
    Wilson J. LANDRY, Plaintiff-Appellant, v. Nelson FERGUSON, Defendant-Appellee.
    No. 3873.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1972.
    Dissenting Opinion May 29, 1972.
    Rehearing Denied June 28, 1972.
    Writ Granted Sept. 27, 1972.
    
      Larry A. Roach, Lake Charles, for plaintiff-appellant.
    Grenese R. Jackson, Jennings, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Plaintiff Wilson J. Landry appeals the trial court’s dismissal of his workmen’s compensation claim on defendant’s exception of prescription. We affirm in part and in part, reverse and remand.

Plaintiff was employed by defendant Nelson Ferguson as a farm laborer at a salary of $2S0 per month plus fringe benefits which included a rent-free house together with meat and rice for his table and gasoline for his car. On September 1, 1967 plaintiff suffered a job related accident causing a compound comminuted fracture of the lower third of the tibia of the left leg. Defendant arranged for treatment by Dr. Edmund C. Campbell, orthopedic surgeon of Lake Charles. After four months treatment, plaintiff was returned to light duty and assumed his regular duties in March 1968. Plaintiff continued his duties until May 1969 at which time he underwent bone graft surgery to correct the healing of the fracture. The operation was performed on May 7, 1969 and suit was filed on July 11, 1969. Defendant’s exception of prescription of one year was tried and sustained.

After the accident and during the four months plaintiff was recovering and could not work, his employer paid his full $250 per ’ month salary and fringe benefits. When plaintiff resumed work in February 1968, he was being paid at the same rate. On September 1, 1968, plaintiff’s base pay was increased to $275 a month. On January 1, 1969, his pay was increased to $300 per month and this rate continued until he quit work in May 1969 to have the surgery.

Plaintiff contends that payment of salary from September 1967 to May 1969 was in lieu of compensation and thereby interrupted prescription. We differ. It is true that payments made during the time that plaintiff did not work were properly characterized as payments in lieu of compensation. But plaintiff returned to full duties in March 1968 and LSA-R.S. 23:1209 provides :

“ . . . Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment.” (Emphasis added.)

Several witnesses testified to the possible gratuitous nature of salary paid after February 1968. The evidence preponderates that though plaintiff wore a metal and leather brace on his leg most of the time from February 1968 to May 1969, he nonetheless earned every cent of his salary from March 1968 to May 1969. The records shows that with the exception of walking the rice levees, plaintiff performed substantially every duty he had performed prior to the accident. Plaintiff’s father-in-law testified that -plaintiff continued to work from daylight to dark.

Plaintiff admitted that he was earning his pay from around May 1968 and said he believed that his pay increases were justified on the basis of his performance.

Plaintiff has the burden of proving an interruption of prescription when one year has elapsed since the last compensation payment (or salary in lieu of compensation) and defendant has pleaded prescription. Harrell v. Travelers Insurance Company, 255 So.2d 410, 411 (La.App. 1 Cir. 1971).

While payment of wages in lieu of compensation interrupts the prescriptive period provided for by LSA-R.S. 23:1209, the basic test for determining whether salary is in lieu of compensation is whether the wages paid after the injury are actually earned. Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377, 380 (1962).

The test for treating wages as in lieu of compensation is not whether he does all his prior work; rather the test is whether the wages are earned by such work as the claimant in fact performed. Francis v. Kaiser Aluminum & Chemical Corporation, 225 So.2d 756, 758 (La.App. 4 Cir. 1969).

The fact that the duties were similar or dissimilar, heavier or lighter, or more or less skilled, is relevant but not determinative. Plaintiff must show that he was not earning his wages after the accident. Daigle v. Liberty Mutual Insurance Company, 205 So.2d 507, 509 (La.App. 3 Cir. 1967). See also 2 Larson Workmen’s Compensation Law, Section 5742, page 19.

There is no manifest error in the trial court’s determination that plaintiff fully earned his pay from March 1968 until May 1969 and that prescription was not therefore interrupted.

Plaintiff suggests that prescription was suspended because of a remission of symptoms of the injury during the period February 1968 to May 1969. No medical or lay evidence supports this proposition and it is given no consideration.

Finally, plaintiff argues that defendant should be estopped to claim prescription. He cites the principle enunciated in Mella v. Continental Emsco, 189 So.2d 716 (La.App. 1 Cir. 1966), that where an employer lulls an employee into a false sense of security by misleading the employee into believing he will be continued in employment and thereby induces forbearance in the prosecution of a claim for one year, the employer will be estopped to plead prescription.

The only assurances received by plaintiff relating to the payment of wages were those made by defendant just after the accident. Defendant then promised only that he would continue to pay plaintiff’s salary until he could “ . . .go back to work on my regular every day job.” This period of payment lasted for four months and after granting the initial assurance, thus limited, no further promises were made. There is no manifest error in the trial court’s determination that plaintiff was not induced by defendant to forego filing suit for weekly compensation. If any sense of security was created which caused plaintiff to forego legal action, it stemmed from his ability to return to his former employment and earn not only his wages but two salary increases as well.

Nevertheless, defendant is liable for the payment of medical expenses. It is proper to consider liability for medical expenses separately from liability for compensation. Malone, Louisiana Workmen’s Compensation, section 384, p. 400; section 285, p. 365. The claim for medical expenses is considered as a liability separate from that of compensation. LSA-R.S. 23 :- 1204; Rowley v. Lumbermen’s Mutual Casualty Company, 247 So.2d 135, 136 (La.App. 4 Cir. 1971). Therefore, actions taken by defendant in respect to one claim had no effect on the other.

We find that defendant is estopped to deny, by way of prescription, his liability for medical expenses. The record shows that prior to or after every medical treatment until May 1969, defendant assured plaintiff that defendant would pay these expenses. All bills and medical reports were sent directly to defendant by Dr. Campbell and Dr. Campbell repeatedy requested payment which was never made. Additionally, defendant conferred with Dr. Campbell over the telephone regarding plaintiff’s progress and the feasibility of additional medical opinions and treatments. Defendant in his appellate brief admits that “ . . . defendant clearly intended to assume responsibility for the payment of plaintiff’s medical expenses in connection with his work connected accident.”

Defendant assumed responsibility for payment of plaintiff’s medical expenses. This agreement continued until May 1969 whereupon defendant informed plaintiff that he would not pay for plaintiff’s fusion operation.

Defendant’s action and representations relative to plaintiff’s medical expenses are a prime example of an employer’s lulling an employee into a false sense of security and thereby inducing a forebearance in the prosecution of his legitimate claim for medical expenses. On notice that defendant refused to pay for the needed operation, plaintiff sought legal advice. Defendant is estopped to plead prescription against plaintiff’s claim for medical expenses. Mella v. Continental Emsco, 189 So.2d 716, 720 (La.App. 1 Cir. 1966).

Plaintiff sued for medical expenses under the workmen’s compensation statute. Since this part of the claim has not prescribed, we remand the case for trial of this portion of the claim. The determination that plaintiff’s claim for weekly compensation has prescribed is correct and is affirmed.

The case is remanded for trial of plaintiff’s claim for medical expenses. The remainder of the trial court judgment is affirmed. Defendant is assessed with all court costs which have accrued to date, both at trial and on appeal.

Affirmed in part; in part reversed and remanded.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge

(concurring in part and dissenting in part).

I agree that the employer lulled the employee into thinking his medical expenses would be paid until his fractured leg healed. However, I think the employee was also “lulled” as to his wages.

Plaintiff is a poorly educated farm laborer, who never had a prior workmens’ compensation claim and did not know the laws of prescription. His testimony shows why he waited so long to see a lawyer:

“Q. Is there any particular reason that you did not seek legal counsel or legal advice before you did?
A. Yes, sir.
Q. Tell us why you didn’t.
A. Well, he had told me that he was going to pay for medical and expenses, he was going to take care of me and see to it that I get hack in shape to where I could go hack to work on my regular every day job. I mean by that, by continuing to water and everything else, as close as I could understand it.
Q. Did he tell you from time to time that he was going to take care of your various expenses that may be incurred and that sort of thing?
A. Yes, sir.
Q. How about the time when it became necessary to have the bone grafting procedure. Did you discuss with him at that time the necessity for another operation and the expense that would be involved there ?
A. Yes, sir. Not exactly the expenses, but I discussed the operation.
Q. What did he tell you or remark to you concerning the operation?
A. Well, that he couldn’t pay for the operation at that time.
Q. Was this the first time that he had ever indicated to you that he was not going to take care of the necessary medical treatment and care?
A. Yes, sir.
Q. Now was this the thing that caused you, then to realize that you would need legal counsel ?
A. Yes, sir.
Q. And was it at this time that you then sought out my services in connection with this accident?
A. Pretty close to it, sir.”

Defendant does not deny that he led plaintiff to believe he would “take care” of him. He testified as follows:

“Q. Now during the time — from the time of injury, until the spring of 1969, when it became apparent that he was going to have further surgery, did you tell Wilson that you were going to take care of his bills ? Not to worry about it, that you were going to take care of all of them?
A. Well, now, what bills are you talking about?
Q. The doctor bills and things that he was incurring?
A. I don’t remember whether I did or not.
Q. Did you in fact, until the surgical, the second surgical procedure came necessary, did you up until that time tell him that you would take care of the bills and that you would see that the doctor would be taken care of, that sort of thing. But then when this further surgical procedure was necessary, you told him that you couldn’t take care of it?
A. I might have, sir. I don’t remember.”

The majority opinion states the assurances given to plaintiff as to wages related only to those paid from the time of the accident until plaintiff returned to work. Apparently, the basis of this conclusion is a portion of plaintiff’s above quoted testimony, that he was told he would be taken care of until he could “go back to work on my regular every day job.” Actually, plaintiff never did return to his “regular every day job.” His leg was in a brace and he was still under the doctor’s care from a serious unhealed fracture. He could drive a tractor, but he could not walk the levees or do any work which required being on his feet for long periods. It is true he testified he earned his wages, and perhaps he did. But he was not able to do all of his regular work as a farm laborer, and he was led to believe he would be furnished a job and medical expenses until he could.

Defendant did not carry workmen’s compensation insurance. He knew he was faced with a very serious claim. The doctor kept him informed that plaintiff’s fracture was not healed and a bone graft might be necessary. With full knowledge of plaintiff’s continued disability, defendant undoubtedly wanted to prevent him from filing suit before the prescriptive period elapsed. This was the obvious purpose of his apparent generosity in paying wages for almpst two years and agreeing to pay the doctor’s bill, which he actually never did pay. And defendant accomplished his purpose. He lulled plaintiff into not consulting an attorney.

To allow the employer to raise the prescriptive bar here would promote an obvious injustice. Under a liberal application of the workmen’s compensation statute, I think the circumstances are sufficient to show that the employer lulled the employee into a false sense of security, causing him to withhold suit until after the prescriptive period had expired. See the recent case of Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972) and the authorities cited therein.

I respectfully concur in the remand of this case for an award of medical expenses, but dissent from the affirmance of the exception of prescription as to compensation.

ON APPLICATION FOR REHEARING

MILLER, Judge.

Plaintiff contends that just as he was “lulled” as to his claim for medical expenses, he was also lulled as to his compensation claim. The dissenting opinion supports this view.

Plaintiff returned to work in February 1968. It was admitted by both plaintiff employee and defendant employer that the ONLY task plaintiff did not consistently perform upon his return to work was walking the levees. Tr. 77, 91. However, defendant testified at Tr. 103 that plaintiff would “sneak out” and walk the levees at times. Plaintiff’s father-in-law testified at Tr. 113, 115, 117 that at least by April 1968, plaintiff worked from early in the morning until late at night and that “I never seen anything he couldn’t do.” At Tr. 115, he testified that plaintiff walked one and a half miles to defendant’s house after a tractor broke down one day and that: “At the time he was planting rice (April 1968, Tr. 113, 114) he was earning his pay, because he was putting in a big day.” Plaintiff himself admitted that he began earning every cent of his pay by May of 1968. Tr. 85. Therefore, at least by May, 1968 (and the record supports the trial court’s determination that by March, 1968) plaintiff was earning his wages.

At Tr. 157, plaintiff responded to the following cross-examination:

“Q. And he didn’t promise you anything after you went back to work, did he, sir ?
A. Other than he was going to take care of the bills.
Q. The medical bills. That’s the only thing he told you that he would take care of?
A. Yes, sir.”

Plaintiff readily admitted at Tr. 156 that defendant NEVER indicated that the salary would be paid if plaintiff did not see an attorney. From February 1968, there were no promises or words by the employer to suggest that plaintiff was being lulled.

At the conclusion of the trial of the exception of prescription, the trial court ruled on the contention that plaintiff was lulled into a false sense of security. The following ruling is entirely correct as to the compensation claim.

“. . . I waited for (lulling) to come up and there was no evidence brought into the record or anything to indicate that (plaintiff was lulled) ... I waited to hear it, but it didn’t come into the record . . . there was no evidence on it.” Tr. 171. (Parenthetical additions by the writer.)

There is no manifest error in the holding that plaintiff earned every penny of his salary after March 1968. On that finding the case of Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972) is distinguished.

Applicable here is the holding in Richard v. Liberty Mutual Insurance Company, 188 So.2d 432 (La.App. 3 Cir. 1966). We there recognized that where an employee is injured, does not return to work, is paid a portion of his wages, and there is no explanation by the employer as to the nature of these payments, these are “wages not earned” and it is presumed that they were made in lieu of compensation. Prescription is thereby interrupted. However, the employer in Richard had adequately explained the narure of the payments and prescription accrued.

If a claimant earns every cent of wages paid, the wages are not paid in lieu of compensation. Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377, 380 (1962); Harrell v. Travelers Insurance Company, 255 So.2d 410, 412 (La.App. 1 Cir. 1971); Daigle v. Liberty Mutual Insurance Company, 205 So.2d 507, 509 (La.App. 3 Cir. 1967). Plaintiff’s wages paid after March 1968 were not paid in lieu of compensation and according to the jurisprudence, plaintiff was not “lulled” by their payment.

The application for rehearing is denied.

CULPEPPER, J., is of the opinion a rehearing should be granted.  