Donald Lester Nowell v. Fara & Nabors Drilling USA, Lp

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-206

DONALD LESTER NOWELL

VERSUS

NABORS DRILLING USA, LP

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, DOCKET NO. 12-05760
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis
M. Keaty, Judges.

AFFIRMED.

Rusty Savoie
112 Innwood Drive, Suite F
Covington, Louisiana 70433
(985) 898-3434
COUNSEL FOR CLAIMANT/APPELLANT:
Donald Lester Nowell

Kevin A. Marks
Jennifer L. Sinder
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras Street, Suite 4040
New Orleans, Louisiana 70139
(504) 525-6802
COUNSEL FOR DEFENDANT/APPELLEE:
Nabors Drilling USA, LP

GENOVESE, Judge.

In this workers’ compensation case, Claimant/Appellant, Donald Lester

Nowell, appeals the judgment of the Office of Workers’ Compensation (OWC) in

favor of Defendant/Employer, Nabors Drilling USA, LP (Nabors), finding that

Mr. Nowell failed to meet his burden of proving that he sustained a compensable,

work-related injury. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

Mr. Nowell filed a disputed claim for compensation on August 17, 2012,

seeking: (1) “a determination of whether he is entitled to treatment for shoulder

pain/discomfort[]”; (2) “a determination of whether the physical therapy approved

by the Employer is consistent with that prescribed by the Employer’s choice of

physician[]”; and, (3) “arbitrary and capricious penalties and attorney[] fees.”

Mr. Nowell alleges that on May 12, 2012, while working as a derrickman for

Nabors at a land-based rig near Shreveport, Louisiana, he injured his lower back

and right shoulder in the course and scope of his employment. Due to

Mr. Nowell’s complaint of lower-back pain, he was transported to the

Occupational Medicine Clinic in Lafayette, Louisiana, where he was evaluated by

Dr. Frank Baniewicz.

Mr. Nowell testified at trial that he was in the middle of a fourteen-day hitch

when he injured his back. He explained that he injured his back while in the

process of tripping pipe, which he described as maneuvering drilling pipe into a

hole. According to Mr. Nowell, the pipe “fell in the wrong direction[]” so he “put

a rope around it to pull it back. That process is what hurt my back.” Afterward,

Mr. Nowell was transported1 four-and-one-half hours to the Occupational

Medicine Clinic in Lafayette. Dr. Baniewicz performed x-rays and recommended

over-the-counter pain medication and rest. However, Mr. Nowell was found to

have no physical impairment; therefore, Dr. Baniewicz deemed him capable of

returning to work. Mr. Nowell then returned to the land-based rig and did work for

six of the remaining eight days of his fourteen-day hitch.

Specifically, Dr. Baniewicz’s medical records reveal, in pertinent part:

The patient works a 14 and 14 hitch[,] and he is just about one week
into his hitch. We talked about protected [sic] activities for the
remainder of his hitch[,] and then he will have 14 days before he is
expected to be back to work. We talked about what to expect in terms
of symptomatology and actually suspect that he will tighten up and
get a little worse before he gets better.

According to Mr. Nowell, two days later, he began feeling pain in his shoulder, so

he called for Dr. Baniewicz. Dr. Baniewicz’s medical records do not reflect that

Mr. Nowell’s shoulder pain was related to the May 12, 2012 incident.

Dr. Baniewicz’s May 14, 2012 Chart Notes state:

This is a note to document that [Mr. Nowell] called in to let me know
that he was having a little bit of tightness in his shoulder. He didn’t
know if it was related to his back at all[,] but I encouraged him to call
me if he had any concerns[,] and so he wanted to let me know.

It sounds like things are going fine at the facility where he is working.
He has been using Aleve and Tylenol without difficulty. It seems to
be helping. His sciatic complaints seem to be less than when I talked
to him last time.

Basically, it doesn’t sound to be any issue at the present time[,] but
[Mr. Nowell] wanted to let me know about his shoulder. He
understands that would not be related to his back at this time.

Mr. Nowell testified that he was not told by Dr. Baniewicz that his back and

shoulder injuries were unrelated. In fact, at trial, Mr. Nowell disputed the veracity

1
Mr. Nowell referred to “Scooter,” a Nabors’ safety technician, as the person who
transported him to Lafayette.

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of Dr. Baniewicz’s medical records. He denied speaking to Dr. Baniewicz on

May 14, 2012, and he denied that he ever told Dr. Baniewicz, or anyone on his

staff, that his shoulder pain was not related to his back condition. According to

Mr. Nowell, Dr. Baniewicz called him three weeks later and “started discussing

with [him] a case that [had] to do with [Mr. Nowell’s] cousin.” This is the first

instance of a dispute Mr. Nowell had with a treating physician.

Mr. Nowell claims that he was allowed to rest in the crew trailer for two

days and that he returned to work because he felt pressured to do so. He worked

until the end of his fourteen-day hitch on May 20, 2012.

On May 23, 2012, Mr. Nowell saw Dr. Bruce Senter at the Mississippi Spine

Clinic.2 Dr. Senter’s medical records note that he saw Mr. Nowell for complaints

of lower-back pain, but there is no notation of shoulder pain. Mr. Nowell claims

that he did report shoulder pain to Dr. Senter. In his deposition, Dr. Senter testified

that in his initial visit with Mr. Nowell, he observed normal motor strength and a

normal straight-leg test. He reviewed Mr. Nowell’s x-rays which were performed

by Dr. Baniewicz, and he “thought they were also normal.” Dr. Senter diagnosed

Mr. Nowell with “a low back strain or a lumbar strain.” He recommended physical

therapy, prescribed pain medication and muscle relaxers, ordered a lumbar MRI,

and restricted Mr. Nowell from working until his follow-up appointment in three

weeks. When Mr. Nowell next saw Dr. Senter on June 13, 2012, Dr. Senter found

the results of the MRI normal3 and found Mr. Nowell able to return to work

without restrictions. Notably, Mr. Nowell had not received any physical therapy as

2
Mr. Nowell lives in Vicksburg, Mississippi.
3
The MRI was performed on June 13, 2012, the same day of Mr. Nowell’s follow-up
appointment with Dr. Senter.

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Dr. Senter had recommended. When asked at trial why he had not attended

physical therapy, Mr. Nowell explained, “I was asked by you, and it was discussed

with Bonnie Faulkenberry, the adjuster for FARA, that it would not be wise to do

the MRI till -- I mean, not to do the physical therapy until after the MRI.”

According to Mr. Nowell, Dr. Senter was dismissive of his medical complaints,

and he was released from Dr. Senter’s care because this was a workers’

compensation matter. This is the second instance of a dispute Mr. Nowell had with

a treating physician.

At Nabors’ request, Mr. Nowell was evaluated on July 10, 2012, by

orthopedist, Dr. Michael Duval. According to Dr. Duval, Mr. Nowell complained

of lower-back pain and right leg numbness. Mr. Nowell did not report shoulder

pain at this initial evaluation.

In October, 2012, Mr. Nowell filed a request to change treating physicians,4

alleging that his original choice, Dr. Senter, did not treat workers’ compensation

patients.5 Mr. Nowell’s request was granted on November 2, 2012.

On November 14, 2012, Mr. Nowell saw orthopedic surgeon, Dr. Douglas

Brown. Dr. Brown recommended a lumbar epidural steroid injection at L5-S1 and

restricted him from returning to work. According to Dr. Brown, Mr. Nowell had a

chronic back condition which was aggravated by his work accident.

Mr. Nowell saw Dr. Duval again on December 13, 2012. According to

Dr. Duval, Mr. Nowell reported lower-back pain, shoulder pain, urinary and bowel

issues, and sexual dysfunction. Dr. Duval ordered a repeat6 lumbar MRI.

4
Nabors contested this request.
5
Notably, Dr. Senter’s deposition was not taken in this matter until February 18, 2013.
6
An MRI had been performed on June 13, 2012, at the direction of Dr. Senter.

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According to Dr. Duval, the findings on the MRI were consistent with the normal

aging process.

Mr. Nowell was again seen by Dr. Brown on February 13, 2013. Dr. Brown

recommended that he receive injections at L2-3 and L3-4.

At trial on April 2, 2013, Nabors did not dispute the occurrence of

Mr. Nowell’s accident; instead, it challenged Mr. Nowell’s allegation that the

accident caused injury to the degree alleged by him, and, in turn, Nabors contested

Mr. Nowell’s entitlement to indemnity and medical benefits. The workers’

compensation judge (WCJ) took the matter under advisement and accepted

post-trial memoranda. On August 19, 2013, the WCJ issued oral reasons for

judgment, denying all relief sought by Mr. Nowell. In her oral reasons, the WCJ

elaborated:

I have to say that I do regret ordering the change of physican. I
do feel that I was mislead [sic]. It was a consideration of mine in
allowing the change of choice of physician that Dr. Senter did not
accept workers’ comp patients. And while I didn’t focus on this
exclusively in my ruling on that issue, I did mention how
uncomfortable I was dealing with doctors from a different state and not
knowing whether or not those doctors would accept [the] Louisiana
Fee Schedule.

So, after reading Dr. Senter’s deposition and his unequivocal
statement that he did treat workers’ comp patients, I have to say, had I
had that information at the time of the hearing, I would not have
allowed the change of choice of physician. Since I did order it, any
services provided by Dr. Brown do need to be paid for, but I don’t
order any further treatment with Dr. Brown or otherwise.

I feel I was mislead [sic], both in the change of physician
hearing and in briefing where plaintiff’s counsel attempts to argue that
Dr. Senter didn’t know what he was talking about or was confused
about ordering the MRI. I think the only confusion Dr. Senter
experienced was that[,] in his opinion[,] appropriate medical treatment
dictated waiting six weeks or so before obtaining the MRI, and so
that’s why Dr. Senter originally didn’t think he had ordered the MRI. I
think when Mr. Nowell showed up, talking about his attorney, the MRI

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was obtained that day. So, any confusion was simply generated,
basically, by the claimant himself.

There were three orthopedist specialists, each having a different
opinion. Though, all are of the opinion that there is no serious
condition requiring surgery. There were multiple instances of
questions regarding the claimant’s trustfulness. For example, his
testimony about Dr. [Bruce] Senter not taking comp patients, his bowel
and bladder and sexual misfunction [sic] complaints that Dr. [Michael]
Duval mentioned. He told Dr. [Douglas] Brown on November 14,
2012, that his bowel movement frequency has recently changed to
diarrhea, and this was four months after he told Dr. Duval of his bowel
problems. Maybe four months is recent, maybe not. It just seems as
though Mr. Nowell was game playing and doctor shopping.

So I don’t find Mr. Nowell credible; and[,] for that reason, I
don’t believe the evidence preponderates in his favor. He is not
entitled to any further benefits.

Concomitant with her oral reasons, the WCJ signed a Judgment on September 6,

2013, which decreed:

Employer, Nabors Drilling USA, LP, reasonably controverted the
claim, and that Claimant, Donald Lester Nowell, is entitled to no
further indemnity or medical benefits;

. . . Employer, Nabors Drilling USA, LP, was responsible for
Claimant’s two (2) office visits with Dr. Douglas Brown on
November 14, 2012[,] and February 13, 2013. Counsel for Nabors
Drilling USA, LP, confirmed that payment was issued for these two
(2) office visits. Accordingly, Nabors Drilling USA, LP, has satisfied
its obligations to pay all compensable medical benefits on behalf of
[Mr. Nowell].

Mr. Nowell appeals that judgment.

ASSIGNMENTS OF ERROR

Mr. Nowell assigns the following errors for our review:

1. The decision of the Office of Workers’ Compensation was
manifestly erroneous in failing to award Appellant indemnity
benefits.

2. The decision of the Office of Workers’ Compensation was
manifestly erroneous in failing to award Appellant additional
medical treatment.

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3. The decision[] of the Office of Workers’ Compensation was
manifestly erroneous in failing to award penalties and attorney[]
fees.

LAW AND DISCUSSION

Each of Mr. Nowell’s three assignments of error address the WCJ’s

determination that he failed to prove that the accident produced the alleged

injuries. Nabors argues that the evidence refuted the occurrence of a compensable

work-related injury.

This court, in Lynch v. A Door Works, Inc., 11-414, p. 3 (La.App. 3 Cir.

10/5/11), 72 So.3d 1033, 1035, writ denied, 11-2457 (La. 1/13/12), 77 So.3d 965,

set forth the standard of review to which this court must adhere, as follows:

The standard of review applied in workers’ compensation cases
to a WCJ’s finding of fact is the “manifest error—clclearly wrong”
standard. Dean v. Southmark Constr., 03-1051, p. 7 (La. 7/6/04), 879
So.2d 112, 117. The court of appeal may not set aside the findings of
the WCJ “unless they are found to be clearly wrong in light of the
record reviewed in its entirety.” Id. (quoting Alexander v. Pellerin
Marble & Granite, 93-1698, pp. 5-6 (La. 1/14/94), 630 So.2d 706,
710). “[E]ven 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.” Winford
v. Conerly Corp., 04-1278, pp. 15-16 (La. 3/11/05), 897 So.2d 560,
569-70.

We find no merit to Mr. Nowell’s contention that the WCJ erred in finding that he

failed to meet his burden of proving that he sustained a compensable work-related

injury.

An employee is entitled to compensation benefits if he or she suffers a

personal injury by an accident arising out of and in the course and scope of

employment. La.R.S. 23:1031(A). Louisiana Revised Statutes 23:1021(1)

(emphasis added) states: “‘Accident’ means an unexpected or unforeseen actual,

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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.”

In order to receive compensation benefits, Mr. Nowell must prove that his accident

produced his lower-back and shoulder injuries. That, he did not do.

Mr. Nowell had the burden of proving that the accident produced the alleged

injuries. Gradney v. Louisiana Commercial Laundry, 09-1465 (La.App. 3 Cir.

5/12/10), 38 So.3d 1115. However, the degree of Mr. Nowell’s alleged injury was

not substantiated by the medical evidence presented in this case. Therefore, the

WCJ had to consider the plausibility of Mr. Nowell’s testimony.

In Gradney, 38 So.3d at 1119, we discussed a claimant’s testimony relative

to whether it is sufficient to meet the requisite burden of proof as follows:

Generally, a workers’ compensation claimant must prove by a
preponderance of the evidence that he has suffered a work-related
accident and injury. Smith v. Town of Olla, 07-384 (La.App. 3 Cir.
10/3/07), 966 So.2d 1165.

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. Bruno v.
Harbert Int’l, Inc., 593 So.2d 357 (La.1992).
Corroboration of the worker’s testimony may be
provided by the testimony of co-workers, spouses,
friends, or by medical evidence. Id.

Id. at 1169 (quoting Hebert v. C.G. Logan Constr., Inc., 06-612
(La.App. 3 Cir. 11/2/06), 942 So.2d 77, 80).

After thoroughly reviewing the evidence and considering the detailed oral

reasons for judgment, we find that the WCJ’s factual conclusion that Mr. Nowell

did not suffer a compensable work-related injury is reasonably supported by the

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evidence. There are numerous inconsistencies between the medical evidence and

Mr. Nowell’s testimony, thereby calling into question Mr. Nowell’s credibility.

The WCJ clearly had serious doubt as to Mr. Nowell’s veracity, particularly after

Dr. Senter impugned Mr. Nowell’s honesty relative to his not treating workers’

compensation patients when Mr. Nowell requested to change treating physicians.

The WCJ felt misled by Mr. Nowell, stating in her oral reasons that had she had

Dr. Senter’s testimony at the time, she would not have granted the request to

change treating physicians. We find that it was reasonable for the WCJ to cast

serious doubt upon Mr. Nowell’s testimony and credibility in general and find that

the medical evidence did not corroborate that the accident produced the alleged

injuries; therefore, we find that the WCJ was not clearly wrong in her factual

findings.

Under the applicable standard of review, though there are two permissible

views of the evidence, we cannot say that the WCJ was manifestly erroneous or

clearly wrong. The evidence in the record supports the conclusion that Mr. Nowell

did not meet the requisite burden of proof for entitlement to workers’

compensation benefits. Because we have found no error in the WCJ’s ruling that

Mr. Nowell failed to prove that he suffered a compensable work-related injury, we

need not address the remaining issues of entitlement to indemnity benefits, medical

treatment, penalties, and attorney fees. The judgment of the OWC is affirmed.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs are assessed to

Claimant/Appellant, Donald Lester Nowell.

AFFIRMED.

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