Jeffery Funderburk v. Nabors Drilling USA, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-1119

JEFFERY FUNDERBURK

VERSUS

NABORS DRILLING USA, INC.

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 04-01335
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of Jimmie C. Peters, Michael G. Sullivan, and Glenn B. Gremillion,
Judges.

AFFIRMED IN PART; AMENDED IN PART;
REVERSED IN PART; AND RENDERED.

Harry K. Burdette
The Glenn Armentor Law Corp.
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
Counsel for Plaintiff/Appellant:
Jeffery Funderburk

Kevin A. Marks
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras St., 40th Floor
New Orleans, LA 70139
(504) 525-6802
Counsel for Secondary Defendant/Appellant:
Nabors Drilling USA, Inc.

GREMILLION, Judge.

The plaintiff, Jeffery Funderburk, appeals the workers’ compensation

judge’s finding that he has reached maximum medical improvement and is no longer

entitled to indemnity or medical benefits stemming from his work-related injury. The

defendant, Nabors Drilling USA, Inc., also appeals the workers’ compensation

judge’s award of indemnity benefits. We reverse in part finding him still temporarily,

totally disabled and entitled to further medical treatment and additional penalties and

attorney’s fees.

FACTS

The parties stipulated that Funderburk, a floor hand for Nabors Drilling

USA, Inc., suffered a work-related injury to his lower back on July 24, 2003. He was

treated at the Lake Charles Memorial Hospital Emergency Room and then driven to

Lafayette, Louisiana, where he was seen by Nabors’ orthopaedic surgeon, Dr.

Michael Duval. After he returned to the rig, the evidence is conflicting as to what

occurred; but, for whatever reason, Funderburk left the rig and returned home. He

has not worked since that day, and he was terminated by Nabors shortly thereafter.

Funderburk went to the Christus St. Frances Cabrini Hospital Emergency

Room in Alexandria on July 25, 2003, complaining of lower back pain, and was

diagnosed with lumbar strain with possible disc disease. He then sought treatment

from Dr. Elmer Raffai, an orthopaedic surgeon, in Eunice. Dr. Raffai noted muscle

spasms in Funderburk’s lower back and recommended that he undergo an MRI. The

August 15, 2003 MRI revealed degenerative changes in multiple levels of his lumbar

spine, with L3-4 being the worst. The radiologist noted diffuse degenerative bulging

1

discs at L2-3, L3-4, L4-5 and L5-S1 and a posterior annular tear and narrowing of the

spinal canal at L3-4 and L4-5. Dr. Raffai referred Funderburk to Dr. Michael

Holland, an orthopaedic surgeon, for consultation on the need for surgery.

Dr. Holland recommended a lumbar myelogram and CT scan after

finding only subjective complaints of pain during his examination. As these tests

revealed bulging at the above-stated levels, but no disc herniation, Dr. Holland found

no indication for surgery and referred Funderburk to pain management upon his

request. Funderburk then filed a disputed claim for compensation on February 25,

2004, alleging that Nabors arbitrarily and capriciously failed to authorize pain

management treatment as recommended by Dr. Holland.

Dr. Holland referred Funderburk to Dr. Stephan Katz, for pain

management treatment. After examining him on March 3, 2004, Dr. Katz felt that

Funderburk would benefit from epidural steroid injections into his lower back. Until

those were approved, he planned to treat him with medication. Nabors denied any

further authorization for treatment with Dr. Katz.

Dr. Duval evaluated Funderburk for a second medical opinion on March

9, 2004. After examining him, his medical records, and his previous tests, he felt that

a functional capacity evaluation (FCE) would be appropriate to determine a baseline

and to determine whether Funderburk was valid in his presentation. If the results of

the evaluation were valid, then Dr. Duval agreed that he should undergo further

treatment. At this point, Joseph Sarkies, a claims adjustor for Kenneth Livaudais

Claims Service, Inc., Nabors’ third-party adjustor, requested an FCE for Funderburk.

Dr. Holland agreed with this request.

2

On April 15, 2004, Funderburk sought treatment from the emergency

room at St. Frances Cabrini, complaining of continuous pain, muscle spasms, and leg

pain due to his lumbar spine complaints. The emergency room records reveal that the

attending physician noted palpable pain, muscle spasms, and negative point

tenderness in the spinous process.

After Sarkies scheduled a five-day, eight-hour-per-day FCE, Dr. Holland

received a letter from Funderburk’s counsel, which enclosed an April 19, 2004

statement from Dr. Katz that he did not believe Funderburk capable of withstanding

a comprehensive FCE, as he had not yet initiated treatment for his condition. On May

12, 2004, Nabors obtained an order from the workers’ compensation judge ordering

Funderburk to attend the FCE.

Funderburk began the FCE on July 12, 2004; however, he only

completed three days of the five-day evaluation. Trevor Bardarson, the administering

physical therapist, found that the effort displayed by Funderburk was poor due to

“inappropriate responses to valid tests and failed to find objective signs which

validate the subjective presentation of the symptoms or impairments of the client.

This behavior threatens the validity of this report.” Bardarson stated that although

he was unable to accurately determine Funderburk’s ability to work, a sedentary level

with restrictions was demonstrated. He further reported that Funderburk tested

positive in two of five Waddell’s categories: simulated rotation and distracted

testing, particularly the supine versus seated straight leg raising tests.

Funderburk filed an amended disputed claim for compensation on

August 31, 2004, again alleging that Nabors failed to authorize the pain management

3

treatment recommended by Dr. Holland and seeking penalties and attorney’s fees as

a result of its action.

Sarkies sent a copy of the FCE to Dr. Duval on September 9, 2004.

After reviewing the evaluation, Dr. Duval opined that Funderburk was at maximum

medical improvement (MMI). In his September 16, 2004 letter to Sarkies, he stated:

Given the fact that this patient’s myelogram shows no compressive
lesions as well as the post-myelogram CT scan, I doubt seriously that a
neurosurgical evaluation would be helpful or medically necessary.
Given that the patient’s functional capacity evaluation suggests
symptom magnification, I would also not think a trial of epidural steroid
injections or pain management referral is medically necessary.

Since validity is in question, the best way to make an accurate
assessment of this patient’s physical capabilities are his radiologic
studies, which are purely objective. When considering this patient’s MR
scan and CT myelogram alone, I would not place any physical
limitations on his work capabilities.

Based on Dr. Duval’s opinion, Sarkies terminated Funderburk’s weekly indemnity

benefits on October, 14, 2004. In response to Sarkies’ inquiry, Dr. Holland also

found Funderburk at MMI on November 22, 2004. Dr. Holland agreed with Dr.

Duval that a trial of epidural steroids was unadvisable if Funderburk was magnifying

his symptoms and, based on the MRI, myelogram, and CT scan, he placed no physical

restrictions on his work status.

Funderburk sought medical treatment from the Louisiana State

University Health Sciences Center in Shreveport, Louisiana, after Nabors refused to

authorize further treatment. On October 19, 2004, he complained of lower back pain

radiating down into the left leg. He had a positive straight leg raise test on the left

and moderate muscle spasm. A November 24, 2004 MRI of the lumbar spine

revealed degenerative changes with desiccated discs at L3-4, L4-5, and L5-S1; disc

4

protrusion at L4-5, with a radial tear in the annulus fibrosis; and a small synovial cyst

on the left at L4-5.

On December 15, 2004, Funderburk returned to Dr. Raffai, still

complaining of pain in his lower back. Dr. Raffai noted point tenderness, severe

stiffness and muscle spasms at L5-S1 on palpation, and radiculopathy down both legs.

He restricted Funderburk from working at that time. On December 16, 2004,

Funderburk notified Nabors of Dr. Raffai’s finding and off-work slip and requested

that it reinstate his indemnity benefits. On January 4, 2005, he sent Nabors a copy of

the LSU medical reports and notified it that he was scheduled for an epidural

injection on January 5, 2005. On that date, he underwent a left lumbar transforaminal

epidural steroid injection at L4-5 due to nerve root compression. Funderburk again

forwarded LSU’s medical records to Nabors on March 1, 2005, and requested that it

pay all outstanding medical expenses.

This matter proceeded to a trial on the merits, after which it was taken

under advisement. The workers’ compensation judge issued oral reasons on June 24,

2005, finding that Funderburk was at MMI as of November 22, 2004, and that he was

entitled to temporary total disability benefits from October 15, 2004 through

November 22, 2004. He further awarded him $2000 in penalties and $2000 in

attorney’s fees as a result of Nabors’ arbitrary and capricious termination of his

indemnity benefits on October 14, 2004. Finally, the workers’ compensation judge

denied Funderburk’s request for pain management treatment and a neurosurgical

evaluation. A judgment was rendered in this matter on July 11, 2005. Funderburk

has appealed the judgment, as has Nabors.

5

ISSUES

On appeal, Funderburk argues that the workers’ compensation judge

erred in finding that he was not entitled to any further indemnity benefits, pain

management treatment, or a neurosurgical evaluation, and that Nabors was not

arbitrary and capricious in refusing to authorize the recommended treatment. Nabors

appeals arguing that the workers’ compensation judge erred in awarding Funderburk

indemnity benefits from October 15 through November 22, 2004. Funderburk

answered this appeal requesting additional attorney’s fees for work performed on

appeal.

STANDARD OF REVIEW

As in any other civil matter, the standard of review applied in workers’

compensation matters where the factual findings of the workers’ compensation judge

are called into question is the manifest error standard. This standard, which is based

upon the reasonableness of the factual findings in light of the record reviewed in its

entirety, is well established in our jurisprudence following the seminal cases of Rosell

v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of

Transportation and Development, 617 So.2d 880 (La.1993). We will proceed with

our review of the matter.

DISABILITY AND TREATMENT

In order to receive temporary total disability benefits, an employee must

prove that he is unable to physically engage in any employment or self-employment

as a result of his work-related injury. La.R.S. 23:1221(1)(c). The employee’s burden

of proof is by clear and convincing evidence; thus, Funderburk must prove that his

6

disability is highly probable or much more probable than not. Carrier v. Debarge’s

Coll. Junction, 95-18 (La.App. 3 Cir. 9/27/95), 673 So.2d 1043, writ denied, 96-0472

(La. 4/8/96), 671 So.2d 337.

With regard to medical treatment, La.R.S. 23:1203(A) provides that the

employer shall provide all necessary treatment, including “medical and surgical

treatment, or any nonmedical treatment recognized by the laws of this state as legal.”

An employee establishes a claim for medical benefits by proving by a preponderance

of the evidence and to a reasonable certainty, the need for such treatment following

his work-related accident. Ware v. Allen Parish Sch. Bd., 02-1011 (La.App. 3 Cir.

5/21/03), 854 So.2d 374.

Funderburk testified that he was taken to Lake Charles Memorial

Hospital’s emergency room after he injured his back, where he received shots and

pain medication for his injury. He said he was driven back to the rig and then to

Nabors’ Lafayette office so that he could see Dr. Duval, its orthopedic surgeon.

Funderburk testified that Dr. Duval recommended that he be placed on limited duty,

but that he was released to full duty after Sarkies requested it on the understanding

that he would perform only light-duty work at the rig.

Funderburk testified that when he returned to the rig he was told by the

tool pusher that no light-duty work existed, so he called his wife and went home. The

next night, he went to the St. Frances Cabrini’s emergency room due to lower back

pain and was again treated with injections and pain medication. Shortly thereafter,

he said that he requested treatment from Dr. Raffai, who ordered an MRI.

Subsequently, he stated that Dr. Raffai referred him to Dr. Holland for a surgical

7

consultation. Funderburk further testified that Dr. Holland ordered a myelogram and

post-myelogram CT scan and then told him that he did not require surgery. He said

that he returned to Dr. Raffai for further treatment which was not approved by

Nabors, and that he has not yet been released to work.

According to Funderburk, he sought treatment from Louisiana State

University in Shreveport when Nabors refused to approve any further treatment. He

stated that he underwent an epidural steroid injection and that he is scheduled for

follow-up treatment there. He testified that the doctors at LSU have discussed

surgery with him and that he is desirous of undergoing disc replacement surgery and

would like to be evaluated by a neurosurgeon in Lake Charles. He stated that he

requested authorization from Nabors to see that doctor, but that his request was

denied.

Funderburk stated that he has not worked since the accident nor has he

looked for work. He claims that he can drive short distances and use a computer; he

also admitted that he has taken his son hunting since his accident. He testified that

he takes pain medication approximately four times a day and that he was told to limit

his sitting by his LSU doctors.

Debra, Funderburk’s wife, testified that Dr. Raffai was Funderburk’s

choice of a treating physician. She stated that Dr. Raffai referred him to Dr. Holland

for a surgical evaluation and that Dr. Holland in turn referred him for pain

management and, possibly, for a neurosurgical evaluation. She testified that

Funderburk was seen once by Dr. Katz for pain management, but that Nabors refused

to authorize any further treatment by him. She stated that he is currently undergoing

8

treatment at LSU. She said that Funderburk is unable to drive or sit in the same

position for very long and that he currently takes pain medication which cautions

against driving while taking.

Sarkies testified that he initiated Funderburk’s indemnity benefits on

August 7, 2003, retroactive to July 25, 2003. He stated that payment of benefits

continued until October 14, 2004. He stated that he further authorized both

emergency room visits by Funderburk, his treatment with Drs. Raffai, Duval, and

Holland, and all diagnostic testing and physical therapy. After determining that

Funderburk’s myelogram was normal, Dr. Holland suggested that he undergo pain

management. Sarkies stated that he requested an FCE prior to Funderburk

commencing pain management, to which both Drs. Holland and Duval agreed. When

notified of the results, Sarkies testified that Dr. Duval felt that Funderburk was at

MMI, he did not require any further treatment, and he could return to work without

any restrictions. Based on Dr. Duval’s report, Sarkies stated that he terminated

Funderburk’s indemnity benefits on October 14, 2004. He said that he then sent this

information to Dr. Holland, who concurred with Dr. Duval’s opinion. Despite the

LSU medical reports, Sarkies did not think it would be reasonable for Drs. Holland

and Duval to render a new opinion as to Funderburk’s condition.

Dr. Holland saw Funderburk twice, once to examine him and once to

review his tests. During his examination, he stated that Funderburk complained of

pain with forward flexion, but did not exhibit any objective symptoms. He reviewed

Funderburk’s MRI, which revealed disc abnormality at L4-5, with a right-sided

paracentral disc protrusion and facet arthropathy. He ordered a myelogram and post-

9

myelogram CT scan in order to determine whether Funderburk was suffering from a

neural impingement. The tests revealed some bulging, but no disc herniation. They

also revealed anterior indentations at multiple levels. Dr. Holland explained that this

was considered normal in most cases. Although the tests revealed some findings, he

testified that they indicated no need for surgery and, probably, that Funderburk had

not even suffered an injury.

Based on the tests results, Dr. Holland agreed to Funderburk’s request

for six weeks of pain management treatment. However, at Sarkies’ request, he

consented to an FCE prior to Funderburk undergoing pain management. Upon Dr.

Katz reporting that Funderburk would be unable to withstand a comprehensive FCE

prior to receiving pain management treatment, he agreed that the epidural steroid

injections could precede the FCE. However, he stated that he perceived no reasons

why Funderburk could not withstand the FCE based on his previous presentation.

Subsequent to the FCE, Dr. Holland stated that he received a letter from

Sarkies containing the results and Dr. Duval’s opinion that Funderburk was at MMI.

Dr. Holland testified that based on this information, he felt that Funderburk was at

MMI on November 22, 2004. He further agreed with Dr. Duval that based on the

findings of symptom magnification in the FCE, he did not feel that a trial of epidural

steroid injections was necessary or that any physical restrictions should be placed on

Funderburk. However, Dr. Holland agreed that while the findings on Funderburk’s

MRI, myelogram, and CT scan contained objective findings of abnormal lumbar

discs, they revealed no indications for surgery. While he opined that surgery would

fail if performed, he admitted that this did not mean that Funderburk was not

10

suffering from back pain or from a back injury. He further testified that he never

found any signs of symptom magnification or positive Waddell’s signs while

examining Funderburk. He also added that a neurosurgical evaluation might be

beneficial if other physicians or an FCE discovered some inconsistencies in his

condition. Concerning the LSU medical reports, Dr. Holland refused to comment on

those, other than stating that he would defer to Funderburk’s treating orthopaedic

surgeon regarding his current medical condition.

Dr. Duval examined Funderburk twice, once on the date of the accident

and then for a second medical opinion on March 9, 2004. After the accident, Dr.

Duval testified that Funderburk complained of pain in his lower back and left buttock

and flank. He stated that he limped on his left leg and had difficulty squatting and

with forward flexion. Finding no indication of significant nerve root compression,

Dr. Duval recommended physical therapy, restricted Funderburk to light-duty work,

and prescribed muscle relaxers and pain medication. He stated that he reviewed the

August 15, 2003 MRI, which revealed three-level degenerative disc disease and a

small central disc protrusion at L4-5. Dr. Duval found no need for surgery after

reviewing this test.

On March 9, 2004, Dr. Duval testified that Funderburk complained of

pain and numbness in both legs and a loss of motion. Dr. Duval stated that he found

no objective physical findings in his examination and noted that Funderburk was

positive for two of the four Waddell’s signs. Based on this, he suggested that

Funderburk undergo an FCE to determine the validity of his presentation. Since the

FCE did reveal evidence of symptom magnification, Dr. Duval opined that

11

Funderburk was at MMI, that an evaluation by a neurosurgeon would not be fruitful,

and that pain management treatment was unnecessary. Dr. Duval stated that

Funderburk’s entire clinical picture suggested that he was not being valid in his

presentation. As his validity was in question, he testified that he looked to the

radiological studies. As these did not show any significant compressive lesions, Dr.

Duval felt that invasive procedures such as epidural steroids would be inappropriate

and that no physical restrictions should be placed on Funderburk.

In refusing his request for indemnity benefits and medical treatment, the

workers’ compensation judge reviewed Funderburk’s medical records. In reaching

his decision, he stated that he placed very little weight on the medical reports from

LSU, as they were very scant and because the doctors there found a left-sided bulge

at L4-5. The workers’ compensation judge noted that no such mention was reported

in either of the two MRIs or in the myelogram and post-myelogram CT scan. He

further stated:

While Dr. Holland admitted there are abnormalities on Mr.
Funderburk’s diagnostic testing, he stated that those abnormal findings
were not really abnormal for a person over the age of 30 and that based
on his clinical evaluation and examinations that there was nothing
significant found in the radiological studies. In particular, the
myelogram and the post-myelogram CT scans showed no disc
herniations. If you look at all the records over the course of time, Mr.
Funderburk’s complaints begin at L5-S1, his sacrum. From there, they
seem to move all around his back to both his legs, whether they’re left
or right. There was questions asked of Dr. Holland about an annular tear
and whether or not a closed MRI was better than an opened [sic] MRI.
But the open MRI showed an annulus [sic] tear. Dr. Holland reviewed
the films. He said there was nothing significant there. The physicians
who saw Mr. Funderburk at LSU-Shreveport subsequent to the MRI –
the closed MRI didn’t make any mentions about any annular tear. They
find a L4-L5 left sided bulge. I don’t know. It’s not mentioned in the
report from the closed MRI and it certainly wasn’t there in the MRI in

12

August of 2003. Nothing was there on the myelogram and post-
myelogram CT scan.

Essentially, what I have here is a case where the only thing
consistent in behalf of Mr. Funderburk’s case is the inconsistency of all
of his presentations to all the various physicians, the inconsistencies
affirmed by the FCE performed in July of 2004. I pledge great reliance
on the testimony and examinations of Dr. Holland and Dr. Duval above
those at LSU-Shreveport. I find that Mr. Funderburk has failed to prove
by a reasonable preponderance that he is entitled to pain management,
that he’s entitled to a neurosurgical evaluation. I also find that Mr.
Funderburk has failed to prove that he is entitled to any further workers’
compensation benefits. He has a full release from Dr. Holland and Dr.
Duval. The records from LSU-Shreveport make no mention of his
working capacity.

After reviewing the record exhaustively, we find that the workers’

compensation judge was clearly wrong in finding that Funderburk was at MMI, that

he is no longer entitled to indemnity benefits, and that he is not entitled to any further

medical treatment. All of the diagnostic tests reveal that Funderburk has protruding

discs at multiple levels. The August 15, 2003 MRI found bulging discs at L2-3, L3-4,

L4-5, and L5-S1, with the bulge at L3-4 being left paracentral, the one at L4-5 being

somewhat central/right paracentral, and the one at L5-S1 being slightly more

prominent centrally. The myelogram and the post-myelogram CT scan also revealed

generalized disc bulging at L2-3, L3-4, and L4-5, whereas the post-myelogram CT

revealed generalized bulging at L3-4 and L4-5. Neither of these tests stated whether

the bulging was right, left, or centrally located. The November 24, 2004 MRI

revealed degenerative changes and disc desiccation at L3-4, L4-5, and L5-S1, with

a disc protrusion focal at L4-5 mostly compromising the left lateral recess and

anterolateral epidural space.

13

While Dr. Holland said that these findings are fairly common and are

considered normal in most cases, he admitted that they are still objective, abnormal

findings. Regardless of them, he found no need for surgical intervention. Despite

this finding, Dr. Holland admitted that it did not rule out whether Funderburk was

indeed suffering from back pain or a back injury. He limited his opinion to the need

for surgery.

In addition to the diagnostic tests, Funderburk exhibited objective

findings via muscle spasms noted in his lumbar spine on numerous occasions. Dr.

Raffai noted the presence of muscle spasms every time he examined Funderburk.

Muscle spasms were also noted in the emergency room records of St. Frances Cabrini

on April 15, 2004, and on three different occasions when he was examined at LSU,

the latest being December 30, 2004. We find that these are definitely objective

findings.

With regard to LSU’s medical records, the workers’ compensation judge

stated that he did not place any significant weight on them as they were scant and

because depositions were not taken of the physicians. However, in examining the

record, we find that none of the examining physicians’ medical records contain much

information. Funderburk was examined four times by Dr. Raffai, twice by Dr. Duval,

and once by Dr. Holland. He was examined on four different occasions at LSU, in

addition to receiving the epidural steroid injection. Although depositions were taken

from Drs. Holland and Duval, we do not feel that greater emphasis should be given

to their medical records, as we find that Funderburk has, in reality, received very little

14

treatment for his condition. All that has been determined is that Drs. Holland and

Duval found no need for surgery.

On the issue of symptom magnification, we find that this was noted only

twice in Funderburk’s records, first by Dr. Duval and then in the FCE report. Dr.

Duval found Funderburk positive for two of four Waddell’s signs; the FCE noted that

he was positive for two of five signs. However, Bardarson stated that a positive for

three of five would be clinically significant. No Waddell’s signs were noted by Dr.

Holland, who stated that he looked for such findings, and none were noted in either

Dr. Raffai’s medical records or in the medical records from LSU. Moreover, Dr. Katz

stated, in response to a question from Funderburk’s attorney, that he did not feel that

Funderburk would be capable of withstanding a comprehensive FCE, as he had not

yet initiated treatment for his condition.

After considering the foregoing evidence, we find that Funderburk has

carried his burden of proving that he is still temporarily, totally disabled. At his

December 15, 2004 examination, Dr. Raffai, who is Funderburk’s choice of treating

orthopaedic surgeon, restricted him from working after noting point tenderness,

stiffness, trouble walking, severe stiffness and muscle spasms at L5-S1, and

radiculopathy in both legs during his examination. We further find that he has proven

by a preponderance of the evidence that he is entitled to further medical treatment,

more specifically, pain management treatment and a consultation with a

neurosurgeon. Even Dr. Holland felt that an evaluation by a neurosurgeon would be

helpful if other physicians discovered inconsistencies in his condition. The finding

of nerve root compression by the physicians at LSU is such an inconsistency.

15

Accordingly, we find that the workers’ compensation judge erred in

terminating Funderburk’s temporary total disability benefits as of November 22,

2004. The judgment of the workers’ compensation judge is reversed and judgment

is now rendered ordering those benefits reinstated. We further find that the workers’

compensation judge erred in finding that Funderburk was not entitled to pain

management treatment and consultation with a neurosurgeon of his choice. Nabors

is, hereby, ordered to authorize both. Moreover, based on the foregoing findings,

Nabors’ assignment of error is rendered moot.

PENALTIES AND ATTORNEY’S FEES

In his next assignment of error, Funderburk argues that the workers’

compensation judge erred by finding that Nabors was not arbitrary and capricious in

failing to authorize the requested medical treatment.

An employer avoids the imposition of penalties and attorney’s fees by

satisfying its continuing obligation to investigate, assemble, and assess factual

information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc.,

05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526.

In this instance, Sarkies terminated Funderburk’s indemnity benefits and

refused to authorize any further medical treatment based on Drs. Duval and Holland’s

determination that he had reached MMI by September 16, 2004 and November 22,

2004, respectively. Funderburk’s weekly indemnity benefits of $416 were terminated

on October 14, 2004. Following the rendition of Drs. Duval and Holland’s opinions,

Nabors received notice of Dr. Raffai’s December 15, 2004 medical report and his off-

work slip for Funderburk by a December 16, 2004 letter from his counsel. It also

16

learned of LSU’s medical records in a January 4, 2005 letter. Additional information,

including that pertaining to the January 5, 2005 epidural steroid injection, was sent

on March 5, 2005, although Nabors insisted that it did not receive this information

until the morning of trial. The matter proceeded to trial on April 12, 2005.

Sarkies said that he never personally received the above-stated

information, although they were received by Nabors’ counsel. However, he stated

that he would not have provided this information to Drs. Duval or Holland, as they

had already said that no further testing or treatment was necessary. Based on this

information, we find that Nabors was arbitrary and capricious in failing to investigate

Funderburk’s claim in light of its reliance on Drs. Duval and Holland’s opinions.

Accordingly, we award Funderburk $2000 in penalties and his award of attorney’s

fees to increase it from $2000 to $5000 as a result of Nabors failure to further

investigate his claim and to authorize further medical treatment.

ANSWER ON APPEAL

Finally, Funderburk has answered Nabors’ appeal requesting that he be

awarded further attorney’s fees based on the work performed by his counsel on

appeal. Based on our decision, we award him an additional $3000 for attorney’s fees.

CONCLUSION

For the foregoing reasons, the workers’ compensation judge’s judgment

is affirmed in part, amended in part, and reversed in part. Judgment is now rendered

in favor of the plaintiff-appellant, Jeffery Funderburk, finding that he is temporarily,

totally disabled and entitled to weekly indemnity benefits of $416 per week and

further medical treatment in the form of pain management treatment and a

17

neurosurgical evaluation. It is further ordered, adjudged, and decreed that

Funderburk is awarded an additional $2000 in penalties, and we amend his award of

attorney’s fees to increase it to $5000 for the failure of Nabors Drilling USA, Inc. to

further investigate his claim and to authorize further medical treatment. We also

award him an additional $3000 in attorney’s fees for additional work performed on

appeal. The costs of this appeal are assessed to the defendant-appellee-appellant,

Nabors Drilling USA, Inc.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN

PART; AND RENDERED.

18