Tracie L. Russell VS Regency Hospital of Covington and American Casualty Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1463 TRACIE L RUSSELL VERSUS REGENCY HOSPITAL OF COVINGTON AND AMERICAN CASUALTY COMPANY Judgment Rendered MAY 72010 On Appeal from the Office of Workers Compensation District 6 In and for the Parish of St Tammany State of Louisiana Docket No 08 20302 Honorable Gwendolyn F Thompson Judge Presiding Ben E Clayton Slidell Louisiana Kirk L Landry Baton Rouge Louisiana Counsel for PlaintiffAppellant Trade L Russell Counsel for DefendantsAppellees Regency Hospital of Covington and American Casualty Company BEFORE DOWNING GAIDRY AND McCLENDON 33 McCLENDON J An employee seeks review of an Office of Workers Compensation OWC judgment dismissing her disputed claim for compensation for a shoulder surgery she alleges was necessitated by a work related injury For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY The factual background surrounding Tracie Russell employment with s Regency Hospital of Covington LLC Regency and her June 2005 work related injury to her left shoulder was set forth in this court prior opinion in Russell v s Regency Hosp of Covington LLC 08 0538 La 1 Cir 11 998 App 08 4 2d So 301 rehearing denied wherein this court reviewed an OWC ruling in connection with Russell sfirst disputed claim for compensation Subsequent to the filing of the first disputed claim Russell filed a second claim against Regency and its workers compensation insurer American Casualty Company defendants In her second claim filed with the OWC Russell asserted that the work related injury to her left shoulder necessitated surgery as recommended by her treating physician Dr Mark Hontas Because the defendants did not approve the surgery Russell also sought statutory penalties s attorney fees and legal interest on same In response defendants answered the claim denying claimant entitlement to shoulder surgery by Dr Mark s Hontas statutory penalties attorney fees or legal interest Defendants urged s that Russell need for shoulder surgery was not causally related to her accident s at work Following trial on the merits the OWC judge found that Russell failed to carry her burden of proof that the left shoulder surgery recommended by her treating physician is related to her work injury of June 2 2005 and dismissed s Russell suit with prejudice Russell has filed the instant appeal asserting that she made the requisite showing that the recommended shoulder surgery was causally connected to her work injury Russell also seeks review of the OWC s 2 denial of her statutory penalties in connection with the defendants failure to authorize the surgery Russell contends that the record is devoid of any suggestion that the left shoulder surgery recommended by Dr Hontas is necessary because of anything other than the work accident Russell notes that in the prior opinion this court established the following 1 Russell was an employee at Regency at the time of the injury 2 a work injury did occur in June 2005 during that employment 3 the accident and injury arose out of and occurred within the course and scope of that employment and 4 the injury produced left shoulder problems Russell argues that although Dr Hontas did not specifically state that the recommended shoulder surgery was necessitated by the work related accident Dr Hontas records when taken as a whole disclose only treatment and evaluation for the work injury and the only logical or reasonable conclusion is that Dr Hontas knew he was treating and evaluating a work injury Russell asserts one may speculate or hypothesize that something other than the work related accident produced a bone spur in her shoulder but avers that there is no proof or extant opinion to support that supposition Russell further contends that even if such proof did exist aggravation of any underlying condition is nonetheless compensable under Compensation Act LSAR 23 et seq S 1021 the Louisiana Workers In Friedley v Alexander Electrical Inc 020292 La 1 Cir 12 836 So 430 writ denied App 02 20 2d 030237 La 3 840 So 579 the court noted 03 23 2d A plaintiff employee disability will be presumed to have resulted s from an employment accident if before the accident the plaintiff employee was in good health but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition Citations omitted This presumption is not a conclusive one rather it compels the defendant to come forward with sufficient contrary evidence to rebut it K Friedley 02 0292 at pp 45 836 So at 434 citin 2d Doucet v Baker Hughes Prod Tools 933087 p La 635 So 166 16768 As 3 3 94 11 2d such the court recognized that employers must compensate claimants who prove a disabling aggravation of prior asymptomatic conditions as a result of an onthe job injury Russell Friedley 020292 at p 5 836 So at 434 2d concludes that even if she had an asymptomatic condition prior to her work related accident the record reveals that the symptoms manifested themselves following the work related accident and the defendants are required to compensate her for the surgery We note that in a workers compensation case the appellate court s review of factual findings is governed by the clearly wrong standard Madden v Lemle and Kelleher LLP 081691 p La 1 Cir 2 6 So 6 App 09 13 3d 247 250 The twopart test for reversal of a factfinder determination is s whether there is no reasonable factual basis in the record for the finding of the trial court and the record establishes that the finding is clearly wrong Stobart v State 617 So 880 882 La 1993 Where two permissible views of the 2d evidence exist the factfinder choice between them cannot be clearly wrong s Stobart 617 So at 883 2d As such we are not called upon to determine whether the OWC judge factual findings are right or wrong but whether the s fact finder conclusion is reasonable Madden 081691 at p 6 So at 250 s 6 3d Although Russell alleges that the work related accident precipitated the need for her shoulder surgery Dr Paul M van Deventer an orthopaedic surgeon retained as an independent medical examiner in this case noted that the symptoms related to the shoulder surgery did not continuously themselves following the work related accident and opined manifest that the recommended surgery was unrelated to the accident Specifically in an April 23 2006 report Dr van Deventer indicated In regard to the relationship of the patient ongoing s symptomatology and her work injury again I feel the patient has underlying impingement syndrome about the shoulder that is not directly related to her work injury It appears that she aggravated this condition in June of 2005 Per the medical documentation it a appears that the aggravation to this condition resolved in July of 2005 It does not appear that any interval treatment was performed and that the patient functioned at normal duty until January She began having increasing symptomatology in January although with no history of injury Therefore I am unable to relate the patient ongoing symptomatology to her work injury from June s and feel it is more consistent with her underlying impingement Dr van Deventer further noted that it was his opinion that the moderate impingement syndrome is related to her underlying acromial morphology In a subsequent report issued on February 19 2009 Dr van Deventer although he agreed that surgery may be necessary noted In relationship to the patient work history my overall opinion is s unchanged from my previous report The patient did give a history that was documented of a shoulder neck sprainstraintype injury that by the medical documentation resolved She presented approximately 6 months later with symptomatology consistent with shoulder impingement which I would relate to her underlying congenital condition Because a reasonable factual basis appears in the record to support the OWC s finding we cannot conclude that the OWC finding is clearly wrong Likewise s s Russell claim for statutory penalties attorney sfees and legal interest arising from defendants failure to approve the surgery must also fail In light of the foregoing we affirm the OWC judgment and assess costs s of this appeal against Tracie Russell AFFIRMED k
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