Joseph Simpson v. Lafayette Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-816

JOSEPH SIMPSON

VERSUS

LAFAYETTE CONSOLIDATED GOVERNMENT

************

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 03-06742
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

************

DAVID E. CHATELAIN*
JUDGE

************

Court composed of Oswald A. Decuir, Jimmie C. Peters, and David E. Chatelain,
Judges.

AFFIRMED. ANSWER TO APPEAL DENIED.

Mark A. Ackal
Attorney at Law
Post Office Box 52045
Lafayette, Louisiana 70505-2045
(337) 237-5500
Counsel for Defendant/Appellant:
Lafayette Consolidated Government

Daniel J. Dazet
Dazet & Associates
207 Florida Street
Baton Rouge, Louisiana 70801
(225) 383-2667
Counsel for Plaintiff/Appellee:
Joseph Simpson

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

CHATELAIN, Judge Pro Tempore.

In this workers’ compensation matter, Lafayette Consolidated Government

(LCG) appeals a judgment the workers’ compensation judge (WCJ) rendered in favor

of its employee, Joseph Simpson. Mr. Simpson answers the appeal seeking an award

of attorney fees due to the handling of this appeal. For the following reasons, we

affirm the judgment but decline to award Mr. Simpson attorney fees on appeal.

FACTS AND PROCEDURAL HISTORY

Mr. Simpson was injured in the late morning of October 3, 2002, when he was

blown off the steps of a temporary trailer and thrown to the ground during Hurricane

Lili. He was working as an Engineer Specialist 1 at the time, and his duties included

checking the five major pump stations in the City of Lafayette during severe weather

to ensure that they were operational and functioning properly. Mr. Simpson testified

that as he was exiting the trailer which housed his office, a “strong gust of wind took

[him], and the door just flung [him],” causing him to fall down four or five steps and

hit the ground, landing on his knees. After he was unable to get up on his own, about

eight of his co-workers carried him back into the trailer. An ambulance was called

but could not come out because the weather conditions were too bad; therefore, his

co-workers transported him to the emergency room (the ER) at Lafayette General

Medical Center.

Dr. Angela Mayeux, an orthopaedic surgeon, treated Mr. Simpson in the ER.

He complained of pain to both knees at the time of his admission. Within a week of

the accident, Dr. Mayeux performed surgery on his left knee to repair a tear to his

patellar tendon. Mr. Simpson attended physical therapy for approximately six

months. Dr. Mayeux performed a second surgery on Mr. Simpson in August of 2004

1

to remove scar tissue from his left knee. Dr. Mayeux referred Mr. Simpson to

Dr. Joseph Gillespie for pain management in May of 2005. At the time of trial,

Mr. Simpson was still under the care of Dr. Gillespie.

At the urging of LCG, Mr. Simpson saw Dr. Michael Duval, an orthopaedic

surgeon, for a second opinion on September 5, 2003. He was seen by Dr. Sandra

Weitz, a pain management specialist, for a second opinion in October 2005. LCG

sent Mr. Simpson to Dr. Wayne Lindermann, a physical rehabilitation physician, for

a second opinion in February of 2006. Later, in August of 2006, LCG sent

Mr. Simpson to Dr. Malcolm Stubbs, an orthopedist, for an independent medical

examination (IME).

Mr. Simpson filed a Disputed Claim for Compensation on September 17, 2003,

asserting that his wage benefits had been wrongfully terminated in August 2003 and

requesting that he be allowed to seek treatment of his choice of pain specialist. On

March 20, 2006, LCG filed a reconventional demand, asserting that Mr. Simpson was

no longer temporarily totally disabled. It averred that he was capable of full-time,

sedentary work and thus no longer entitled to indemnity benefits because he had

refused to work at the modified, sedentary position LCG offered. In addition, LCG

claimed that the medical treatment Dr. Gillespie currently provides is not reasonable

and necessary.

At the July 22, 2008 trial, the parties stipulated that Mr. Simpson suffered an

accident on October 3, 2002, that occurred within the course and scope of his

employment with LCG. They further stipulated as to Mr. Simpson’s average weekly

wage and that he had received weekly indemnity benefits through the date of trial.

Finally, they stipulated that LCG relied on the medical opinion of Mr. Simpson’s

2

treating physician, Dr. Mayeux, in denying treatment relative to his right knee. At the

close of the testimony, the matter was taken under advisement. Oral reasons for

judgment were rendered on December 17, 2008. Therein, the WCJ found that

Mr. Simpson sustained an accident within the course and scope of his employment

on October 3, 2002, which caused him injuries, including an injury to his right knee,

thus making that injury compensable under the workers’ compensation statute. The

WCJ denied LCG’s reconventional demand on the basis of its determination that

LCG’s efforts to find Mr. Simpson suitable employment with regard to his disability

were not fitted to his restrictions. Nevertheless, the WCJ directed Mr. Simpson to

cooperate with any efforts LCG made to help him wean himself from narcotic

medication. Written judgment was rendered on March 16, 2009.

LCG now appeals, claiming that the following findings made by the WCJ are

not supported by the record and are manifestly erroneous, thus requiring reversal: (1)

Mr. Simpson sustained personal injury to his right knee as a result of an accident

arising out of and in the course of his employment with LCG; (2) Mr. Simpson is

entitled to temporary total disability benefits (TTDs) and/or supplemental earnings

benefits (SEBs); (3) LCG’s efforts to find Mr. Simpson suitable employment with

regard to his disability were not fitted to his restrictions; and, (4) Mr. Simpson is

entitled to the narcotic pain medication Dr. Gillespie prescribed.

DISCUSSION

The Louisiana Supreme Court set out the standard of review employed in

workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works,

Inc., 96-2840, pp. 7-8 (La. 7/1/97), 696 So.2d 551, 556 (citations omitted):

Factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. In

3

applying the manifest error-clearly wrong standard, the appellate court
must determine not whether the trier of fact was right or wrong, but
whether the factfinder’s conclusion was a reasonable one.

“The determination of coverage is a subjective one in that each case must be

decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220

(La.1981). A worker bringing a compensation action against his employer bears the

burden of proving, as a threshold requirement, that he suffered “personal injury by

accident arising out of and in the course of his employment.” La.R.S. 23:1031(A);

Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used

in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable,

precipitous event happening suddenly or violently, with or without human fault, and

directly producing at the time objective findings of an injury which is more than

simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

A worker’s testimony alone may be sufficient to meet his burden of proving that a

work-related accident occurred and that an injury was sustained, “provided two

elements are satisfied: (1) no other evidence discredits or casts serious doubt upon

the worker’s version of the incident; and (2) the worker’s testimony is corroborated

by the circumstances following the alleged incident.” Bruno, 593 So.2d at 361. In

determining whether the worker has met his burden of proof, the workers’

compensation judge “should accept as true a witness’s uncontradicted testimony,

although the witness is a party, absent ‘circumstances casting suspicion on the

reliability of this testimony.’” Id. (citations omitted).

The determinations by a workers’ compensation judge “as to whether the

worker’s testimony is credible and whether the worker has discharged his . . . burden

of proof are factual determinations not to be disturbed on review unless clearly wrong

4

or absent a showing of manifest error. Id. Moreover, the factual findings of a

workers’ compensation judge are entitled to great deference on appellate review.

Hebert v. C.G. Logan Constr., Inc., 06-612 (La.App. 3 Cir. 11/2/06), 942 So.2d 77.

Did Mr. Simpson injure his right knee in the October 3, 2002 accident, thus
entitling him to benefits under the workers’ compensation statute?

LCG insists that Mr. Simpson failed to prove a causal connection between his

October 2002 accident and his right knee pain. It admits that while Mr. Simpson did

complain of pain in both knees to Dr. Mayeaux when she first treated him in the ER

following the accident, her notes contained no mention of right knee pain for the next

seventeen months. It points to correspondence from Dr. Mayeaux dated June 2, 2004,

in which she stated that Mr. Simpson’s “current complaints of right knee pain were

more likely than not unrelated to his accident of October 3rd 2002.” LCG refers to

the August 2006 orthopaedic evaluation Dr. Stubbs prepared when he provided an

IME to Mr. Simpson, wherein he stated that the MRI of Mr. Simpson’s right knee is

“very much inconclusive” and that he did not feel that surgery to Mr. Simpson’s right

knee was warranted at the time. LCG adds that there is no mention of any right knee

pain in any of the notes documenting Mr. Simpson’s seventy-one physical therapy

sessions. Finally, LCG refers to an Employee’s Report of Job Injury completed by

Mr. Simpson nineteen days after his accident where he listed injuries to his left knee,

left leg, lower back, and hip with no mention of injury to his right knee.

To the contrary, Mr. Simpson argues that LCG ignores that legal causation and

medical causation are two different concepts and that medical evidence should not be

relied upon to the exclusion of all other relevant evidence when determining whether

an injury is compensable under the workers’ compensation statute. Mr. Simpson

relies on Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829, 832-33

5

(La.1982) (footnote omitted), wherein the supreme court explained the difference

between the concepts of legal causation and medical causation, stating:

[The lower courts] failed to distinguish the “medical” meaning of cause
from the “legal” meaning of cause. When the doctors speak of cause
they are essentially speaking of etiology—the origin of disease; what
initially causes a disease. When courts and lawyers speak of cause they
are concerned with the question of whether the particular incident in
question contributed to the plaintiff’s disability by making manifest
symptoms previously unnoticed. “Causation is not necessarily and
exclusively a medical conclusion. It is usually the ultimate fact to be
found by the court, based on all the credible evidence.” Haughton v.
Fireman’s Fund American Insurance Companies, 355 So.2d 927, 928
(La.1978).

In determining that the treatment to Mr. Simpson’s right knee was compensable

under the workers’ compensation statute, the WCJ was persuaded by Mr. Simpson’s

testimony that he injured both knees in the October 3, 2002 accident, but because his

left knee had been more critically injured, the majority of the medical attention had

been focused on it. The WCJ noted that Mr. Simpson testified that the problems with

his right knee had increased with the passage of time. The WCJ agreed with

Mr. Simpson’s argument that, given his size1 and the fact that he was “literally blown

down the steps by the winds during a hurricane,” it was certainly plausible that he

injured his right knee in the 2002 accident. In his reasons for judgment, the WCJ

stressed that Mr. Simpson never had any problems with his right knee prior to the

2002 accident, but there are documented complaints regarding his right knee after the

accident.

In Freeman v. Best Western Richmond Suites Hotel, 97-1462, p. 11 (La.App.

3 Cir. 4/22/98), 711 So.2d 438, 443, writ denied, 98-1393 (La. 7/2/98), 724 So.2d 737

(citations omitted), this court wrote:

1
In response to questioning by the WCJ, Mr. Simpson testified that he weighed approximately
250 pounds at the time of the accident.

6

It is also important to note that an employee’s work-related
accident is presumed to have caused his disability when it is proven that
the disabling symptoms were not manifested before the accident, the
disabling symptoms appeared after the accident, and there is either
medical or circumstantial evidence providing a reasonable possibility of
causal connection between the accident and disabling injury. Although,
the claimant has the burden of proving that the accident somehow
caused or contributed to the disability, the exact cause need not be
found. Additionally, the question of the existence of a disability
presents a legal and not purely medical question, which must be
determined through a consideration of both lay and medical testimony.

The applicable standard of review dictates that we accord great deference to the

WCJ’s findings of fact and reasonable evaluations of credibility. Given the totality

of the evidence presented, including the initial report of a right knee injury, the

surgical treatment of Mr. Simpson’s left knee injury, and the attendant pain

management, we find no error in the WCJ’s finding that Mr. Simpson injured his right

knee in the October 2002 work-related accident.

Is Mr. Simpson entitled to TTDs and/or SEBs? Did LCG prove that it found
Mr. Simpson suitable employment with regard to his disability?

LCG insists that Mr. Simpson did not meet his burden of proving that he has

an ongoing temporary/total disability or that he was physically unable to engage in

any employment. According to LCG, all of the physicians who evaluated

Mr. Simpson opined that he was capable of performing full-time, sedentary work as

of August 2006 at the latest. Moreover, LCG submits that it bent over backwards to

accommodate Mr. Simpson and to comply with the restrictions Dr. Gillespie placed

upon his employment, but that Mr. Simpson refused to return to his job. In addition,

LCG argues that with the help of Ms. Zelda Lagrange, a vocational rehabilitation

counselor, Mr. Simpson was made aware of two medically-approved jobs, both of

which he declined. Accordingly, LCG avers that the WCJ erred in concluding that

7

Mr. Simpson was entitled to TTDs and/or SEBs and in concluding that it did not offer

Mr. Simpson employment fitted to his restrictions.

Mr. Simpson counters that the record fully supports the WCJ’s findings that he

was not provided with a job consistent with the restrictions Dr. Gillespie provided

and thus entitled to ongoing indemnity benefits. While Mr. Simpson does not dispute

that LCG “made a valiant effort” to accommodate his return to employment, he

submits that the evidence shows that he likewise attempted to return to his job at

LCG, but his efforts were thwarted by his physical inability to meet the requirements

placed upon him. As a result, Mr. Simpson submits that while commendable, the

accommodations made by LCG to put him back to work fell short.

In March 2006 correspondence written to provide clarification on the work

restrictions that he had placed on Mr. Simpson, Dr. Gillespie stated that Mr. Simpson

could perform “a sedentary level at a self-paced level of activity,” adding that “[i]f

you require anything more rigid then it is no longer self-paced.” Dr. Gillespie

additionally directed that “self-pace can vary from day-to-day, week-to-week, hour-

to-hour.” His advice to LCG was that it “pay [Mr. Simpson] by the job, let him do

it at home, and avoid this unnecessary turmoil.” In ruling in favor of Mr. Simpson

with regard to his claim for continuing indemnity benefits, the WCJ found that the

phrase “self-paced employment” had “been stretched . . . to its limits by both sides,”

leading each “to proceed with their own self-serving definition” of the phrase. Noting

that the vocational rehabilitation counselor worked on behalf of the employer, the

WCJ found that the “lack of essential clarity” with regard to the restrictions placed

on Mr. Simpson’s return to work by his treating physician was “scarcely the fault” of

Mr. Simpson. As a result, the WCJ found that LCG’s efforts to find suitable

8

employment for Mr. Simpson with regard to his disability were not fitted to his

restrictions.

We have thoroughly examined the record. Although there is contradicting

evidence with regard to Mr. Simpson’s right to continue to receive indemnity

benefits, we conclude that the WCJ clearly articulated a reasonable basis for its

decision to rule in favor of Mr. Simpson given the dispute over the meaning of the

restrictions placed on his ability to return to employment, and we cannot say that such

finding is manifestly erroneous or clearly wrong.

Is Mr. Simpson entitled to the narcotic pain medication prescribed by
Dr. Gillespie?

LCG argues that Mr. Simpson failed to prove that his continued use of the

short-acting, narcotic pain medication Dr. Gillespie prescribed is reasonable and

necessary. It submits that all of the physicians who evaluated Mr. Simpson, other

than Dr. Gillespie, opined that he should be prescribed long-acting, less sedating, pain

medication.

Mr. Simpson acknowledges that the majority of the physicians involved in this

matter agree that his pain medications should be changed. Nevertheless, he submits

that there has been no actual change in his treatment protocol to affect such a change

and that the WCJ was correct in finding that a court is not the proper venue to pursue

such a change in medical treatment.

In denying LCG’s request for a ruling that Mr. Simpson was no longer entitled

to the narcotics Dr. Gillespie prescribed, the WCJ stated that while he had no

intention of ordering a treating physician to modify Mr. Simpson’s pain medication,

he would order Mr. Simpson to cooperate with any efforts LCG made to facilitate his

being weaned off narcotic medication.

9

We find no error in the WCJ’s refusal to alter Mr. Simpson’s medication,

despite the overwhelming evidence that it is detrimental to him to continue taking

narcotic medications. Obviously, if someone is addicted to narcotic pain medication,

and the evidence suggests that Mr. Simpson has become so addicted, that person

should be weaned off of such medication in a medically supervised manner; to do

otherwise would be reckless.

Mr. Simpson’s answer to appeal

Although Mr. Simpson is correct in his assertion that LCG has simply

reasserted on appeal the same arguments that it originally presented to the WCJ, we

reject his characterization that LCG’s appeal was baseless. Notably, the WCJ did not

award Mr. Simpson attorney fees or costs despite his having prevailed on all

contested issues. The general rule is that an increase in attorney fees is usually

allowed where the WCJ awarded a party attorney fees and that party is forced to and

successfully defends an appeal, provided that the party properly requests such an

increase. McKelvey v. City of Dequincy, 07-604 (La.App. 3 Cir. 11/14/07), 970 So.2d

682. Even though we have affirmed the judgment of the WCJ, we decline to award

Mr. Simpson any attorney fees on appeal because the trial court did not award

attorney fees and Mr. Simpson has cited no legal authority for us to award attorney

fees for defending the judgment in such an instance. See Battiste v. Dolgencorp, 09-

683 (La.App. 1 Cir. 10/27/09), __ So.3d __ ; Lafleur v. M. Langenstein & Sons, Inc.,

09-140 (La.App. 4 Cir. 7/15/09), 16 So.3d 1178.

10

DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed in all respects.

Mr. Simpson’s answer to appeal is denied. All costs of this appeal are assessed

against Lafayette Consolidated Government.

AFFIRMED. ANSWER TO APPEAL DENIED.

11