Prince A. Primus VS Brand Services, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 0009 PRINCE PRIMUS VERSUS BRAND SERVICES INC Judgment Rendered September 14 2011 On Appeal from the v iice of Workers Compensation District 6 in and for the Parish of Tangipahoa State of Louisiana Docket No 09 08926 The Honorable Elizabeth Warren Workers Compensation Judge Presiding George R Tucker Counsel for PlaintiffAppellant Hammond La Prince Primus Stephen M Whitlow Baton Rouge La Counsel for Defendant Appellee Brand Services Inc BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J CARTER C J Claimant Prince Primus filed a disputed claim for compensation with the Office of Workers Compensation Administration asserting that he was working at a job site for Brand Services Inc Brand on September 28 2009 when he fell from a scaffold causing injury After a trial on the merits on July 2010 12 the workers compensation judge WCJ left the record open in order to allow the parties to submit an examination independent medical s report for claimant independent medical examination which was scheduled by the OWC Medical Services Office for August 9 2010 Upon notification that claimant failed to appear for the examination the judge closed the record and rendered judgment dismissing claimant claims against Brand for indemnity s benefits and additional medical benefits with prejudice In making this ruling the WCJ gave extensive reasons noting that claimant was less than truthful about his prior documented neck and back injuries and has been less than cooperative with appearing for scheduled medical appointments which indicates to the court that further medical treatment is in all likelihood unnecessary The WCJ further noted that one In of the doctors who have examined Mr Primus have declared him disabled Claimant appeals the judgment After a thorough review of the record including the WCJ extensive s written reasons attached hereto as Appendix A we find no manifest error in the factual determinations of the WCJ or legal error in the judgment of 2 dismissal 2 We affirm the judgment in accordance with Uniform Rules Courts of Appeal Rule 2 16 B 1 Costs are assessed against claimant Prince Primus AFFIRMED Claimant contends the WCJ erred in failing to impose sanctions in the form of penalties and attorney fees against Brand for its failure to pay benefits Because we s find no error in the WCJ dismissal of claims for indemnity benefits we pretermit s discussion of this assignment of error 2 Claimant also contends the WCJ erred in failing to impose sanctions in the form of penalties and attorney fees against Brand for its failure to authorize necessary s diagnostic treatment An employer has a statutory duty to furnish all necessary medical treatment caused by work related injury La Rev Stat Ann an apparent finding that such treatment was unnecessary 1203 23 The WCJ made A WCJ determination s regarding medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong Lang Parker v Unisys Corporation 000880 La App 1 Cir 1015101 809 So 2d 441 449 We do not find the determination of the WCJ to be manifestly erroneous given the circumstances 3 AV PRINCE PRIMUS 0 DOCKET VS 0908926 DISTRICT 6 OFFICE OF WORKERS COMPENSATION BRAND SERVICES INC STATE OF LOUISIANA WRITTEN REASONS Prince Primus filed a disputed claim for compensation on October 23 2009 He alleged injuries to his leg and back as a result of a September 28 2009 accident while in the course and scope of his employment at Brand Services Inc Brand Over the course of the litigation Mr Primus filed several amended claims naming various Brand entities as his employer However at trial on the merits exceptions of no cause of action were granted as to Brand Energy Infrastructure and Brand Scaffold Builders and the correct employer was stipulated to be Brand Services Inc Trial was held on July 12 2010 After taking testimony and evidence the court left the record open specifically for the purpose of allowing the parties to submit the independent medical examination IME report of Dr Thad Broussard The IME was scheduled by the OWC Medical Services office for August 9 2010 at 1 p 30 m On the afternoon of August 9 2010 the court was notified by fax from the OWC Medical Services office that Mr Primus failed to appear for the examination 9L Mr Primus testified at trial He testified that he is 27 years old and has been scaffolding since he was 18 years old Mr Primus testified that he has never had a previous workers compensation claim and that he had been employed at Brand about three and a half months Mr Primus testified that he had never had prior ankle neck or back injuries and that he had never had any prior motor vehicle accidents Mr Primus testified that the work accident occurred around 8 p He 00 m testified that at the time of the accident his ankle was in severe pain and he also complained of back pain He testified that the next day his mother took him to North Oaks Hospital for his upper back He testified that he has not returned to work since the accident and that he has not received wage payments Mr Primus testified that he saw a doctor on Airline Highway on September 30 2009 On cross examination Mr Primus testified that he fell 7 feet onto a pipe underneath him He testified that Brand had no job available after the accident but he was told he could come in and just sit around Mr Primus was presented with medical records from North Oaks Hospital Mr Primus testified that he could not recall suffering a neck injury in September 2001 He testified that he did not have a motorcycle accident in January 2007 because he does not know how to ride a motorcycle He testified that it must have been his brother posing as him on those visits 2 W DaJuan Carter Jr testified on Mr Primus behalf He testified that he saw Mr Primus fall down onto a pipe maybe about 4 feet but he was stopped by his harness Malcolm Pines also testified on Mr Primus behalf He testified that he vaguely remembers the incident and that he gave a statement to the safety personnel s s Brand Supervisor Initial Investigation Report SIIR was admitted into evidence The report indicates Mr Primus sustained an injury to his left ankle The report indicates that Mr Primus foot was twisted between two scaffold planks and he suffered a strained left ankle Medical records from River Parishes Hospital were admitted into evidence The records indicate Mr Primus was seen there on September 28 2009 the day of the accident He complained of left ankle pain after falling 7 feet and his left leg got caught between two boards Xrays taken of the left lower leg foot and ankle were all interpreted as normal He was discharged with crutches Medical records from North Oaks Hospital were admitted into evidence The records indicate that Mr Primus was seen there on September 29 2009 the day after the accident The nurse notes indicate that Mr Primus was popping s wheelies in wheelchair in waiting room The notes indicate that Mr Primus complained of falling off a scaffold the night before and twisting his ankle but that now his back was hurting He was discharged with medications and told to see his family physician 3 vim The SIIR contains a medical report which indicates that Mr Primus was seen at Gulf Coast Occupational Medicine Inc on Airline Highway on September 30 2009 two days after the accident He was diagnosed with low back pain ankle sprain and mid back pain and released to regular duty as tolerated He was scheduled to return to the clinic on October 7 2009 but there are no subsequent medical records from Gulf Coast Occupational Medicine Inc Medical records from Dr F Allen Johnston were admitted into evidence Mr Primus elected to see Dr Johnston as his choice of orthopaedist Mr Primus first saw Dr Johnston on February 22 2010 At that visit Mr Primus related that he was injured when his left ankle got stuck between two boards and he lost his balance and fell backwards He related that his harness did not catch him He related that after 24 hours he developed pain in his neck and back He denied any previous issues with his neck back or left ankle Dr Johnston physical examination of the neck revealed a normal s posture no radiculopathy and discomfort in the interscapular area but no trigger points In examining the low back Mr Primus had a negative straight leg raise His examination of the left ankle revealed a negative drawer exam tenderness over the anterior talofibular ligament and full range of motion Dr Johnston diagnosed Mr Primus with a left ankle strain rule out internal derangement and cervical and lumbar strains He recommended MRI of the left ankle and physical therapy for the neck and back He did not disable Mr Primus from work 4 3 Medical records from Dr Joe Morgan were admitted into evidence Dr s Morgan billing records as well as correspondence from Brand workers s compensation administrator indicate that Mr Primus was originally scheduled to see Dr Morgan on February 17 2010 Mr Primus did not see Dr Morgan on February 17 2010 and Brand workers compensation administrator was s charged a 250 noshow fee Mr Primus eventually appeared for the re 00 scheduled appointment on March 8 2010 Dr Morgan March 8 2010 report indicates Mr Primus related an s accident in which he fell from a scaffold He related that he fell five feet or more but did not fall to the ground He related that he was held by a strap on the harness he was wearing that he fell onto a pipe that was beneath the scaffold and that his left foot was jammed under a board Mr Primus denied any motor vehicle accidents and other bone joint or spine accidents or problems except fractures to both arms long ago He also related prior chiropractic treatment a long time prior but could not remember details Based on his examination and xrays of the neck back and ankle which he performed at his office Dr Morgan stated that he could not find any orthopaedic or neurologic abnormality in Mr Primus He stated that Mr Primus may have sustained a closed injury to his left ankle from which he had made a complete recovery Dr Morgan felt that Mr Primus was not in need of further diagnostic workup or treatment for injuries he may have sustained in the accident Dr 5 L I Morgan did not place any work restrictions on Mr Primus and considered him to be at maximum medical improvement Medical records from North Oaks Hospital indicate that Mr Primus presented to the emergency room on January 25 2007 complaining of back and rib pain from a motorcycle accident but he left without being treated The records also indicate that Mr Primus presented to the emergency room on December 18 2006 complaining of neck low back and left thumb pain from a motor vehicle accident in which he was an unrestrained driver The records further indicate that Mr Primus presented to the emergency room on September 24 2001 complaining of neck pain after being hit by a truck in a motor vehicle accident Looking at the evidence as a whole the court concludes that Mr Primus has failed to meet his burden of proof by clear and convincing evidence that he suffered any disability from his accident on September 28 2009 at Brand None of the doctors who have examined Mr Primus have declared him disabled Additionally Mr Primus was less than truthful about his prior documented neck and back injuries and his testimony that it was his brother who sought medical treatment posing as Mr Primus is selfserving and not credible Finally Mr Primus has been less than cooperative with appearing for scheduled medical appointments which indicates to the court that further medical treatment is in all likelihood unnecessary 101 5 2 For all these reasons the court orders that Mr Primus claims for indemnity benefits and additional medical benefits shall be dismissed with prejudice Further Mr Primus is assessed costs in the amount of 1 for his 00 200 failure to appear at the stateappointed IME on August 9 2010 RENDERED AND SIGNED this 10th day of August 2010 in Covington Louisiana EW rrefi vision Judge Office of Workers Compensation 7
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