Billy Ray Woodard v. Town of Colfax

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-892

BILLY RAY WOODARD

VERSUS

TOWN OF COLFAX

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION -DISTRICT # 2
PARISH OF RAPIDES, NO. 07-06773
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Amy, J., concurs in part and dissents in part, and assigns written reasons.

Joseph Yuri Beck
Hunter & Morton
P. O. Box 11710
Alexandria, LA 71315
Counsel for Claimant/Appellee:
Billy Ray Woodard

Randall B. Keiser
D. Heath Trahan
Keiser Law Firm
P. O. Box 12358
Alexandria, LA 71315-2358
Counsel for Defendant/Appellant:
Town of Colfax

PICKETT, J.

The defendant, Town of Colfax (Colfax) appeals a ruling by a Workers’

Compensation Judge (WCJ) finding that the claimant, Billy Woodard, suffered a

disabling accident in the course and scope of his employment with Colfax and

awarding the claimant the following: (a) supplemental earnings benefits, with a zero

earnings capacity, beginning on the date Mr. Woodard discontinued working at the

City of Colfax in July of 2007, until September 27, 2007, and (b) temporary total

disability beginning on September 27, 2007, and continuing through present. The

WCJ also ordered Colfax to authorize and pay for the discogram and repeat lumbar

MRI recommended by Dr. George R. Williams and, if the he believes that the further

testing continues to support the recommended surgery, that Colfax shall approve the

lumbar surgery he recommended. In addition the claimant was awarded penalties,

attorney’s fees and interest and costs.

On appeal Colfax alleges that the WCJ erred in the following: (1) in finding the

claimant is disabled, (2) in finding that more diagnostic testing is necessary, (3) in

finding that, depending on the tests results, that surgery may be necessary (at the

defendant’s expense), and (4) in awarding penalties and attorney’s fees.

The claimant answered the appeal seeking an increase in attorney’s fees at the

trial level and additional attorney’s fees for the defense of this appeal. The defendant

filed a motion seeking to have the claimant’s answer to appeal dismissed as untimely.

We affirm the ruling of the Workers’ Compensation Judge and dismiss the claimant’s

answer to appeal as untimely.

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FACTS

It was stipulated that on January 30, 2007, the claimant injured his low back

lifting a storm grate during his employment with the Town of Colfax’s Street

Department. The following day, the town referred Mr. Woodard to Dr. Jay Piland,

the town physician. Dr. Piland treated Mr. Woodard conservatively, for what he

diagnosed as a lumbar strain, for the next seven months. Treatment included rest,

medication and epidural steriod injections. According to Mr. Williams, his condition

worsened during that time, with his back pain extending into his left leg, down to his

foot. Mr. Woodard testified that medication failed to totally relieve his pain. An

MRI performed during this time period revealed a bulging disc at L4/L5 and,

depending on what doctor one queried, several other abnormalities.

Toward the end of July, Mr. Woodard and his supervisor, Derrian Sapp, had

a disagreement over the claimant’s working conditions and over his stopping at his

house to get medicine. As a result, Mr. Sapp sent Mr. Woodard home on July 26,

2007, and Mr. Woodard was fired the next day.

Mr. Woodard’s condition did not improve and on September 27, 2007, he

consulted Dr. Ray Williams, an orthopaedic specialist in Opelousas, who is now Mr.

Woodard’s treating physician. Dr. Williams examined Mr. Woodard and read the

MRI which had been previously done. In his opinion the MRI revealed “congenital

stenosis at L3/L4 and L4/L5 with small disc protrusion and annular tear.” He agreed

with Dr. Piland that Mr. Woodard could not work and started him on physical therapy

and home stretching exercises. These treatments did not help.

The claimant was then referred to Dr. Frazer Garr for a second medical opinion.

Dr. Garr examined Mr. Woodard on October 29, 2007. In his opinion, Mr. Woodard

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was suffering from a vascular necrosis of both hips, but he was close to maximum

medical improvement from his back injury with a residual impairment rating of 5%.

Dr. Garr opined that surgery was not necessary and recommended that Mr. Woodard

undergo a Functional Capacity Evaluation (FCE). On November 8, 2007, Mr.

Woodard returned to Dr. Williams, who agreed with Dr. Garr about the FCE and

ordered the test. In February 2008, Dr. Williams, recommended decompression and

fusion at the L4/L5 level.

Next, Mr. Woodard was referred to Dr. Gregory Gidman at the Acadiana

Center for Orthopedic and Occupational Medicine for an Independent Medical

Examination (IME). Dr. Gidman performed the exam on April 1, 2008, and

concluded Mr. Woodard had oly sustained a lumbosacral strain (he did agree that Mr.

Woodard suffered fro bilateral avascular necrosis). He also reviewed the MRI done

in May of 2007, and opined the following:

There is no desiccation. The disc spaces are well preserved at all levels.
At L4-5, there is a mild bulging with a small protrusion to the left. The
L5-S1 level shows some mild facet arthropathy. There is no herniation
or acute changes at any level.

This was the most conservative interpretation of Mr. Woodard’s MRI by any health

care professional. In fact, Dr. Gidman opined that “the examinee’s MRI findings are

compatible with his age and the labor he has done for years.” Dr. Gidman concluded

that Mr. Woodard’s only “pathological disease” is bilateral avascular necrosis not

related to his accident. He further stated that in his opinion Mr. Woodard had reached

MMI; that he has a 3-5% whole body impairment; and that could resume work at

medium level activities as established by his FCE.

Next, Mr. Woodard was referred to Dr. Mark F. McDonnell, a spine specialist

in Lafayette for another opinion on May 21, 2008. Dr. McDonnell diagnosed Mr.

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Woodard with “post traumatic axial pain syndrome of the lumbar spine.” In his

recommendations, Dr. McDonnell states:

3. . . . I believe that the low back pathology is related to some type
of lumbar disc injury. Decompression alone is not going to help
him.

4. I would recommend that the patient have a pre-operative
discogram of the lumbar spine. The MRI report suggests that L3-
4 is normal. It appears, therefore that at least the L3-4, L4-5 and
L5-S1 discs should be tested. In addition there is a question
whether the L5-S1 disc is normal. If in fact it is normal, then the
facet findings on the MRI at L5-S1could possibly be observed.
Of course, they would image better on a post discography CT
scan, and a decompression of the foramen and lateral recesses at
L5-S1 may be required.

5. If the discogram does show a good study with a normal control,
and if it shows only concordant pain with annular tear at L4-5,
then I would agree with a posterior instrumentation fusion at L4-
5—assuming that the agrees to quit smoking.

In sum, two physicians, Drs. Garr and Gidman, did not believe that Mr.

Woodard was in need of further medical treatment, especially surgery, while the other

three physicians who examined and/or treated Mr. Woodard, Drs. Piland, McDonnell

and Williams all agreed that he had sustained a work related injury to his lower back

which required further medical treatment, i.e. testing and some type of surgery.

LAW AND DISCUSSION

In Monceaux v. R & R Construction, Inc., 05-533, pp. 5-7 (La.App. 3 Cir.

12/30/05), 919 So.2d 795,798- 801, writs denied, 06-585 (La. 5/5/06), 927 So.2d

325, 06-636 (La. 5/5/06), 927 So.2d 317, we reviewed the standard of review and the

claimant’s burden of proof in a workers’ compensation case:

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879
So.2d 112, 117, the supreme court discussed the standard of review in
workers’ compensation cases:

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In worker’s compensation cases, the appropriate
standard of review to be applied by the appellate court to
the OWC’s findings of fact is the “manifest error-clearly
wrong” standard. Brown v. Coastal Construction &
Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704
So.2d 8, 10, (citing Alexander v. Pellerin Marble &
Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706,
710). Accordingly, the findings of the OWC will not be
set aside by a reviewing court unless they are found to be
clearly wrong in light of the record viewed in its entirety.
Alexander, 630 So.2d at 710. Where there is conflict in the
testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable.
Robinson v. North American Salt Co., 02-1869 (La.App. 1
Cir.2003), 865 So.2d 98, 105. The court of appeal may not
reverse the findings of the lower court even when
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Robinson,
865 So.2d at 105. The determination of whether injury
occurred in the course and scope of employment is a mixed
question of law and fact. Winkler v. Wadleigh Offshore,
Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316
(citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4
Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the he/she

suffered a work-related accident:

In order to recover workers’ compensation benefits,
an injured employee must prove by a preponderance of the
evidence that he suffered a “personal injury by accident
arising out of and in the course of his employment.”
La.R.S. 23:1031(A). An “accident” is defined as an
“unexpected or unforseen 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).

The Louisiana Supreme Court, in Bruno v. Harbert International
Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will
satisfy an employee’s burden in proving a work-related injury:

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A worker’s testimony alone may be sufficient to discharge
this burden of proof, 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. West v. Bayou Vista Manor, Inc., 371
So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana
Civil Law Treatise, Workers’ Compensation,§ 253 (2d
Ed.1980). Corroboration of the worker's testimony may be
provided by the testimony of fellow workers, spouses or
friends. Malone & Johnson, supra; Nelson v. [Roadway
Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration
may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her
burden of proof, the trial court 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.”
West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
1383 (La.1987). The trial court’s determinations as to whether the
worker’s testimony is credible and whether the worker has discharged
his or her burden of proof are factual determinations not to be disturbed
on review unless clearly wrong or absent a showing of manifest error.
Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.),
writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)
(citations omitted):

When findings are based on determinations
regarding the credibility of witnesses, the manifest
error--clearly wrong standard demands great deference to
the trier of fact’s findings; for only the factfinder can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener's understanding and belief in
what is said. Where documents or objective evidence so
contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable fact finder would not credit the witness’s story,
the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. But where such factors are not
present, and a factfinder’s finding is based on its decision
to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous or
clearly wrong.

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Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896
So.2d 269, 271-72.

In his reasons for his ruling, the WCJ stated:

In Mr. Woodard’s case, there is absolutely no showing by the Town of
Colfax that it ever had available for Mr. Woodard a job that ever met
any restrictions placed upon him by Dr. Piland. Mr. Woodard has
shown by a preponderance of clear and convincing evidence based upon
the objective findings in the medical testing and the opinions suggested
in the medical records of the examining physicians other than [Drs.]
Gaar and Gidman that he is unable to work and he is entitled to
temporary/total disability benefits.

After examining the record in its entirety, including both lay and professional

testimony, and the documentary evidence, we cannot say that the WCJ was manifestly

erroneous in his findings regarding Mr. Woodard’s disability and his need for further

testing and treatment.

Inasmuch as Colfax had notice of Mr. Woodard’s injury and knowledge that

he was under a doctor’s treatment and on medication, we find no error in the award

of penalties and attorney’s fees.

As to Mr. Woodard’s answer to appeal, we agree with the appellant, the answer

was filed untimely. Hence, we will not consider the arguments raise therein.

Accordingly, for the reasons stated above, we affirm the judgment of the WCJ.

We dismiss the answer to appeal as untimely. All costs of this appeal are taxed

against the appellant, Town of Colfax.

AFFIRMED.

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NUMBER 09-892

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

BILLY RAY WOODARD

VERSUS

TOWN OF COLFAX

AMY, J., concurring in part and dissenting in part.

I agree with the majority that an affirmation is required as to the findings of

disability, diagnostic testing, and penalties and attorney fees. However, I find merit

in the employer’s assignment of error which questions that portion of the judgment

ordering that: “If the treating physician believes that the further testing continues to

support the recommended surgery, the City of Colfax shall approve the lumbar

surgery recommended by Dr. Williams.” In my opinion, this order was premature as

the testing had not yet been completed and pre-judged what may be medically

necessary. Accordingly, I would reverse the judgment in this limited regard, leaving

future events to determine the necessity of such issues.