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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 18 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 11th day of March, 2005 , are as follows:

BY JOHNSON, J. :

2004-C- 1278

DONALD J. WINFORD v. CONERLY CORPORATION (Office Of Workers' Compensation District 8) 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.

03/11/05

SUPREME COURT OF LOUISIANA NO. 04-C-1278 DONALD J. WINFORD VERSUS CONERLY CORPORATION
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT 8 JOHNSON, J. 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.

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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

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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, Dr. Baker recommended that plaintiff return to work, however he was restricted to medium physical demand activities, which permitted lifting a maximum of fifty pounds with frequent lifting and or carrying of objects weighing up to twenty-five pounds. On October 30, 2001, Winford submitted to a functional capacity evaluation ("FCE"), which found that he should be limited to a light to medium physical demand level. The evaluation found no evidence of malingering. On March 15, 2002, Dr. Baker again found that Winford could return to work, however he was restricted to light physical demand activities, which permitted lifting a maximum of twenty pounds with frequent lifting or carrying of objects weighing no more than ten pounds. Dr. Baker also diagnosed plaintiff as having disk degeneration in the lumbar spine with mild disk space narrowing. Dr. Baker opined that Winford's fall either led to the onset of disk degeneration or exacerbated the development of facet arthritis. Dr. Baker ultimately found that given his long-standing pain, Winford's prognosis for improvement is poor. A hearing was held on the matter on December 19, 2002, before the Honorable Gwendolyn F. Thompson. On that date the parties stipulated that the Form 1008 petition Winford filed on July 5, 2001 was formally amended to plead for indemnity

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benefits as of February 25, 2002. The parties further stipulated that Conerly's answer was amended to include an exception of prescription as to indemnity benefits. Thereafter, Judge Thompson issued a final judgment on February 12, 2003 in favor of Conerly, stating that Winford's claim for indemnity benefits was prescribed under La. R.S. 23: 1209. Plaintiff subsequently filed a Motion for New Trial on February 19, 2003 requesting that the OWC reconsider its decision. On June 27, 2003, the OWC affirmed its decision, holding that Winford's claim for indemnity benefits had prescribed. Winford then appealed the decision of the OWC to the Fourth Circuit Court of Appeal. By judgment dated March 31, 2004, the OWC decision was affirmed.1 Subsequently, Winford filed an application for writ of certiorari to this Court. We granted the writ application to determine the correctness of the lower courts' rulings.2

DISCUSSION The Workers' Compensation Act provides that an employee who suffers a workplace injury is entitled to medical benefits, supplemental earnings benefits (SEB) when he or she becomes unable to earn 90 percent of his pre-injury wages, and/or temporary total benefits when he or she is unable to engage in any self-employment or occupation for wages. La. Rev. Stat. 23: 1203; La. Rev. Stat. 23: 1221 (1)(a); La. Rev. Stat. 23: 1221 (3)(a). La. Rev. Stat. 23: 1209 provides that an injury not resulting at the time of, or developing immediately after, the accident is a developing injury.3
Winford v. Conerly Corp., 03-1747 (La. App. 4 Cir. 3/31/04), 870 So.2d 651 (unpublished).
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Winford v. Conerly Corp., 04-1278 (La. 10/8/04) 883 So.2d 1025

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