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Hays v. Western Refractory Construction6/1/2005
Before WILLIAMS, PEATROSS and DREW, JJ.
Western Refractory Construction, Inc. ("Western") appeals a judgment awarding workers' compensation benefits, attorney fees, and penalties to Pat Hays. We affirm the judgment, but remand for a determination of the number of weeks of workers' compensation benefits that are subject to the La. R.S. 23:1225 offset for the receipt of unemployment benefits.
FACTS
Thomas Hays was hired by Western in April of 2003 to work as an industrial brick mason on a refractory maintenance project at a cement plant in Utah. Hays, who began working on April 2, 2003, was assigned to work the evening shift constructing a kiln at the plant. He was paid $23 an hour and worked 12 hours a day, seven days a week.
Hays' job was to place bricks in an ascending circle that was approximately 16 to 18 feet in diameter. His position was known as the key man. Hays alleged that he was injured on April 12, 2003, while he was using a shim driver to drive a flat metal shim next to a key brick. The shim driver is an air-driven hammer that by Hays' estimate weighed between 40 and 50 pounds. Hays alleged that he was using the shim driver to drive a metal shim overhead when he felt a shock or pinch in his neck and a pain between his shoulder blades.
After suffering this injury, Hays spent the remainder of his shift operating a forklift. He returned to work the next night, Sunday, but left after working only a few hours because he was not feeling well and his shoulder was bothering him. He did not go to work on Monday night, and later that evening was informed that he was to return to Louisiana the next morning. Upon returning to Louisiana, Hays rested and tried to recuperate because he thought he could continue working as a brick mason. He obtained employment with an Arkansas company, but he was terminated on his first day when the company learned of his injury after his boss questioned him about the manner in which he was using his right arm. Hays has not worked since.
Hays was treated by his primary-care physician, Dr. Doyle Hamilton, on May 6, 2003. The notes from that visit reflect that Hays complained of a stiff neck and pinched nerve. Dr. Hamilton wrote down "Utah" on the record for that visit, but otherwise Dr. Hamilton did not record anything else about how Hays incurred his injury. Hays continued to complain of a pinched nerve in his back, with the pain getting worse, when he was treated by Dr. Hamilton the next month.
Dr. Hamilton subsequently referred Hays to Dr. David Trettin at The Orthopaedic Clinic of North Louisiana, where Hays was examined on June 27, 2003. Hays complained of trapezius pain and numbness down his right arm. Hays reported that he had suffered these ailments for the prior four months, with the numbness in the right arm becoming progressively more severe over the past six weeks. An MRI performed on August 7, 2003, revealed a C6-7 disc herniation on the right which was causing his right arm pain and numbness.
Dr. Trettin referred Hays to Dr. Ronald Ellis for cervical epidural steroid injections. When Hays met with Dr. Ellis on August 26, 2003, Hays provided Dr. Ellis with a detailed history of how his injury occurred while he was working in Utah. Hays described his pain as starting in the posterior neck and upper back and radiating across the posterior shoulder and down the posterior aspect of the arm onto the lateral forearm to the middle three fingers. Hays also complained of numbness down the arm into those three fingers. Dr. Ellis's impression was "chronic neck and right upper extremity pain secondary to right posterolateral C6-7 disc herniation with C7 nerve root impingement and
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