Schwehm v. Huval Baking Co. , 1971 La. App. LEXIS 5631 ( 1971 )

REDMANN, Judge.

Plaintiff appeals from the dismissal of his workmen’s compensation suit as prescribed or perempted by one year, R.S. 23 :- 1209.

Plaintiff suffered an injury to an arm muscle, resulting in a knot, while carrying boxes of bread. He admittedly consulted his personal physician for this injury on April 4, 1968, and that doctor’s affidavit in evidence is that plaintiff told him the injury occurred “four or five weeks prior to” April 4. Plaintiff personally filled out an accident report for his employer thereafter, dating the accident March 4, 1968. (Even in his testimony plaintiff referred to four or five weeks after the accident as the time when he sought relief.) .

Suit was filed March 10, 1969, plaintiff having told his counsel the injury occurred on March 10, 1968.

Plaintiff was a bread-route developer, and testified he only carried bread when the delivery was too much for the actual routeman. From March delivery slips in evidence, he testified (as did the routeman) that the March 4 delivery was too light to require two persons to make two trips each from truck to customer, which he and the routeman said were necessary the day of the accident. This was the sole basis on which the routeman excluded March 4 and, shown only the March slips, would pick March 9 or 15 as the accident date. Had he been shown February delivery slips, he might have included the dates of heavy deliveries in February as possible dates of the accident on that basis.

We also note that on March 4, according to the routeman’s statement of how much bread filled a box, two boxes would have been used and plaintiff could then have carried one (although only one trip would have been required).

The injury was apparently not serious enough to have other consequences which might help in fixing its date.

Plaintiff argues defendant has the burden of proving the accident occurred over a year before suit; Randol v. Lawrence, 205 So.2d 113 (La.App.1967), cert. denied, 251 La. 930, 207 So.2d 538. We conclude defendant’s evidence met that burden. The rebuttal evidence was not sufficient to overcome defendant’s proof.

The judgment is affirmed.