RICHARDSON v. TYSON FOODS
796 So.2d 827 (2001)
Grayling Paul RICHARDSON
No. 01 00427-WCA.
Court of Appeal of Louisiana, Third Circuit.
October 3, 2001.
Eugene A. Ledet, Jr., Rivers, Beck, Dalrymple & Ledet, Alexandria, LA, Counsel for Plaintiff/Appellant: Grayling Paul Richardson.
Shannon Seiler Dartez, Hurlburt, Privat & Monrose, Lafayette, LA, Counsel for Defendant/Appellee: Tyson Foods.
Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
Grayling Paul Richardson brought this workers' compensation action against his employer, Tyson Foods (Tyson), to recover benefits associated with a work accident which he claims occurred in Leesville, Louisiana, on May 17, 1999. In his claim filed with the Louisiana Office of Workers' Compensation on July 25, 2000, Richardson asserted Tyson had paid no indemnity benefits and had neither provided nor authorized any medical treatment as a result of his accident. Tyson responded to the claim by filing a peremptory exception of prescription, which the workers' compensation judge granted, dismissing Richardson's claim. Richardson appeals the grant of the exception.
The workers' compensation judge held a hearing on the prescription exception on January 29, 2001. At that hearing, Richardson testified that, prior to May 17, 2000, he discussed his claim with his supervisor, who referred him to Linda Stewart, the claims representative for Tyson's insurer. According to Richardson, Ms. Stewart responded to his telephone call by mailing him an "application," which he completed and returned to her in accordance with her instructions. However, Richardson did not introduce a copy of this "application" into evidence, and we do not know the nature or contents of the document.
Richardson did introduce a letter to him from Ms. Stewart dated May 12, 2000. Attached to the letter was a copy of Texas Workers' Compensation Commission Form TWCC-21, which bears the caption "PAYMENT OF COMPENSATION OR NOTICE OF REFUSED/DISPUTED CLAIM." The form identifies Tyson as Richardson's employer; states the place and date of the alleged injury as Leesville, Louisiana, on May 17, 2000;1 asserts that the employer received written notice of the alleged injury on May 9, 2000;2 and states the employer's refusal to pay benefits. Tyson stated its reasons for its refusal to pay benefits as follows:
Certified self-insured disputes entitlement to disability and/or medical benefits because claimant chose by election of remedies to treat with a Charity Hospital at no expense therefore taking control. Any other allegations are a direct result of either non-occupational or preexisting conditions. No claim was filed with the Commission within one year from the date of injury and no good cause has been shown. No medical documentation has been received to support a work related injury.
In the May 12, 2000 letter, Ms. Stewart informed Richardson that the form had been filed with the Texas Workers' Compensation Commission and explained: "If
you disagree with our position on your claim, you have the right to request a Benefit Review Conference before the Texas Workers' Compensation Commission." Richardson admits that he did not request any relief from the Texas Workers' Compensation Commission and that he did not file a claim with the Louisiana Office of Workers' Compensation until July 25, 2000.
The litigants agree that Louisiana, not Texas, is the proper forum for this action. Pursuant to La.R.S. 23:1209(A) and (C), where no workers' compensation benefits have been paid or where there has been no agreement upon the payments to be made, all claims for the payment of indemnity benefits and medical benefits are barred unless within one year after the accident a formal claim has been filed.3 Generally, the party pleading prescription bears the burden of proof on the issue. Gray v. Mounir, 99-538 (La.App. 3 Cir. 11/3/99); 746 So.2d 746. However, where the claimant's petition has clearly prescribed on its face, the burden of proof shifts to the claimant to show that prescription has been interrupted or suspended. Id.