Academy, Ltd. v. Smith

220 So. 3d 910, 16 La.App. 3 Cir. 727, 2017 La. App. LEXIS 1018, 2017 WL 2350086
CourtLouisiana Court of Appeal
DecidedMay 31, 2017
Docket16-727
StatusPublished

This text of 220 So. 3d 910 (Academy, Ltd. v. Smith) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Academy, Ltd. v. Smith, 220 So. 3d 910, 16 La.App. 3 Cir. 727, 2017 La. App. LEXIS 1018, 2017 WL 2350086 (La. Ct. App. 2017).

Opinion

THIBODEAUX, Chief Judge.

hAn on-the-job injury occurred on August 24, 2007, while Plaintiff, Ms. Davita Smith, was employed by the Defendant, Academy Sports and Outdoors (“Academy”) in Lafayette, Louisiana. Ms. Smith appeals a trial court judgment denying her additional workers’ compensation benefits for that accident. Based on stipulations in the record, the primary issues on appeal are whether Ms. Smith is entitled to ongoing medical treatment and whether Academy is responsible for penalties and attorney fees due to the termination of benefits.

For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

We must determine:

(1) whether Ms. Smith is entitled to continued medical treatment; and
(2) whether Academy is responsible for penalties and attorney fees due to termination of benefits.1

II.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s finding of fact in the absence [912]*912of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The findings of the Worker’s Compensation Judge is subject to the | ¿manifest error-clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In Banks, the Louisiana Supreme Court elaborated on the application of that standard:

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p.5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1998); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Id. at 556.

III.

FACTS AND PROCEDURAL HISTORY

This is a workers’ compensation case filed on behalf of Ms. Smith for a work-related incident that occurred on August 24, 2007, at Academy’s store in Lafayette, La. On that date Ms. Smith claims that she was injured when a box of duck decoys fell on her back. The height of the drop and the weight of the box vary in the medical histories given to her doctors, but there appears to be no dispute about the actual accident. Ms. Smith’s chief complaint following the accident was lower back pain and pain in her right leg.

Ms. Smith was initially treated by her choice of physicians, which included Dr, Gregory Gidman, Dr. David Muldowny, and Dr. Edward Haight. Ms. Smith was also examined by Dr. John Sklar in connection with a second medical | ¡¡opinion for Academy, and Dr. Ilyes Munshi, who was appointed by the medical services section of the Office of Workers’ Compensation as an Independent Medical Examiner (“IME”).

Following the accident, Ms. Smith’s initial treating physician was Dr. Gregory Gidman, an orthopedic surgeon located in Lafayette, Louisiana. Dr. Gidman’s 2008 report stated: “No pathology has been identified to explain examinee’s sympto-mology. There is no anatomic abnormality to prevent this examinee, in my opinion from resuming activities at work.” Dr. Gid-man further noted that his physical exam was normal, and that x-rays of Ms. Smith’s lumbar spine and pelvis, as well as her MRI, were normal. Dr. Gidman concluded that Ms. Smith was not in need of any further testing or surgical intervention and that “her treatment should be a self-directed home therapy program and over-the-counter analgesics,” based solely upon her subjective complaints.

[913]*913Ms. Smith then switched treating physicians and began seeing Dr. Muldowny, an orthopedic surgeon located in Lafayette, Louisiana. Dr. Muldowny released Ms. Smith from his care in March of 2008. He reported that her lumbar MRI was normal and that he “really [did] not think there are any more diagnostic studies that would be useful in determining with certainty a specific diagnosis.”

Having been released from the medical care of Dr. Gidman and Dr. Muldowny, Ms. Smith began treating with Dr. Haight, a neurologist in Houma, Louisiana. Dr. Haight diagnosed Ms. Smith with a right sciatic nerve stretch injury and low back pain. He found Ms. Smith’s lumbar MRI to not be entirely normal, and he believed there to be some bulging in the thoracic area which, he testified, “could” cause some back pain; however, that would not explain her leg pain.

LAcademy obtained a separate medical opinion (“SMO”) from Dr. Sklar. Dr. Sklar’s objective physical examination findings were entirely normal, and he disagreed with the sciatic stretch diagnosis of Dr. Haight. He noted that Ms. Smith’s MRI was entirely normal and, based upon his physical examination, he recommended that Ms. Smith “get on with her life, get back to work and get, active.” Dr. Sklar also testified that Ms. Smith could return to full duty work without restrictions and that she needed no further medical treatment.

Finally, the Office of Workers’ Compensation ordered an IME with Dr. Munshi, a board certified neurosurgeon. Dr. Munshi’s report stated that both of Ms. Smith’s MRI films were normal and that he did not think “that she had any significant radicular symptoms nor do I find any significant findings on the MRI.” Dr. Munshi further stated: “I do not think that Ms. Smith needs anymore treatment than she has already received. In fact, it would be best for her to gradually get weaned off whatever medications she is currently on.” Dr. Sklar and Dr. Munshi both opined that Ms. Smith had received an appropriate workup and course of treatment, including physical therapy and chiropractic treatment. Academy terminated payment for medical subsequent to the issuance of Dr. Munshi’s IME report.

In summary, Doctors Gidman, Muldow-ny, Sklar, and Munshi found nothing wrong with Ms. Smith. Dr. Haight admitted that his opinion was at best a “soft finding.” After December 2009, there is no medical evidence from a treating physician until January 2015, when Ms. Smith began seeing Dr. Richard Epter with the Augusta Pain Center. At that time, Ms. Smith complained of neck pain, thoracic back pain, low back pain, hip and foot pain, and pain in both shoulders. Dr. Epter treated her for sacroiliitis and chronic pain. However, nowhere Lin these records is there any reference to the August 2007 work accident. Instead, the January 27, 2015 progress note reflects a pain onset date of October 2014.

Academy argues that they have properly paid Ms. Smith weekly indemnity benefits and have provided her with reasonable and necessary medical treatment for as long as it was necessary. Ms. Smith progressed to the point where she could return to work and weekly indemnity benefits were no longer necessary. Thus, the only issue before the trial court was whether Ms. Smith was entitled to continued medical treatment.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Richardson v. Lil' River Harvesting
33 So. 3d 418 (Louisiana Court of Appeal, 2010)
Fritz v. Home Furniture-Lafayette
677 So. 2d 1132 (Louisiana Court of Appeal, 1996)
Banks v. Indus. Roofing & Sheet Metal
696 So. 2d 551 (Supreme Court of Louisiana, 1997)
Charles v. Aetna Cas. and Sur. Co.
525 So. 2d 1272 (Louisiana Court of Appeal, 1988)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Sistler v. Liberty Mut. Ins. Co.
558 So. 2d 1106 (Supreme Court of Louisiana, 1990)
Mart v. Hill
505 So. 2d 1120 (Supreme Court of Louisiana, 1987)
Grasser Contracting Co. v. City of New Orleans
118 So. 841 (Louisiana Court of Appeal, 1927)

Cite This Page — Counsel Stack

Bluebook (online)
220 So. 3d 910, 16 La.App. 3 Cir. 727, 2017 La. App. LEXIS 1018, 2017 WL 2350086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/academy-ltd-v-smith-lactapp-2017.