Jason Montou v. Boise Cascade Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1248

JASON MONTOU

VERSUS

BOISE CASCADE COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 13-02014
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

AFFIRMED.

Charles William Farr
1305 W. Causeway Approach – Suite 213
Mandeville, LA 70471
Telephone: (985) 626-3812
COUNSEL FOR:
Defendant/Appellant - Boise Cascade Company

Jason R. Bell
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
Telephone: (337) 436-6611
COUNSEL FOR:
Plaintiff/Appellee - Jason Montou

THIBODEAUX, Chief Judge.

This dispute involves a work-related accident for which a claim was

filed with the Office of Workers’ Compensation after disability benefits were

discontinued. Jason Montou was injured in the course and scope of his

employment for Boise Cascade Company (“Boise”). Both parties agree Mr.

Montou suffered an injury to his shoulder, but disagree over whether he also

sustained injuries to his neck and back. The parties also disagree over whether Mr.

Montou is still disabled. The workers’ compensation judge (WCJ) determined Mr.

Montou’s neck and back injuries are compensable and that he is still disabled and

entitled to indemnity benefits, but that Boise is not liable for penalties and attorney

fees for its treatment of his claim. Boise now appeals. After a review of the

record, we do not find that the WCJ was manifestly erroneous in his conclusions

and, therefore, affirm.

I.

ISSUES

This Court will now consider:

(1) whether it was manifest error for the WCJ to conclude that Mr.
Montou’s alleged back and neck injuries were related to the
work accident;

(2) whether it was manifest error for the WCJ to conclude that Mr.
Montou proved by clear and convincing evidence that he is
entitled to indemnity benefits as a result of the work accident;
and

(3) whether the WCJ erred in failing to award Mr. Montou
penalties and attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Jason Montou, plaintiff-appellee, claims he injured his shoulder, back,

and neck on November 22, 2010, while unloading a hydraulic cylinder within the

course and scope of his employment with Boise. Following the accident, Mr.

Montou immediately reported to his supervisor and completed a Supervisor’s

Incident Report, which he reviewed and signed. The incident report only refers to

a shoulder injury. Mr. Montou was taken to Oakdale Community Hospital by his

supervisor and treated for his shoulder injury. The Oakdale records confirm that

Mr. Montou’s “chief complaint” was right shoulder pain, but they also establish

that Mr. Montou complained of numbness in the fingers of his right hand. Mr.

Montou was sent home and told to follow-up with an orthopedic doctor if the pain

persisted.

Several days later, Mr. Montou contacted the workers’ compensation

adjuster and requested an appointment with an orthopedic doctor. The adjuster

scheduled him an appointment at the Center for Orthopedics where he was treated

by Dr. Steven Hale. Dr. Hale treated Mr. Montou for his shoulder, eventually

performing surgery on his rotator cuff, and referred Mr. Montou to Dr. William

Lowry for treatment of his back. The medical records indicate that throughout his

treatment with Drs. Hale and Lowry, Mr. Montou complained of numbness and

tingling in his right arm, hand, and fingers, as well as back pain as early as

December of 2010 and March of 2011, respectively. Although Dr. Hale opined

Mr. Montou could return to work in April of 2011 based on the status of his

shoulder, Dr. Lowry disagreed until an MRI of Mr. Montou’s lumbar spine could

be obtained. The records report a lumbar MRI was obtained, but in September Dr.

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Lowry notes that any treatment he could provide was limited until MRIs of the

cervical and thoracic spine were approved by workers’ compensation. Mr. Montou

claimed he stopped treatment with Dr. Lowry because Boise would not approve the

MRIs and further treatment would be futile until the MRIs were performed.

In October of 2013, Boise directed Mr. Montou to be examined by Dr.

Douglas Bernard, who, after reviewing medical records and performing a physical

examination, concluded that Mr. Montou was well past maximum medical

improvement (MMI) and could return to work unrestricted. Dr. Bernard opined

there was no connection between Mr. Montou’s neck and back complaints and the

work accident. Though Dr. Bernard found degenerative changes in the back, he

stated they were purely degenerative in nature and not caused by the accident.

Immediately following receipt of Dr. Bernard’s report, Boise terminated Mr.

Montou’s benefits. Dr. Bernard’s report was forwarded to Dr. Lowry for approval,

but benefits were terminated before Dr. Lowry’s response was received. Dr.

Lowry had not seen Mr. Montou in roughly two years and did not make his

decision based on his own independent evaluation of Mr. Montou when he

approved of Dr. Bernard’s findings.

Mr. Montou began seeing Dr. Gunderson, his physician of choice,

after his benefits were terminated. Following an examination, Dr. Gunderson

opined that Mr. Montou was still disabled due to his neck and back injuries and

should not return to work. He further requested that a cervical and lumbar MRI be

performed, which Boise refused. Boise also refused to reinstate benefits although

Dr. Gunderson believed Mr. Montou to be disabled.

Mr. Montou filed a claim with the Office of Workers’ Compensation

seeking repayment of medical expenses and the reinstatement of indemnity

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benefits from Boise. Mr. Montou also sought penalties and attorney fees for

Boise’s alleged arbitrary and capricious handling of his claim. Because both Dr.

Bernard and Dr. Gunderson’s opinions conflicted, the WCJ appointed an

Independent Medical Examiner (IME), Dr. Frazer Gaar, to examine Mr. Montou.

After a physical examination and review of his medical records, the IME opined

that Mr. Montou had “preexisting lumbosacral degenerative disc disease.” The

IME determined Mr. Montou was at MMI and could return to light-duty work. He

specified the “light-duty” status was due to the degenerative disc condition in Mr.

Montou’s back, not because of injuries remaining from the work accident.

Believing Mr. Montou to be a credible witness, who had seen a

plethora of doctors following the work accident, and giving significant weight to

the opinion of Dr. Gunderson, the WCJ decided Mr. Montou was still disabled and

in need of benefits. The WCJ ordered Boise to accept Mr. Montou’s neck and

back injuries as compensable injuries stemming from the accident, to approve the

cervical and lumbar MRIs requested by Dr. Gunderson, and to reimburse Mr.

Montou for Dr. Gunderson’s treatment. The WCJ also ordered Boise to reinstate

Mr. Montou’s indemnity benefits retroactive to October 23, 2013 at a rate of

$505.38 per week. However, because Boise terminated benefits only after a

credible doctor found Mr. Montou capable of work, and because its actions did not

quite amount to being arbitrary and capricious, the WCJ did not award penalties

and attorney fees to Mr. Montou. Boise now appeals. In his answer to the appeal,

Mr. Montou requests that we award him penalties and attorney fees.

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III.

STANDARD OF REVIEW

“Factual findings in workers’ compensation cases are subject to the

manifest error/clearly wrong standard of review.” Banks v. Indus. Roofing & Sheet

Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556. In applying this

standard, the appellate court must determine not whether the trier of fact was right

or wrong, but whether its conclusion was reasonable. Id. Therefore, if the

appellate court determines that the trial court’s findings “are reasonable in light of

the record reviewed in its entirety,” it may not reverse, “even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

“Consequently, when there are two permissible views of the evidence, the

factfinder’s choice between them cannot be manifestly erroneous.” Ardoin v.

Firestone Polymers, L.L.C., 10-245, p. 6 (La. 1/19/11), 56 So.3d 215, 219.

IV.

LAW AND DISCUSSION

Back and Neck Injuries

When an employee alleges an injury under the Workers’

Compensation Act, he carries the burden of proving the accident occurred, and that

he suffered a disability as a result of that accident, by a preponderance of the

evidence. Bruno v. Harbert Int’l. Inc., 593 So.2d 357 (La.1992). The employee

must show that the accident “directly produc[ed] 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). See also Romero v. Chabillis’ Tire Serv. Inc.,

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97-1722, p. 4 (La.App. 3 Cir. 5/6/98), 714 So.2d 803, 804. However, “[a]n

accident exists when heavy lifting or strenuous efforts, although usual and

customary, cause or contribute to a physical breakdown or accelerate its

occurrence because of a pre-existing condition.” Bourgeois v. Seabright Ins. Co.,

12-834, p. 5 (La.App. 5 Cir. 4/10/13), 115 So.3d 50, 52-53.

The employee’s testimony alone is enough to discharge the burden of

proving an accident occurred when: “(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. Furthermore, “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.’” Id. (quoting

West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979)). Whether the

testimony of the worker is credible is a factual determination that should not be

disturbed on appeal unless found to be clearly wrong or manifestly erroneous.

Ardoin, 56 So.3d 215.

The injury-causing event is not contested. Therefore, Mr. Montou

must prove a causal relationship between the disability claimed and the accident.

Thibodeaux v. Mech. Constr. Co., L.L.C., 10-739 (La.App. 3 Cir. 12/8/10), 52

So.3d 1084. This court recognizes a presumption of disability stemming from a

work accident when “an employee proves that before that accident he had not

manifested disability symptoms, but that commencing with the accident, the

disability symptoms appeared” and the evidence supports “a reasonable possibility

of a causal connection between the accident” and the onset of symptoms.

Broadway v. Shane Mitchell Logging, Inc., 12-810, pp. 6-7 (La.App. 3 Cir.

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12/12/12), 105 So.3d 1041, 1046; see also Thibodeaux v. Mech. Constr. Co.,

L.L.C., 52 So.3d 1084; Thibodeaux v. L.S. Womack, Inc., 94-1375 (La.App. 3 Cir.

4/5/95), 653 So.2d 123. Furthermore, this court in Day v. Superior Derrick

Services, 11-749 (La.App. 3 Cir. 12/7/11), 80 So.3d 654, upheld the findings of the

WCJ where the claimant’s description of the work accident was consistent over

many years, the claimant had no symptoms prior to the work accident, and the

claimant’s testimony was corroborated by circumstances following the accident.

Boise does not dispute Mr. Montou’s shoulder injury, but does argue

that his back and neck injuries are not compensable injuries stemming from the

accident. Mr. Montou began complaining of numbness and tingling in his right

hand, arm, and fingers immediately following the accident. The emergency room

records from Mr. Montou’s visit list numbness and tingling as a complaint, and he

continued those complaints throughout his treatment in 2011. In his notes, Dr.

Hale recounts that Mr. Montou complained of numbness beginning at his elbow

and radiating to his hand, as well as pain in his neck radiating towards his shoulder,

both present since the time of the accident. At that time, Dr. Hale recommended

that Mr. Montou see Dr. Lowry and possibly have an EMG nerve conduction study

to assess the cause of those symptoms. Dr. Hale noted he was concerned that Mr.

Montou may have a cervical etiology for his bilateral upper extremity pain.

Although Mr. Montou did not state he experienced specific neck pain in the

emergency room following the accident, Drs. Hale and Lowry both believed the

numbness and tingling to be related to a cervical and thoracic spine injury.

Although medical records do not note back complaints until approximately three

months after the accident, Mr. Montou did tell Dr. Hale that his back pain had been

persistent since the accident. He explained his shoulder was bothering him more

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initially, but after shoulder surgery, his back pain became more prominent, even

making it difficult to get out of bed.

As in Day, no evidence was presented showing symptoms of back or

neck pain prior to the work accident. Following the accident, Mr. Montou

consistently complained of tingling and numbness in his right upper extremity as

well as back pain. Although Boise asserts Drs. Bernard and Gaar believed Mr.

Montou to suffer from a genetic degenerative disc disease, the record supports the

finding that Mr. Montou was not disabled before the accident and that he had

worked for Boise without any known problems. Based on the testimony and

records submitted as evidence, the WCJ found Mr. Montou to be an extremely

credible witness and believed the circumstances surrounding this case corroborated

Mr. Montou’s testimony. Finding the factual determinations to be reasonable in

light of the record reviewed in its entirety, we cannot say the WCJ was clearly

wrong in finding the back and neck injuries to be compensable injuries.

Indemnity Benefits

After concluding that Mr. Montou’s neck and back injuries are

compensable injuries, the question on appeal becomes whether Mr. Montou

continues to suffer a disability and, therefore, should have indemnity benefits

reinstated retroactive to the date of discontinuance. In order for an employee to

receive temporary or permanent total disability benefits, the employee must prove

that he is unable to engage in any form of employment, and must do so by clear

and convincing evidence. Iberia Med. Ctr. v. Ward, 09-2705 (La. 11/30/10), 53

So.3d 421. “The clear and convincing evidence standard requires a party to prove

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the existence of a contested fact is highly probable, or much more probable than its

non-existence.” Id. at 432.

Boise argues the WCJ erred in ordering the reinstatement of Mr.

Montou’s benefits retrospective to October 23, 2013. Boise supports its argument

with the opinions of Drs. Bernard, Lowry, and the IME who believed Mr. Montou

could return to some form of employment with Boise. Mr. Montou offers Dr.

Gunderson’s opinion, as his treating physician, as well as his own testimony to

counter these opinions. “Ordinarily, the treating physician should be given more

weight than that of a doctor who has examined a plaintiff for purposes of diagnosis

only.” Guillory v. Ins. Co. of N. Am., 401 So.2d 612, 614 (La.App. 3 Cir. 1981).

Although Dr. Gunderson saw Mr. Montou only once, as did Dr. Bernard and the

IME, he was the only physician to see Mr. Montou for treatment purposes versus

evaluation purposes. Furthermore, although the IME stated the work accident did

not cause Mr. Montou’s back problems, he did opine that the accident caused an

exacerbation of degenerative disc disease. This court has previously held that “[a]

claimant’s recovery under Louisiana’s workers’ compensation laws is not barred

by a pre-existing condition because an employer takes the employee as he finds

him.” Rivers v. Bo Ezernack Hauling Contractor, Inc., 09-991, p. 4 (La.App. 3

Cir. 3/10/10), 32 So.3d 1091, 1095, writ denied, 10-807 (La. 6/4/10), 38 So.3d 309.

Mr. Montou’s degenerative disc disease does not prohibit him from receiving

benefits when that condition was worsened by an otherwise compensable work

related accident. Id. See also, Fontenot v. Wal-Mart Stores, Inc., 03-1570

(La.App. 3 Cir. 4/7/04), 870 So.2d 540, writ denied, 04-1131 (La. 6/25/04), 876

So.2d 843; Bourgeois, 115 So.3d 50.

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When the WCJ is presented multiple opinions from medical

professionals, the “decision to credit one physician’s testimony over another’s is a

credibility determination which, in the absence of manifest error or clear

wrongness, cannot be reversed on appeal.” Rochon v. Iberia Parish Sch. Bd., 95-

1370, p. 7 (La.App. 3 Cir. 3/27/96), 673 So.2d 239, 244 (rehearing granted for

other reasons). Based on the foregoing, we find no manifest error in the WCJ

giving more weight to Dr. Gunderson’s opinion or in the ultimate determination

that Mr. Montou is still disabled and entitled to indemnity benefits retroactive to

October 23, 2013. Mr. Montou was previously receiving temporary total disability

(TTD) benefits and so the judgment of the WCJ presumably reinstated those TTD

benefits at a rate of $505.38 per week. We affirm the reinstatement of TTD

benefits.

Penalties and Attorney Fees

The Workers’ Compensation Act allows penalties and attorney fees to

be awarded when an employer fails to approve of medical treatment and when an

employer improperly discontinues indemnity benefits. These occasions are

governed by two different standards enumerated in La.R.S. 23:1201(E) and

La.R.S. 23:1201(I). We will address both occasions separately.

Failure to Furnish Necessary Treatment

Louisiana Revised Statutes 23:1203(A) obligates employers or their

insurer to furnish all necessary medical treatment. Penalties and attorney fees shall

be awarded when the employer or insurer fails to provide payment in accordance

with section 1201. La.R.S. 23:1201(F). This obligation to furnish treatment

includes authorizing medical treatment. See La.R.S. 23:1203(E); Authement v.

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Shappert Eng’g and St. Paul Fire and Marine Ins. Co., 02-1631, p. 8 (La. 2/25/03),

840 So.2d 1181, 1187. Therefore, failure to timely pay benefits or authorize

treatment shall result in penalties and attorney fees unless the employer or insurer

can reasonably controvert the claim. Brown v. Texas-LA Cartage, Inc., 98-1063

(La. 12/1/98), 721 So.2d 885. To determine whether a claim is reasonably

controverted, “a court must ascertain whether the employer or his insurer engaged

in a nonfrivolous legal dispute or possessed factual and/or medical information to

reasonably counter the factual and medical information presented by the claimant. .

. .” Id. at 890.

Mr. Montou asserts that Boise should be responsible for penalties and

attorney fees because it failed to authorize and pay for treatment by Dr. Gunderson

for Mr. Montou’s neck and back. The medical records leading up to this point

document complaints of back pain as well as tingling and numbness in his upper

right extremities, which Dr. Hale believed could be caused by cervical spine injury.

Not only did the emergency room records note Mr. Montou’s complaints regarding

numbness, but Darla Walker, the adjuster, admitted to having this medical

information in her possession. However, Boise also had in its possession, at the

time these MRIs were not approved, medical information to reasonably controvert

the claim for treatment, specifically, Dr. Bernard’s report that Mr. Montou could

return to work. In addition, Dr. Lowry agreed with Dr. Bernard’s assessment of

Mr. Montou’s condition, though such agreement was based solely off of Dr.

Bernard’s report and not an examination of Mr. Montou. Despite this fact, Dr.

Bernard’s report provided Boise with medical information to reasonably controvert

the claim for treatment by Dr. Gunderson. We find no manifest error in the WCJ’s

denial of penalties and attorney fees under La.R.S. 23:1201(E).

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Improper Termination of Benefits

Louisiana Revised Statutes 23:1201(I) provides the standard by which

an employer’s conduct is evaluated when benefits have been discontinued. This

statute provides:

Any employer or insurer who at any time discontinues
payment of claims due and arising under this Chapter,
when such discontinuance is found to be arbitrary,
capricious, or without probable cause, shall be subject to
the payment of a penalty not to exceed eight thousand
dollars and a reasonable attorney fee for the prosecution
and collection of such claims. The provisions as set forth
in R.S. 23:1141 limiting the amount of attorney fees shall
not apply to cases where the employer or insurer is found
liable for attorney fees under this Section. The
provisions as set forth in R.S. 22:1892(C) shall be
applicable to claims arising under this Chapter.

La.R.S. 23:1201(I) (emphasis added). The Louisiana Supreme Court in Brown,

721 So.2d at 890, explained that “[a]rbitrary and capricious behavior consists of

willful and unreasoning action, without consideration and regard for facts and

circumstances presented, or of seemingly unfounded motivation.” Therefore, the

WCJ must consider “whether the employer has [an] articulable and objective

reason for denying or discontinuing benefits at the time it took that action.”

Authement v. Wal-Mart, 02-2434, p. 12 (La.App. 1 Cir. 9/26/03), 857 So.2d 564,

574.

After reviewing the record, the WCJ determined that Boise had an

articulable and objective reason for discontinuing Mr. Montou’s benefits. Boise

terminated benefits after receiving Dr. Bernard’s report, which stated Mr. Montou

was well beyond MMI and could return to work unrestricted. Dr. Bernard was the

only doctor to see Mr. Montou in roughly two years prior to Boise discontinuing

benefits. Dr. Bernard opined that Mr. Montou had no ongoing problem with his

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right shoulder. Dr. Bernard also opined that because of the delay in complaining

of a neck injury,1 and after considering the negative EMG and Nerve Conduction

Studies of his right upper extremity, he does not believe the neck can be related to

the work accident. Finally, Dr. Bernard reviewed MRIs of Mr. Montou’s back that

showed a low back strain and degenerative disk disease, which he explained are

genetic. Dr. Bernard reported he did not see any nerve root compromise and

believed no further treatment was necessary. In an addendum, Dr. Bernard stated

that if Mr. Montou had suffered any injury to his back at the time of the work

accident, “it was nothing more than a minor strain.” Based on Dr. Bernard’s

report, Boise terminated Mr. Montou’s benefits.

When determining whether an employer improperly discontinued

benefits, the court evaluates facts known to the employer at the time the benefits

were terminated. Johnson v. St. Frances Nursing & Rehab. Ctr., 14-599 (La.App.

3 Cir. 12/23/14), 155 So.3d 689. Although the WCJ notes that he believes Dr.

Bernard was ultimately wrong in finding Mr. Montou to not be disabled, he

determined Boise relied on “competent medical advice” when it chose to terminate

benefits. The judge commented that Boise “did appear to be overeager to

terminate benefits, but that attitude and behavior did not rise to the level of being

arbitrary and capricious.” Rather, “there [was] little question that the defense

brought a close legal case to the court.” On the date of discontinuance, Boise had

medical records dated nearly two years prior and Dr. Bernard’s report summarizing

his evaluation of Mr. Montou. Ultimately the WCJ reasoned that “it cannot be said

1
Dr. Bernard notes that Mr. Montou did not complain of his neck specifically until five
months post-accident. However, the record shows Mr. Montou did continuously complain of
tingling and numbness in his upper right extremities immediately following the accident.

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that the insurer’s actions were without consideration and regard for the facts and

circumstances presented at trial.”

Thus, considering that penal statutes are to be strictly construed and

giving deference to the factual findings of the WCJ, we will not disturb the judge’s

findings that Boise relied on competent medical advice and, thus, had probable

cause to terminate Mr. Montou’s benefits. See Rochon, 673 So.2d 239 (reliance on

doctor’s opinion was not arbitrary and capricious); Johnson, 155 So.3d 689

(reliance on facts and doctor’s opinion at time of termination of benefits was not

arbitrary and capricious). The court did not err in denying penalties and attorney

fees under La.R.S. 23:1201(I).

V.

CONCLUSION

For the foregoing reasons we find that there has been no showing of

manifest error on the part of the workers’ compensation court. Accordingly, the

judgment is affirmed in all respects. Costs of this appeal are assessed to the

defendant-appellant.

AFFIRMED.

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