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Dick v. B & B Cut Stone Co.12/14/2005
Before GASKINS, CARAWAY & PEATROSS, JJ.
Claimant Timothy Dick appeals from a judgment of the Office of Workers' Compensation ("OWC") dismissing his claim for compensation benefits against B & B Cut Stone Company ("B & B"). For the reasons stated herein, we affirm.
PROCEDURAL HISTORY
On April 30, 2004, Mr. Dick filed a formal claim for compensation with the OWC; he sought both wage and medical benefits as well as penalties and attorney fees. Mr. Dick was represented by counsel at the time he filed his claim. B & B answered the claim; the company denied that the claimant had been injured in their employ and denied that the claimant had reported the injury . In August 2004, the Workers' Compensation Judge ("WCJ") issued a pre-trial order. Among other deadlines, the order specified that subpoenas to lay witnesses must be issued seven days before trial and that exhibits must be exchanged ten days before trial. On September 1, 2004, Mr. Dick's attorney withdrew, leaving the claimant to represent himself.
In November 2004, B & B filed a pre-trial order; Mr. Dick did not. On March 16, 2005, Mr. Dick requested by letter that the OWC issue subpoenas to three witnesses: Ray Eason, Henry Caldwell and Ray Roberts, all fellow employees of the claimant at B & B. The letter contained complete addresses for Mr. Eason and Mr. Caldwell, but only the street name and city for Mr. Roberts. Also in March 2005, B & B filed a pre-trial brief; Mr. Dick did not. A trial date was set and continued several times; the trial was held on May 30, 2005.
When Mr. Dick's case was called, Mr. Dick and one of his witnesses, Henry Caldwell, appeared for the claimant. Mr. Dick explained that, on May 28, two days before, he hand-delivered subpoenas to Mr. Eason and to Mr. Roberts, but he had no proof of service. The court informed Mr. Dick that subpoenas had to be issued no later than 45 days in advance of the hearing and that the claimant's subpoenas were untimely. The court denied Mr. Dick's motion for a continuance and proceeded with the trial.
Mr. Dick attempted to introduce two medical records - an MRI report from April 1, 2004, and a progress note from March 2004 - but the court refused to allow either exhibit because Mr. Dick had not filed a pretrial statement identifying the evidence. Both documents were accepted as proffers. Proffer P-2, the progress note, reflects complaints of back pain and tenderness, limitation of motion and difficulty with the straight leg raise. It bears a handwritten note, possibly written by the doctor, which appears (the handwriting is difficult to read) to state "possibly work-related injury ." Proffer P-1, the MRI report, reflects an admitting diagnosis of "possible Parkinson disease & tremmors (sic)." The impression section of the report states:
Degeneration and protrusion corresponding to the L4-L5 and L5-S1 intervertebral discs centrally with extension to both sides producing stenosis of the lateral recesses and neural foramina. The changes are more prominent corresponding to L5-S1.
At the conclusion of Mr. Dick's testimony, the trial court granted the employer's motion for involuntary dismissal.
FACTS
B & B is a Shreveport business that produces various products from granite and marble. Mr. Dick was employed by B & B as a quality control specialist; he worked for the company for 13 years. According to Mr. Dick, while he was working on February 24, 2004, the company forklift ran out of propane fuel and stopped in the street, blocking traffic. Mr. Dick said that he picked up a full bottle of propane to refuel the forklift and injured his back m
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