Floyd D. Dubuisson VS Louisiana Insurance Guaranty Association and Amclyde Engineered Products Company, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0010 FLOYD D DUBUISSON VERSUS J fPfh y AMCLYDE ENGINEERED PRODUCTS CO INC AND LOUISIANA INSURANCE GUARANTY ASSOCIATION On Appeal from the Office of Workers Compensation Administration District 6 State of Louisiana Docket No 10 00761 Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding G Brice ones Ross F Attorneys for Appellee Plaintiff Floyd D Dubuisson Lagarde Paul D Hesse Jones Lagarde L C Slidell LA Michael J Bourquard Attorney for New Orleans LA Appellants Defendants Amclyde Engineered Products Co Inc and Louisiana Insurance Guaranty Association BEFORE PARRO HUGHES AND WELCH J 7udgment rendered l J J c n u i DEC 3 1 2nt2 PARRO J In this workers compensation case Amclyde Engineered Products Co Inc Amclyde and its insurer Louisiana Insurance Guaranty Association LIGA appeal a judgment in favor of Floyd D Dubuisson who was employed by Amclyde when he fell and sustained injuries For the following reasons we affirm the judgment in part and remand in part for further proceedings in accordance with the law and this opinion BACKGROUND On March 24 2000 while in the course and scope of his employment as a pipefitter with Amclyde Dubuisson fell injuring his neck After conservative treatments produced no relief for the pain in his neck and right shoulder in December 2002 Dr John B Logan an orthopedic surgeon specializing in spine surgery perFormed a cervical fusion on his neck Although Dr Logan deemed the surgery a success after some initial pain remission Dubuisson experienced neck pain radiating into his right shoulder and arm Consequently he continued to receive treatment for his neck and right shoulder pain from Dr Robert Fortier a pain management specialist who Bensen had treated him since the accident In July 2003 Dubuisson was involved in a minor motor vehicle accident in which he struck the rear of another vehicle while under the influence of prescription medications He admitted he was on medications was handcuffed and was taken to jail where he became involved in a physical altercation with a jailer after being booked All charges concerning the fight at the jail were eventually dropped but he was convicted of DUI After this incident unless it was absolutely necessary for him to drive Dubuisson depended on his wife and son for transportation Because Dubuisson continued to experience right shoulder pain Dr Logan ordered an MRI of the right shoulder without contrast which was performed on August 14 2003 That test showed degenerative changes of the acromioclavicular joint causing impingement into the supraspinatus tendon possible tendinopathy in the LIGA is the successor insurance association to the failed Reliance Insurance Company which had provided workers compensation insurance to Amclyde 2 rotator cuff and the possibility of a partial tear After years of treatment with no consistent relief from the right shoulder pain Dr Fortier ordered another MRI Bensen This test an arthrogram was done with contrast on October 30 2007 The diagnostic report after this test concluded that there was a tear of the superior labrum extending from anterior to posterior and mild degenerative arthritis in the acromioclavicular joint that appeared unchanged from August 2003 In January 2008 Dubuisson consulted Dr Brian L Fong an orthopedist who diagnosed a superior labrum tear in his right shoulder and recommended arthroscopic surgery if cortisone surgery injections did not relieve his pain LIGA did not approve the In July 2010 Dr Fortier terminated Dubuisson as a patient because Bensen he had tested positive for Xanax which the doctor had not prescribed for him at that time Dubuisson paid out for all of his medical expenses after July 2010 pocket of On November 17 2010 LIGA terminated his supplemental earnings benefits and on January 21 2010 Dubuisson filed a disputed claim for benefits In January 2011 Dubuisson received approval from LIGA to see Dr Logan again for his continuing complaints of right shoulder pain Dr Logan agreed that the right shoulder needed surgery and that after this had been done the cervical area needed a further workup to determine whether there were disc problems above and below the earlier fusion Dr Logan referred him to Dr Richard P Texada Jr an orthopedic surgeon with a specialty in sports medicine for treatment of his shoulder injury and to Dr Scott Sondes a medical doctor with a specialty in physical medicine emergency room care for pain management rehabilitative medicine and Again LIGA did not approve these referrals Following the trial on May 23 2011 the workers compensation judge WCJ found that Dubuisson was an Amclyde employee in March 2000 when the accident occurred and that he had sustained injuries to his neck and right shoulder in the work z Dr Fortier was extremely ill with a parasitic wasting disease at this time and had not been at Bensen his clinic to give Dubuisson facet injections to relieve his shoulder pain He eventually closed his practice and referred Dubuisson to other pain management specialists The judgment states that the injury occurred on March 24 2010 however this appears to be a typographical error since all the evidence indicates the accident occurred on March 24 2000 3 related fall The judgment orclered Amclyde and LIGA to pay him temporary total disability benefits from November 18 2010 at the rate of 384 per week plus legal interest until paid and further ordered payment of all medical bills and expenses including any unpaid mileage to either the health providers who remained unpaid care or to Dubuisson if he had paid those items out The judgment further pocket of granted Dubuisson the right to change his choice of pain management physician to Dr Sondes and to Dr Texada for treatment of the neck and right shoulder and also ordered Amclyde and LIGA to pay for continuing treatment including surgery for the labrum tear in Dubuisson right shoulder Amclyde and LIGA appealed that judgment s which was signed on August 31 2011 STANDARD OF REVIEW In workers compensation cases the appropriate standard of review to be applied by the appellate court to the WCJ findings of fact is the manifest s clearly error wrong standard Dean v Southmark Const 03 La 7 879 1051 04 6 2d So 112 117 To uphold the WCJ finding of fact the appellate court must find from s the record that there is a reasonable factual basis for the finding of the trier of fact and that the record establishes that the finding is not clearly wrong manifestly erroneous Mart v Hill 505 So 1120 1127 La 1987 Thus if there is no reasonable factual 2d basis in the record for the trier of fact finding no additional inquiry is necessary to s conclude there was manifest error However if a reasonable factual basis exists an appellate court may set aside a factual finding only if after reviewing the record in its entirety it determines the factual finding was clearly wrong See Stobart v State through Dep Transp and Dev 617 So 880 882 La 1993 see also Dawson v tof 2d Terrebonne Gen Med Ctr 10 La App lst Cir 569 So 622 626 2130 li 3d 19 If the trial court findings are reasonable in light of the record reviewed in its s entirety the court of appeal may not reverse those findings even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Conner v Family Dollar Store 09 La App lst Cir 3 36 1537 10 26 3d So 339 345 writ denied 10 La 6 38 So 344 0959 10 25 3d 4 Where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even when the appellate court may feel that its own evaluations and inferences are as reasonable Robinson v North American Salt Co 02 La App lst Cir 6 865 So 98 105 writ denied 03 1869 03 27 2d 2581 La 11 03 26 860 2d So 1139 Where there are two permissible views of the evidence a fact finder choice between them can never be manifestly erroneous or s clearly wrong Richardson v North Oaks Hoso 11 La App lst Cir 2 91 1258 12 13 3d So 361 365 CAUSATION Amclyde and LIGA contend Dubuisson sright shoulder problem was not related to the March 2000 work accident but was a new injury that occurred either in the automobile accident and the fight with the jailer in July 2003 They claim Dubuisson or complained only of neck pain after his work injury and did not complain of right shoulder pain until after the July 2003 accident and confrontation They also state that the labrum tear in Dubuisson sright shoulder first showed up on the MRI in 2007 the MRI in 2003 did not show the tear and a number of doctors could not relate the finding of the labrum tear to the original work injury Therefore Amclyde and LIGA conclude Dubuisson did not meet his burden of proving a legal causal connection medical between the accident and the right shoulder injury Thus they should not be forced to pay for continuing treatment and surgery to correct the right shoulder labrum tear A workers compensation claimant bears the burden of establishing a causal connection between the work accident and the resulting disability by a preponderance of the evidence Clark v Godfrey Knight Farms Inc 08 La App lst Cir 1723 09 13 2 6 So 284 292 writ denied 09 La 5 9 So 163 3d 0562 09 29 3d An swork employee related accident is presumed to have caused his disability when the claimant proves that before the accident he had not manifested his disabling symptoms that commencing with the accident disabling symptoms appeared and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition 5 Delatte v Pala Grou LLC 09 La App lst Cir 2 35 So 291 295 writ denied 10 0913 10 10 3d 0562 La 5 34 So 865 10 7 3d This court will examine the evidence presented by Dubuisson to determine whether he met his burden of proving that more probably than not his current problems with his right shoulder were causally related to the accident at work If there is medical and other evidence indicating a reasonable possibility of that causal connection then the WCJ factual finding concerning this issue cannot be clearly s wrong and cannot be overturned by this court Dubuisson testified at trial that he had pain in his neck and right shoulder and arm after the work accident He reported this to the doctors who examined him related immediately after the accident including Dr Fortier Dr Bert R Bratton and Bensen Dr Logan On December 3 2002 Dr Logan performed a cervical fusion which provided temporary relief for the pain in his neck but not for the pain in his right shoulder and arm Dr Fortier treated his shoulder pain by doing monthly facet Bensen injections in his neck each of those injections would relieve the shoulder pain for about two weeks An MRI without contrast was performed on his right shoulder in August 2003 and a second MRI with contrast an arthrogram was done in October 2007 Dr David Donaldson a board diagnostic radiologist at Ochsner Medical certified Center North Shore in Slidell testified as an expert concerning his evaluation of the two MRIs and the radiology reports interpreting those tests He stated that the radiologist who conducted the August 2003 test reported degenerative changes of the acromial clavicular joint causing impingement into the supraspinatus tendon an intermediate signal in the rotator cuff that could represent tendinopathy and the possibility of a partial tear The radiologisYs report concerning the October 2007 MRI concluded there was a of the superior labrum extendi from anterior to posterior and mild tear g degenerative arthritis in the acromial clavicular joint which appeared unchanged from August 2003 Dr Donaldson stated that in the 2007 tests an initial series of images was done without contrast Then the joint was injected with contrast fluid to light up all the small recesses of the joint and another series of images was taken 6 In this second series the contrast solution made the tear in the glenoid labrum clearly visible Referring again to the radiologist report after the 2007 test Dr Donaldson noted that s the radiologist looked at the 2007 images that were taken before injection of the contrast fluid and said he believed he could see the tear on those images Dr Donaldson then compared the 2007 pre images with the 2003 MRI images contrast taken without contrast material and stated that the appearance was the same in both of those images leading him to believe that more probably than not there was a tear in Dubuisson glenoid labrum in 2003 s On cross Dr Donaldson acknowledged that he believed the 2003 examination s report reference to a possible tear involved the rotator cuff not the glenoid labrum Dr Donaldson said that on the 2007 MRI pre images there was an area in the contrast proton density imaging that looked like the tear When he compared that to the proton density imaging on the 2003 MRI Dr Donaldson could see something in the same area that looked like the tear He said IYs only in retrospect with two sets of images and a further study that you can look back and think that there is a tear there sdeposition taken December 8 2009 was admitted into evidence as Dubuisson a joint exhibit Dubuisson said that on the day of the accident he was working for Amclyde as acting foreman and was asked by a mechanic to check his work Dubuisson climbed on top of a level beam pile and checked the work As he came down he stepped off a concrete piling onto another one that had a pipe about six to eight inches long sticking out of the end of it He said he stepped on the piling and went down to the ground explaining further y M right foot slid and I thought I was going to hit that pipe And I reached back I twisted my whole body as hard as I could back to keep me from hitting that pipe on the end of the piling I thought I was going to hit it but I didn I hit my butt my hand hit the ground and my feet t leg went down The ground was on an angle and I popped all the way from my back up to the base of my skull The following Monday he made an accident report to his supervisor and was told to go to Pelican Urgent Care which he did After taking an x of his neck the ray radiologist there told him he could see something wrong in his neck but could not tell what it was Dubuisson then asked Amclyde to let him see his own pain management 7 doctor Dr Fortier wPio had Bensen done prolotherapy on his knee after ACL replacement surgery some years earlier Dr Fortier referred him to Dr Bratton Bensen a neurosurgeon for a myelogram of his cervical area When the test results came in Dr Bratton told him he needed surgery but said his neck would never be the same Dr Fortier then referred him to Dr Logan who told him he could do the Bensen surgery but said the disk above and below the fusion would probably go out in time Dubuisson said that before the surgery his symptoms were Excruciating neck pain the stabbing in the shoulder feeling burning down through the top of my shoulder Dubuisson testified at the trial that he had seen Dr Fortier on a monthly Bensen basis ever since his accident for pain management for his neck and right shoulder including facet injections that gave him some temporary relief About September 2009 Dr Fortier could not see him due to his own illness and the facet injections Bensen ceased Dubuisson admitted that he took some Xanax that was not prescribed at that time by Dr Fortier when a drug test revealed this Dr Fortier Bensen Bensen terminated him as a patient in September 2010 Dubuisson was eventually able to find another pain management specialist Dr Joseph Mogan who was still treating his neck and shoulder pain at the time of trial However LIGA had not approved the transfer to Dr Mogan so Dubuisson was paying him out of pocket In January 2011 he returned to Dr Logan who recommended he see Dr Texada for treatment of the shoulder and Dr Sondes for pain management LIGA did not approve these referrals and after November 2010 Dubuisson did not receive any more workers compensation benefits Dubuisson stated that his right shoulder had been getting steadily worse ever since the neck surgery even to the point of feeling like someone was stabbing a knife into his shoulder blade Dr Fortier sdeposition was taken in February 2010 and admitted into Bensen evidence as a joint exhibit His notes from Dubuisson second visit to him on April 11 s 2000 showed that Dubuisson reported right shoulder pain at that time and this complaint showed up consistently in the records of subsequent visits 8 Dr Fortier Bensen said he had no doubt that Dubuisson right shoulder was injured as a result of s the work accident Initial tests showed serious disc problems in the neck at C4 related 5 C5 and C6 and it was thought these were causing the right shoulder and arm 6 7 pain It was only after the cervical fusion that the doctors realized there was an independent cause of the right shoulder problem On one of Dubuisson searliest visits to him Dr Fortier notes show guarded range of motion of the cervical spine s Bensen and right shoulder continues to cause him pain he has a decreased range of motion of the right shoulder pain numbness tingling associated He said this would also describe Dubuisson current condition as of the deposition date Injections to his neck s had taken care of some of the pain but never improved his range of motion ability to use his right shoulder and weakness and dysfunction of his right upper e Dr remity Bensen Fortier said that from the outset Dubuisson had a neck problem and a shoulder problem and complained about the shoulder a great deal even in the early days time went on the shoulder pain consistently did not improve As So there was clearly something going on with the shoulder that needed to be addressed Dr Fortier Bensen said that in hindsight iYs clear that his shoulder issue was a lot more involved than probably all of us imagined at the time He further stated that everything Dubuisson had ever told him concerning his injury was consistent with the diagnosis of a type 2 superior labral tear Dr Logan deposition from February 2011 was also admitted as a joint exhibit s His notes showed that on Dubuisson first visit on May 2 2002 he complained of s cervical pain radiating down the right arm and said his right hand and fingers would get numb Dubuisson drew a pain diagram showing pain in his neck his mid and back his right shoulder as well as his fingers On the June 17 2002 visit Dr Logan notes s showed Dubuisson complaints of neck pain were about the same along with right s shoulder and upper back pain Those notes say that the pain radiates primarily to the right shoulder girdle out of the right tip of the acromion and down the medial border of the right shoulder On November 15 2002 in the pre workup Dr Logan surgery again noted pain radiating into the right trapezial and medial scapula region 9 Dr Logan testified that after the cervical fusion surgery in December 2002 Dubuisson returned to his office on 7anuary 8 2003 Dr Susan Bryant a physical medicine and rehabilitation physician who practiced with Dr Logan recorded that Dubuisson had muscle spasms and severe right shoulder problems He was sent to physical therapy where at the first evaluation there was decreased strength in the right shoulder and tenderness in the anterior bursa Dr Logan stated that all of those things certainly related to a shoulder derangement On the May 2 2003 visit Dr s Logan handwritten notes show neck right shoulder deep ache and then under the exam right shoulder pain with positive impingement positive levator scapula pain The notes also show trapezial motor point pain which he described as pain right at the center of the shoulder Physical therapy notes from May 13 and 21 showed continuing treatment for the right shoulder On June 6 2003 Dr Logan notes reflect s that Dubuisson had right shoulder pain deep ache an indication of positive a also impingement Those notes further stated that Dubuisson may need a right shoulder MRI and facet injections if it remained painful Dubuisson slast visit to Dr Logan was on February 5 2004 when he presented with right shoulder pain and with his right fingers numb At that point Dr Logan noted that Dubuisson needed a repeat MRI of the cervical spine a neurological evaluation and a referral to Dr Texada for the right shoulder rotator cuff Dr Logan stated that the next time he met with Dubuisson was seven years later on January 27 2011 when he returned with complaints of continuing pain Dubuisson described the location of the problem as the right shoulder right upper arm right hand right fingertips and right side of his neck spine was recommended A repeat MRI of the cervical Dr Logan explained that the two anterior cervical level diskectomy and fusion at the C4 and C5 levels that he had performed some eight or 5 6 nine years earlier raised his concerns about the next or adjacent open segments being subject to increased force resulting in breakdown above or below the fusion R405 Dubuisson returned to him with the MRI studies in early February 2011 Again he spoke of multiple problems including difficulties with all activities of daily living and 10 increased neck pain radiating to the right shoulcier and right dominant arm The MRI revealed some breakdown at the next open motion segment below his fusion which was C6 Dr Logan recommended treating the neck with selective facet injections to 7 the two levels above and below the fusion levels C3 and C6 bilaterally 4 7 Regarding the comparison of the 2003 and 2007 MRIs and Dr Donaldson s opinion that the labral tear was present in both Dr Logan said Well I would have suspected that anyway because a labral tear generally takes some type of force Dr Logan summarized that it is within medical reason if he was complaining of shoulder pain after the accident he certainly presented to me with shoulder pain and neck pain and ifJ he was not complaining of severe shoulder symptomology prior to the accident then it reasonable that the accident was a contributing fador to his shoulder s pain I he was working full and he says he began hurting after the accident f time then that reasonable s After the 2007 MRI revealed the labral tear Dubuisson was referred by Dr Bensen Fortier to Dr Brian L Fong an orthopedic surgeon whose clinic notes after the first visit in January 2008 state It does appear by the patient history and the s accompanying documentation that the right shoulder injury is relatable to the work related injury of 2000 His superior labral tear is consistent with a history of falling with him reaching out and grabbing something perform cortisone injections into the Dr Fong treatment plan was to s right shoulder Dr Fong tried the cortisone injections but they did not provide the intended pain relief and on July 31 2008 he planned to set Dubuisson up for right shoulder arthroscopy with distal claviculectomy and superior labral repair That surgery was not approved The record is replete with notes from other physicians who examined Dubuisson or simply examined some of his records Many of them said they could not relate the right shoulder labral tear to the 2000 accident However given Dubuisson testimony s Dr Fortier testimony and medical records Dr Logan testimony and medical s Bensen s records Dr Fong medical records and Dr Donaldson s stestimony there is certainly reasonable evidence demonstrating that more probably than not Dubuisson right s 11 shoulder injury was caused by his fail at work Moreover our review of the record in its entirety does not indicate that this finding was clearly wrong The WCJ had consistent medical evidence from Dubuisson streating physicians to support this finding and her choice to assign more weight to the opinions of those doctors than to others whose evaluations are also in evidence cannot be clearly wrong Therefore this court must affirm the finding that Dubuisson sright shoulder injury was caused by his work related fall CHANGE IN PHYSICIANS Amclyde and LIGA contend that Dubuisson change in pain management s specialists was not a medical necessity but was necessitated by his failing a drug test and being terminated as a patient They state that the Workers Compensation Act provides a defense against paying benefits when an employee tests positive for non prescribed medication citing LSA 23 They further contend that even if he S R 1081 were entitled to change pain management specialists he would not be entitled to the services of two new physicians citing S B R 1121 LSA 23 and that his 1 reimbursement if any for out payments for such treatments should be pocket of limited to 750 pursuant to LSA 23 S R1142 Addressing first the argument based on LSA 23 we note that this S R 1081 statute precludes compensation benefits only when the employee sinjury was caused by alcohol intoxication or the use of a non controlled substance at the time prescribed of the injury See LSA 23 and 5 There is absolutely no evidence in S 1 R 1081 b this record that Dubuisson had ingested alcohol or had used illegal drugs at the time of his accident Therefore this argument lacks merit Regarding an employee s right to choose his own physician S R LSA 1 B 1121 23 states The employee shall have the right to select one treating physician in any field or specialty The employee shall have a right to the type of summary proceeding provided for in R 23 when denied his S 1124 B right to an initial physician of choice After his initial choice the employee shall obtain prior consent from the employer or his workers compensation carrier for a change of treating physician within that same field or specialty The employee however is not required to obtain approval for change to a treating physician in another field or specialty 12 An employer has a duty to furnish all necessary medical treatment resulting from an employee related accident See LSA 23 This includes palliative swork SA R 1203 treatment to relieve an employee of pain caused by a work injury Jennings v Ryan s Family Steak House 07 La App lst Cir 11 984 So 31 39 Dubuisson 0372 07 2 2d chose Dr Fortier as his pain management specialist and continued to be treated Bensen by him from April 2000 until July 2010 when he was dismissed for taking pain medications that were not prescribed for him at that time However not long after that dismissal due to his own very serious illness Dr Fortier was forced to Bensen close his practice and Dubuisson no longer had a pain management specialist of his own choosing In Wilzcewski v Brookshire Grocery Co 10 La App 3rd Cir 1148 11 16 3 59 So 530 546 the court concluded that when the claimant initial pain 3d s management specialist had discharged her she was entitled to see another physician for pain management treatment Accordingly Dubuisson was entitled to choose another pain management specialist after his initial choice in that specialty was no longer available In this case Dr Logan who specialized in spinal surgery referred Dubuisson to Dr Texada for treatment of his shoulder injury because Dr Texada was an orthopedic surgeon with a specialty in sports medicine Dr Logan also referred him to Dr Sondes for pain management for the neck and shoulder because he specialized in physical and rehabilitative medicine Therefore although the wording of the WCJ judgment does s not make this distinction clear the overall record shows that Dr Sondes practiced pain management and was to serve as Dubuisson pain management physician while Dr s Texada was to do whatever was necessary to treat the right shoulder injury including surgery Therefore the WCJ did not err in requiring LIGA and Amclyde to approve both referrals only one of which was for pain management Dr Fortier had prescribed Xanax for Dubuisson but had discontinued that prescription some Bensen time earlier Dubuisson took some of the left Xanax and some valium given to him by a friend over 5 Dubuisson could not function without some kind of pain treatment and eventually began seeing Dr loseph J Mogan III for whose services he paid out because LIGA would not approve the pocket of transfer to him However Dubuisson did not get the pain relief he needed from Dr Mogan and did not really choose him for pain management Dr Mogan was simply the only available alternative since other doctors consulted by Dubuisson were too expensive and LIGA never approved the referral to him or Dr Sondes 13 LIGA and Amclyde further con that payrnents for non diagnostic end emergency testing and treatment incfuding pain management must be limited to 750 as stated in LSA 23 since there was no mutual consent of the payor and employee as S R 1142 to that treatment The employer duty to furnish medical expenses is governed by s S A R 1203 LSA 23 which in pertinent part provides In every case coming under this Chapter the employer shall furnish all necessary drugs supplies hospital care and services medical and surgical treatment and any nonmedical treatment recognized by the laws of this state as legal and shall utilize such state federal public or private facilities as will provide the injured employee with such necessary services Louisiana Revised Statutes 23 in pertinent part further provides 1142 B Nonemergency care 1 Except as provided herein each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation Except as provided herein that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer workers compensation insurer unless the s employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider E Exception In the event that the payor has denied that the s employee injury is compensable under this Chapter then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury According to subsection E when compensability is denied no approval by the employer or payor is required for testing or treatment Stewart v Livingston Parish Sch Bd 07 1881 La App lst Cir 5 991 So 469 475 The statute does not specify 08 2 2d when or how a denial of compensability must occur it merely states that if the payor denies that an injury is compensable the employee need not seek approval for medical treatment Id In this case LIGA and Amclyde consistently denied liability for any treatment for the right shoulder injury Therefore the denial of compensability triggered the exception in subsection E Since we agree with the WCJ that Dubuisson proved that the right shoulder injury was caused by his work accident he was entitled to all related reasonable and necessary treatment for that injury without approval from LIGA and 14 Amclyde See Quick v Terrebonne Gen Med Ctr 09 La App lst Cir 2 1101 10 10 35 So 287 290 Accordingly the statutory limit on payments is not applicable 3d COMPENSATION BENEFITS Amclyde and LIGA contend that Dubuisson should not have continued to receive supplemental earnings benefits SEBs because he was released for light duty or sedentary work by several physicians Therefore he did not prove he could not earn 90 of his pre wages They further note that LSA 23 limits accident S3 R 1221 d SEBs to 520 weeks but they paid his benefits until November 18 2010 which was beyond that time period They claim that Dubuisson sabotaged a 2005 functional capacity evaluation in order to keep from having to return to work Also Amclyde and LIGA contend that because Dubuisson did not prove that he could not engage in any occupation for wages he did not establish his right to temporary total disability benefits TTDs Finally they argue that the benefit rate to which they stipulated at trial 384 per week was incorrect and should be 349 per week 60 Regarding Dubuisson entitlement to SEBs the statute providing for those s benefits is LSA 23 The threshold prerequisite to recovery of SEBs as S 3 R 1221 stated in subsection 3 of that statute is that the employee injury results in his a s inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury Daigle v Sherwin Co 545 So 1005 1006 La Wiiliams 2d 07 1989 Carignan v Louisiana Com Maint Co 02 La App lst Cir ressor 0180 02 30 12 836 So 476 480 The injured employee bears the burden of proving by 2d a preponderance of the evidence that the injury resulted in his inability to earn that amount DaiQle 545 2d So at 1007 The analysis is necessarily a facts and 6 The payments would include those set out in LSA 23 which provides SD R 1203 In addition the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services medicines and prosthetic devices which the employer is required to furnish under this Section and for the vocational related rehabilitation mileage traveled by the employee at the direction of the employer When the employee uses his own vehicle he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business The o shall inform the employee of ce his right to reimbursement for mileage See uick 35 So3d at 290 15 circumstances one in which the court is mindful that workers compensation law is to be liberally construed in favor of coverage Id In determining if an injured employee has made a prima facie case of entitlement to SEBs the court may and should take into account all those factors which might bear on the employee ability to earn a wage s Id It is not until the employee successfully bears his burden of proving his disability and resultant inability to earn at least ninety percent of his pre wages that the injury burden shifts to the employer who in order to defeat the employee claim for SEBs or s to establish the employee earning capacity must prove by a preponderance of the s evidence that the employee is physically able to perform a certain job and that the job was offered or available to the employee in his or the employer community or s reasonable geographic region Cari nan 836 So at 480 2d An employee seeking TTDs in accordance with LSA 23 must S 1 R 1221 c prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation whether or not the same type of work he was engaged in at the time of injury Alexander v Sanderson Farms Inc 08 La App lst Cir 5 2225 09 8 17 So 5 10 3d Clear and convincing proof has been defined as an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond reasonable doubY criminai standard Clear and convincing proof requires objective medical evidence of the disabling condition causing the s employee inability to engage in any employment The claimant must provide objective expert testimony as to his medical condition symptoms pain and treatment in addition to personal testimony in order to meet this standard The factual finding of whether a claimant is entitled to TTDs is subject to the manifest error or clearly wrong standard of appellate review Roussell v St Tammany Parish Sch Bd 04 La 2622 App lst Cir 8 943 So 449 457 writ not considered 06 La 06 23 2d 58 2362 07 8 1 948 So 116 Delatte v Pala Grouo LLC 09 La App lst Cir 2d 0913 10 10 2 35 So 291 298 writ denied 10 La 5 34 So 865 3d 99 0562 10 7 3d Dubuisson explained that his inability to perform work of any kind was due to the continuing severe pain in his neck and right shoulder which was only partially relieved 16 by pain medications and facet injections He testified that he could not lift anything over five pounds and could no longer go fishing mow his lawn or help his wife with household chores Because of the right shoulder pain which radiated down to his elbow and caused numbness and tremors in his fingers his entire right arm and hand were virtually useless He stated To me iYs dead weight Obviously his previous work as a pipefitter or welder was totally impossible In addition the pain medications that he had to take impaired his ability to drive safely as demonstrated by the July 2003 accident making it necessary for him to rely on his wife and others for transportation Dubuisson said he did not feel he could take a job because he was not supposed to be driving while taking medication and did not know how he could get to and from work every day He said that he had been to jail once because of that and did not want to go through that again in his life stating I don like jail Dubuisson t testified that he had applied for some of the jobs that vocational rehabilitation counselors had recommended for him but once the prospective employers learned that he was on medication they were not interested in him Both Dr Fortier and Dr Logan supported Dubuisson Bensen sclaim that he was and had been completely unable to work because of continuing pain and the need to be on strong pain medications at all times Dr Fortier smedical records include a Bensen letter to LIGA attorney on December 20 2002 stating that he had seen Dubuisson in s the past for a knee problem and he always made attempts to be at work and never looked for ways to get out of work Dr Fortier further stated that every Bensen diagnostic work that had been done since the work accident indicated that up related Dubuisson could not return to work as a pipefitter Dr Fortier had signed a release for sedentary work at one point in Bensen streatment but stated in his deposition that his intention was to let him try Dubuisson something so LIGA and Amclyde would realize that he was unable to perform even sedentary jobs He later recanted this release and would not release Dubuisson for any work Dr Fortier said at this point he not capable of doing the job At the Bensen s time of trial Dubuisson was taking daily maximum doses of Lortab for pain Soma for 17 muscle spasms Paxil for depression and pain Ambien for inability to sleep and was also using Lidoderm patches for pain Dr Fortier stated Bensen I don know how anybody with the amount of pain he had would have t s survived if he hadn thad the medicines Because having had pain myself this is something that gets to the point where it just wears you down not from a standpoint of cortisol leveis but also just from never getting good rest because you can sleep well at night t He said Dubuisson also suffered from depression which is pretty consistent with people with chronic pain The pain the medications the depression and the inability to sleep would all interfere with his ability to do any of the jobs recommended by a vocational rehabilitation specialist Dr Fortier noted that the ability to drive Bensen was always a difficult issue because pain could make a person ability to drive just as s bad as that of someone who takes medicine He concluded that the patient remains still temporarily totally disabled Asked if Dubuisson could return to work Dr Logan said he could possibly do some sedentary work but based on his exam Dr Logan would say no to Dubuisson s ability to do a forty work week with his right shoulder pain and neck pain without hour excessive absences Also he would surely be on narcotics for pain management Dr Logan said I would not release him for duty He unfit for duty at this time s He clarified his earlier comments by saying By the truest letter of sedentary I never ve seen the type of work that he might be able to do available in reality Dr Logan also said he would not release Dubuisson to work until they got through with the treatments to the new cervical problem and newly diagnosed right shoulder problem On cross Dr Logan said Well the first time I saw him he had examination something wrong with his shoulder sedentary work now Dr in plain English n Logan said I my I Asked if Dubuisson could do experience you going re l to have I probably significant absences probably need for transportation need for changing positions frequently on narcotic medication and a really reduced hours a week It just t doesn become practical W have to go by the thing if you on narcotics you e re t can operate heavy equipment or drive I t can recommend it Both doctors recognized that the right shoulder problem had been there from the beginning after 18 sfall but had not been properly diagnosed resulting in the treatments being Dubuisson focused on his neck Dr Logan said Dubuisson was unfit for any kind of work and could not be considered for release until after the right shoulder surgery and a follow up evaluation of his neck condition The record does include opinions from other physicians and vocational rehabilitation counselors who concluded Dubuisson could perform sedentary work However the WCJ had this information when she considered his entitlement to continuing benefits In addition to his own testimony Dubuisson provided objective expert testimony as to his medical condition symptoms pain and treatment options from Dr Fortier and Dr Logan These doctors who provided the vast majority Bensen of his treatments agreed that the right shoulder injury had existed since his work related accident and that its severity and the pain medications required to treat it precluded Dubuisson sability to perform any work Therefore Dubuisson carried his burden of proving that he was entitled to TTDs and our review of the record as a whole demonstrates that the WC award of those benefits was not manifestly s erroneous With respect to the amount of monthly benefits the parties jointly stipulated that the monthly benefit amount was 384 There is no evidence in the record showing any lesser amount Therefore the WCJ correctly awarded that amount retroactive to the date benefits were discontinued REMAND In addition to TTDs the WCJ awarded Dubuisson all medical bills and expenses including any unpaid mileage at issue herein pertaining to the right shoulder and neck and sa m e s h a II be pa id by d efen da nt t o the hea Ith ca r e p rovi der if unpaid and reimbursement to claimant for those medical bills and expenses paid by claimant However the judgment does not reflect the specific dollar amounts that Amclyde and LIGA are to pay to the healthcare providers and to Dubuisson Accordingly we find or it necessary to remand this case for a full hearing to determine those amounts After that hearing the WCJ is to render a new judgment reflecting the specific dollar 19 amounts that must be paid for the medical expenses connected to Dubuisson work s related injuries to his neck and right shoulder See Stewart 991 So at 479 2d CONCLUSION For the above reasons we affirm in part the judgment of August 31 2011 However we remand the case in part for further proceedings consistent with the law and this opinion concerning a full hearing and a new judgment determining the exact dollar amounts of inedical bills and expenses to be paid to healthcare providers or to be reimbursed to Dubuisson by Amclyde and LIGA All costs of this appeal are assessed to Amclyde and LIGA AFFIRMED IN PART REMANDED IN PART I i 20
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