Decedent was a retired firefighter with the Jefferson Parish Fire Department.  He passed away on May 5, 2013.  On January 7, 2015, his widow filed a disputed claim for compensation seeking death benefits pursuant to La. R.S. 23:1231.  Plaintiff alleged that her husband filed a workers’ compensation claim in 2004 for which he received benefits until the time of his death.  She further alleged that he suffered a heart attack on the date of his death, and the coroner amended the death certificate in October 2014 to reflect that the cause of death was the heart attack.

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Plaintiff was injured on a city bus on May 1, 2013. He attempted to file suit on the one-year anniversary by facsimile filing on May 1, 2014. Multiple attempts were made, but Plaintiff received an error code each time due to a busy signal. The Clerk of Court received the fax the following morning, and stamp filed the petition on May 2, 2014. Defendants filed an exception of prescription pointing out that the petition was filed more than one year after the alleged injury. Plaintiff opposed the exception, arguing that he first attempted to fax file the petition before the end of the business day on May 1, 2014 and that he continued to attempt to fax it until midnight. Plaintiff produced the communication reports and an affidavit in support of his position. The trial court denied the exception finding that because the Clerk of Court turned off the fax machine at the close of business, the Clerk’s action operated to shorten the prescriptive period, which was beyond Plaintiff’s control.

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