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Ratliff v. Brice Building Co.11/12/2003
AFFIRMED
Plaintiff, Johnny Ratliff, appeals from the dismissal of his disputed claim for workers' compensation filed against Brice Building Company ("Brice") and Larry McCorkle d/b/a McCorkle Steel Reinforcing ("McCorkle").
Claimant filed a disputed claim for compensation on November 11, 2000, alleging that he was injured in a work related accident on July 24, 2000, while employed by McCorkle. He also filed a claim against Brice, the general contractor, alleging that it was his statutory employer. Both defendants plead affirmative defenses, including the defense of intoxication.
The matter was heard by the workers' compensation court on February 10, 2003. Prior to trial, the court granted Brice's motion to have the plaintiff's witnesses and exhibits stricken on the basis that plaintiff had not filed a pretrial statement. The court further granted McCorkle's motion to exclude the deposition of Dr. Bourgeois, on the basis that counsel for McCorkle did not receive notice of that deposition.
Thereafter, the court rendered judgment in favor of defendants, dismissing Ratliff's claim with prejudice.
FACTS
Ratliff alleged that he was working as a laborer with McCorkle, having been rehired in June of 2000. On July 24, 2000, he was sent to the Ascension of Our Lord Church in LaPlace, to work on a building project by Brice. He and a co-worker were carrying two 40 foot iron rods. The co-worker tripped and dropped his end, causing the bars to fall on Ratliff's right shoulder. He tripped and fell to the ground. Ratliff went to Pendleton Memorial Hospital, where he was diagnosed with a fractured acromion. McCorkle paid wages in lieu of workers' compensation from the date of the accident until September 8, 2000. On November 17, 2000, Ratliff filed a disputed claim for compensation.
Ratliff went to work for Mickey Bennett, doing business as Foundation Builders, from November 22, 2000 until January 10, 2001. Mr. Bennett stated that he hired Ratliff as a laborer, and that his duties included digging ditches by shovels and picks, and cleanup work. Mr. Ratliff would also do some finishing work, which included bending and kneeling. Mr. Bennett stated that Ratliff appeared physically capable of doing the work, and did not complain until that last day of his employment, when he was moving slow, and did not want to keep up the pace. Mr. Bennett further stated that Ratliff did not tell him of any prior injury. Bennett's records indicated that Ratliff "was fired because he wasn't dependable and lack of interest in his work." Finally, Mr. Bennett stated that three times after Ratliff stopped working for him, Ratliff came back and asked for employment. Ratcliff never indicated that he could not do certain types of work.
At trial, Ratliff testified that he worked for Bennett after McCorkle stopped paying him, and that he performed finishing work. He stated that he did tell Mr. Bennett about his injuries, and that Bennett only required him to use a finishing trowel because of the injury. Ratliff stated that he was terminated because Bennett did not have the work for him.
On March 5, 2001, Ratliff filed a supplemental disputed claim for compensation. From June 2001 until October 2002, Brice paid claimant compensation benefits.
On June 13, 2001, Dr. Gordon Nutik, an orthopedic surgeon, conducted a physical examination of Mr. Ratliff, and he also reviewed the reports from Ratliff's treating physician. In his report, Dr. Nutik stated that Ratliff complained of pains in his neck, right shoulder and lower back. His responses to examination were inconsistent, as he "would restrict range of motion in certain positions
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