversed.