
    Gary J. DUFRENE v. The AETNA CASUALTY & SURETY COMPANY and Aetna Insurance Company.
    No. 5644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1973.
    Rehearing Denied Jan. 8, 1974.
    Writ Granted March 1, 1974.
    John F. Rau, Jr., Harvey, for plaintiff-appellant.
    Adams & Reese, Robert A. Vosbein, New Orleans, for defendants-appellees.
    Before SAMUEL, J., and CONNOLLY and DURAN, JJ. Pro Tem.
   SAMUEL, Judge.

On November 5, 1965 plaintiff’s hand was amputated while he was operating a machine cutting pipe in the course and scope of his employment. This suit for workmen’s compensation was filed on January 6, 1972. Defendants, compensation insurers of plaintiff’s employer, filed an exception of prescription of one year to the petition. After a hearing, there was judgment maintaining the exception and dismissing the suit. Plaintiff has appealed.

The exception was heard and disposed of solely on the pleadings, one plaintiff exhibit received in evidence (a photostatic copy of a defendant draft), and the testimony of one defendant employee, a claim supervisor. The petition alleges plaintiff was paid compensation for the injury through March, 1971 and that he is entitled to weekly compensation for an additional 128 weeks.

The record reflects that compensation payments were made until February 19, 1969 at which time they were discontinued. On March 17, 1969 the draft in evidence was issued by the defendant. It is payable to the order of the plaintiff and his attorney in the amount of $3,500. On the face of the draft is typewritten “100 week comp at $35.00”. A block also on the face of the draft contains an “x’ word “Final”. next to the printed

The exception is based on LSA-R.S. 23:1209 which, in pertinent part, reads as follows:

“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 proceedings have been begun as provided in Parts III and IV of this Chapter. When such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of the last payment. . . .” LSA-R.S. 23:1209 (Emphasis ours).

The question presented is whether, as provided by the above quoted portion of LSA-R.S. 23:1209, one year had run from the time the last payment was made to the date on which the suit was filed. Plaintiff contends the draft of March 17, 1969 represents only an advance payment of 100 weeks compensation from that date forward; that, because of the typewritten notation of “100 week comp at $35.00” appearing on the face of the draft, defendants are estopped from contending otherwise; and that a suit filed during those 100 weeks would have been premature under LSA-R.S. 23:1314, which in effect prohibits the filing of a suit for workmen’s compensation while the maximum amount of compensation is being paid. Thus, plaintiff argues, prescription did not begin to run until the expiration of 100 weeks from the date, or the receipt, of the draft, i. e., from February 15, 1971 or later, and the suit filed January 6, 1972 is timely. Defendants’ position is that the draft of March 17, 1969 was a final settlement payment and consequently the suit filed January 6, 1972 is prescribed.

Testifying from his records, the defendant claim adjuster stated: On February 15, 1969 plaintiff’s attorney contacted him by telephone and demanded “A total and permanent disability payout on discount figures for some type of compromise in the area of $6,000.00”. At that time $9,205 indemnity and approximately $3,000 in medical had been paid, a total of $12,342.' He informed the attorney that $6,000 was too high and that he felt $3,500 was a proper figure. When the attorney said he would again speak to his client, the witness advised the attorney he would discontinue compensation payments for approximately one month until some type of litigation would be instituted. The $3,500 figure was offered to the attorney on several other occasions on each of which the offer was refused. However, when the witness obtained the approval of his superiors in the insurance company, he sent the draft in evidence to plaintiff’s attorney. After receipt of the draft the attorney informed the witness, again by telephone, that he was accepting the draft on the face value. The witness emphatically denied the draft was an advance payment of 100 weeks. He stated it was a final payment closing the case; that it was against the policy of his company to pay in advance at that time; and that the notation of 100 weeks compensation at $35 was only an internal accounting procedure for company purposes and was not intended to indicate payment in advance.

As we have pointed out, plaintiff offered no evidence except the copy of the $3,500 draft. We also note we are not presented with the question of whether or not the parties entered into a valid settlement or compromise of the workmen’s compensation claim (see LSA-R.S. 23:1271); prescription is the sole issue. Under all of the circumstances, especially in view of the fact that the plaintiff offered no evidence to the contrary, we cannot say the trial court committed manifest error in accepting the uncontradicted testimony of the defendant claim adjuster and based on that testimony, in concluding that the $3,500 draft was given in final settlement of plaintiff’s claim and that plaintiff was nof led to believe otherwise by virtue of the notation relative to 100 weeks compensation at $35.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

MELVIN J. DURAN, Judge Pro Tem.

(dissenting with written reasons).

I respectfully dissent from the opinion of the majority in this case, for the following reasons:

(1) This record establishes that the plaintiff lost a hand in an industrial accident. There is no doubt in my mind that the plaintiff, a machine operator who suffered traumatic amputation of one of his hands, is, under workmen’s compensation laws, totally and permanently disabled. Therefore, the man is entitled to 500 weeks of compensation.

(2) We have in the record before us evidence that not on one but on several occasions, the defendant’s offer to settle the case for $3,500.00 was refused by plaintiff’s counsel. The only other evidence to the contrary is the uncorroborated testimony of the defendant’s claims adjuster. He testified that in a telephone conversation with plaintiff’s attorney, the latter demanded a total permanent disability payoff figure which could be settled and compromised for $6,000.00. He was advised by the adjuster that his figure of $6,000.00 was considered too high, and that $3,500.00 would be a proper amount. Such evidence does not convince me that these parties agreed to settle for $3,500.00. With payment of this $3,500.00, the injured man received a total of some $9,300.00 in benefits; he is by law entitled to $17,500.00.

(3) A copy of the $3,500.00 draft is in evidence. It was dated March 17, 1969. In one of the “fill-in-the-blank” spaces on that draft, there is typed “X” opposite the word final. But then typed across the face of that draft was the notation “100 weeks comp at $35.00.”

The claims adjuster testified that the “100 weeks at $35.00” notation was really nothing more than an internal accounting procedure for company purposes and was not intended to indicate payment in advance (which would have been against company policy). The majority accepts this self-serving interpretation as gospel, while at the same time it holds that the less conspicuous “X” is final, to be conclusively binding on the plaintiff. I cannot subscribe to such rationalization. This insurance company, routinely in the business of issuing the claimants workmen’s compensation checks or drafts, can and must find a better way of handling their internal accounting than by putting their information for their exclusive use on the only document (check) they give to a claimant. Besides, I subscribe to the proposition that the specially typed notation “100 weeks comp at $35.00” takes precedence over the filled-in blank “X” opposite the printed form “final.”

(4) If the defendant’s claims adjuster is correct when he says this $3,500.00 draft was in full and final settlement, then I must ask: Where is the usual and customary signed release that always accompanies settlement agreements? There is none in the record. I cannot conceive of this thoroughly experienced compensation carrier ultimately and completely closing its file in this case with such a flimsy and shoddy procedure of merely issuing a draft.

(5) A fortiori, I must ask: Where in the record) is the compliance with the law requiring that all workmen’s compensation settlements be by and with judicial approval? R.S. 23:1271. There is no evidence of any such court-sanctioned approval in this case.

(6) As a district (trial) court judge, sitting here pro tempore, I am asked almost daily to approve compensation settlements. This is not the first instance in which I have encountered this “advance-payment prescription” situation. I look with alarm upon it and strongly suggest that if we do not “nip it in the bud” we should not allow it to proceed to full bloom.

This insurance company gave this plaintiff advance payment of 100 weeks compensation, having every reason to believe at the time that the claimant was entitled to a total of 500 weeks compensation. The procedure is commendable and is to be encouraged, not condemned (although the evidence here is that this company did not intend to be benevolent, since it was against its policy to pay in advance). Had this plaintiff sued for total permanent compensation twenty-five weeks after he received the 100-week advance, he would then have been faced with the defense of prematurity, and with the expenditure of court costs being wasted when his case was dismissed. Instead, suppose he waited until the expiration of the 100-week advance period and is now faced with the defense of prescription. Heads, he doesn’t win; tails, he loses!!! No injured workman, entitled to compensation benefits, should be placed into such a precarious position, from which he cannot extricate himself.

(7) The majority concludes that this is not a case in which this court is called upon to decide if a workmen’s compensation settlement was legally or validly entered into without judicial approval. Rather, it is argued that this is a case in which we have before us nothing more than an exception of prescription, which they say is purely a question of fact. I simply cannot subscribe to either proposition.

Whether prescription has barred this claim for compensation is a mixed question of both fact and law. By law, we must determine when prescription began to run. Thereafter, it is a question of fact as to whether enough time has transpired to bar the claim. Prescription (one year following date of last payment) did not begin to run in this case until the date of expiration of the 100 weeks for which advance payment was made. It did not begin to run on March 17, 1969, the date on which the injured workman was handed the draft. .

It is further argued that the only evidence we have is the testimony of the claims adjuster who said this was a final payment (the plaintiff having submitted no testimony at all). I cannot agree with this proposition either, because we do have the evidence in the form of the draft itself and the pleadings.

The reasoning of the majority is exactly the same as if this insurance carrier had told the plaintiff on March 17, 1969 “we are cutting you off and refuse to pay you any more compensation from this date forward.” The only way in which we can legally conclude that prescription began to run on March 17, 1969 is for us to give full faith and credit to the alleged settlement. We must close our eyes to the admitted fact that there was no valid settlement made, that there has never been obtained a judicial approval of that settlement. If it was illegal and wrong to settle a compensation case that way, then it is just as illegal and just as wrong for us to say that the event started the tolling of prescription. I am astounded. The majority is, in fact, saying: “By law, we know that the event is illegal and cannot be recognized — BUT—we say it happened on March 17, 1969 anyway.” To put it anotb= er way, in effect, the majority is telling two people: your marriage of March 17, 1969 is patently' and obviously bigamous and illegal and hence never was legally' contracted. BUT happy fourth anniversary !!! I am not trying here to be overly critical of colleagues for whom I have profound respect. I am just trying to emphasize that they are reckoning from a point in time which the law says positively never occurred.

I hold firmly to the proposition that when an insurance company makes an advance payment of compensation the prescriptive period of one year from date of last payment does not begin to run until the advance payment period expires. To hold otherwise would be to open further the door for insurance companies to make advance payments sufficient to carry them beyond the one-year prescriptive period from date of payment and to avoid the rest of their liability on the grounds of prescription. In cases of total permanent disability, the advance payment could be made for 52 weeks compensation and thus escape payment for the remaining 448 weeks. I know this was not the purpose of the compensation statute.  