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06/21/02 "See News Release 052 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA No. 01-C-3230 Letell Menyoun Lee JONISE, widow of Derrick Dewayne Jonise versus BOLOGNA BROTHERS and The Louisiana Workers' Compensation Corporation

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, OFFICE OF WORKERS' COMPENSATION DIST. NO. 5 KNOLL, JUSTICE.* The single issue in this workers' compensation case concerns prescription for death benefits and burial expenses. On July 30, 1998, Derrick Dewayne Jonise collapsed while working and was transported to a hospital and pronounced dead on arrival. On August 3, 1999, more than a year after his death, Letell Menyoun Lee Jonise, widow of Mr. Jonise, filed a disputed claim for compensation with the office of workers' compensation, requesting death benefits and reimbursement for burial expenses. In response, Bologna Brothers, decedent's employer, and Louisiana Workers' Compensation Corporation (LWCC), the employer's workers'

compensation insurer (collectively defendants), filed an exception of prescription, asserting Ms. Jonise's claim for death benefits and her claim for burial expenses are prescribed pursuant to LSA-R.S. 23:1209(A). The workers' compensation judge granted defendants' exception of prescription and the court of appeal affirmed. Finding no error in the rulings below, we affirm.

Retired Judge Robert L. Lobrano, assigned as Associate Justice ad hoc, sitting for Associate Justice John L. Weimer, recused.

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FACTS AND PROCEDURAL HISTORY Mr. Jonise was employed by Bologna Brothers as a delivery truck driver. On July 30, 1998, after exiting a delivery truck in Hammond, Louisiana, Mr. Jonise collapsed and passed out. He was then transported to North Oaks Medical Center and pronounced dead on arrival. The East Baton Rouge Parish Coroner's Report indicates the date and time of death as July 30, 1998, at 4:03 P.M. The report also lists the cause of death as: "Respiratory Arrest, Status Asthmaticus, Bronchial Asthma." On August 3, 1999, more than a year after Mr. Jonise died, Ms. Jonise filed a disputed claim for compensation with the office of workers' compensation, seeking death benefits and reimbursement for burial expenses totaling $7,891. In response, defendants filed an exception of prescription, asserting Ms. Jonise's claim for death benefits and her claim for burial expenses are prescribed pursuant to LSA-R.S. 23:1209(A). Following a hearing, the workers' compensation judge granted

defendants' exception of prescription. The First Circuit affirmed. See Jonise v. Bologna Bros., 00-0485 (La.App. 1st Cir. 09/28/01), 809 So.2d 352. We granted Ms. Jonise's writ application to consider whether a claim for burial expenses is governed by the one year prescriptive period provided by LSA-R.S. 23:1209(A). See Jonise v. Bologna Bros., 01-3230 (La. 03/15/02), 811 So.2d 890. DISCUSSION Claim for Death Benefits Ms. Jonise continues to argue her claim for death benefits is not prescribed. She maintains alternate dates for the beginning of the prescriptive period apply and thus her claim for death benefits was timely filed.1 We disagree and find Ms. Jonise's

The alternate dates Ms. Jonise relies on include August 28, 1998, the date the certificate of death was issued by the coroner; September 17, 1998, the date her attorney received a copy of the

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claim for death benefits is prescribed for the reasons below. LSA-R.S. 23:1231 through LSA-R.S. 23:1255 set forth the provisions relating to compensation for the death of an employee. Pursuant to LSA-R.S. 23:1231, death benefits are recoverable only if an employee's death occurs within two years of the last treatment resulting from the accident by personal injury or occupational disease upon which the claim is based.2 This two year time period is neither a prescriptive nor peremptive period. Rather, it "is a condition precedent to the accrual of the right of action for the dependents." H. Alston Johnson, III, 14 Louisiana Civil Law Treatise, Workers' Compensation Law and Practice,

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