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Rosson v. Rust Constructors3/1/2000
Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP.
In this workers' compensation case, the claimant, Joseph R. Rosson, appeals a judgment in favor of the defendant, Rust Constructors, Inc. ("Rust"), denying Rosson's request for workers' compensation benefits for an injury sustained while employed by Rust. The principal issue in this action is whether the workers' compensation judge (WCJ) was clearly wrong in denying Rosson's claim for workers' compensation benefits on the basis of a La. R.S. 23:1208 defense. We affirm.
FACTS
On April 10, 1998, Rosson sustained an injury on the job while working for Rust. Rosson was hit on the top of the head by a piece of falling angle iron which weighed approximately 42 pounds. At the time that the iron struck him, Rosson was wearing a hard hat.
Rosson's employer took him to the DeSoto General Hospital in Mansfield, Louisiana where he was treated and released. Rosson continued to complain of neck pain and headaches so his employer referred him to the company doctor in Shreveport, Louisiana.
He was treated by the company doctor for approximately two weeks. He was placed on light duty. After his condition failed to improve, he was referred to Dr. Anil Nanda, a neurosurgeon, for evaluation. At this time, Rosson complained of headaches, neck pain and back pain. Dr. Nanda scheduled Rosson for an MRI which showed that he had suffered disc changes at the C5-6 and C6-7 levels.
Afterwards, Dr. Nanda sent Rosson for a myelogram CAT scan in June 1998, which more clearly showed disc disease at the C5-6 and C6-7 levels. Based on the results of the myelogram, Dr. Nanda recommended that Rosson undergo surgery at the C5-6 and C6-7 levels. Dr. Nanda testified that surgery would only stop the pain radiating down Rosson's arm, but had no guarantee that it would alleviate Rosson's headaches or neck pain.
Dr. Nanda's office attempted to get permission to perform the recommended surgery from Rust's workers' compensation insurer. Initially, permission was granted for the surgery. However, this permission was subsequently withdrawn, and Rosson was never allowed to undergo the recommended surgery. Subsequently, the instant lawsuit was filed.
Rosson's deposition was taken on October 30, 1998. During the course of this deposition, Rosson was asked about his past medical history.
The following exchange took place at that deposition:
Q. What kind of -- for what reason did you go to the V.A. Medical Center in the last ten years?
A. I'm a disabled vet.
Q. I understand that you have the opportunity to get treatment there. I was interested in what kind of conditions warranted that?
A. I had a hearing disability working around all those jets. On the flight line it's not so bad but on the flight deck of the carriers there may be twenty, thirty planes right there right around you turning around and you can't - there's no talking. You can't talk. It's all - you have to watch what you're doing. Anyway, I've got a loud shrill, just a ringing in my ears all the time. I can hear. I just can't make out what you're saying sometimes. Especially in a crowd. But for that and a cold or something.
Q. Any time you need to go to the doctor you go over there to the V.A.?
A. Yeah.
Q. Did you ever receive any treatment at the V.A. Hospital for any back or neck problems? (emphasis added)
A. No.
Following this deposition, Rust requested that Rosson execute a medical release so that they could obtain his medical records from the V.A. Hospital. Aft
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