Donnie Dousay v. Dousay Floor Covering

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-195
consolidated with 07-196

DONNIE DOUSAY

VERSUS

DOUSAY FLOOR COVERING

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF RAPIDES, DOCKET NO. 05-3348 c/w 05-1271
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and James T. Genovese,
Judges.

AFFIRMED.

Cooks, J. dissents and assigns written reasons.

Robert L. Beck
Rivers, Beck, Dalrymple & Ledet
Post Office Drawer 12850
Alexandria, Louisiana 71315-2850
(318) 445-6581
COUNSEL FOR APPELLANT:
Donnie Dousay

Walter S. Salley
Lunn, Irion, Salley, Carlisle & Gardner
Post Office Box 1534
Shreveport, Louisiana 71165-1534
(318) 222-0665
COUNSEL FOR APPELLEE:
Dousay Floor Covering
State Farm Fire and Casualty Insurance Company

GENOVESE, Judge.

Plaintiff, Donnie Dousay (Mr. Dousay), appeals the judgment of the workers’

compensation judge (WCJ) in favor of the Defendants, Lynn Dousay d/b/a Dousay

Floor Covering (Dousay Floor) and its workers’ compensation insurer, State Farm

Fire and Casualty Insurance Company (State Farm), dismissing his claim for

permanent total disability (PTD) benefits. Mr. Dousay also appeals the WCJ’s ruling

that his alleged lumbar (back) injury is not related to his prior on-the-job cervical

(neck) injury and that Dousay Floor and State Farm are, therefore, not responsible for

his back-related medical treatment. For the following reasons, we affirm.

FACTS

The instant matter emanates partly from the termination of Mr. Dousay’s

benefits and partly from his allegations of having suffered another injury, a lower

back injury, during a functional capacity evaluation (FCE). Mr. Dousay contends that

his lumbar injury should be deemed related to his prior on-the-job cervical injury and

that his injuries entitle him to PTD pursuant to La.R.S. 23:1221(2)(c).

Mr. Dousay suffered an on-the-job cervical injury on August 9, 1994, while

working for Dousay Floor as a carpet installer. Consequently, Mr. Dousay received

supplemental earnings benefits (SEB) from State Farm on behalf of Dousay Floor

from March of 1995; however, his entitlement to SEB was exhausted in February of

2005.1 Mr. Dousay had several surgeries including: (1) anterior cervical diskectomies

with fusion at C4-5 and C5-6 performed by Dr. Anil Nanda, State Farm’s choice of

neurosurgeon; (2) a thoracic outlet syndrome surgery performed by Dr. James David,

1
Supplemental earnings benefits are paid for “injury resulting in an employee’s inability to
earn wages equal to ninety percent or more of wages at time of injury” and “shall in no event exceed
a maximum of five-hundred twenty weeks.” La.R.S. 23:1221(3).

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a vascular surgeon; (3) a revision of the anterior fusion and diskectomy and fusion

at C6-7, with anterior plating, performed by Dr. Thomas Whitecloud, an orthopaedic

surgeon; and (4) a surgical C7-T1 bilateral facet rhizotomy to obliterate the facet

nerves performed by Dr. Lawrence Drerup, a neurosurgeon.

On February 14, 2003, Dr. Nanda opined that Mr. Dousay had reached

maximum medical improvement and recommended that he undergo an FCE. An FCE

was performed on August 5, 2003. Subsequent to the FCE, State Farm sought to have

Mr. Dousay submit to either a CT/myelogram and/or an MRI as per Dr. Nanda’s

recommendation that either of these tests be performed on him within 12 months of

the FCE. Initially, Mr. Dousay did not submit to either of these follow-up tests.

On February 17, 2005, Dousay Floor and State Farm filed a disputed claim for

compensation, commonly referred to as a 1008, asserting that Mr. Dousay was no

longer entitled to the receipt of SEB and that he refused to be re-evaluated by Dr.

Nanda for the administration of either a CT/myelogram and/or an MRI. Dousay Floor

further requested that the Office of Workers’ Compensation (OWC) address the issue

of Mr. Dousay’s disability status.

On March 9, 2005, Mr. Dousay answered the claims of Dousay Floor and State

Farm by denying that he was capable of gainful employment and asserting his

entitlement to PTD. Mr. Dousay further denied the assertion that “he should be

ordered to submit to an MRI/myelogram for the purposes of a second opinion medical

evaluation by Dr. Nanda.”

On May 4, 2005, Mr. Dousay filed a 1008 requesting penalties and attorney

fees.2 On November 10, 2005, Mr. Dousay amended his 1008 to request that

2
An order consolidating these cases was signed by the WCJ on November 14, 2005.

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penalties and attorney fees be cast against Dousay Floor for its “denial of medical

treatment for low back recommended by Dr. Jonathan Forrester.” Mr. Dousay sought

lumbar treatment from his primary physician, Dr. Forrester, for his alleged back

injury. Mr. Dousay contends that his alleged lumbar injury is related to his on-the-job

cervical injury because it occurred during the FCE. Dousay Floor and State Farm

deny responsibility for Mr. Dousay’s alleged lumbar injury and all costs of his

medical treatment associated therewith, arguing that it was not related to his prior on-

the-job cervical injury.

On August 9, 2006, the parties litigated Mr. Dousay’s disability status and the

issue of whether Dousay Floor should be responsible for his lumbar medical

treatment. On November 9, 2006, via recorded teleconference, the WCJ ruled that

Mr. Dousay failed to establish by a preponderance of the evidence that his lumbar

injury was related to his on-the-job cervical injury and, further, that Mr. Dousay failed

to prove by clear and convincing evidence his entitlement to PTD. Specifically, the

WCJ stated, in pertinent part:

Based on his history that he had reported back pain prior to the
performance of the FCE, [it] would be this Court’s conclusion that Mr.
Dousay has failed to establish that he sustained a back injury in the FCE
as he has alleged. Moreover, I would like to add to this case in the event
it may be determined that he has established a back injury, Dr. Forester
recommended this MRI but Dr. Forester said he hadn’t done any
examination of Mr. Dousay’s lower back.

....

[I]n this court’s view, he’s failed to carry his burden of proof by [] clear
and convincing evidence in light of Dr. Drerup’s testimony that he can
consistently and reliably perform sedentary and light duty work. The
records indicate that he consistently drove his tractor until two weeks
before the trial and that he did this on a daily basis. This is [an]
additional indication to this Court that he can consistently and reliably
do light-duty work or sedentary work. The claims of Mr. Dousay are
denied.

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It is from this judgment that Mr. Dousay appeals.

ISSUES

The issues presented for review are: (1) whether Mr. Dousay proved by clear

and convincing evidence his entitlement to permanent total disability benefits; and

(2) whether Mr. Dousay proved by a preponderance of the evidence a causal link

between his alleged lumbar injury and his prior on-the-job cervical injury.

LAW AND DISCUSSION

Standard of Review

Appellate review of workers’ compensation cases was set forth by our supreme

court as follows:

In worker’s compensation cases, the appropriate standard of
review to be applied by the appellate court to the OWC’s findings of fact
is the “manifest error-clearly wrong” standard. Accordingly, the
findings of the OWC will not be set aside by a reviewing court unless
they are found to be clearly wrong in light of the record viewed in its
entirety. Where there is conflict in the testimony, reasonable evaluations
of credibility and reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel that its own
evaluations and inferences are as reasonable. The court of appeal may
not reverse the findings of the lower court even when convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently.

Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117 (citations

omitted).

Permanent Total Disability Benefits

To be entitled to PTD benefits, the employee/claimant must prove that he is

physically unable to engage in any employment, regardless of the nature or character

of the employment. La.R.S. 23:1221(2). Further, said workers’ compensation statute

also provides for permanent total disability compensation for an injured worker if the

following standard is met:

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(c) For purposes of Subparagraph (2)(a) of this Paragraph,
whenever the employee is not engaged in any employment or
self-employment as described in Subparagraph (2)(b) of this Paragraph,
compensation for permanent total disability shall be awarded only if the
employee proves by clear and convincing evidence, unaided by any
presumption of disability, that the employee is physically unable to
engage in any employment or self-employment, regardless of the nature
or character of the employment or self-employment, including, but not
limited to, any and all odd-lot employment, sheltered employment, or
employment while working in any pain, notwithstanding the location or
availability of any such employment or self-employment.

Louisiana Revised Statutes 23:1221(2)(c) (emphasis added).

Mr. Dousay claims that the WCJ erroneously found that he failed to meet his

burden of proving that he is entitled to PTD as a result of his injuries. He contends

that his limited education, limited work history,3 and lack of viable vocational

rehabilitation prospects support his claim for PTD. He also argues that the WCJ

failed to consider and properly weigh all of the evidence, as required by our supreme

court in its opinion in Comeaux v. City of Crowley, 01-32 (La. 7/3/01), 793 So.2d

1215. We find, however, that Mr. Dousay’s reliance on Comeaux is misplaced and

unpersuasive.

Our supreme court in Comeaux opined that the appellate court’s reliance on the

“totality of factors” such as physical deficiencies, age, work experience, and

educational inadequacies to support a finding that a claimant has proved by clear and

convincing evidence that he is entitled to PTD was erroneous; however, it was

appropriate to consider an unsuccessful rehabilitation attempt to support a finding of

PTD. Further, Mr. Dousay argues that the WCJ’s refusal to give consideration, or

accept as a factor, the failed vocational rehabilitation attempt, constitutes legal error;

3
Mr. Dousay’s work history includes working as a floor installer for Dousay Floor for
approximately twenty years, during which time he also worked offshore as either a roustabout or a
floor hand for approximately a year-and-a-half after quitting school in the eleventh grade.

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therefore, he asserts that a de novo review of all factual issues is warranted. Such is

not the case at bar. Mark Cheairs, an expert in the field of vocational rehabilitation,

testified that Mr. Dousay would not participate in any of the recommended job

placement activities. With no evidence reflecting that Mr. Dousay attempted to work,

but could not, the WCJ did not find that a failed vocational rehabilitation attempt had,

in fact, occurred. Nor do we. Accordingly, this argument has no merit.

It is likewise noteworthy that the results of the FCE revealed that Mr. Dousay

fell within the U. S. Department of Labor’s light to very heavy physical demand

levels based on his lifting capacity. Despite the testimony offered by Mr. Dousay and

his wife as to the physical limitations suffered by Mr. Dousay because of continued

pain, the WCJ correctly noted the insufficiency of these facts to support a claim for

permanent total disability benefits. See La.R.S. 23:1221(2). The WCJ found that Mr.

Dousay did not prove by clear and convincing evidence the occurrence of an on-the-

job injury that precludes him from engaging in any type of employment. As indicated

by the WCJ, none of Mr. Dousay’s treating physicians testified that he was

“physically unable to engage in any employment” as required by La.R.S.

23:1221(2)(c).

Therefore, we find no manifest error in the WCJ’s conclusion that Mr. Dousay

is not entitled to PTD. The evidence before us supports the WCJ’s determination that

Mr. Dousay did not meet the burden of proof for establishing his entitlement to PTD.

Lumbar Injury

“[A] claimant must prove by a preponderance of the evidence that an

employment accident occurred and that the accident had a causal relationship to the

disability claimed.” Romero v. Garan’s, Inc., 05-1297, p. 4 (La.App. 3 Cir. 4/19/06),

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929 So.2d 258, 261. “If the evidence leaves the probabilities of causation equally

balanced, the claimant has failed to carry [his] burden of proof.” Francis v. Quality

Brands, Inc., 03-1662, p. 2 (La.App. 3 Cir. 4/7/04), 870 So.2d 589, 591.

Mr. Dousay contends that “the WCJ’s determination that [he] failed to establish

that his lower back injury was caused, or aggravated by the FCE is clearly wrong.”

However, the record reveals that Mr. Dousay did not present sufficient evidence that

would indicate a connection between his prior on-the-job neck injury and the alleged

lower lumbar injury.

The first physician to see Mr. Dousay after the FCE was Dr. W. Douglas

Goodin, a psychiatrist he was seeing for management of his prescription pain

medications, who saw Mr. Dousay on August 20, 2003. Though Dr. Goodin’s notes

do convey that Mr. Dousay felt he had done poorly and had hurt himself during the

FCE on August 5, 2003, there was no specification of a lower back injury. Not until

Mr. Dousay was re-evaluated by Dr. Goodin on November 26, 2003 is there a

notation that Mr. Dousay’s pain had diminished and that his lower back pain had not

recovered at that point. Dr. Goodin did not testify at trial nor was his deposition

taken to elaborate on Mr. Dousay’s treatment and allegation of lower back pain;

instead, only his notes were introduced into evidence.

On August 21, 2003, Mr. Dousay was seen by Dr. Rayland Beurlot; however,

there is no evidence that Mr. Dousay informed Dr. Beurlot that he had injured his

back during the FCE. Mr. Dousay was also examined by Dr. Drerup on October 23,

2003. Again, no mention of any back injury is documented, nor did Dr. Drerup’s

physical examination of Mr. Dousay’s neck prompt Mr. Dousay to mention any back

pain.

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Considering this evidence, the WCJ concluded that Mr. Dousay failed to prove

by a preponderance of the evidence that his alleged lumbar injury was either caused

and/or aggravated during the FCE and, therefore, could not be considered to be

related to his prior on-the-job cervical injury. After thoroughly reviewing the

extensive evidence in the record and considering the WCJ’s detailed reasons for

judgment, we find that the WCJ was not manifestly erroneous or clearly wrong in his

determination that Mr. Dousay failed to meet the requisite burden of proof for

entitlement to Louisiana workers’ compensation benefits.

DECREE

Accordingly, for the reasons stated above, the judgment of the workers’

compensation judge is affirmed. Costs of this appeal are assessed to Appellant,

Donnie Dousay.

AFFIRMED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-195 consolidated with 07-196

DONNIE DOUSAY

VERSUS

DOUSAY FLOOR COVERING

COOKS, J., dissents.

I respectfully dissent from the majority’s decision to affirm the judgment of the

Office of Workers’ Compensation. Although the WCJ specifically inferred from

claimant’s appearance that he was too “fit” and “stout” to be totally disabled, the

record contradicts that inference. Claimant has undergone five separate surgical

procedures to alleviate his neck, arm and shoulder problems. The WCJ stated he

relied on Dr. Drerup’s assessment of claimant’s physical ability to determine whether

or not he was totally and permanently disabled. Dr. Drerup specifically stated that

claimant was “restricted to sedentary or light duty with requirements that he take

frequent self-determined breaks throughout the day and that he must be allowed to

alter his position from a sitting to a standing or even a semi-reclining position on

occasions, on as an-needed basis.” Despite further noting that claimant is “going to

suffer a level of chronic pain,” the WCJ interpreted Dr. Drerup’s testimony as

indicating claimant “would be able to consistently perform sedentary or light duty

work.” (Emphasis added). Dr. Drerup specifically stated that claimant’s pain could

become “so intense that he simply cannot continue to engage in activities and he has

to stop.” I find “these periods would occur predictably and regularly so often as to

preclude realistic gainful employment.” See Barnes v. Bechtel Group, Inc., et al., 03-

1484 (La.App. 5 Cir. 04/13/04), 873 So.2d 735, 738. The WCJ attempted to

distinguish the present case from Barnes finding the claimant in Barnes was rendered

“unreliable” by pain but Mr. Dousay was not. I disagree. Therefore, I conclude the

WCJ erred in finding claimant failed to demonstrate by clear and convincing evidence

that he was unable to engage in any form of gainful employment.

I also disagree with the majority’s conclusion that the WCJ did not err in his

finding that claimant failed to establish by a preponderance of the evidence that his

back complaints were related to the FCE. The record establishes during the FCE

claimant complained of increased cervical and lumbar pain during a lifting maneuver.

According to claimant, the low back pain worsened significantly after the FCE.

Approximately two weeks after the FCE, claimant visited Dr. Douglas Goodin,

complaining he had injured himself in the FCE. He maintained these complaints in

future visits, and Dr. Goodin noted in his notes from one visit that “the low back is

not recovered at this point.” When Dr. Goodin retired, Dr. Forester replaced him in

administering claimant’s medications. Claimant also complained to Dr. Forester of

low back pain, which he related to the FCE. This led Dr. Forester to order a MRI of

the lumbar spine, which the defendant refused to authorize on the basis the low back

injury was not related to the work accident. Dr. Nanda, who performed claimant’s

first surgery, examined claimant before and after the FCE. There was no lower back

complaints prior to the FCE, but there were complaints subsequent to the FCE.

The WCJ did not find the medical evidence proved the claimant did not suffer

a back injury during the FCE, but stated he did not believe any back complaints were

“serious.” However, not just “serious” complaints are entitled to medical treatment.

Therefore, I would reverse the WCJ’s judgment and render judgment in claimant’s

favor.