Darrin Smith VS Lafarge North America, L.L.C.
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPF AL FIRST CIRCUIT NO 2012 CA 0337 DARRIN SMITH VERSUS LAFARGE NORTH AMEKICA L C Judgment Rendered November 2 2012 l C On Appeal from the The Office of Workers Compensation District 6 In and for the Parish of Tangipahoa State of Louisiana No 10 04288 The Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding Mark D Plaisance Thibodaux Louisiana Attorneys for Plaintiff Appellant Darrin Smith Denise A Vinet Baton Rouge Louisiana Joseph M New Guillot Orleans Louisiana BEFORE Attorney for Defendant Appellee Lafarge North America L C CARTER C GUIDRY AND GAIDRY JJ J CARTER C J Claimant Darrin Smith appeals a determination of the Office of Workers Compensation OWC that lumbar surgery was not reasonable or medically necessary Far the following reasons we affirm FACTS AND PROCEDURAL HISTORY Darrin Smith was involved in a motor vehicle accident on Highway 25 in Folsom Louisiana on April 24 2007 while in the course and scope of his employment with Lafarge North America L Lafarge Smith was driving a C mix ready cement truck which flipped several times after Smith attempted to avoid colliding with a vehicle merging into his lane oftravel Smith was extracted from the cement truck which came to rest upside down in a ditch and air to lifted St Tammany Hospital for treatment Following the accident Smith employer s Lafarge paid and continues to pay medical and indemnity benefits to Smith Despite medical treatment following the April 24 2007 accident Smith continued to complain of constant pain in his neck shoulder and back Smith s treating physician neurosurgeon Dr Bradley Bartholomew recommended Smith undergo lumber surgery specifically a percutaneous discectomy Lafarge requested a second medical opinion SMO from neurosurgeon Dr Najeeb Thomas who opined that Smith was not a candidate for lumbar surgery The OWC appointed neurosurgeon Dr James Tran to perform an independent medical examination IME due to the conflicting opinions conceming the reasonableness Additionally there is a tort suit regacding Smith April 24 2007 accident pending in the s Second Twenty Judicial District Court in St Tammany Parish Louisiana A percutaneous discectomy also spelled diskectomy refers to the medical procedure mhereby an intervertebral disc or disk is removed in whole or in part Percutaneous indicates that the procedure is performed through the skin The pmcedure is generally pexformed to unpinch or decompress a nerve and the spinal cord See Ida G Dox Gilbert M Eisner or June L Melloni B John Melloni Attorney sIllustrated Medical Dictionary D38 P20 West 1997 2 and necessity of the lumbar surgery After the IME Dr Tran did not recommend Smith undergo lumbar surgery but instead suggested that Smith receive radiofrequency ablation treatments in his lumbar spine As a result Smith filed a Disputed Claim for Compensation on May 12 2010 seeking authorization far the percutaneous discectomy as recommended by Dr Bartholomew his treating physician as well as costs penalties and attorney s fees Lafarge filed an answer to Smith claim denying the necessity of the s surgery based on the recommendations ofDr Thomas and Dr Tran The dispute proceeded to trial and was heard before the OWC on October 17 2011 The parties stipulated that the only issue before the OWC was whether Smith was entitled to undergo the lumbar surgery as recommended by Dr Bartholomew Following the submission of the parties post briefs the OWC trial took the case under advisement On November 18 2011 the court signed a written judgment ruling that Smith carried his burden of proof that he suffered back injury as a result of the April 24 2007 accident however Smith did not carry his burden of proving that the lumbar surgery recommended by Dr Bartholomew was reasonable and medically necessary Smith now appeals 3 Radiofrequency ablation treatment refers to the removal or eradication of nerve tissue using the frequency of electromagnetic xadiation in the range between audio frequencies and infrazed frequencies When directed at the lumbar spine the radiofrequency treatment can minimize pain and initation in the facet joints See Dox AttoYney Illustratecl NSedical s DictionaYy at A2 R2 a Smith filed an Amended Disputed Claim for Compensation on July 29 2011 requesting 1 a change in orthopedic physician because at that time Smith believed his orthopedic sargeon Dr Brett Chiasson no longer took workers compensation patients and 2 a change in pain management doctor from Dr Mohamed Elkersh to Dr Sandra Weitz Smith filed a Second Amended Disputed Claim for Compensation on September 20 2011 amending Section 15 to c add the following issues 1 failure to pay bills timely and 2 penalties and attorney fees s 3 DISCUSSION The issue in this case is whether the warkers compensation judge WCJ erred in giving more weight to the testimony of the evaluating physicians versus the treating physician for the purpose of recommending lumbar surgery for Smith In warkers compensation cases the appropriate standard of review to be applied by appellate courts is the manifest error wrong standard Dawson clearly v TerNebonne GeneYal Medical Center 2010 La App 1 Cir 5 69 2130 11 19 So 3d 622 626 For an appellate court to reverse a WCJ factual finding it must s find from the record that a reasonable factual basis does not exist for the finding of the WCJ and that the record establishes that the finding is clearly wrong Dawson 69 So 3d at 626 In workers compensation cases the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong but whether the sconclusion was a reasonable one Dawson 69 So 3d at 627 Even factfinder though an appellate court may feel its own evaluation and inferences are more reasonable than the factfinder reasonable evaluations of credibility and s reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony Dawson 69 So 3d at 627 Furthermore where two permissible views of the evidence exist in a workers compensation case the schoice between them cannot be manifestly erroneous or clearly wrong factfinder Dawson 69 So 3d at 627 When faced with the question of whether to accept the opinion of a non treating physician specialist over the opinion of a treating physician specialist this circuit has previously held that the trial court ultimately retains the discretion to weigh and consider such competing 4 testimony despite any applicable presumptions Ponthier v vulcan Foundry Inc 95 La App 1 Cir 1343 96 23 2 668 So 2d 1315 1317 8 1 Following the April 24 2007 accident Smith sought medical attention from his primary care physician Dr Charles Ducombs Smith complained of head shoulder and lower back pain Dr Ducombs ordered a CT scan of Smith head s and a lumbar MRI which was performed on May 29 2007 Due to the nature of s Smith back injuries Dr Ducombs referred Smith to Dr Brett Chiasson an orthopedic surgeon ln June 2007 Smith saw Dr Chiasson who prescribed pain medication and physical therapy Smith had additional follow appointments with Dr Chiasson up from July through November 2007 Dr Chiasson consistently opined that Smith was not a candidate for lower lumber spine surgery In November 2007 Dr Chiasson recommended Smith make an appointment with neurosurgeon Dr John Nyboer however on the recommendation of his attorney at the time Smith first saw neurosurgeon Dr Bradley Bartholomew on May 15 2008 Based on Smith s physical exam and a review of the MRI scans Dr Bartholomew recommended Smith receive ceroical facet blocks to his spine Smith continued to complain of constant pain in his head shoulders and lower back Dr Bartholomew then recommended Smith undergo a lumbar discogram After the results of the discogram revealed positive results in certain portions of Smith spine at an appointment in March 2009 Dr Bartholomew s 5 The results of the MR1 performed at Premier MRI 4 U indicated that Smith lumbaz s spine had normal alignment vertebral body height and marrow signal Smith suffered 1 an om 3 L2 mild circumferential bulge with mild right neural foraminal narrowing an L3 mild 4 circumferential bulge with mild left neural foraminal nanowing a circumferential disc bulge at 5 L4 with mild bilateral neural foraminal narrowing and anterior thecal sac defarmity with no evidence of spinal cana stenosis and a circumferential disc bulge of LS with mild right S1 neural foxami narrowing ial 5 offered Smith several lumbar surgical options including a percutaneous discectomy On July 17 2009 Smith was involved in a non related motor vehicle work accident Following the accident Smith again visited Dr Bartholomew Smith averred the pre pain in his neck and back was intensified by the recent car existing accident Dr Bartholomew ordered Smith to undergo a second lumbar MRI which was performed on August 18 2009 Dr Bartholomew reviewed the films and noted no evidence of disc herniations no spinal stenosis and no narrowing of the spinal canal Dr Bartholomew continued to offer to perform a percutaneous discectomy on Smith lumbar spine s At Lafarge request for a SMO Smith was examined by neurosurgeon Dr s Thomas on September 22 2009 Dr Thomas reviewed Smith 2007 and 2009 s MRI films noting that Smith films were fairly normal and that he suffered from s degenerative disc disease in his cervical and lumber spine Dr Thomas indicated that Smith suffered cervical and lumbar strains from his injuries but at the time of his examination Smith was at maximum medical improvement Dr Thomas opined Smith was not a surgical candidate Because of conflicting medical opinions regarding the reasonableness and necessity of Smith lumbar surgery the OWC appointed Dr Tran to perform the s IME On April 12 2010 Dr Tran examined Smith He opined Yhat Smith was a candidate for radiofrequency treatment in his lumbar spine however Dr Tran did not recommend Smith undergo the lumbar surgery as offered to Smith by his treating physician Dr Bartholomew 6 The results of the MRI indicated that Smith lumbar spine had mild degenerative s changes There was mild foraminal narrowing at L3 and L4 secondary to disc bulging and 4 5 facet disease no spinal stenosis no ecidence for disc herniations Dx Thomas saw 5mith again on July 6 2010 Dr Thomas reiterated his assessment that Smith was not a surgical candidate 6 On April 21 2010 Smith tripped and fell over a hose as he was clocking in for work at Lafarge Following this accident Smith attended numerous physical therapy appointments and continued to complain of constant lower back shoulder and neck pain and problems walking standing sitting climbing and dressing A third lumbar MRI was performed on April 29 2o10 The MRl showed no disc herniations or spinal canal stenosis While the physicians did not testify at the October 17 2011 trial their respective medical records pertaining to Smith were introduced Based on their physical examinations of Smith and a review of Smith medical history and s records Dr Thomas and Dr Tran opined that surgical intervention was not warranted for Smith specifically the percutaneous discectomy recommended by Dr Bartholomew Aithough the physicians were qualified to give an opinion as to the nature and treatment of Smith injury the WCJ had the discretion to evaluate s all of the testimony and to determine which physician sopinion was most credible This determination cannot be disturbed unless found to be manifestly erroneous Dawson 69 So 3d at 627 628 The WCJ balanced Dr Bartholomew opinion as Smith treating s s physician against the opinions of the evaluating physicians Dr Thomas and Dr Tran Based on the evidence presented in this case we find the WCJ did not abuse her discretion in refusing to give Dr Bartholomew opinion greater weight than s the opinions of the other physicians who examined Smith Consequently we conclude that the WCJ did not err in denying Smith request for lumbar surgery s 8 Smith attended physical therapy at Anatomix Physical Therapy on April 30 2010 May 4 2010 May 5 2010 May 7 2010 May 12 2010 and June 21 2010 7 CONCLUSION For the foregoing reasons the judgment of the OWC in favor of Lafarge North America L is affirmed C All costs of this appeal are assessed against the claimant Darrin Smith AFFIRMED 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
