
    Phyllis M. BROUSSARD v. CITGO PETROLEUM CORPORATION.
    No. 02-895.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.
    
      John Foster DeRosier, DeRosier & Barrett, Lake Charles, LA, for Phyllis M. Broussard.
    John Joseph Rabalais, Rabalais, Unland, and Lorio, Covington, LA, for Citgo Petroleum Corporation.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   | WOODARD, Judge.

Ms. Broussard appeals the WCJ’s grant of Citgo’s peremptory exception of prescription of her claim for disability benefits. We find that Ms. Broussard did not carry her burden of proving that prescription was interrupted and therefore affirm the WCJ’s ruling.

Ms. Broussard had worked for Citgo Petroleum Corporation (Citgo) for approximately twenty-one years, when her supervisor told her on April 14, 2000 that she “sure picked a hell of a day to quit sniffing glue.” She claims that this caused her to suffer from depression and to never return to work.

During her absence, Citgo continued to directly deposit money into her account, under its collective bargaining agreement, until it terminated her. At that time, it notified her that her last direct deposit would be in January 2001. She filed a disputed claim for compensation with the Office of Workers’ Compensation on October 30, 2001, approximately 18 months after the April 14, 2000 incident and approximately 10 months after receipt of Citgo’s final payroll payment.

Citgo responded by filing a peremptory exception of prescription which the WCJ granted, despite Ms. Broussard’s contention that Citgo’s continued payments had suspended or interrupted prescription. Ms. Broussard appeals.

Burden of Proof

The party alleging that the claim has prescribed generally bears the burden of proof. However, since Ms. Broussard first filed her claim with the Office of Workers’ Compensation on October 30, 2001, more than one year after the alleged accident on April 14, 2000, her claim has prescribed on its face. Accordingly, it is she who has the burden of proving that prescription was somehow suspended or interrupted. She attempted to prove this by maintaining that Citgo’s payments to her, after she left, lulled her into a false sense of security that she was receiving workers’ 1 ^compensation benefits. Thus, prescription was interrupted until its last payment to her in January 2001, rendering her claim timely.

Prescription

La.R.S. 23:1209(A) governs prescription of workers’ compensation claims and provides the claimant with one year after the alleged accident to bring a claim:

In case of personal injury ... all claims for payment shall be forever barred unless within one year after the accident ... the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. 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[.]

Thus, the one-year time period is prescriptive, rather than peremptive, and may be interrupted. However, the statute, itself, provides an exception to the general rule of prescription when the parties have agreed that workers’ compensation payments will be made. In that case, the prescriptive period does not begin to run until the final payment is made. Jurisprudence has further defined this exception to allow Ms. Broussard to prove interruption by showing that Citgo induced her not to file her claim by lulling her into a false sense of security that their payments to her were, in fact, in lieu of workers’ compensation.

False Sense of Security

To establish this, Ms. Broussard must show that through its words, actions, or inactions, Citgo induced her to withhold suit until after the claim had prescribed. We have held that where the employer pays wages in lieu of compensation to the ^claimant, such payment is sufficient to lull the claimant into a false sense of security. And, specifically, in Dupaquier v. City of New Orleans, the Louisiana Supreme Court found that where the plaintiff reasonably believed that the sick leave benefits, which he was receiving, included workers’ compensation, the employer was estopped from invoking the time bar under La.R.S. 23:1209.

Notwithstanding the above principle, in the instant case, we do not find that Ms. Broussard could have reasonably believed that she was receiving wages in lieu of compensation as opposed to sick leave benefits. Apparently, the only basis for her belief is that the amount of the payments were consistent with the amount she would have been paid had they actually been workers’ compensation payments. This is the case because, under the agreement, her pay schedule was based on the amount of time that she had worked for Citgo. Thus, whether she was unable to work because of a work-related injury or something completely unrelated to her job, she would have received the same amount of pay. However, the entirety of her sick leave benefits was deposited to her account by Citgo, while she would have received two separate deposits if the payments had been workers’ compensation benefits. Therefore, the form of the payments was consistent with sick leave benefits. She could not have reasonably believed otherwise, especially considering that she never even filed an accident or incident report with Citgo, and it is disputable whether she told anyone about the on-the-job “incident.”

Additionally, Ms. Broussard agreed that she knew that she was being paid according to the collective bargaining agreement. Moreover, she testified that during the course of her twenty-one years of employment with Citgo, she had previously received sick leave benefits under this agreement. Therefore, she should have been familiar with Citgo’s practice. Furthermore, during the discovery process, Ms. Broussard, herself, classified the payments as “sick benefits,” as the following excerpt from interrogatories to her indicates:

| ¿INTERROGATORY NO. 13:

Please list all sources of income of any kind since the date of your alleged work injury made the subject of this suit.

ANSWER TO INTERROGATORY NO. 13:

“Sick Benefits” from Citgo Petroleum Corporation from April, 1999[sic 2000], to December 1999[sic 2000].

Ms. Broussard’s testimony at trial was consistent with this belief. She does not testify that she perceived the payments to be in lieu of workers’ compensation. Rather, she states, only, that the payments indicated to her that she was being paid by Citgo, nothing more.

Accordingly, there simply is not enough evidence that she was lulled into a reasonable belief that Citgo was paying her workers’ compensation benefits. Thus, we find that her claim has prescribed and affirm the WCJ’s grant of Citgo’s peremptory exception.

CONCLUSION

Ms. Broussard filed a claim for workers’ compensation benefits beyond the one-year prescriptive period provided by statute. Since we find that she did not carry her burden of proving that prescription was interrupted, we affirm the WCJ’s grant of Citgo’s peremptory exception of prescription and cast her with the costs of this appeal.

AFFIRMED.

AMY, J., concurs and assigns written reasons.

SAUNDERS, J., dissents and assigns written reasons.

hAMY, J.,

concurring.

I agree that an affirmation of the ruling of the workers’ compensation judge is required. In addition to the claimant’s failure to sustain her burden of proof with regard to the prescription issue. I observe that the claimant also failed to allege a compensable accident within the definition of La.R.S. 1021(7)(b). The failure to state a cause of action may be noticed on the court’s own motion. See La.Code Civ.P. art. 927(B).

The claimant alleged only mental injury caused by mental stress. La.R.S. 23:1021(7)(b) provides:

Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

There is no indication that the claimant’s alleged mental injury resulted from the type of “sudden, unexpected, or extraordinary stress” required by Section (7)(b).

For these reasons, I concur in the affirmation of the ruling of the workers’ compensation judge.

h SANDERS, J,

dissents.

I respectfully dissent from the majority opinion. Under the facts of this case, I find it reasonable for Ms. Broussard to believe that her continued deposits from Citgo were payments in lieu of compensation. As a result, I would find that the prescriptive period provided by La.R.S. 23:1209 was interrupted because Ms. Broussard was lulled into a false sense of security regarding her workers’ compensation benefits. As stated by the majority, La.R.S. 23:209 provides the prescriptive periods applicable for an employee’s claims for workers’ compensation benefits. Employees have one year from the time of an accident to file a workers’ compensation claim. La.R.S. 23:1209(A). When the claim for workers’ compensation has prescribed on its face, the claimant bears the burden of showing that the prescriptive period was interrupted by estoppel. The time period established by La.R.S. 23:1209(A) is prescriptive rather than preemptive and may be interrupted. Lester v. Rebel Crane & Servs. Co., 393 So.2d 674 (La.1981).

The purpose of the one year prescriptive period is to protect employers from the burdensome litigation of stale claims. When, however, the employer lulls the employee into a false sense of security, causing him to withhold suit until after the period has expired, the employer cannot invoke the time bar to defeat compensation.

Dupaquier v. City of New Orleans, 257 So.2d 385, 387-88 (La.1972). To establish that the claimant was lulled into such a false sense of security, they must show that the |gemployer induced him to withhold suit until after the claim has prescribed through its words, actions, or inac-tions. Desselle v. Dresser Indus. Valve, 96-374 (La.App. 3 Cir. 2/5/97); 689 So.2d 549. It is not necessary however, for the claimant to show that the employer intended to mislead them as to the nature of the benefits being paid or the time frame for prescription. Millican v. General Motors Corp., 34,207 (La.App. 2 Cir. 2000); 771 So.2d 234, writ denied, 01-001 (La.3/23/01); 788 So.2d 426.

The Louisiana Supreme Court has held that, under La.R.S. 23:1209, payment of unearned wages by an employer is considered compensation, and such payment serves to interrupt prescription. Dupaquier, 257 So.2d at 387. “The payment of wages in lieu of compensation interrupts prescription for workers’ compensation claims, because such payments lull workers into not filing their claims within the prescriptive period.” Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065, p. 3 (La.App. 3 Cir. 9/28/94); 645 So.2d 661, 664, writ denied, 96-152 (La. 3/30/95); 651 So.2d 837. Prescription does not begin to run anew until the last payment. Dupaquier, 257 S0.2d at 387. “Wages in lieu of compensation are defined as unearned wages paid to an employee after an injury.” Krieg, 645 So.2d at 664.

It is clear that Ms. Broussard continued to receive regular payroll deposits after she ceased reporting to work following the April incident. These payroll direct deposits appear to have occurred on regularly scheduled payroll dates corresponding to when Ms. Broussard would have been paid, had she not sustained an alleged work related injury and continued working as usual. Initially, these payments were for her full salary amount. At some point, the amount of these regular deposits decreased, and they eventually stopped in October of 2000. Ms. Broussard received one final direct deposit amount following her termination by Citgo in January of 2001. In the termination letter from Cit-go, written by Mr. Baumgarten, Citgo’s Labor Relations | ..¡Manager, Ms. Broussard was told that her last paycheck would be direct deposited to her account on January 5, 2001. Citgo contends that it was unaware that Ms. Broussard’s absence from work was the result of an alleged workplace injury and, therefore, the payments were merely sick pay as mandated by the applicable collective bargaining agreement. Citgo argues that, according to Keller v. Marathon Oil Co., 613 So.2d 795 (La.App.5 Cir.1993), an employer’s payment of sick leave benefits is not enough to mislead his employee into a false sense of security sufficient to suspend prescription. What Citgo fails to identify however, is that the employee in Keller specifically chose to receive sick leave benefits rather than workers’ compensation benefits, because his sick leave benefits were greater. The court held that in specific circumstances, because of the employee’s affirmative choice of sick leave over workers’ compensation benefits, the employee could not claim to have been mislead.

Citgo also claims that receipt of disability benefits instead of workers compensation benefits is not sufficient to lull an employee into a false sense of security so as to suspend prescription. In support for this argument Citgo cites Siemssen v. Manpower Temporary Services, 95-CA-80 (La.App.5 Cir.5/30/95); 656 So.2d 1115, and Brown v. Caddo Career Center, 28,111 (La.App.2 Cir.2/28/96); 669 So.2d 712, writ denied, 96-1042 (La.5/31/96); 674 So.2d 262. As with Keller, however, these cases can be distinguished from the present case. In both cases, the facts indicated that the employees were fully aware they were receiving disability benefits instead of workers compensation benefits, and therefore, the employee was never mislead.

The test for whether an employee has been lulled into a false sense of security consists of both subjective and objective considerations. There must be a third party Lpayor making payments under circumstances where a reasonable person could believe the payments were wages in lieu of workers’ compensation benefits. I agree with Ms. Broussard’s argument that, with respect to the subjective portion of the test, the question is not what form of compensation Citgo believed the payroll deposits to be, but rather, what type of compensation Ms. Broussard believed the payroll deposits to be. The primary purpose behind the interruption of prescription where the employee is lulled into a false sense of security is to correct for an employee’s mistaken belief that they are receiving workers’ compensation benefits. In light of such a belief on the part of the employee, they would have no reason to file for workers’ compensation benefits, and cannot be expected to realize that their statutory time for claiming such benefits is running out. The key to the analysis of this issue is that the employee in question believes that he has no reason to file for workers’ compensation benefits. Unlike the majority, I find Ms. Brous-sard’s belief that she was receiving wages in lieu of workers’ compensation to be reasonable under the circumstances of this case.

The majority finds Ms. Broussard’s agreement that she knew she was being paid according to the collective bargaining agreement to be significant, as well as the fact that she had previously received sick leave benefits under this agreement. Ms. Broussard insists that she was unaware that her continued payroll deposits were not wages in lieu of compensation as provided by the Citgo Employee Agreement. It is entirely credible, in light of the Agreement’s indication that workers’ compensation benefits were identical in amount and payment schedule to sick leave benefits, that she would believe her payments to be wages in lieu of compensation. Moreover, her testimony on this point is uncontested. In light of such a belief, she would have no reason to file a workers’ compensation claim during the time period she was receiving those payments.

|sFor the reasons outlined above, I find Ms. Broussard has met her burden of showing that she believed she was receiving unearned wages from Citgo. In my opinion, the evidence was sufficient to show that these payments by Citgo effectively lulled Ms. Broussard into a false sense of security regarding her recovery of workers’ compensation benefits. Therefore, I would find that the prescriptive period was interrupted and did not begin to run anew until after the final payment by Citgo. 
      
      . Richardson v. Tyson Foods, 01-427 (La.App. 3 Cir. 10/3/01); 796 So.2d 827.
     
      
      . Id.
      
     
      
      . Lester v. Rebel Crane & Serv. Co., 393 So.2d 674 (La.1981).
     
      
      . La.R.S. 23:1209(A).
     
      
      . Desselle v. Dresser Indus. Valve, 96-374 (La.App. 3 Cir. 2/5/97); 689 So.2d 549, writ denied, 97-618 (La.4/25/97); 692 So.2d 1086.
     
      
      
        . Id.
      
     
      
      . Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065 (La.App. 3 Cir. 9/28/94); 645 So.2d 661, writ denied, 95-152 (La.3/30/95); 651 So.2d 837.
     
      
      . 260 La. 728, 257 So.2d 385 (1972).
     