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Winford v. Conerly Corp.3/11/2005
For the reasons assigned, the judgment of the hearing officer is reversed, and this matter is remanded to the Office of Workers' Compensation for further proceedings.
VICTORY, J., concurs in the result.
TRAYLOR, J., concurs in the result.
WEIMER, J., coucurs in the result and assigns reasons.
This matter is before the Court on the issue of whether plaintiff's claim for worker 's compensation benefits has prescribed, where the plaintiff's developmental injury first presented itself within the two-year delay period prescribed by LSA-R.S. 23:1209(A), but did not actually disable plaintiff until after the delay period had elapsed. The Office of Worker 's Compensation held that plaintiff's claim was prescribed, and the court of appeal affirmed. For the reasons that follow, we hold that plaintiff's claim for temporary total disability (TTD) benefits relates back to his original timely filed claim for medical and supplemental earnings benefits (SEB) pursuant to La. Code Civ. Pro. art. 1153. For this reason, we reverse the decisions of the lower courts and remand this matter to the Office of Worker's Compensation for further proceedings.
FACTS AND PROCEDURAL HISTORY
On November 17, 1999, Donald J. Winford (hereinafter Winford") was discarding wooden pallets into a dumpster at the Ritz Carlton Hotel when he lost his balance and fell onto the pavement approximately seven feet below. At the time of the accident, plaintiff was fifty-six years of age and had no history of back pain. At trial both parties stipulated that Winford was within the course and scope of his employment with Conerly Corporation ("Conerly") at the time he was injured. Winford was taken from the construction site to the emergency room at Pendleton Memorial Methodist Hospital complaining of pain to his right hip and lower back. Winford testified at the Workers' Compensation hearing that after his release from the hospital he recuperated for one or two days and then returned to work for Conerly until the renovation project ended, October 13, 2000.
Thereafter, on December 17, 2000, Winford became employed by Milton J. Womack, Inc, another construction contractor. Winford worked for Womack until February 24, 2002, at which time he was carried off the work site complaining of excruciating pain in his lower back and hip. Winford testified that he has not been able to return to work since the incident.
Plaintiff had previously filed a formal claim with the OWC for medical and disability benefits on July 5, 2001. In his complaint, Winford alleged his "hip pain becoming so severe that I can't do regular work." He further asserted that Conerly refused to pay medical benefits to Dr. Robert Segura, one of his treating physicians. Conerly responded to the claim on December 11, 2001 arguing that no benefits were due.
In the interim, plaintiff received treatment from several different physicians, but primarily from Dr. James Baker and Dr. Segura. Dr. Segura first saw Winford on November 18, 1999, the day after the accident. Initially, plaintiff suffered from swelling and mild to moderate edema. Over the next several months, plaintiff continued to have pain and soreness in his hip, although he had no symptoms of necrosis or muscle tears. On January 25, 2000 plaintiff underwent a bone scan to determine whether he had suffered from a hidden fracture which would have accounted for his continued discomfort. Dr. Segura discovered severe disc space narrowing, sclerosis, and spurring consistent with degenerative disc disease. Plaintiff was last treated by Dr. Segura on October 15, 2001. Plaintiff began seeing Dr. Baker on October 16, 2001. On October 18, 2001,
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