Opinion
NO. 2016 CW 0082
03-23-2016
DAMIAN THOMAS v. L'AUBERGE CASINO BATON ROUGE
In Re: L'Auberge Casino Baton Rouge, applying for supervisory writs, Office of Workers' Compensation, District 6, No. 15-03090. BEFORE: PETTIGREW, HIGGINBOTHAM AND CRAIN, JJ.
WRIT DENIED. This Court declines to exercise supervisory jurisdiction. The criteria set forth in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam) are not met.
TMH
JTP
Crain, J., dissents. Where a cause of action is prescribed on its face, and the plaintiff has the opportunity but fails to prove at an evidentiary hearing that his claim was timely filed, the plaintiff has failed to establish that amendment of his petition might remove the grounds of the objection. Pierce v. Tadlock, 2010-1656 (La. App. 1st Cir. 11/9/11), 2011 WL 5408630, writ denied, 2012-0366 (La. 4/9/12), 85 So.3d 699; Thomas v. State Employees Group Benefits Program, 2005-0392 (La. App. 1st Cir. 3/24/06), 934 So.2d 753, 759. Here, the employee's claim for indemnity benefits was filed more than one year after the date of his accident, and was therefore prescribed on its face. See La. R.S. 23:1209(A)(1). The Office of Workers' Compensation held an evidentiary hearing where the employee offered his own testimony to establish that he. suffered a "developing injury" and that his claim was therefore not prescribed pursuant to Louisiana Revised Statute 23:1209(A)(3). Despite issuing written reasons indicating that the employee proved that he suffered a developing injury, the Office of Workers' Compensation signed a judgment that "granted" the exception of prescription and granted the employee the opportunity to amend his claim pursuant to Louisiana Code of Civil Procedure article 934 to allege a developing injury.
Only the employer has sought supervisory review of the judgment; therefore, our review is limited to the correctness of granting the employee the opportunity to amend when, according to that same judgment, the employee failed to prove that his claim for indemnity benefits was not prescribed. In this procedural posture, I would find that the Office of Workers' Compensation abused its discretion in allowing the employee the opportunity to amend his petition under Article 934, effectively giving the plaintiff a second opportunity to prove a developing injury. I would grant the writ and reverse the December 17, 2015 judgment insofar as it allowed amendment of the claim for indemnity benefits. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT