365 So. 2d 543 | La. Ct. App. | 1978
This is a suit for workmen’s compensation benefits. The determinative issue raised in this appeal involves the application and constitutionality of LSA-R.S. 23:1209.
On July 15, 1970, the plaintiff received a head injury while working for Diamond Crystal Salt Company. After a six month period of convalescence, during which time workmen’s compensation benefits were paid, the plaintiff resumed work and his duties in full with Diamond Crystal Salt Company. On July 9, 1975, almost five years later, after reporting for work petitioner suffered an epileptic seizure. On July 6, 1976, plaintiff filed a petition for workmen’s compensation against the defendant, Diamond Crystal Salt Company and its insurer, Liberty Mutual Insurance Company. The time of the filing was less than one year after the injury had manifested itself, but more than the two year period of limitation established in LSA-R.S. 23:1209. The defendants filed an exception of prescription and a plea of peremption, which exception and plea were referred to the merits. After a trial on the merits, the trial judge found that plaintiff had established by a preponderance of the evidence that the epileptic seizure which he suffered was causally related to the injury sustained by him on July 15, 1970, but sustained the defendants’ plea of peremption and dismissed plaintiff’s suit at his cost. From this judgment, the plaintiff has taken this devolutive appeal.
Louisiana Revised Statute 23:1209 provides a two year peremptive period from the date of the “accident” within which an injured worker must begin workmen’s compensation proceedings or he shall be forever barred from making any claim stemming from the accident.
The jurisprudence on this issue is now settled. Both our Supreme Court, infra, and this court, in Funderburk v. Calca-
Although, unlike Ancor,
For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s cost.
AFFIRMED.
. In Ancor, supra, plaintiff neither alleged not curred while plaintiff was on the job. proved that the manifestation of injury oc-