Opinion
No. 12–CA–388.
2012-12-11
Donald K. GORDON, Jr. v. TURNER INDUSTRIES GROUP, LLC.
Anthony L. Marinaro, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant. Charles J. Duhe, Jr., Heidel A. Schneider, Attorneys at Law, Baton Rouge, LA, for Defendant/Appellee.
Anthony L. Marinaro, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant. Charles J. Duhe, Jr., Heidel A. Schneider, Attorneys at Law, Baton Rouge, LA, for Defendant/Appellee.
Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and ROBERT A. CHAISSON.
ROBERT A. CHAISSON, Judge.
This is an appeal from a determination by the Office of Workers' Compensation (OWC) made in a disputed workers' compensation claim. For the following reasons we remand the matter for further proceedings consistent with this opinion.
The basic facts are that Donald K. Gordon, Jr. suffered a stroke while in the workplace, and alleged that this stroke was work-related and rendered him disabled. The evidence showed that claimant was found on the ground unable to speak and unable to move. He was taken to the nurse's station on the plant site, where he remained for over four hours. Claimant testified that he was informed by the duty nurses that he had food poisoning. Dr. John L. Freiberg, Jr., a vascular neurologist who eventually treated claimant, testified that the symptoms when he presented to the nurse's station should have been recognized as indicative of a stroke, and further, had claimant received immediate treatment for a stroke at that time, his eventual outcome might well have been more favorable. All of the above evidence was received without objection from the employer.
The employer argues that this issue was not raised by claimant prior to trial. However, when evidence is introduced at trial without objection, the pleadings are considered as enlarged to include any issues raised by that evidence. La. C.C.P. art. 1154; Greengrove Missionary Baptist Church v. Cox, 42,418 (La.App. 2 Cir. 9/19/07), 966 So.2d 707,writ denied,2007–2064 (La.12/14/07), 970 So.2d 537.
After a hearing, the OWC judge ruled that the stroke was not work related. However, there is nothing in the record to indicate that she considered, and she made no findings as to, whether the four hour delay at the nurse's station without companypersonnel seeking any medical treatment for claimant, who may have himself been incapacitated, contributed to his resulting condition. In this circumstance, this court is unable to review factual issues in dispute which the OWC judge did not resolve. We therefore remand this matter to the OWC for consideration and ruling on the issues raised by claimant regarding the delay in treatment.
REMANDED