Marvin W. Buxton v. Iowa Police Dept.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 08-980

MARVIN W. BUXTON

VERSUS

IOWA POLICE DEPT.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 04-05071
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Christopher Richard Philipp
Attorney at Law
P. O. Box 2369
Lafayette, LA 70502-2369
(337) 235-9478
Counsel for Defendant/ Appellant:
Iowa Police Dept.

J. Bryan Jones, III
Attorney at Law
P. O. Box 8841
Lake Charles, LA 70606
(337) 598-2638
Counsel for Plaintiff/ Appellant:
Marvin W. Buxton

GREMILLION, Judge.

The workers’ compensation dispute before the court involves the Iowa Police

Department’s (hereafter “Iowa”) denial of medical and indemnity benefits to former

police officer, Mr. Marvin Buxton (“Buxton”). Initially, Iowa tried the matter and

defended based upon Buxton’s refusal to submit to a toxicological screen for illicit

drugs. The workers’ compensation judge ruled in favor of Iowa, but this court

reversed and remanded. Buxton v. Iowa Police Dep’t., 06-1384 (La. App. 3 Cir.

3/7/07), 952 So.2d 922, writ denied, 07-0719 (La. 6/1/07), 957 So.2d 176. Following

trial, judgment was rendered in favor of Buxton. Iowa appeals, and we affirm for the

reasons that follow.

FACTS

On May 7, 2004, Buxton was patrolling the Town of Iowa when a call for

assistance came from the Lake Charles Police who were engaged in a high speed

pursuit of a motorcyclist. This fugitive happened across Buxton’s path, who

maneuvered his squad car to apprehend. In his dash around the car, the motorcyclist

struck Buxton’s cruiser, causing what can only be described as minor damage.

Buxton claimed that he was exiting the cruiser as the collision occurred, and that the

door struck him on his head.

Buxton finished his shift approximately four hours later. His first presentation

to a health care provider was to his family doctor, Dr. Young Bin Kang, who

diagnosed Buxton with neck pain, headaches, and a left hand contusion on May 7,

2004. Buxton also complained of low back pain at that time.

Buxton saw Dr. Kang again on May 11, 2004, with continued complaints of

headache, back pain and neck pain. He complained at that time of his pain

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progressing to the point of nausea on four occasions. On May 18, Buxton returned

complaining of a knot on the back of his neck and headaches. Dr. Kang’s diagnosis

on this occasion was again of neck and back pain and headaches.

The June 7 visit with Dr. Kang is of note because Buxton’s wife apparently

urged that an MRI be performed in an attempt to see what was wrong with Buxton’s

back. Dr. Kang did not feel that an MRI was warranted but decided to keep that in

mind for the future. Buxton was showing improvement in his cervical complaints and

headaches. He did have continued back pain, but sensory and motor function in his

lower extremities were normal. In his June 11 visit with Buxton, Dr. Kang noted

back pain and headaches, with complaints of nausea associated with the pain.

In the interim, Buxton resigned from the police department on advice of his

defense counsel following an investigation of events that led to his plea of nolo

contendere to malfeasance in office. Following his resignation on June 9, 2004,

Buxton filed a claim for unemployment compensation on June 29, 2004. This was

introduced into evidence at Buxton’s first trial, and subsequently reintroduced at the

second trial, along with the remainder of the record from the first trial. In his

unemployment claim, Buxton asserted that there was no reason he could not accept

work at that time. However, records admitted at the first trial indicate that following

the date of the accident, Buxton missed ten days from work.

Buxton continued to treat with Dr. Kang, who saw him again on August 16,

2004. On this visit, Buxton demonstrated low back complaints associated with

sluggish deep tendon reflexes and diminished sensory and motor function. Dr. Kang

was concerned by these findings and decided at this point to order the MRI. This test

was performed, but Buxton did not return to see Dr. Kang to discuss the results.

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However, Dr. Kang did issue on his prescription pad a two-page note addressed, “To

whom it may concern,” outlining the course of Buxton’s treatment, and advising the

addressee that Buxton needed time to recover from the accident.

On April 26, 2005, plaintiff began treatment with Dr. Clark Gunderson, a Lake

Charles orthopedic surgeon. Buxton’s complaints to Dr. Gunderson included neck

pain, headaches and low back pain. He excused Buxton from work and prescribed

physical therapy and medications. Buxton returned to Dr. Gunderson one other time,

on May 26, 2005. At that time, he was complaining of right leg pain, hip pain, and

low back pain. No neck or head complaints are noted in that record. Dr. Gunderson

recommended that plaintiff undergo a CT myelogram and EMG of the right leg.

These studies were apparently never performed; indeed, there is no further medical

treatment indicated from May 26, 2005 to February 25, 2007.

On February 25 Buxton was injured when his vehicle collided with a cow. He

sustained extensive injuries and was transported first to Lake Charles Memorial

Hospital, then to LSU Medical Center in Shreveport for surgery to repair facial

fractures. Buxton then went to Dr. Dale Bernauer, another Lake Charles orthopedic

surgeon, with complaints of low back pain; leg pain, weakness and numbness; and

neck pain referred into the shoulders and arms, with numbness and tingling in the

arms. Dr. Bernauer ordered an MRI that demonstrated disc herniations at C3-4, C4-

5, C5-6, C6-7, and L3-4. Dr. Bernauer opined that Buxton needs cervical and lumbar

fusions. Dr. Bernauer’s records were introduced at trial, but those records express no

opinion connecting the need for surgery and the May 7, 2004 accident.

On September 27, 2007, Buxton again sought treatment with Dr. Gunderson.

Dr. Gunderson reviewed the MRIs ordered by Dr. Bernauer, and concurred with the

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recommendation of cervical fusion, but thought further testing was required before

he could recommend a lumbar fusion. However, he testified that Buxton is going to

eventually require a laminectomy and fusion with pedicle screws.

At trial, the entire record of the previous proceeding was introduced, as was the

deposition of Dr. Gunderson, the certified medical records of Buxton’s treatment at

Lake Charles Memorial, and certified records reflecting Buxton’s treatment at LSU

Medical Center in Shreveport. Following submission, the workers’ compensation

judge rendered oral reasons in favor of Buxton, finding temporary total disability and

ordering Iowa to provide medical treatment with Dr. Gunderson.

ASSIGNMENTS OF ERROR

Iowa appeals, urging that Buxton failed to carry his burden of proof and that

the workers’ compensation judge erred in awarding temporary total disability benefits

and medical treatment with Dr. Gunderson for Buxton’s lumbar spine. Buxton

appeals urging error on the part of the workers’ compensation judge in failing to

award penalties and attorneys fees.

ANALYSIS

Medical treatment and indemnity: A hearing office’s decision that a claimant

has met his burden of proof constitutes a factual determination. As such, this

determination will not be overturned on review absent manifest error. An appellate

court will set aside a factual finding by a hearing officer only if the record reveals

there was no reasonable basis for the finding and that the finding was clearly wrong.

Stobart v. State Through Dep’t of Transp. and Dev., 617 So.2d 880 (La. 1993). “In

order to reverse a factual finding of a workers’ compensation judge, the appellate

court must determine that a reasonable factual basis does not exist in the record to

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support the finding of the workers' compensation judge and that the record establishes

the finding is clearly wrong or manifestly erroneous.” Clay v. City of Jeanerette,

1999-1421, p. 6 (La.App. 3 Cir. 5/31/00) 768 So.2d 609, 612-13, writ denied, 00-

2006 (La. 10/27/00), 772 So.2d 124.

Louisiana Revised Statute 23:1221(1)(c) provides that an employee who seeks

temporary total disability benefits must prove by clear and convincing evidence,

without a presumption of disability, that he “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.” Uncontradicted expert testimony regarding the underlying facts is not

binding on the court, but may not be lightly disregarded by the judge. Morvant v.

Smith, 463 So.2d 75 (La.App. 3 Cir. 1985). “ However, even expert testimony as to

the ultimate facts, although uncontradicted, is not binding on the court.” Id., at 77.

Iowa’s appeal, while couched in terms of three assignments of error, essentially

boils down to its contention that the treatment following the incident in which Buxton

struck the cow was not causally related to the motorcycle collision. If the treatment

following the cow crash is related to the motorcycle crash, Buxton is entitled to

indemnity and medical treatment,for as the second circuit in Lemons v. Georgia

Pacific Corp., 42,950, p. 6 (La.App. 2 Cir. 2/13/08), 976 So.2d 307, writ denied 08-

0587, 08-0590 (La. 5/2/08), 979 So.2d 1288, 1289:

The law is well settled that an aggravation of a work-related injury is
regarded as compensable and as resulting from the initial work accident
even though it occurs away from work and even after the employment
is terminated. Kelly v. City of New Orleans, 414 So.2d 770 (La.1982);
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Hollingsworth v. East Baton Rouge Parish School Bd., 94,0518
(La.App. 1st Cir.12/15/95), 666 So.2d 376, writ denied, 96-0165 (La.
3/15/96), 669 So.2d 422; Hanover Ins. Co. v. Allstate Ins. Co., 554
So.2d 1261 (La.App. 1st Cir.1989); Hughes v. General Motors Guide
Lamp Division, 469 So.2d 369 (La.App. 2 Cir. 1985). It would be a
compensable injury for workers’ compensation purposes, and the
employer would be obligated to continue paying benefits. Kelly,414
So.2d 770; Stewart v. Hospitals Affiliates Int’l, Inc. of Baton Rouge, 404
So.2d 944 (La. 1981).

Iowa contends that a comparison of the severity of the on-the-job accident with

the collision with the cow leads to the conclusion that Buxton’s condition was the

result of the latter. Indeed, the photographs of the police cruiser taken after the

motorcycle struck it do demonstrate extremely minor damage to the car. The injuries

sustained by Ms. Buxton after he hit the cow, on the other hand, were very severe,

necessitating his transportation to the LSU Medical Center in Shreveport for surgery.

Iowa also points out that in his unemployment compensation claim, Buxton

affirmed that there was no reason he could not work.

While a reviewing court might have reached a different result than the workers’

compensation judge did, unless this court can conclude that there existed no

reasonable basis for the trier’s findings of fact, the Stobart test of manifest error is not

met. Stobart, 617 So.2d 880. Dr. Gunderson’s uncontradicted testimony that

Buxton’s lumbar injuries were aggravated by the collision with the cow forms a

reasonable basis for the workers’ compensation judge’s ruling. That testimony is

bolstered by Dr. Kang’s findings of consistent low back complaints and neurosensory

deficits. Further, if the cow incident is an intervening and superceding cause of

Buxton’s complaints–and it decidedly is with regard to his cervical condition–it

would negate the affirmation by Buxton of being able to work contained in his

unemployment compensation claim that greatly predated the cow incident.

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Penalties and attorneys fees: An employer or insurer must pay medical benefits

within sixty days of receiving written notice thereof. La. R.S. 23:1201(E).

The first installment of compensation payable for temporary total disability,

permanent total disability, or death is due on the fourteenth day after the employer or

insurer gains knowledge of the injury or death, on which date all such compensation

then due shall be paid. La. R.S. 23:1201(B). Failure to pay such benefits shall result

in the imposition of a penalty; however, the penalty is not imposed if the claim is

reasonably controverted or if nonpayment results from conditions over which the

employer or insurer had no control. La. R.S. 23:1201(F)(2). When the employer or

insurer produces factual or medical information of such a nature that it reasonably

counters the claimant’s evidence, a claim is reasonably controverted . Davis v. Jones

Baldwin Music Co., 27,545 (La.App. 2 Cir. 11/1/95), 662 So.2d 803. Nowlin v. Breck

Const. Co., 30,622 (La. App. 2 Cir., 6/24/98), 715 So.2d 112. The decision to award

penalties and fees is subject to an abuse-of-discretion standard. Id. When a claim is

reasonably controverted, attorneys fees and penalties are not appropriate. Davis, 662

So.2d 803.

The court feels that Iowa did present evidence sufficient to reasonably counter

Buxton’s claim. There was no treatment of Buxton for any of his complaints between

May 26, 2005 and February 25, 2007. A comparison of the two collisions would

provide a factual basis for reasonably controverting Buxton’s claim. Therefore, this

court can find no error in the workers’ compensation judge’s denial of penalties and

attorneys fees.

Buxton also seeks attorneys fees for the appeal. It would be incongruous to

impose penalties or award attorneys fees in a situation in which both the employer

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and employee appeal the workers’ compensation judge’s ruling and neither prevails.

Costs of the appeal, however, are assessed against Iowa.

AFFIRMED.

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