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Marco Sperandeo v. Sydran Food Services12/12/2001
AFFIRMED
In this workers' compensation case, claimant, Marco Sperandeo, appeals from a judgment granting the exception of prescription raised by defendant, Sydran Food Services II, L.P. ("Sydran"). For the following reasons, we affirm.
Sydran is the owner of Burger King franchises in this area. Plaintiff was employed by Sydran as a system support specialist. The evidence adduced at trial established that plaintiff was injured on September 15, 1998, when a light fixture and a portion of the ceiling fell on him, while he was working at a Burger King restaurant. Plaintiff stated that he was struck in the head, neck and shoulders. He was temporarily disoriented and nearly unconscious, and he suffered a cut on his neck. At that time, he did not know that he had suffered serious injury . Plaintiff initially reported that the accident occurred, but did not report any injury as a result.
Plaintiff began to miss work, starting on October 9, 1998. On October 13, 1998, plaintiff had a meeting with supervisor William McMillan, at which time a reprimand was written for plaintiff's absences and other issues. Plaintiff told Mr. McMillan about the accident, but again failed to relate that he had been injured. Mr. McMillan testified at the hearing that plaintiff requested vacation time, stating personal problems with his wife as the reason.
Mr. McMillan called plaintiff after plaintiff did not report for work on October 26, 1998, and plaintiff said he had not gone to work and could not work because he had injured his back while working on his property over the weekend. He further stated that his wife was having surgery and that he would request a leave of absence for personal reasons. Mr. McMillan testified at trial that plaintiff specifically told him that the injury was not related to the September 15th accident. He further testified that he did not become aware that plaintiff said he was injured during the accident until the workers' compensation claim was filed.
Plaintiff first sought treatment from Dr. Daniel Gallagher on October 22, 1998, at which time Dr. Gallagher diagnosed degenerative disc disease in the cervical spine. Plaintiff did not relate to Dr. Gallagher that he had been involved in a work accident at that time.
Shortly after Mr. Sperandeo began treatment with Dr. Gallagher, on November 5, 1998, he filed for short term disability with his insurance carrier. In the application, plaintiff specifically denied that his condition was related to a work related accident.
While under Dr. Gallagher's care, Mr. Sperandeo began treatment with Crescent City Physical Therapy on December 3, 1998. Treatment notes state that Mr. Sperandeo told the therapist that he had been injured when the ceiling fell on his neck. At trial, plaintiff testified that he made the connection between his work accident and his back condition at that time.
During the time after the accident, due to clerical error, plaintiff also continued to receive his regular paychecks. Plaintiff's last paycheck was issued on January 20, 1999, and he received it on January 27, 1999. Plaintiff also received a disability check on January 14, 1999. Plaintiff was later required to reimburse Sydran for overpayment.
Dr. Gallagher's testimony was introduced at trial by deposition. He testified that plaintiff did not initially tell him that he had been injured in a work related accident. From the time of his initial visit, Mr. Sperandeo continued to see Dr. Gallagher every three to six weeks, and he continued to suffer from chronic pain. On March 17, 1999, Sperandeo related to Dr. Gallagher that work-type activities aggravated his spine. On July 12, 1999,
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