William Taylor VS Hanson North America
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EOF LOUISIANA STAT COURT OF APPEAL FIRST CIRCUTT 2012 CA 0286 WILLIAM TAYLOR VERSUS HANSON NORTH AMERICA x Judgment Rendered JAN 0 9 2013 APPEALED FROM TFIE OF OF WORK COMPENSATION FtCE ERS DISTRICT 06 lN AND FOR THE FOF S TAMMANY AKISH I TE STA OF LOUISIANA DOCKET NUMBER 07 07603 THE HONORABLE ROBERT W VARNADO JR OWC Matthew W Attorneys for Plaintiff Appellee Kristine D Williain Taylor Tierney Smiley Baton Rouge Louisiana Frank R Whiteley Attorney for Defendant Appellant Metairie Louisiana Hanson North America BEFORE KUHN PETTIGREW McDONALD JJ McDONALD 1 In this workers compensation dispuYe Hanson North America Hanson appeals a judgment of the Office of Workers Compensation OWC in favor of claimant William Taylor For the reasons that follow we affirm Mr Taylor was injured in the course and scope of his employment as a kiln operator on May 19 1995 when a kiln exploded blowing the door off the hinges The door anded on Mr Taylor and two other workers injuring Mr Taylor right s leg and lower back After the accident Mr Taylor continued to work until January of 1997 when he was no longer able to work and he began receiving temporary total disability benefits of 323 per week 00 Weekly benefits were terminated after the OWC ruled on March 12 2008 that Mr Taylor had received 520 weeks of indemnity benefits effective January 10 2007 and found that Mr Taylar had failed to prove entitlement to permanent and total disability benefits supplemental earnings benefits or temporary total disability benefits Mr Taylor appealed that judgment to this court which ruled on appeal that there were genuine issues of material fact that required a hearing reversed the summary judgment in favor of Hanson and remanded the case for further proceedings Taylor v Hanson North America 08 La App 1 Cir 1944 09 8 5 13 So 660 3d Mr Taylor filed a supplemental and amending disputed claim for compensation on July 21 2010 asserting that he was permanently and totally disabled and entitled to disability benefits for life that he was incapable of gainful employment due to his physical injuries functional limitations age experience and education that he was entitled to vocational rehabilitation services and that despite request and amicable demand he had not been provided adequate and sufficient rehabilitation services that the medical treatment recommended by his treating physician a spinal cord stimulator had been denied that his medical bill 2 and expenses had not been properly and timely paid and that he was entifled to penalties and attorneys fees Mr Taylor filed a second supplemental and amending disputed claim for compensation on November 1 2010 asserting that he was entitled to and had been denied vocational rehabilitation that he was entitled to and had been denied payment of mileage for medical appointments that he had been denied his choice of physician in the field of neurosurgery and orthopedic surgery and that he was entitled to penalties and attorneys fees Hanson answered the first supplemental and amending claim asseiting that Mr Taylor had already received all of the benefits to which he was entitled under the law and alternatively disputed the amount of benefits claimed by Mr Taylor and asserted its right to reimbursement offsets and credits After a h the OWC ruled in favor of Mr Taylor concluding that Mr ial Taylor was permanently and totally disabled from the date of judgment and finding that the spinal cord stimulator was reasonable and medically necessary ordering that Hanson approve Mr Taylor choice of orthopedic surgeon and s neurosurgeon denying Mr Taylor further vocational rehabilitation and assessing Hanson with all costs Hanson appealed that judgment and makes the following assignments of enor I That the OWC erred in finding that a spinal cord stimulator far appellee plaintiff was reasonable and necessary medical care when both the SMO second medical opinion and OWC appointed IME testified emphatically that Taylor would not benefit from this treatment 2 That the OWC erred in finding that plaintiff is entitled to appellee his choice of treating physicians in the area of orthopedic surgery or and neurosurgery and Although titled as an answer to the first supplemental and amending disputed claim for compensation we note that Hanson answer was filed after the second supplemental and s amending disputed claim for compensation had been filed 3 3 That the OWC erred in findiiig that plaintiff is permanently appellee and totally disabled as a result of the work accident which related occurred on May 19 1995 Mr Taylor filed an answer to the appeal asserting that the OWC erred in ruling that the permanent and total disability benefits were awarded only from the date of signing the judgment and in the alternative asserts that the OWC erred in ruling on December 3 2010 that Mr Taylor was limited in discovery to documents from Apri12006 forward THE STANDARD OF REVIEW Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact Allman v Washington Parish Police Jury 04 p 3 App 1 Cir 0600 La OS 24 3 907 So 86 88 Factual findings in a warkers compensation case are 2d subject to the manifest error wrong standard of review McCray v Delta clearly Industries Inc 00 p 4 App 1 Cir 9 809 So 265 269 In 1694 La 01 28 2d applying the manifest error wrong standard the appellate court must clearly determine not whether the trier of fact was right or wrong but whether the fact s finder conclusion was a reasonable one Banks v Industrial Roofing Sheet Metal Works Inc 96 pp 7 La 7696 So 551 556 Thus if 2840 8 97 1 2d the fact finder findings are reasonable in light of the record reviewed in its s entirety the court of appeal 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 Tns Co 558 So 1106 ll 12 La 1990 Consequently 2d when there views of the s evidence the fact finder choice between them cannot be manifestly erroneous Bolton v B E K Const O1 are two permissible 0486 p 7 App 1 Cir 6 822 So 29 35 Villar v Industrial Metal La 02 21 2d Recyclers 12 p 3 App 1 Cir 11 So 0319 La 12 2 3d 4 i ASSIGNMENT OF ERROR NO 3 Hanson asserts that the OWC erred in 6nding that Mr Taylor is permanently and totally disabled as a result of the work accident that occurred on May related l 9 1995 Louisiana Revised Statues 23 provides in pertinent part c 2 1221 ompensation for C permanent total disability shall be awarded only if the employee proves by clear and convincing evidence unaided by any presumption of disability that the employee is physically unable to engage in any employment or self regardless of the employment nature or character of the employment or self including employment but not limited to any and all odd employment sheltered lot employment or employment while working in any pain notwithstanding the location or availability of any such employment or self employment The finding of disability within the framework of the warkers compensation law is a legal rather than a purely medical determination Therefore the question of disability must be determined by reference to the totality of the evidence including both lay and medical testimony Ultimately the question of disability is a question of fact which cannot be reversed in the absence of manifest error Severio v J Merit Constructors Inc 02 p 7 App 1 Cir 2 E 0359 La 03 14 845 So 465 469 2d 70 As set forth in La R 23 before a claimant is found to be S 1226 D permanently and totally disabled it shall be determined whether there is reasonable probability that with appropriate training or education the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education Sevario 02 at p 10 845 So at 471 0359 2d In its reasons for judgment the OWC explained its determination that Mr I Taylor was permanently and totally disabled as follows This tribunal now will address the issue of permanent and total disability pursuant to the statutory provisions of the Louisiana Revised Statute 23 and the applicable jurisprudential laws 2 1221 hearing the specific facts and evidence in the case so far 5 Mr Taylor and his vocational rehabilitation expert Neil Barre e r a B were the only live witnesses presented by the claimant The defendant called no live witnesses Mr Taylor tesrified his daily activities are extremely limited and that he lives a poor quality of life admitting having a heart valve replacement surgery diabetes and is drawing Social Security Disability in the amount of roughly 1 per month 476 He emphasized that engaging in gainful work is beyond his physical IimiCaYions Neil Barre who qualified as an expert before this tribunal tesrified that due to Taylor third grade reading level s together with other elementary mental abilities having reviewed level the medical data reports et cetera these alon with his physical restrictions and the fact that in his expert opinion there exist no available jobs for Mr Taylor rendered Mr Taylor unemployable On cross examination of Mr Barre he was questioned whether or not Taylor could physically perform the duties tasks and responsibilities ofthe position of a ticket taker Barre responded that there were no available positions suitable for this claimant Barre took the proverbial high road in his response this tribunal will in this determinative process by commenting on the ticket taker dyno sic defense Certainly Taylor overall general health has deteriarated over s the years He has serious concerns unrelated to the condition directly resulting from his injury of May 1995 Also the most cuirent medical records of the treating physician Dr Clark with whom Taylor has treated again on dozens of occasions over nearly 20 years continue to disable Taylor and Dr Clark requests as a result of Taylor having nerve root impingement caused by LS disc herniation with radiating leg pain use of S1 multiple pain medications which is contributory to Taylor abilities s orlack thereof and After considering the evidence taken as a whole the medical evidence of Dr Clark proves to be reliable consistent and accurate as it pertains to Taylor work injury and present condition as a s related result thereof this h in weighing all of the evidence finds Taylor has met his burden by clear and convincing evidence pursuant to Louisiana Revised Statute 23 2and is permanently and 1221 totally disabled and this disabiliry is a direct result of the lingering residual effects ofthe May 19 1995 accident witb this employer Mr Hanson was 69 years old at the time of the trial and has an eighth grade education His work history consists of manual labar positions He has had no vocational training ar technical training and has no degrees or certifications Mr 6 Taylor testitied that he has pain in his back and legs has great difficulty standing sitting or walking for too long and that he experiences pain if he lifts heavy objects He experiences difficulty bending stooping and squatting While Hanson asserts that Mr Taylor is retired and has no desire to return to work a close look at the testimony shows that Mr Taylor testified that he would go back to work if he could and that he considered himself retired because he could not go back to work Mr Taylor began treatment with Dr John E Clark a physiatrist at Louisiana Spine Sports Medicine in 1997 for the work injuries and he related has continued receiving medical care from Dr Clark through the date of trial Dr Clark issued a report on November 4 2010 which stated that Mr Taylor would not be able to return to a competitive job market Following an extensive review of the record and exhibits in this matter we are unable to say that the OWC erred in determining that based on Mr Hanson s physical resh the lack of vocational rehabilitation his limited education and lack of transferable skills he is pernianently and totally disabled and therefore entitled to benefits The OWC made speci6c findings that Mr Hanson was a credible witness and that he was unemployable The OWC sjudgment concerning the finding of permanent and total disability and the award of benefits for same is reasonable and supported by the record ASSIGNMENT OF ERROR NO 1 In this assigmnent of error Hanson asserts that the OWC ened in finding that a spinal cord stimulator was reasonable and necessary medical care when both the s employer choice of physician Dr Wayne Lindemann an expert in the field of physical medicine and rehabilitation and the independent medical examiner Dr A physiatrist is a medical doctor who specializes in physical medicine rehabilitation and pain medicine 7 John Nyboer an expert in the tield of physical medicine and rehabilitation with a subspecialty in pain management testified that Mr Taylor would not benefit from this treatment Louisiana Revised Statutes 23 provides that the employer shall furnish 1203 all necessary drugs supplies hospital care and services and medical and surgical eatment tIn the reasons for judgment the OWC explained why it found the spinal cord stimulator to be reasonable and necessary medical care The claimant treating physician prescribed a spinal cord s stimulatar on or about April 29 2008 Consequently Hanson sei7t Mr Taylor to defendant choice of s physician llr Lindemann who essentially opined that the stimulator should not be administered primarily due to the lack of objective findings concerning Mr Taylar complaints of back pain noting s Taylor is neurologically intact Thereafter the OWCJ appointed its IME Dr Nyboer who also concluded Taylor was not a candidate for a spinal cord stimulator However this tribunal has reviewed the totality ofthe medical evidence of recard It concludes that Dr Clark continues to request authorization for this treatment and in doing so articulates sound medical reasoning for its necessity Given the doctor professional and recent request it is s determined to be reasonable and necessary and thus approved Noteworthy also to this tribunal is the fact that Dr Clark has contiuued to see Mr Taylor over the years many years and at least on dozens of occasions whereas the other physicians mentioned who disagceed with Clark recommendation of the spinal cord stimulator s had only seen Mr Taylor on a limited basis Hanson argues that it was not until after the OWC granted judgment terminating benefits on March 12 2008 that one month later on April 29 2008 Dr Clark recommended a trial with a spinal cord stimulator However our review of the evidence shows that Dr Clark actually first recommended a spinal cord stimulator to Mr Taylor on January 29 2008 8 When Dr Lindemann saw Mr Taylor in July 2009 the most recent medical record he had was from Ianuary 2008 Dr Lindemann evaluated Mr Taylor on one occasion Dr Lindemann testified that he believed a spinal cord stimulator was not appropriate because Mr Taylor did not exhibit radiculopathy However we note that Dr Clark medical records report radiculopathy and Dr Nyboer s testified that Mr Taylor had chronic radicular pain Dr Lindemann tesrified that other medical options must be ruled out prior to proceeding with a spinal cord stimulator however the only option he suggested for Mr Taylor was a continuation ofpain medication Dr Nyboer testified that he examined Mr Taylor one time He testified that Mr Taylor had chronic low pain and chronic rigbt radicular back extremity lower pain Dr Nyboer tesrified that he did not think Mr Taylor was an idea candidate for a spinal cord stimulator due to his heart condition As a general rule while tl trier of fact is required to weigh the testimony of e all medical witnesses the testimony of the treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice Clark v Godfrey Knight Farms Inc 08 p 16 La App 1 Cir 26 1723 09 13 3d So 284 295 writ denied 09 I 5 9 So 163 The opinion of 0562 a 29 3d 09 the IME is not conclusive and the OWC must evaluate all of the evidence presented in making a decision as to the claimant condition s The signiticant weight given to the opinion of the IME can be lesser or greater depending on the qualifications or expertise of the physician the type of examination he performs his opportunity to observe the patient his review of other physicians examinations and tests and any other relevant factors MeKinney v Coleman 36 pp 5 958 6 La App 2 Cu 3 839 So 1240 1244 03 14 2d The OWC deferred to the treating physician due to the extensive length of treatment by the treating physician Even if this court would have decided this issue differently this court 9 may not reverse if the fact fincler findings are reasonab1e and not manifestiy s erroneous Sistler 558 So 1112 Based on our review of the record we cannot 2d say that the OWC determination that the spinal cord stimulator was reasonable s and medically necessary was manifestly erroneous ASSIGNMENT OF ERROR NO 2 Hanson asserts that the OWC erred in finding that Mr Taylor is entitled to his choice of treating physicians in the area of orthopedic surgery and neurosurgery Louisiana Revised Statutes 23 provides that the employee 1121 shall have the right to select one treating physician in any 6eld or specialty Mr s Taylor treating physician Dr Clark made a referral to an orthopedic or neurosurgeon after recommending a spinal cord stimulator After a review of the record we cannot say thaY the OWC erred in finding that Mr Taylor was entitled to his choice of physicians in the area of orthopedic surgery or neurosurgery TNE ANSWER TO 7 APPEAL HE In his answer to the appeal Mr Taylor asserts that the OWC erred by improperly ruling that the permanent and total disability benefits were awarded only from the date of signing the judgment and in the alternative improperly ruling on December 3 2010 that Mr Taylor was limited in discovery to documents from Apri12006 forward The answer to the appeal is denied Therefore for the foregoing reasons the judgment of the Office of Workers Compensation is affirmed The answer to the appeal is denied Costs are assessed against Hanson AFFIRMED 10
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