#### Santiago Roberto ANGELI v. PELLERIN MILNOR CORP. and the XYZ Insurance Company (Employers’ Fire Ins. Co.).

No. 9099.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1978.

On Rehearing April 11, 1978.

Warren M. Simon, Jr., Metairie, for defendants-appellants.

Murray, Murray, Ellis, Braden & Landry, Romualdo Gonzalez, New Orleans, for plaintiff-appellee.

Before LEMMON, STOULIG and GAR-SAUD, JJ.

GARSAUD, Judge.

An exception of prescription was filed prior to submission of the case by defendant-appellant Pellerin Milnor Corporation on January 11, 1978, the date this Court heard oral arguments on this appeal. The exception is based on the finding of fact by the trial court that the accident involved occurred on January 24, 1975, the injury, a hernia, was first diagnosed on February 15, 1975, and suit was not filed until February 19, 1976.

Ordinarily a suit for workmen’s compensation must be filed within one year of the date of the accident or of the last compensation payment or salary paid as a gratuity in lieu of compensation. R.S. 23:1209. Suit was not filed within one year of the date of the accident here, and there was no show*319ing that plaintiff did not earn his wages during the period of time in question. Thus, there were no wages in lieu of compensation.

It is our view that this case is controlled by *Points v. D. H. Holmes Co., Ltd.,*260 So.2d 362 (La.App.4th Cir. 1972), wherein it was held that in a workmen’s compensation case arising from a hernia, the one-year prescriptive period begins to run when plaintiff is first advised by the physician of the hernia condition. Here, the plaintiff was advised of the hernia, and admits being so advised, on February 15, 1975, when examined by Dr. Andres Pedrosa. Furthermore, the physician to whom Dr. Pedrosa referred plaintiff immediately advised him that surgery was necessary. Plaintiff’s brief indicates that plaintiff became “aware of his injury” on that day. Accordingly, as more than one year has elapsed since the plaintiff became aware of his injury here, we have no alternative but to maintain the exception of prescription.

The exception is maintained and the plaintiff’s suit is dismissed.

*EXCEPTION MAINTAINED, SUIT DISMISSED.*

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff consulted a Spanish-speaking pediatrician on February 15, 1976 because of a bad cold. When plaintiff incidentally mentioned intermittent pain in his groin area over the past three weeks, the doctor suspected a hernia and referred plaintiff to Dr. Fernandez. Plaintiff scheduled an appointment for February 27, 1975 and continued working in the meantime. Dr. Fernandez confirmed the existence of a hernia and recommended immediate surgery. On the following day plaintiff reported the condition to the employer and was referred to the company doctor who first found nothing, but eventually confirmed the existence of a hernia. Surgery was performed on March 19, 1975.

Considering the overall circumstances, we are concerned about the question of whether the prescriptive period commenced when the pediatrician, who did not testify in person or by a stipulated report, made what was at best a preliminary diagnosis. In fairness to all parties, we believe that it would be appropriate, as was requested by plaintiff and as provided by Code of Civil Procedure Article 2163, to remand to the trial court for presentation of evidence on the plea of prescription.

Accordingly, the decision in Case Number 9099 is annulled and the matter is remanded for a trial on the exception consistent with this opinion.

*ANNULLED AND REMANDED.*