Opinion
No. 9999.
February 6, 1979. Rehearing Denied August 10, 1979.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, DIVISION "C", STATE OF LOUISIANA, HONORABLE RICHARD J. GARVEY, J.
Ira J. Middleberg, New Orleans, for plaintiff-appellant.
Leach, Paysee Baldwin, Michael A. Britt, New Orleans, for defendants-appellees.
Before REDMANN, STOULIG and BEER, JJ.
Plaintiff, Sidney W. Freechou, has appealed a summary judgment dismissing his claim for workmen's compensation benefits for an inguinal hernia he asserts totally and permanently disabled him.
The accident is alleged to have occurred on November 19, 1976, and according to a report plaintiff filed with his employer to assert this claim, plaintiff first told his employer of the injury on November 22, 1976. He first sought medical treatment for the injury on March 4, 1977. These facts are not controverted.
The trial court applied R.S. 23:1221(4)(q)(i) to the admitted facts and dismissed the suit. We quote the statute.
"In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter."
Appellant argues the trial court erred in applying a 30-day prescriptive period rather than the general provisions of R.S. 23:1209, which sets the limitation for compensation suits at no more than a year from discovery of the injury and, at most, two years from the time of the accident. As this court pointed out in Womack v. Pickett, 283 So.2d 852 (La.App. 2d Cir. 1973), the 30-day limitation is one of the standards of proof required in this type of claim. The legislature set the criteria of reporting the accident promptly and seeking medical treatment within 30 days as proof as claimant must meet in order to collect workmen's compensation for a hernia injury. Womack speculates that" * * * perhaps the statute facilitates the disposition of hernia cases in which the problems of proof or disproof are often vexatious."
Alternatively, plaintiff argues the statute violation the due process and equal protection clause (LSA-Const. 1974 Art. 1 § 2 and Art. 1 § 3) of the state constitution.
Plaintiff has failed to make a persuasive argument pointing up a property deprivation nor has he pointed out that this law does not affect all citizens similarly situated. We hold the 30-day requirement violates none of plaintiff's bill of rights guarantees.
For the reasons assigned, the judgment appealed from is affirmed.
AFFIRMED
REDMANN. J., dissents with written reasons.
La.R.S. 23:1221(4)(q) is designed to protect employers from fraudulent claims for workmen's compensation for inguinal hernias.
Its subdivision (i) requires not only a "prompt" report to the employer but also attendance by a doctor within 30 days.
Here, a Friday accident was reported that following Monday. The motion for summary judgment does not suggest this report was fatally tardy.
The judgment appealed from dismissed plaintiff's claim on the sole ground that he did not timely see a doctor.
The purpose of statute is served — perhaps as well as it can be — by a requirement for prompt reporting of the accident. The statute does not mean what it say about being "attended" by a physician within 30 days; it subd (iii) provided that, in certain cases, one need not accept medical treatment. Moreover, the statute cannot fairly be interpreted to oblige an employee to report both to his employer and (within 30 days) to a doctor, while allowing the employer to stay silent about rather than implement the requirement of seeing a doctor.
The liberal purpose of the overall compensation law obliges us, construing § 1221(4)(q) (i) and (iii) together and in the light of their purpose, to conclude that the employee is never obliged to be "attended" by a doctor but may be obliged to be examined within 30 days by a doctor of the employer's choice. An employer who does not show that such a medical examination was requested by the employer is not entitled to dismissal of the employee's claim for failure to have submitted timely to an examination.
Any other construction of the statute would violate fundamental due process and equal protection provisions of both state and federal constitutions.