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Dick v. B & B Cut Stone Co.12/14/2005
ed by the party requesting issuance of the subpoena, and may be served by certified mail return receipt requested or any other manner provided in Section 5511. Proof of service shall be the responsibility of the party requesting the subpoena. Once issued and served, a subpoena may be canceled by the requesting party only after written notice to the opposing side. It shall be the responsibility of the requesting party to provide written notification of cancellation to all opposing parties as well as the person under subpoena.
5. In order to be enforceable, subpoenas for hearing shall be served seven (7) days prior to the scheduled hearing date; subpoenas to compel attendance of medical experts shall be served ten (10) days prior to hearing. Subpoenas for hearing may be issued after expiration of these time limits only by leave of court for good cause shown or upon written consent of all parties. (Emphasis added.)
The record indicates that Mr. Dick did not timely serve the subpoenas on the witnesses and, thus, was not entitled to a continuance.
Further, the OWC has rules concerning pretrial orders.
LAC 40:I:6001 provides, in part:
3. At the conclusion of the scheduling conference and no longer than fourteen days following the conference, a scheduling order, developed by the director, shall be issued by the judge setting forth the actions taken and deadlines set at the conference. Such order shall control the subsequent course of the claim, unless modified to prevent manifest injustice upon motion of a party or by order of the court.
See also LAC 40:I:6007 relating to pre-trial statements. None of the WCJ's rulings in this regard were manifestly unjust to Mr. Dick, who had many months to prepare for the hearing.
Apart from the procedural problems, and assuming that the medical records had been admitted into evidence, Mr. Dick still failed to prove that he suffered a compensable injury as a result of his accident. Assuming, arguendo, that he felt back pain after lifting the propane bottle, there is not a preponderance of evidence that Mr. Dick's subsequent back pain was caused by this accident. Proffer #2 says only that the injury was "possibly" work-related; and the subsequent MRI report, which is not self-explanatory, describes the irregularity in Mr. Dick's spine as a "degeneration and protrusion." Thus, the evidence was at best equivocal that Mr. Dick's back problems resulted from the accident at work. Likewise, Mr. Dick did not unequivocally testify that he missed any work due to the accident. Even if the WCJ erred in refusing either to continue the hearing or to admit the medical evidence, Mr. Dick failed to prove by a preponderance of the evidence that he suffered "personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031(A). Accordingly, the WCJ properly dismissed his claim.
CONCLUSION
For the foregoing reasons, the judgment of the WCJ dismissing Claimant's case with prejudice is affirmed. Costs of this appeal are assessed to Timothy Dick.
AFFIRMED.
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