Judy Davis v. Louisiana Dept. of Transportation & Development

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-288 consolidated with 09-672

JUDY DAVIS

VERSUS

STATE OF LOUISIANA, THROUGH THE
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT,
OFFICE OF RISK MANAGEMENT

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - #1E
PARISH OF OUACHITA, NO. 04-09196
BRENZA IRVING, WORKERS’ COMPENSATION JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and
Shannon J. Gremillion, Judges.

MOTION TO FILE LATE REPLY BRIEF DENIED. JUDGMENT AFFIRMED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

George A. Flournoy
Flournoy & Doggett
Post Office Box 1270
Alexandria, LA 71309
(318) 487-9858
COUNSEL FOR PLAINTIFF/APPELLANT:
Judy Davis

Leanne M. Broussard
Assistant Attorney General
State of Louisiana
Post Office Box 1710
Alexandria, LA 71309
(318) 487-5944
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, through the
Department of Transportation and Development,
Office of Risk Management

AMY, Judge.

Although the claimant’s employer provided workers’ compensation benefits

due to a series of work-related accidents, the claimant filed a disputed claim form due

to the employer’s denial of benefits related to fibromyalgia. After a hearing, the

workers’ compensation judge found insufficient proof of causation between

fibromyalgia and the claimant’s work-related accident. It denied benefits related to

that diagnosis and denied other requested relief. Subsequently, the claimant filed

another disputed claim form which was dismissed upon a granting of the employer’s

exception of res judicata. The claimant appeals both judgments. For the following

reasons, we affirm the denial of further benefits. However, we reverse the granting

of the exception of res judicata.

Factual and Procedural Background

The claimant, Judy Davis, was employed as a laborer for the Department of

Transportation and Development when she allegedly sustained injuries to her right

hand, wrist, arm and shoulder while shoveling asphalt in May 2000. Subsequently,

in September 2000, Ms. Davis fell from a dump truck and allegedly sustained injury

to her right side, neck, shoulder, back, and her hip. Finally, the claimant alleges that

she slipped while exiting her truck and injured her right shoulder.

Although DOTD provided workers’ compensation indemnity and medical

benefits, it denied benefits related to fibromyalgia as diagnosed by the claimant’s

internal medicine and rheumatology physician, Dr. Miguel Garcia. The claimant filed

the disputed claim for compensation instituting this matter in December 2004. She

designated the following issues for consideration: 1) Extent and duration of

disability; 2) Failure to pay indemnity benefits; 3) Failure to pay for medical

treatment; 4) Failure to provide vocational rehabilitation; 5) Failure to provide

treatment for fibromyalgia; and 6) Penalties and attorney fees. At the time of the

December 2007 hearing, the employer continued to provide indemnity benefits.

During the hearing, the workers’ compensation judge excluded various exhibits

offered by both the claimant and the defendant due to the parties failure to follow a

pre-trial scheduling order. In light of the evidence presented, the workers’

compensation judge found that the claimant failed to carry her burden of proving

entitlement to benefits related to the fibromyalgia diagnosis. The judgment, signed

on April 17, 2008, ordered “that claimant’s request for workers’ compensation

benefits, as related to fibromyalgia, is denied[.]” The workers’ compensation judge

also denied the claimant’s remaining requests.

On the same day as the hearing, December 7, 2007, the claimant filed a new

disputed claim for compensation asserting that, among other things, the previous

compensation rate was incorrect and again asserting that Dr. Garcia’s treatment

should be provided. DOTD filed an exception of res judicata arguing that the causes

of action alleged in the new claim form arose out of the same transaction or

occurrence that was the subject matter of the April 17, 2008 judgment and were,

therefore, extinguished. The workers’ compensation judge granted the exception and

dismissed the claimant’s claim.

The claimant appeals both the merits of the April 17, 2008 judgment and the

granting of the exception of res judicata.1 On appeal of the merits, the claimant

assigns the following as error in her brief:

1
The appeals of the separate, final judgment were consolidated for dispositional purposes
only by order of this court. Both appeals are discussed under Docket Number 09-228, which is an
appeal of the merits of the claim and contains the decretal language for the merits of the claimant’s
suit. The decree relating to the claimant’s appeal of the granting of the exception of res judicata is
set forth in the companion case, Judy Davis v. Louisiana Dep’t of Transp. & Dev., et al., 09-672
(La.App. 3 Cir. _ /_/09), _ So.3d _.

2

I. Did the WCJ err, as a matter of law, in disregarding the
unopposed and uncontradicted opinions of plaintiff’s treating physician
that she suffered from fibromyalgia as a result of her work-related
injuries?

II. Should the WCJ decision terminating all indemnity and medical
benefits be reversed as a result of the WCJ’s abuse of discretion in
disallowing plaintiff’s exhibits and refusing to allow a proffer, thereby
necessitating a remand for a determination of (1) plaintiff’s AWW, (2)
whether plaintiff is totally or partially disabled and (3) the propriety of
an award of penalties and attorney fees.

With regard to the granting of the exception of res judicata, the claimant asserts that

the ruling was inappropriate as the April 17, 2008 judgment was not yet final. She

also asserts that certain aspects of the subsequently filed claim form had not been

ruled upon by the workers’ compensation judge.

Discussion

Motion to File a Late Reply Brief

The claimant filed a motion to file a late reply brief, which the employer

opposed. The filing was referred to this panel for consideration with the merits. We

deny the claimant’s motion pursuant to Uniform Rules–Courts of Appeal, Rule 12.7,

which provides that “[t]he reply brief, if any, of the appellant shall be filed not later

than 10 calendar days after the appellee’s brief is filed.” In this case, the employer

filed its appellee’s brief on May 5, 2009. Yet, the claimant’s motion to file a late

reply brief was not filed until May 26, 2009, after the ten-day period set forth in the

rule. Further, the claimant did not set forth reasons for the delay.

Causation

In her first assignment, the claimant argues that the workers’ compensation

judge erred in rejecting what she contends was the uncontradicted evidence of

causation offered by her treating physician, Dr. Garcia. She asserts that there was no

3

sound reason for the workers’ compensation judge to disregard Dr. Garcia’s opinion

that the fibromyalgia diagnosis was related to the work-related accidents.

It is the claimant’s burden to establish, by a preponderance of the evidence, a

causal link between the work-related accident and the subsequent disabling condition

for which benefits are sought. Guilbeaux v. Office of Dist. Attorney, 07-89 (La.App.

3 Cir. 5/30/07), 957 So.2d 959. With regard to causation of fibromyalgia, the

claimant presented only Dr. Garcia’s deposition testimony.2 The workers’

compensation judge’s reasons for ruling indicate full consideration of the testimony

in his three depositions. The workers’ compensation judge explained:

As to causation, Dr. Garcia found that based on her history and
official findings, claimant has fibromyalgia, secondary to the accident
of September, 2000.

Dr. Garcia’s deposition was taken again on October 29th, 2003.
It was taken in an effort to, “clear up” defendant’s contention that Dr.
Garcia’s findings of causation is not supported by the medical
community. Dr. Garcia noted he arrived at the diagnosis of fibromyalgia
by ruling out other diseases. He noted that fibromyalgia is an entity that
is completely clinical. There is not a test that diagnoses fibromyalgia.
“What causes fibromyalgia? We don’t know. We know things that go
to a basic pattern seem to cause the symptomatology. That is why it is
a syndrome, not a disease.”

Dr. Garcia further found that “anything that will make a person
maintain – and maintain that patient without having stage three and four
sleeping, sooner or later that person will develop symptoms of
fibromyalgia no matter who it is.” Dr. Garcia went on to say, “after she
had the accident she had problems sleeping, which is the main road to
develop fibromyalgia in every patient that has it.” He further notes,
“one thing is to say that trauma causes fibromyalgia. The other thing is
to say that fibromyalgia can be caused by the inability to sleep, caused
by the pain that an accident or trauma has caused.” Dr. Garcia opined
that the only thing that we know that causes fibromyalgia is sleep
pattern disturbance. He found that the fibromyalgia is secondary to the
pain and the inability to sleep that claimant reported after the injury as
a result of the accident.

2
As will be discussed below, the workers’ compensation judge excluded certain exhibits by
both the claimant and the defendant for failure to follow a pre-trial scheduling order.

4

Counsel for defendant noted literature indicating fibromyalgia did
not exist. It was a fallacy. Dr. Garcia acknowledged literature
indicating there is no such thing as traumatic fibromyalgia. He notes his
agreement with that literature. In an effort to explain that agreement
versus his findings of causation in reference to claimant, he notes “It is
not the trauma that causes the fibromyalgia. What causes fibromyalgia
is injuries to a patient that prevents them from sleeping.”

Lyme Disease and Hypersensitivity Syndrome to pain were
discussed as alternative diagnoses for claimant’s symptoms. However,
testing for those problems were not performed. There are no laboratory
tests available for diagnosing fibromyalgia. Doctors must rely on
patient’s histories and self-reported symptoms.

Dr. Garcia admitted fibromylgia symptoms overlap with other
symptoms and conditions and diseases of the body. He also
acknowledged that fibromyalgia is a chronic, painful musculoskeletal
disorder of unknown etiology and/or physiology. There is no consensus
on fibromyalgia in terms of causation. There is no professional
scientific consensus.

Dr. Garcia’s deposition was taken for a third time on November
th
29 , 2007. Once again he acknowledged that fibromyalgia is a
syndrome that can be caused by different factors. The most frequent
factor is disturbance in the sleep process. He felt claimant’s accident
caused her to be depressed, which led to a sleep disturbance. He also
noted that claimant is five feet and three inches tall and weighs 197
pounds. Those factors place her at risk of having sleep apnea which will
exacerbate fibromyalgia.

Dr. Garcia was shown a report generated by defendant’s choice
of physician, Dr. Merlin Wilson.3 Dr. Wilson found claimant had tender
points that were suppose to be negative which were control points. In
Dr. Wilson’s opinion, claimant had “something else.”

....

Claimant has been diagnosed with fibromyalgia. According to her
own treating physician, fibromyalgia is a syndrome, not a disease. It is
a diagnosis of exclusion. According to Dr. Garcia, a syndrome is, “you
don’t know what causes it. It can be multiple things.” He arrived at the
diagnosis by ruling out other things, but he admits claimant was never
tested for diseases including Lyme Disease and Hypersensitivity
Syndrome to Pain. According to Dr. Garcia’s testimony, fibromyalgia
is related to sleep disturbance and may be caused by pre and post

3
Although Dr. Wilson’s report was excluded at the hearing, the workers’ compensation
judge’s references are to the discussion regarding Dr. Wilson’s findings during Dr. Garcia’s
deposition.

5

menopause. Dr. Garcia noted fibromyalgia is a chronic, painful
musculoskeletal disorder of unknown etiology.

The findings of an unknown etiology prevents claimant from
meeting her burden of proof in this case. The medical evidence falls
short of a finding that claimant’s injuries of May 16th, 2000 and
September 14th, 2000, caused her to have fibromyalgia, a syndrome
which is questionable even in its form, nature and existence. Any
finding that claimant has fibromyalgia and that the fibromyalgia is
related to her work accident would be based on speculation and
conjecture. Jurisprudence has held where evidence leaves the
probabilities evenly balanced or shows only a possibility of a causative
accident or leaves it to speculation or conjecture, then the claimant’s
case must fail.

Furthermore, defendant’s choice of physician, Dr. Merlin Wilson,
disagreed with Dr. Garcia’s diagnosis as noted in the deposition of Dr.
Garcia.

For these reasons, claimant’s request for workers’ compensation
benefits, as related to fibromyalgia, is denied. Medical evidence
demonstrating a causally related disability due to claimant’s work
accident was not presented to this Court, and her requests are denied.

In Winford v. Conerly Corp., 04-1278, pp. 15-16 (La. 3/11/05), 897 So.2d 560,

569-70, the supreme court set forth the standard of review as follows:

It is well settled that factual findings in workers’ compensation cases are
subject to the manifest error or clearly wrong standard of appellate
review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840
(La.7/1/97) 696 So.2d 551, 556. (citations omitted). In applying the
manifest error-clearly wrong standard, the appellate court must
determine whether the factfinder’s conclusion was reasonable, not
whether the trier of fact was right or wrong. Banks, 696 So.2d at 556
(citing Stobart v. State, 617 So.2d 880, 882 (La.1993)). Where there are
two permissible views of the evidence, a factfinder’s choice between
them can never be manifestly erroneous or clearly wrong. Id. (citations
omitted). Thus, even where the appellate court is convinced it would
have weighed the evidence differently if it had been sitting as trier, the
court of appeal may not reverse if the factfinder’s findings are
reasonable in light of the record reviewed in its entirety. Id.

Under this review, we find no manifest error in the workers’ compensation judge’s

denial of benefits related to fibromyalgia. The workers’ compensation judge

considered Dr. Garcia’s testimony at length, reproducing much of his testimony in the

nine-pages of written reasons. Although Dr. Garcia opined that the claimant’s

6

condition is secondary to her work-related accident, he also explained that the

condition is a syndrome rather than a disease, is a diagnosis of exclusion, and can be

caused by various factors. We find no manifest error in the workers’ compensation

judge’s determination that this type of explanation was insufficient to meet the

claimant’s burden of proving causation. This is true even in light of Dr. Garcia’s

further statement that the fibromyalgia diagnosis was secondary to the work-related

accident. It is clear that a trier of fact is charged with the evaluation of expert

testimony and that the trier of fact may accept or reject an expert’s opinion in whole

or in part. Ryan v. Zurich American Ins. Co., 07-2312 (La. 7/1/08), 988 So.2d 214.

Dr. Garcia’s testimony as a whole regarding the circumstances surrounding a

diagnosis of fibromyalgia provide a sufficient basis for the workers’ compensation

judge’s rejection of Dr. Garcia’s ultimate conclusion that the claimant’s condition was

secondary to her work-related accident.

Finally, the claimant points out that fibromyalgia has been found to be a

compensable workers’ compensation claim. However, each of the cases cited by the

claimant4 are ones in which the workers’ compensation judge initially found that the

claimant demonstrated causation under the facts of that case. That determination was

affirmed on appeal under the applicable deferential standard of review. This case is

distinguishable as the workers’ compensation judge determined that the plaintiff

failed to meet her burden of proof. The workers’ compensation judge considered,

evaluated, and weighed the evidence before finding Dr. Garcia’s testimony as to

4
The claimant cites to the following: Frith v. Riverwood, Inc., 03-1672 (La.App. 5/14/04),
879 So.2d 763; Lizana v. Gulf Coast Pain Inst., 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763;
Woodrum v. Olive Garden Rest., 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911; Theus v.
Schumpert Med. Ctr., 25,750 (La.App. 2 Cir. 4/5/95), 653 So.2d 178; Herren v. State, 25,564
(La.App. 2 Cir. 2/23/94), 632 So.2d 880.

7

causation insufficient to meet the claimant’s burden of proof. We do not find this

determination manifestly erroneous under the deferential standard of review.

This assignment lacks merit.

Termination of Benefits

Next, the claimant addresses the workers’ compensation judge’s exclusion of

certain exhibits for violation of the pretrial scheduling order as well as testimony

regarding the inclusion of fringe benefits in the calculation of the claimant’s average

weekly wage. The claimant contends these rulings were in error and asserts that the

lack of evidence prevented her from demonstrating entitlement to continued benefits,

notwithstanding the benefits claimed for fibromyalgia.

The workers’ compensation judge excluded the evidence at issue for three

reasons. First, the workers’ compensation judge excluded evidence regarding fringe

benefits as the issue was not listed on the claimant’s disputed claim form. Second,

the workers’ compensation judge excluded payroll documents as the claimant’s

subpoena for the evidence was untimely served. Third, exhibits of both the claimant

and the employer were excluded as neither properly produced a pretrial statement as

required by the pretrial scheduling order.

With regard to the issue of fringe benefits, the workers’ compensation judge

observed that the issue was not raised in the claimant’s 1008 form, which lists the

following issues to be determined:

a. Extent and duration of disability
b. Failure to pay indemnity benefits
c. Failure to pay for medical treatment
d. Failure to provide vocational rehabilitation
e. Failure to provide treatment for fibromyalgia
f. Penalties and attorney fees

No mention is made of the calculation of the claimant’s average weekly wage.

Further, the Scheduling Conference Order of February 2, 2006 lists these same issues

8

and directed the parties “to submit a pre-trial statement within 7 days. Failure to do

so may result in exclusion of evidence and/or testimony.” In excluding the evidence

as to fringe benefits, the workers’ compensation judge observed that neither the 1008

listed the fringe benefit issue and noted the claimant’s failure to file a pretrial

statement. The judge also referenced 40 La.Admin. Code tit. I, § 6007, which relates

to the pretrial statement and provides:

A. The pretrial statement shall include:
1. Stipulations agreed to by all parties;
2. issues to be litigated;
3. contentions;
4. a list and brief description of all exhibits to be offered at
trial;
5. a list of all witnesses to be called at trial;
6. desirability of mediation.
B. Amendments to the pretrial statement shall only be by written
motion and permitted only for good cause shown.

(Emphasis added.)

Although La.R.S. 23:1317 provides that “[t]he workers’ compensation judge

shall not be bound by technical rules of evidence or procedure other than as herein

provided,” we find no abuse of the workers’ compensation judge’s discretion in its

enforcement of the rules of its office. We conclude that the limited contents of both

the 1008 and the pre-trial scheduling order, as well as the claimant’ failure to file a

pretrial statement, support the exclusion of evidence regarding fringe benefits.

Similarly, the workers’ compensation judge enforced its scheduling order in

excluding the exhibits of both parties due to their failure to file a pretrial statement.

The exclusion of the claimant’s evidence effectively prevented the claimant from

presenting her case regarding her entitlement to disability benefits for conditions

other than fibromyalgia and prevented the employer from rebutting evidence

regarding the causation of fibromyalgia. The workers’ compensation judge did,

however, tailor its ruling and permitted the claimant to present evidence on which the

9

employer lodged no objection. This evidence included Dr. Garcia’s depositions. As

above, we find no abuse of discretion in the workers’ compensation court’s

enforcement of its rule.

Finally, the claimant disputes the exclusion of payroll records produced by the

employer and the workers’ compensation judge’s refusal to allow the proffer of the

records. The exclusion of these records was based on the claimant’s failure to abide

by the office’s rule that “[i]n order to be enforceable, subpoenas for hearing shall be

served seven (7) days prior to the scheduled hearing date[.]” 40 La.Admin. Code tit.

I, § 5909. Instead, the claimant filed the subpoena involving the payroll records only

two days prior to hearing. Given the clear language of the order, we find no abuse

of discretion in the workers’ compensation judge’s exclusion of the records and, since

they were improperly produced, its refusal to allow a proffer of the records.

Additionally, the workers’ compensation judge permitted the claimant’s attorney to

provide a statement setting forth the nature of the evidence pursuant to La.Code

Civ.P. art. 1636(A)(which provides that “[w]hen the court rules against the

admissibility of any evidence, it shall either permit the party offering such evidence

to make a complete record thereof, or permit the party to make a statement setting

forth the nature of the evidence”).

This assignment lacks merit.

Exception of Res Judicata

As explained above, the claimant filed an additional disputed claim form on the

day of the December 7, 2007 hearing on the merits of this case. The employer filed

an exception of res judicata on the basis that the issues contained therein were

adjudicated at the initial hearing. The workers’ compensation judge granted the

exception, ordering “that the 1008 form, docket number 07-09286, filed on December

10

7, 2007, is dismissed with prejudice[.]” The claimant disputes the dismissal of the

claim form on appeal.

While La.R.S. 13:4231 generally addresses res judicata, workers’ compensation

cases have an even more specific reference in La.R.S. 23:1310.8(E) which provides

that “[a] judgment denying benefits is res judicata after the claimant has exhausted

his rights of appeal[.]” Accordingly, as the initial judgment denied benefits and

appellate rights had not yet been exhausted, the exception of res judicata was

improperly granted. We reverse the granting of the exception of res judicata.

DECREE

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

April 17, 2008 is affirmed. All costs of this proceeding are assessed to the appellant,

Judy D. Davis.

MOTION TO FILE LATE REPLY BRIEF DENIED. JUDGMENT
AFFIRMED.

11

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-288 consolidated with 09-672

JUDY DAVIS

VERSUS

STATE, THRU DOTD, OFFICE OF RISK MANAGEMENT

THIBODEAUX, Chief Judge, dissenting.

I dissent. While an appellate court must be deferential to the reasonable

findings of a trier of fact, it is not compelled to slavishly adhere to those findings

when the record, read as a whole, dictates otherwise. See Ambrose v. New Orleans

Police Dep’t Ambulance Serv., 93-3099 (La. 7/5/94), 639 So.2d 216. This is such a

case. A careful reading of the entire record cries out for a reversal of this judgment.

Exclusion of Exhibits

The workers’ compensation judge (WCJ) erred in several procedural

rulings that resulted in the exclusion of almost all of the parties’ evidence at trial.

At trial, Ms. Davis’ attorney examined Kayla Crowe regarding the

inclusion of fringe benefits in the DOTD’s calculation of AWW. Ms. Crowe’s

answer was uncertain, and the WCJ specifically instructed her to review the file and

to be ready to answer the question regarding fringe benefits at the end of trial.

Subsequently, when Ms. Davis’ attorney began examining Kenneth Morris, the

DOTD’s business manager, regarding the inclusion of fringe benefits in the

calculation of Ms. Davis’ wage benefits, the DOTD objected on the basis that the

subpoena of those records had not been served timely. The WCJ then excluded

evidence of fringe benefits on the basis that “fringe benefits” was not a specifically

listed dispute on the 1008 claim form, rejecting Ms. Davis’ arguments that a correct

calculation of average weekly wage (AWW) necessarily included consideration of

fringe benefits such as paid leave and medical insurance contributions by the

employer. Ms. Davis was correct. See Johnson v. Louisiana Container Co., 02-382

(La.App. 3 Cir. 10/2/02), 834 So.2d 1052, writ denied, 02-3099 (La. 5/9/03), 843

So.2d 394 (whether the employer provided the claimant fringe benefits is relevant to

the issue of the proper calculation of his wage rate).

In the present case, the WCJ made this ruling after allowing earlier

testimony on the issue and instructing adjuster Kayla Crowe to report at the end of

trial whether fringe benefits were included in her calculation of AWW. Wage

benefits were a major issue at the trial, and it was unreasonable and inconsistent to

remove the issue based upon the absence of the specific words, “fringe benefits,” on

Ms. Davis’ 1008, particularly when the DOTD did not object to the earlier

examination of their adjuster, Kayla Crowe, on the issue, and where the WCJ had on

several prior occasions stated that AWW was an issue to be determined at trial.

After the WCJ removed the issue of fringe benefits from the trial, and

sustained the DOTD’s objection to the untimely subpoena of the payroll records, the

WCJ agreed to a proffer and left the courtroom in order for Ms. Davis’ attorney to

receive the records and testimony of Mr. Morris. However, the DOTD stopped Mr.

Morris from handing over the payroll records. The WCJ then returned to the

courtroom, agreed with the DOTD, and disallowed the proffer of the actual records.

The exclusion of the payroll records was based upon Louisiana

Administrative Code (LAC) 40:I:5909, which provides in pertinent part:

B. In order to be enforceable, subpoenas for hearing shall
be served seven days prior to the scheduled hearing date;

2

subpoenas to compel attendance of medical experts shall be
served 10 days prior to hearing. Subpoenas for hearing
may be issued after expiration of these time limits only by
leave of court for good cause shown or upon written
consent of all parties.

In the present case, the subpoena of the payroll records for 2000 and

2001 was issued two days before trial. However, Mr. Morris was present at the trial

and had the records with him. Moreover, Ms. Davis’ attorney had been trying to get

the records since at least February 2002, having requested payroll records and

evidence of fringe benefits, specifically, in discovery requests and correspondence.

The DOTD’s 2002 responses to discovery indicated that they attached partial records

and would forward the remainder when they were received. The DOTD was not

surprised or prejudiced by this request where they had known for at least five years

that fringe benefits would be an issue in determining AWW and had allowed Mr.

Morris to appear and bring the payroll records with him.

Moreover, it is well-settled that in workers’ compensation proceedings

technical rules of evidence and procedure are materially relaxed. While the majority

recognizes this concept, it refuses to apply it. Our jurisprudence has repeatedly held

that the courts are not bound by technical rules of evidence or procedure in workers’

compensation suits. See Leson Chevrolet, Inc. v. Triche, 98-1328 (La.App. 5 Cir.

9/28/99), 742 So.2d 1047; Lummus v. Shoney’s, 99-90 (La.App. 5 Cir. 6/1/99), 738

So.2d 117; Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La.App. 3 Cir. 5/5/99),

731 So.2d 525. In fact, this concept is statutory in Louisiana, pursuant to La.R.S.

23:1317, which provides in pertinent part as follows:

[R.S. 23:]1317. Hearing on the merits; rules of
procedure; effect of judgment; costs; fees of medical
witnesses

A. If an answer has been filed within the delays
allowed by law or granted by the workers’ compensation

3

judge, or if no judgment has been entered as provided in
R.S. 23:1316 at the time for hearing or any adjournment
thereof, the workers’ compensation judge shall hear the
evidence that may be presented by each party. Each party
shall have the right to be present at any hearing or to
appear through an attorney. The workers’ compensation
judge shall not be bound by technical rules of evidence or
procedure other than as herein provided, but all findings
of fact must be based upon competent evidence and all
compensation payments provided for in this Chapter shall
mean and be defined to be for only such injuries as are
proven by competent evidence, or for which there are or
have been objective conditions or symptoms proven, not
within the physical or mental control of the injured
employee himself. The workers’ compensation judge shall
decide the merits of the controversy as equitably,
summarily, and simply as may be.

(Emphasis added.)

The WCJ refused to allow the attorney for Ms. Davis to proffer the

payroll records that were there and available in the courtroom. Louisiana Code of

Civil Procedure Article 1636(A) provides: “When the court rules against the

admissibility of any evidence, it shall either permit the party offering such evidence

to make a complete record thereof, or permit the party to make a statement setting

forth the nature of the evidence.” The opportunity to proffer the excluded evidence

is mandatory, “but the trial court has the discretion to receive the proffer in full, or to

require a statement setting forth the nature of the evidence.” Mitchell v. Limoges,

05-832 (La.App. 3 Cir. 3/1/06), 923 So.2d 906, 909, writ denied, 06-0723 (La.

6/16/06), 929 So.2d 1285. In this case, the WCJ did allow a statement setting forth

the nature of the evidence, indicating a fulfillment of La.Code Civ.P. art. 1636(A).

However, under the facts of this case, where the witness was testifying with the

documents in his possession, the WCJ violated the letter and the spirit of La.R.S.

23:1317 by excluding evidence that would have helped resolve the issues summarily

and simply.

4

In another procedural ruling, the WCJ, on her own initiative, interrupted

the examination of Ms. Davis’ husband, stating that Mr. Davis could not testify

because Ms. Davis had not filed a pre-trial statement listing him as a witness. The

WCJ then allowed a proffer of this testimony. When Ms. Davis’ attorney attempted

to enter his twenty-five exhibits into the record, the DOTD objected, stating that it

had just gotten Ms. Davis’ exhibit list that morning. Except for the three depositions

of Dr. Garcia, Ms. Davis’ exhibits, including her medical records, were excluded from

trial for failure to list them in a pre-trial statement. This included the deposition of

Dr. Quillin, which was taken by the DOTD. Each exhibit was described individually

and proffered by Ms. Davis’ attorney, who then had no choice but to rest his case.

When the DOTD attempted to call their adjuster, Kayla Crowe, as their witness, Ms.

Davis’ attorney objected on the grounds that the defendant had not timely filed its

pre-trial statement. The record indicates that the defendant’s pre-trial statement was

faxed the day before trial but was file stamped on the morning of trial. Accordingly,

the DOTD’s witness testimony was excluded, then proffered, and the trial was

concluded.

The exclusion of evidence for failure to file a pre-trial statement, or an

untimely filing of a pre-trial statement was based upon the Louisiana Administrative

Code’s hearing rules at LAC 40:I:6005 and 6007.1 Again, our courts have often

1
§6005. Pretrial Conference: A. When requested by the court, each party to the dispute shall
file a pretrial statement with the appropriate district office within the time frame designated by the
court. . . .

§6007. Pretrial Order: A. The pretrial statement shall include: 1. stipulations agreed to
by all parties; 2. issues to be litigated; 3. contentions; 4. a list and brief description of all exhibits
to be offered at trial; Exhibits to be used for impeachment or rebuttal need not be included in the
list...; 5. a list of all witnesses to be called at trial.... Except for the witnesses listed, no other
witnesses may be called to testify except for good cause shown. This requirement shall not apply
to impeachment and rebuttal witnesses; 6. outstanding discovery and depositions to be taken. . . .

5

found that the requirement to file a pre-trial statement is a technical requirement that

the courts are not bound to apply.

In Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03),

858 So.2d 830, the claimant failed to file a pre-trial statement. He then offered his

testimony and that of his wife, as well as several exhibits. The WCJ allowed the

evidence, given that the employer had taken the claimant’s deposition and that his

documentary evidence was either generated by or otherwise available to the

employer. Similarly, in the present case, the excluded deposition of Dr. Quillin was

taken by the DOTD, and it clearly had this evidence in its possession, as well as Ms.

Davis’ medical records, employer reports, and payroll information which constituted

the exhibits sought to be introduced by Ms. Davis. See also Parrish v. Van-Tel

Communications, 07-454 (La.App. 3 Cir. 10/10/07), 967 So.2d 592.

In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir.

5/4/94), 640 So.2d 585, 587, writ denied, 96-152 (La. 3/15/96), 669 So.2d 429, we

quoted Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228 (La.App. 3 Cir. 1987),

stating that La.R.S. 23:1317 reflected the legislature’s intent in compensation cases

to “materially relax evidentiary and procedural rules and subordinate procedural

considerations to the discovery of the truth and the protection of substantive rights.”

As the second circuit explained in Vernon v. Wade Correctional Institute, 26,053, p.

5 (La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688, “[t]he theory inherent in pretrial

procedure is the avoidance of surprise and the allowance of the orderly disposition

of the case.”

In the present case, where the excluded evidence caused no prejudice and

no surprise, the WCJ’s procedural rulings had the opposite effect. They prevented

the resolution of the issues by prohibiting both parties from presenting witnesses and

6

exhibits necessary to discover the truth regarding benefits. Accordingly, the WCJ

again committed legal error by violating the letter and spirit of La.R.S. 23:1317 and

by inflexibly binding the parties to procedural rules, excluding competent evidence

available at trial, and preventing the resolution of the issues; i.e., the nature and extent

of disability, whether temporary or permanent, whether partial or total, and the

amount of indemnity/wage benefits due the claimant. Therefore, I would consider all

proffered evidence by both parties in an attempt to resolve the issues susceptible of

resolution, given the record before us.

Fibromyalgia

The judgment of the WCJ stated that Dr. Garcia noted that fibromyalgia

was a chronic, painful musculoskeletal disorder of unknown etiology, and that such

findings prevented Ms. Davis from meeting her burden of proof in this case. The

majority agrees. The WCJ further stated that the medical evidence fell short of

proving that Ms. Davis’ injuries of May and September 2000 caused her to have

fibromyalgia. The majority again agrees. The record reveals otherwise. The record

shows that Dr. Garcia was deposed three times, and each time he testified that Ms.

Davis’ fibromyalgia was a result of her work injuries in 2000. The record further

reveals that Dr. Garcia’s opinion on the relatedness of fibromyalgia is supported by

Louisiana jurisprudence, and was supported in this case by Dr. David Levinsohn, Ms.

Davis’ first orthopedist; Dr. Michael Dole, Ms. Davis’ pain management specialist;

Dr. James Quillin, Ms. Davis’ psychologist; and, Dr. Baer Rambach, a second

orthopedist who treated Ms. Davis.

Dr. Levinsohn saw Ms. Davis in June 2000 after the May 2000 accident.

His impression was right wrist extensor tendinitis. In early November, he opined that

all of her problems were related to her work injuries: neck pain, right mild rotator

7

cuff tendinitis, possible right cervical radiculopathy, right lateral epicondylitis, low

back pain, deQuervain’s tenosynovitis, and extensor tendinitis of the right wrist,

exacerbated by depression. Dr. Levinsohn suspected fibromyalgia in December 2000

and a month later reported that there was “[c]ertainly evidence of fibromyalgia.” In

March 2001, his impression was fibromyalgia. Dr. Levinsohn’s impression of

fibromyalgia did not change, and it existed before Ms. Davis slipped again, while on

“light duty” on the truck, pulling and re-injuring her shoulder in June 2001. Dr.

Levinsohn referred Ms. Davis to Dr. Miguel Garcia.

Dr. Miguel Garcia is board-certified in internal medicine and

rheumatology, diseases that involve muscles, bones, joints, and pain-causing

illnesses. He was accepted at trial as an expert in internal medicine, rheumatology,

and fibromyalgia. Having been referred to Ms. Davis by Dr. Levinsohn and Dr.

Coney, Dr. Garcia began seeing Ms. Davis in March 2001. His treatment for

fibromyalgia consists of medication, injections into soft tissue, tendons, or joints, and

infusions into the veins. He testified that there was no surgical remedy for

fibromyalgia.

Dr. Garcia explained that patients who have fibromyalgia generally feel

as if they have the flu 365 days a year. They are tired, achy, sore, stiff, fatigued; they

exhibit mood changes, depression, and tenderness to palpitation over muscular areas.

Dr. Garcia indicated that the diagnosis of fibromyalgia currently describes eighteen

tender points with control points to rule out malingering. Dr. Garcia testified that the

first time he examined Ms. Davis, she exhibited eighteen of the eighteen tender

points and was negative for all of the control points. He stated categorically that

there was no doubt in his mind that she had fibromyalgia and that there was no

differential diagnosis.

8

Dr. Garcia further testified that fibromyalgia patients are not normal in

three aspects: (1) an electroencephalogram will indicate changes in brain waves; (2)

there are changes in sleep patterns with markedly decreased sleep in stages three and

four where muscle rest takes place; (3) there are decreased levels of growth hormone

and active compounds that help muscles to regenerate. He further stated that

fibromyalgia patients have increased levels of Substance P, which primes the central

nervous system to feel pain. Dr. Garcia admitted that the diagnosis is one of

exclusion (ruling out other diseases), but stated that the common denominator for

distinguishing fibromyalgia from other problems with similar symptoms is the

inability to sleep. He stated that some symptoms are subjective, such as fatigue and

achiness, but depression is diagnosed by the physician, and tenderness to palpitation

is tested using control points. Dr. Garcia diagnosed Ms. Davis as having

fibromyalgia and restless leg syndrome, which she developed shortly after the third

DOTD accident in June 2001.

The WCJ stated that at the time of Dr. Garcia’s examination, “no

physical injuries were identified or diagnosed from claimant’s fall” and that the

medical evidence fell “short of a finding that claimant’s injuries of May 16, 2000 and

September 14, 2000 caused her to have fibromyalgia . . . .” However, this is not

supported in the record. Dr. Garcia testified that Ms. Davis did not have a fracture,

but after the accidents, she started with pain that did not stop, causing her to wake up

every thirty minutes. He stated that her history indicated that she fell from a dump

truck five feet straight down to her right side, hitting her shoulders, neck and low

back, and that there was no pain or symptoms before the accident. The WCJ also

stated that Dr. Garcia’s testimony that fibromyalgia was of an “unknown etiology”

prevented Ms. Davis from carrying her burden of proof. The testimony of Dr. Garcia,

9

while stating that fibromyalgia was not a disease but a syndrome, thereby providing

little in the way of causation except for the history of the patient, clearly presented

evidence that the fall at work caused the pain that caused Ms. Davis’ sleep

deprivation, which was the cornerstone symptom of fibromyalgia.

With regard to the relatedness of Ms. Davis’ condition to her work

injuries, Dr. Garcia repeatedly testified that she developed fibromyalgia after the

September 2000 accident and therefore had classic fibromyalgia secondary to the

September 2000 accident.

The WCJ in her reasons for judgment intimated that other symptoms of

fibromyalgia could have been caused by weight gain or menopause. However, Dr.

Garcia testified that Ms. Davis was post-menopausal, that the symptoms were not of

the same degree, and that since she had already been on a regimen of hormones,

symptoms of menopause would not be expected. He further testified that two of her

medications, Miropex and Zanoflex, could cause weight gain, and those were

therefore switched out for others. The DOTD did not object to the admission of Dr.

Garcia’s three depositions, and his testimony clearly related Ms. Davis’ work injuries

to her pain, depression, sleep loss, and fibromyalgia. Dr. Garcia was still treating Ms.

Davis at the time of trial. About mid-way through his treatment, Dr. Garcia referred

Ms. Davis to Dr. James Quillin, a psychologist, for her ongoing depression.

Dr. Baer Rambach, an orthopaedic surgeon with Mid-South

Orthopaedics, saw Ms. Davis in November 2001. His impression was fibromyalgia

secondary to the September 2000 accident. He ordered an MRI in December 2001

wherein the radiologist reported no significant disc bulge or herniation. In February

2002, Dr. Rambach’s records indicate that Ms. Davis’ symptoms upon examination

10

were consistent with fibromyalgia, and that she could not return to her former

occupation.

In May 2003, Dr. Merlin Wilson, a rheumatologist, examined Ms. Davis

on behalf of the DOTD. Dr. Wilson’s impressions were soft tissue injuries to wrist,

neck, and back, while working in a highway crew in 2000. He also diagnosed

osteoarthritis. Dr. Wilson reported that Ms. Davis may have fulfilled the criteria for

fibromyalgia on previous visits to Dr. Garcia but did not fit the criteria according to

his examination. Dr. Wilson stated that, upon his examination, Ms. Davis was

positive for all eighteen tender points found in fibromyalgia patients (eleven of

eighteen is sufficient for the diagnosis). However, Dr. Wilson also stated that Ms.

Davis was positive for eight of the ten control points that should have been negative.

Dr. Wilson did not offer narrative detail on the control points that led him to discount

a diagnosis of fibromyalgia. Nor do Ms. Davis’ medical records appear to provide

the locations of the eighteen tender points or the locations of the ten control points.

Therefore, while Ms. Davis commented during one visit with Dr. Garcia that Dr.

Wilson only touched her neck in four places, we cannot know whether that was

sufficient or insufficient. However, we do know that Dr. Wilson saw Ms. Davis one

time only and for non-treatment purposes.

Dr. James Quillin, the psychologist referred to Ms. Davis by Dr. Garcia,

for Ms. Davis’ ongoing depression, first saw her in October 2003. During his

treatment, Dr. Quillin’s impression was that she had chronic pain syndrome related

to her occupational injuries. Fibromyalgia is a chronic pain syndrome. Dr. Quillin

testified in his deposition that Mrs. Davis was never pain free from her first accident,

that she had severe depression due to the chronic pain; she could not sleep, had crying

spells and low energy. He further reported that she was improving at one point until

11

her medication was stopped, due to non-approval by the adjuster, and that without

medications, her condition deteriorated.

In June of 2006, Dr. Quillin reported that Ms. Davis was in more pain

and was more tearful than in the previous visit, and this required a bump up in her

medication. Dr. Quillin described Ms. Davis as a tough, sweet lady who usually tried

to smile but was weeping at their visit, and he thought she had “passive death wishes

. . . .” That is, she was not suicidal but did not care if she died. He stated that she did

not have day-to-day garden variety depression, but suffered from neurovegetative

changes affecting her sleep, appetite, sexual function and energy level. Dr. Quillin

stated that diffuse pain is a cardinal symptom of fibromyalgia, which is a very painful

condition. He stated that he had training in physiology, but would defer to Dr. Garcia

on the diagnosis of fibromyalgia, as that is a rheumatological diagnosis. He was still

treating Ms. Davis at the time of trial. Dr. Quillin referred Ms. Davis to Dr. Michael

Dole for pain management.

Dr. Michael Dole is board certified in internal medicine and physical

medicine and rehabilitation. His pain management records indicate that on her first

visit with him in November 2005, Ms. Davis’ chief complaint was diffuse pain, a

symptom of fibromyalgia, and Dr. Dole listed his first impression as fibromyalgia

with thirteen positive tender points out of eighteen. Over the next two years, Dr. Dole

reported a diagnosis of fibromyalgia at least sixteen times. His records indicated

eighteen out of eighteen tender points in November of 2006, sixteen out of eighteen

in October 2006 and May of 2007. These fluctuations are consistent with Dr.

Garcia’s testimony that the symptoms wax and wane with the level of pain and with

time. On July 13, 2006, Dr. Dole stated that Mrs. Davis’ symptoms were consistent

with fibromyalgia and were secondary to her work injury in September 2000. In July

12

of 2007, five months before trial, he reported her pain level at eight out of ten (8/10),

with ten being the highest pain indicator. Dr. Dole’s clinical impression at that time

was fibromyalgia “with an acute flair,” neck pain, and bilateral upper extremity pain.

Dr. Dole was still treating Ms. Davis at the time of trial.

The above medical evidence overwhelmingly outweighs the report of Dr.

Wilson, the rheumatologist who examined Ms. Davis once on behalf of the DOTD.

In a recent case, we articulated as follows:

As a general rule, the testimony of a treating
physician should be given greater weight than that of a
physician who examined a claimant for diagnostic
purposes only. Winch v. Double M, Inc., 99-1793 (La.App.
3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La.
6/16/00), 765 So.2d 339. This is because the treating
physician has the advantage of familiarity, since he or she
is more likely to know the claimant’s symptoms and
complaints due to repeated examinations and sustained
observations. Alexander v. Autozone, Inc., 04-871
(La.App. 3 Cir. 12/8/04), 889 So.2d 366. Additionally,
positive findings of medical experts are to be afforded
greater weight than the negative findings as to the
existence of a particular condition. Campbell v. Luke
Const. Co., 465 So.2d 688 (La.1985).

Fontenot v. Wal-Mart, 08-158, p. 14 (La.App. 3 Cir. 3/4/09), 5 So.3d 298, 307, writ

denied, 09-0770 (La. 5/29/09), 9 So.3d 165. The majority refuses to recognize this

well-settled rule in its analysis.

While the WCJ intimated, by her reference to an “unknown etiology,”

that fibromyalgia is not a compensable illness, Louisiana jurisprudence has held

otherwise. Our courts have consistently held that fibromyalgia is compensable under

a rebuttable presumption theory “if there is evidence of the injured person's good

health before the accident and medical testimony showing a reasonable possibility

that the accident caused the disability.” Maddox v. City of Oakdale, 99-726, pp. 6-7

(La.App. 3 Cir. 11/3/99), 746 So.2d 764, 769, writ denied, 99-3388 (La. 2/11/00), 754

13

So.2d 936. Fibromyalgia has also been found compensable under the rebuttable

presumption theory in: Herren v. State, 25,564 (La.App. 2 Cir. 2/23/94), 632 So.2d

880; Theus v. Schumpert Med. Ctr., 25,750 (La.App. 2 Cir. 4/5/95), 653 So.2d 178,

writ denied, 95-1442 (La. 9/22/95), 660 So.2d 475; and Woodrum v. Olive Garden

Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911.2 Fibromyalgia was also

compensable in Malbrue v. St. Landry Parish School Bd., 95-1426 (La.App. 3 Cir.

1996), 673 So.2d 1157 (compensability not challenged); Lizana v. Gulf Coast Pain

Institute, 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763; and Frith v. Riverwood,

Inc., 03-1340 (La.App. 1 Cir. 4/2/04), 878 So.2d 595, writ granted, 04-1086 (La.

1/19/05), 892 So.2d 7 (reinstated and increased attorney fees; addressed applicability

of 1990 Amendments; reversed award of permanent total disability).

In addition to the above medical reports, Ms. Davis’ husband of twenty-

eight years testified that prior to the DOTD accidents Ms. Davis was extremely hearty

and active, bailing hay and mowing the yard. Before the accidents, she did not have

pain all over her body, weakness, fatigue, depression, crying spells, and was not up

and down all night, as she was after the accidents. The symptoms of fibromyalgia

began very shortly after Ms. Davis’ work injuries in 2000. The DOTD attempted to

rebut the presumption by arguing that the symptoms of fibromyalgia could be caused

2
The DOTD cites the clearly distinguishable case of Floyd v. Louisiana Dept. of Public
Safety, 08-899 (La.App. 3 Cir. 2/4/09), 3 So.3d 657, writ denied, 09-519 (La. 4/17/09), 6 So.3d 798.
There, the claimant alleged an occupational disease due to chemical exposures at work and failed
to prove that her fibromyalgia diagnosis was related to her work injuries. Mrs. Floyd struggled with
two negatives that do not exist herein: the lack of immediacy inherent in occupational diseases, as
opposed to identifiable accidents, as in Ms. Davis’ case; and the timing of the diagnoses. In Floyd,
the first mention of fibromyalgia was more than two years after the claimant’s leave from work; the
claims of MCE, mutiple chemical exposures, did not appear until six years after the alleged
exposure, and there were no visits to doctors for acute exposure to chemicals in the workplace.
Moreover, two physicians testified that the fibromyalgia derived from the chemical exposures and
not from claimant’s epicondylitis, as the claimant asserted. In the present case, Ms. Davis had
symptoms of fibromyalgia shortly after her five foot drop from the asphalt dump truck onto her side
in September 2000. Dr. Levinsohn suspected fibromyalgia in December 2000 and confirmed his
impressions of fibromyalgia in January 2001, just four months after the fall. Additionally, Drs.
Quilllen, Rambach, Dole, and Garcia related Ms. Davis’ symptoms to her work accidents.

14

by hormonal imbalances or weight gain, but those arguments fail, as explained by Dr.

Garcia’s testimony discussed above. Accordingly, based upon the jurisprudence

above, and the overwhelming record evidence, Ms. Davis has established the

existence and the relatedness of fibromyalgia to her DOTD work injuries in 2000.

The WCJ’s Termination of All Benefits

The record contains the medical reports and deposition testimony

indicating that five of Ms. Davis’ physicians related her symptoms to her DOTD

accidents: Drs. Levinsohn, Rambach, Quillin, Garcia, and Dole. Dr. Michael Brunet

of Tulane University Hospital treated Ms. Davis for rotator cuff injury and burning

sensations in her right shoulder. In October 2001 he ordered a functional capacity

evaluation (FCE) from a MISS-LOU Physical Therapy in Natchez, Mississippi. The

results indicated that Ms. Davis put forth consistent maximum voluntary effort. She

could lift up to ten pounds (considered light lifting), could sit or stand for

approximately a half hour of each; could occasionally carry sixteen pounds, could

push and pull twenty-two and twenty-four pounds respectively; and her dominant

right hand was thirty-five to sixty percent (35% - 60%) weaker than her non-dominant

left hand. In referring to the report, Dr. Brunet opined that Ms. Davis’ condition was

permanent and not likely to change with time. In February 2002, Dr. Rambach

assessed Ms. Davis with a twenty-five percent (25%) permanent partial disability, and

indicated that she would be relegated to sedentary work. A June 2006 FCE indicated

that Ms. Davis could only lift up to ten pounds occasionally, and that her complaints

of increased pain in her back, neck and right shoulder correlated with an increased

heart rate during testing. On a continuum of job classifications, from Very Heavy,

Heavy, Medium (her DOTD job), Light, and Sedentary, Ms. Davis was assessed with

a functional capacity for Sedentary work only.

15

In July of 2006, Dr. Dole provided a disability evaluation indicating that

Ms. Davis had a ten percent (10%) whole person impairment and was extremely

limited in her functional abilities for lifting, reaching, and stooping, pursuant to the

FCE performed two weeks prior. Dr. Dole reported that Ms. Davis’ prognosis for

returning to work was extremely guarded, that she would likely need vocational

counseling and re-education. He further reported that, given her rural residential area

and limited education (11th grade), it would be difficult to find employment that met

her physical limitations.

During the December 2007 trial, Ms. Davis’ attorney called as a witness

the employer’s adjuster, Kayla Crowe. Ms. Crowe reviewed Dr. Dole’s medical

records and effectively testified that she did not consider his impression of

fibromyalgia one that rendered it a compensable condition, but she agreed that Dr.

Dole’s other two impressions, of neck pain and upper extremity pain, were matters

“that without controversy” were “part of Mrs. Davis’ injuries.” At the time of trial,

adjuster Kayla Crowe was still paying wage benefits to Ms. Davis based upon

DOTD’s own calculations, and was approving and paying for Dr. Michael Dole’s

services for pain management and Dr. Quillin’s treatment of Ms. Davis for

depression.3 She was also paying the medical bills of Dr. Clark Gunderson, the

orthopaedic surgeon who had performed a cervical fusion on Ms. Davis prior to trial.

Dr. Gunderson first saw Ms. Davis in May 2007 and reported possible

cervical radiculopathy, pain with axial compression of head and neck, diminished

grip strength on the right and diminished sensation in both thumbs. A June 2007

cervical MRI was abnormal, and Dr. Gunderson reported disc bulging at C5-6. A

3
In fact, Ms. Davis’ attorney subsequently argued that most of the benefits being paid were
not even being disputed by the DOTD. At one point during the proceedings, the WCJ herself stated
that “entitlement to benefits is not an issue because she’s receiving them.”

16

discogram reproduced Mrs. Davis’ pain at C4-5. Our review indicates that this result

is consistent with “tiny bulges” seen at C4-5 on Ms. Davis’ November 2000 MRI.

In 2007, Ms. Davis had tenderness from C5 - C7, and her range of motion was two

thirds (2/3) of normal. Dr. Gunderson recommended surgery, which was approved

by adjuster Kayla Crowe on October 29, 2007. Dr. Gunderson explained to Ms.

Davis that she would not be pain free after the surgery but could have significant

improvement. On November 15, 2007, Dr. Gunderson performed an anterior cervical

fusion at C4-5 with anterior plate. Ms. Davis was also put on a bone stimulator. She

appeared at trial three weeks later, on December 7, 2007, still wearing a neck brace.

Given the above evidence in the record, the WCJ manifestly erred in

terminating Ms. Davis’ wage benefits and in terminating all of her medical payments.

The majority errs in deciding otherwise. Even the defendant’s medical expert, Dr.

Wilson, opined that Ms. Davis could not return to her former job and would likely be

able to do only clerical-type work.

For the foregoing reasons, I dissent.

17