Patricia Bush v. Avoyelles Progress Action Committee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-685

PATRICIA A. BUSH

VERSUS

AVOYELLES PROGRESS ACTION
COMMITTEE AND LOUISIANA WORKERS’
COMPENSATION CORPORATION

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 05-08013
HONORABLE JAMES L. BRADDOCK,
WORKERS’ COMPENSATION JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Robert A. Mahtook, Jr.
Marc D. Moroux
Mahtook & LaFleur
P. O. Box 3089
Lafayette, Louisiana 70502-3089
Counsel for Defendant-Appellant:
Avoyelles Progress Action Committee and
Louisiana Workers’ Compensation Corporation

Norris J. Greenhouse
Greenhouse Law Office, L.L.C.
P. O. Box 444
Marksville, Louisiana 71351
Counsel for Plaintiff-Appellee:
Patricia A. Bush

PAINTER, Judge.

Defendants, Avoyelles Progress Action Committee and Louisiana Workers’

Compensation Corporation (LWCC), appeal the judgment of the Workers’

Compensation Judge (WCJ) ordering that Defendants authorize a surgery

recommended by Claimant’s treating physician, finding that Defendants’ behavior in

refusing to authorize the surgery was arbitrary and capricious, and awarding penalties

in the sum of $2,000.00 and attorney’s fees in the sum of $5,000.00. For the

following reasons, we affirm the judgment of the WCJ in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Claimant, Patricia A. Bush (Bush), was employed by Avoyelles Progress

Action Committee as Assistant Executive Director. On May 14, 2003, as part of her

employment duties, Bush was attending a seminar at Argosy Casino in Baton Rouge,

Louisiana. While there, she slipped and fell in the ladies’ room and injured her neck,

right arm, lower and upper back, and right hip. She reported the accident to the

Executive Director of Avoyelles Progress Action Committee and to an employee of

the conference center. She was immediately seen by an EMT who applied an ice pack

to her right wrist. Bush stayed at the conference but reportedly developed pain in her

upper back later that night. Bush continued to work after the accident.

On May 16, 2003, after returning home from the conference and continuing to

have pain and swelling, Bush went to the emergency room at Avoyelles Hospital and

complained of pain to her right wrist and upper and mid-back around her shoulders.

X-rays were taken, and she was given pain medication and instructed to follow up

with her family physician. She saw Dr. Bryan C. McCann, her general practitioner,

on May 21, 2003. She related the details of the slip and fall and her complaints of

1

pain. Dr. McCann noted that he had treated her for injuries to her neck and right

shoulder from an automobile accident in November of 2000 but that she had been

well since he last saw her in November of 2001. Dr. McCann treated her with

injections of anti-inflammatory medications and ordered an MRI of the thoracic spine.

The MRI was performed on May 22, 2003, and was interpreted as showing mild

degenerative disc changes from T2 through T6 with slight increased thoracic

kyphosis (also referred to as “humpback”). Dr. McCann continued treating her

conservatively for the next several months with injections and massage therapy.

On December 20, 2003, Bush sought treatment from Dr. Yvel Moreau, an

orthopedist, after she reportedly developed severe spasm in her mid back which

caused her to fall and fracture her right elbow. Dr. Moreau treated the elbow fracture

and referred Bush to Dr. Louis C. Blanda, an orthopedic surgeon, for treatment of her

neck and back. Dr. Moreau, however, ordered an MRI of the cervical spine before

Bush saw Dr. Blanda. This MRI was performed on January 16, 2004 and was

interpreted as showing moderately severe cervical spondylosis at C4-5 with moderate

bilateral bony neuroforaminal narrowing as well as moderate cervical spondylosis at

C5-6 with mild bilateral bony neuroforaminal narrowing at that level. Dr. Blanda

indicated that spondylosis is a degenerative condition which would have pre-existed

the May 14, 2003 accident.

Dr. Blanda first saw Bush on February 17, 2004, and she complained of injury

and pain in her lower back and neck. There was some spasm on palpation in the

neck. Dr. Blanda reviewed the films of the MRI of the cervical spine taken January

16, 2004. Dr. Blanda saw Bush several times over the following months. During this

time, she complained of numbness in her hand and continued to attend physical

2

therapy. On May 18, 2004, EMG/NCV of the right upper extremity were performed

and interpreted as “essentially normal.” EMG/NCV of the bilateral upper extremities

performed on November 30, 2004, indicated low grade physiologic C6 changes

bilaterally with a right C7 component. Through September 28, 2004, Bush’s

complaints of numbness increased and began to involve both arms. Dr. Blanda

ordered further EMG testing, which was done in December of 2004. Dr. Blanda

related that this testing showed that the numbness was coming from the neck.

Defendants sought a second opinion from Dr. G. Gregory Gidman. Dr. Gidman

examined Bush on November 23, 2004. Dr. Gidman conducted an examination of the

cervical spine, upper extremities, and lumbar spine. He also ordered x-rays of the

pelvis, thoracic spine, and lumbar spine, which he interpreted as normal. He also

reviewed reports from the MRI of the cervical spine performed on January 16, 2004

and from the MRI of the thoracic spine performed on May 22, 2003. Based on his

examination, Dr. Gidman was of the opinion that no surgical intervention was

necessary and that there was no need for any repeat electrical studies of the upper

extremities. He recommended conservative treatment consisting of home therapy,

home cervical traction, nonsteroidal anti-inflammatory medication, and mild

analgesics. However, Dr. Gidman did assign a ten percent whole body impairment

from the subject injury.

Defendants then requested an IME, and the Office of Workers’ Compensation

appointed Dr. Thad S. Broussard to perform the examination. Dr. Broussard saw

Bush on February 22, 2005. Dr. Broussard reviewed the reports of the radiographic

studies but not the films themselves. Based on his examination and the history of

contusion and sprain of the cervical and lumbar spine, Dr. Broussard’s impression

3

was that Bush was suffering from spondylosis but that she had reached maximum

medical improvement. Dr. Broussard also indicated his opinion was that there was

nothing in the records that he had reviewed at that time to indicate that surgery was

required; however, he did state that it would be malpractice for a treating physician

not to review any films prior to making a recommendation as to surgery. Dr.

Broussard also indicated that if the symptoms worsened, there might be some

indication of progression such that Bush would be considered a surgical candidate.

Dr. Blanda ordered a second MRI of the cervical spine, which was performed

on May 23, 2005, and was interpreted as showing a subluxation (or forward slip) at

C4-5 with central disc protrusion . Dr. Blanda testified in his deposition that this may

or may not have been present when the MRI of the cervical spine dated January 16,

2004 was taken. Dr. Blanda specifically ordered that the May 2005 MRI be taken

with a stronger machine. Further, in Dr. Blanda’s opinion, the first MRI was taken

soon after the injury and it can take months for the “full picture” to develop due to the

progressive protrusion or herniation of the discs. Dr. Blanda also recommended a

cervical myelogram, but approval was denied based on Dr. Gidman and Dr.

Broussard’s opinions that Bush was not a surgical candidate. On June 7, 2005, based

on his diagnosis of an unstable disc herniation at C4-5 and spondylosis and central

disc bulging at C5-6, Dr. Blanda then recommended a three level surgery.

Based on the second opinion from Dr. Gidman and the IME report from Dr.

Broussard, Defendants refused to authorize the surgery recommended by Dr. Blanda.

None of the subsequent studies were provided to either Dr. Gidman or Dr. Broussard.

Bush continued to work and filed a petition for authorization of medical

treatment and for penalties and attorney’s fees on November 29, 2005. Following

4

trial, the WCJ rendered judgment in favor of Bush, ordering Defendants to authorize

the surgery recommended by Dr. Blanda. The judgment also awarded penalties in the

amount of $2,000.00 based on the finding that Defendants’ conduct in refusing to

authorize the surgery was arbitrary and capricious. Attorney’s fees in the amount of

$5,000.00 were also awarded. The WCJ, however, denied Bush’s claim for payment

of a Massage Therapy Clinic Bill in excess of $750.00 as well as her claim for

penalties and attorney’s fees in connection therewith. Defendant appeals, asserting

that the WCJ was manifestly erroneous in its conclusions that surgery was necessary

and that the necessity for surgery was related to the work-related accident as well as

in its assessment of penalties and attorney’s fees. Bush has neither answered the

appeal nor filed her own appeal. Finding no manifest error in the WCJ’s finding

regarding the medical necessity of surgery or in the imposition of penalties and

attorney’s fees, for the reasons that follow, we affirm the judgment in its entirety.

DISCUSSION

Standard of Review

“A workers’ compensation judge’s finding as to whether a requested medical

treatment is necessary is factual in nature.” Figgins v. Wal-Mart, 06-806, p. 3

(La.App. 3 Cir. 11/15/06), 945 So.2d 153, 156, writ denied, 06-2977 (La. 2/16/07),

949 So.2d 421. Accordingly, our review in this case is governed by the manifest

error standard of review. Smith v. Louisiana Dep’t of Corr., 93-1305 (La. 2/28/94),

633 So.2d 129. We are also guided by the principal that “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.” Thornton v. Louisiana Plastic

5

Indus., Inc., 39,105, pp. 5-6 (La.App. 2 Cir. 12/15/04), 889 So.2d 1226, 1229. We

must review the record as a whole, and if the WCJ’s findings are reasonable in light

of that record, we may not reverse. Id.

Medical Necessity of Cervical Surgery

Defendants contend that Bush failed to carry her burden of proving the

necessity of the surgery at issue or, at the very least, left the evidence in equipoise

regarding the subject. Again, Defendants rely upon the second opinion of Dr.

Gidman and the IME performed by Dr. Broussard as well as evidence that Bush

suffered a prior neck injury. Defendants further rely upon the deposition testimony

of their expert witness, Dr. Mark Tyler Stephan, a diagnostic radiologist. Dr. Stephan

was asked to compare the cervical MRIs obtained in 2001, 2004, 2005, and 2006. Dr.

Stephan did not examine Bush. Dr. Stephan testified that there was no progression

or significant changes of the abnormalities at the C4-5 and C5-6 levels when

comparing the 2004 and 2005 MRIs. Defendants contend that Dr. Stephan’s

testimony directly refutes Dr. Blanda’s recommendation for surgery. Based on our

review of the record in its entirety, we disagree.

In order to recover the cost of the surgery, Bush must prove, by a

preponderance of the evidence, that the expense is reasonably necessary for the

treatment of a medical condition caused by a work-related injury. Steven v. Liberty

Mut. Ins. Co., 509 So.2d 720 (La.App. 3 Cir. 1987). It is also well settled that greater

weight is ordinarily given to the testimony of a treating physician as opposed to that

of a physician who examines the plaintiff for diagnostic purposes only. Fitch v.

Vintage Petroleum, Inc., 94-346 (La.App. 3 Cir. 11/2/94), 652 So.2d 998, writ denied,

94-438 (La. 3/30/95), 651 So.2d 847. This is because the treating physician is more

6

likely to know the patient's symptoms and complaints due to repeated examinations

and sustained observations. Moreover, causation is not necessarily a medical

conclusion, and the ultimate determination as to whether a plaintiff has proved the

causation of his disability is made by the courts and not by medical experts. Martin

v. H. B. Zachry Co., 424 So.2d 1002 (La.1982).

In this case, Dr. Gidman and Dr. Broussard, both of whom saw Bush only once

and only for diagnostic purposes at the insistence of Defendants, found no necessity

for surgery. Bush’s treating physician, Dr. Blanda, recommended surgery after the

examinations conducted by Dr. Gidman and Dr. Broussard and after further testing

was done. Despite the recommendation for surgery and additional testing,

Defendants did not refer Bush back to Dr. Gidman or Dr. Broussard. We agree with

the WCJ that Defendants cannot “blindly rely on a previous beneficial sounding

report when they gather subsequent information that indicates there’s a continuing

problem.”

Defendants further contend that Bush failed to meet her burden of proving that

the need for surgery was related to the subject accident rather than to a pre-existing

condition. We are mindful, however, that even if a pre-existing condition exists,

workers’ compensation benefits are still available if the work-related accident

aggravates or accelerates it. Guidry v. Serigny, 378 So.2d 938 (La.1979). Evidence

that Bush may have been treated for pre-existing neck pain or that the spondylosis

pre-existed the subject accident does not prove the absence of a connection between

the accident and the need for surgery. See Hosli v. Rent-A-Center, Inc., 06-1466

(La.App. 4 Cir. 4/11/07), 957 So.2d 207, writ denied, 07-1018 (La. 8/31/07), 962

So.2d 439.

7

Dr. McCann testified that he treated Bush for injuries sustained in an

automobile accident in November of 2000 but that he stopped treating her for those

complaints on November 21, 2001 and did not see her again until May 21, 2003 (just

days after the subject accident). Dr. McCann was of the opinion that the complaints

he treated Bush for were caused by the subject accident.

There was some evidence that Bush had about forty-eight, intermittent

chiropractic treatments between June of 1997 and December of 2002 with a diagnosis

of cervical neuritis by the chiropractor. Even considering this, Dr. Blanda was of the

opinion that if she didn’t have the symptoms before accident and then they developed

right after, it was related to the accident. Furthermore, when asked whether the

intermittent complaints before the accident compared with constant progressive

complaints after the accident made any difference, Dr. Blanda responded that this

would fit with his conclusion that Bush probably had an aggravation or worsening of

the pre-existing problems secondary to this accident. Even Dr. Broussard testified

that, based on history, the accident in question would have caused Bush to become

symptomatic. As to causation, Dr. Stephan indicated that he would defer to other

physicians who had examined the patient. Dr. Allen S. Joseph, a neurosurgeon who

examined Bush on July 18, 2006, testified that when he reviewed the x-rays, he saw

the sort of expected progression of arthritis rather than changes from trauma but that

the accident in question accelerated the progression.

After considering all of the above-mentioned testimony of all the physicians,

reviewing all of the medical reports and the record in its entirety, and considering the

sequence of events, we find that there is a reasonable factual basis for the WCJ’s

determination that the surgery recommended by Dr. Blanda is necessary, is causally

8

connected to the work-related accident, and is to be authorized by Defendants. We

cannot say that the WCJ’s decision to accept the testimony of Dr. Blanda over that

of Dr. Gidman and Dr. Broussard was manifestly erroneous. Therefore, we affirm

the WCJ’s rulings in these respects.

Penalties and Attorney’s Fees

Defendants also assert that the WCJ committed manifest error in awarding

penalties and attorney fees, contending that they reasonably controverted Bush’s

demand for the recommended surgery. The determination as to the imposition of

penalties and attorneys fees is a question of fact, and the WCJ's finding in this regard

will not be disturbed on appeal absent manifest error. Wiltz v. Baudin's Sausage

Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.

10/13/00), 771 So.2d 650. In order to determine whether an employer or insurer has

fulfilled its duty to furnish medical benefits, we must consider whether the employer

or insurer had sufficient factual and medical information to reasonably counter the

factual and medical information presented by the workers’ compensation claimant.

Gibson v. Dynamic Indus., Inc., 96-1605 (La.App. 3 Cir. 4/2/97), 692 So.2d 1320.

Defendants cite only a scant amount of evidence in an effort to show that they

reasonably controverted Bush’s request for surgery. Defendants point to Dr.

Gidman’s second opinion and to Dr. Broussard's independent medical examination.

The opinions of these two physicians are discussed in great detail above, and we

again note that these physicians saw Bush before Dr. Blanda made his

recommendation for surgery and were not provided with reports of testing performed

subsequent to their examinations. Defendants also rely on assertions that Bush

suffered from a pre-existing condition and that her present condition was inevitable

9

based thereon. However, as we have said, a pre-existing condition alone does not

foreclose receipt of workers’ compensation benefits, and there was testimony that the

subject accident aggravated and accelerated her pre-existing condition.

For these reasons, we agree with the WCJ that the Defendants did not

reasonably controvert Bush's claim. Accordingly, the workers' compensation judge

did not err in awarding penalties and attorneys fees in favor of Bush. We affirm the

WCJ’s award of $2,000.00 in penalties and $5,000.00 in attorney’s fees.

DECREE

For the reasons stated above, the WCJ’s judgment is affirmed in its entirety.

Costs of this appeal are assessed to Defendants-Appellants.

AFFIRMED.

10