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Sanders v. J. Ray McDermott11/7/2003
On appeal in this workers' compensation case, the claimant asserts the workers' compensation judge ("WO") erred in denying his motion to compel discovery and in granting summary judgment in favor of the employer, dismissing his claim with prejudice.
FACTS AND PROCEDURAL HISTORY
On May 2, 2002, claimant, Donald J. Sanders, Jr., filed a disputed claim for compensation with the Office of Workers' Compensation averring entitlement to workers' compensation benefits. Mr. Sanders alleged that on April 2, 2002, during the course and scope of his employment with J. Ray McDermott, Inc., he injured himself while he was "bent over cutting a piece of ... steel grating with a hand held cutting torch." Mr. Sanders noted that when he stood up from doing this work, he "felt severe pain in lower back which traveled down the back of right thigh."
On the day of his accident, Mr. Sanders completed a form entitled "EMPLOYEE'S ACCIDENT/ILLNESS REPORT." In response to a question about what caused his injury, Mr. Sanders reported, "Working in awkward uncomfortable position." Further describing his accident, Mr. Sanders noted as follows: "Cutting grating in Bay 4 Bldg. 1 for Heliport Landings. Started to feel severe pain in his back and legs. Pain was minor the previous day when I was working under Heliport section installing pad-eyes and stiffner plates."
Mr. Sanders and Terrell Perro, a co-worker who was with him at the time, immediately reported this incident to their supervisor, Leroy Keith. After explaining his injury and the pain he was experiencing, Mr. Sanders was told to seek medical treatment. He was seen that same day by Dr. Thibodeaux, who treated him conservatively for a muscle strain.
Mr. Sanders returned to McDermott the following day, but not to his regular duties. He worked for the next five or six days in the dispensary doing office work. Thereafter, on April 8, 2002, he was seen by Dr. James C. McDaniel, a physician of his choice. On the following day, Mr. Sanders was examined by Dr. Christopher E. Cenac at the request of McDermott. According to Dr. Cenac's April 9, 2002 report, Mr. Sanders' latest MRI was not available for his review at the time he examined Mr. Sanders. Dr. Cenac noted as follows with regard to the incident in question:
Donald Sanders was examined 4/9/02. The MRI completed recently has been requested for review and further comment. By history the patient had prior surgery in November 1994 not related to a work related incident. At that time he had low back and bilateral leg complaints. He was returned to work after 6 months. 40 pound lifting restrictions were assigned by the pre-employment physician. He changed jobs and ha a pre-employment physical by Dr. Bourgeois in 1997 and again 40 pound lifting restrictions were assigned. He was allowed to work at McDermott as a fitter. He denies any interim complaints. On 4/2/02 he was cutting a piece of grating and had the onset of severe back pain. There was no history of an accident or injury. He was seen by Dr. McDaniel, his prior treating physician. An MRI was completed.
Mr. Sanders was ultimately seen by Dr. Stefan G. Pribil, a neurosurgeon, in May 2002. According to Dr. Pribil's records, Mr. Sanders presented with complaints of pain in his back, radiating into his right leg. Mr. Sanders reported to Dr. Pribil that although he had previously undergone surgery for a massive disc herniation, he had recovered from his surgery and was doing well. However, on April 2, 2002, while working at McDermott, Mr. Sanders injured his back again. Mr. Sanders indicated that he was leaning over and cutting with a hand-held torch when, upon straightening up from that position, h
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