Alleman v. Fruit of the Loom-Crowley

692 So. 2d 485, 1997 WL 92013
CourtLouisiana Court of Appeal
DecidedMarch 5, 1997
Docket96-1246
StatusPublished
Cited by19 cases

This text of 692 So. 2d 485 (Alleman v. Fruit of the Loom-Crowley) 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
Alleman v. Fruit of the Loom-Crowley, 692 So. 2d 485, 1997 WL 92013 (La. Ct. App. 1997).

Opinion

692 So.2d 485 (1997)

Wendy G. ALLEMAN, Plaintiff-Appellant,
v.
FRUIT OF THE LOOM—CROWLEY, Defendant-Appellee.

No. 96-1246.

Court of Appeal of Louisiana, Third Circuit.

March 5, 1997.

*486 Christopher R. Philipp, Lafayette, for Wendy G. Alleman.

John Nickerson Chappuis, Lafayette, for Fruit of the Loom—Crowley.

Before DECUIR, AMY and SULLIVAN, JJ.

AMY, Judge.

In this worker's compensation case, the claimant appeals the decision of the hearing officer denying her claim for surgery which she alleges was required after a work-related accident. For the reasons which follow, the decision of the hearing officer is affirmed.

DISCUSSION OF THE RECORD

The claimant, Wendy G. Alleman, was employed by the defendant, Fruit of the Loom, at the company's Crowley location in October 1994. At that time, the claimant was employed as a customer representative. The record reflects that, as a customer representative, the plaintiff's job duties included inspecting shirts produced at the facility.

The claimant alleges that, on October 13, 1994, she was injured while in the course and scope of her employment. According to her testimony at trial, she loaded several bundles of shirts onto a cart for transport to her work station. While the claimant was pulling the cart, a bundle fell onto the floor. Her testimony reflects that while she was retrieving the bundle, "the stack that was on the cart started to fall, so [she] reached out and grabbed it." She further testified that "[w]hen [she] bent down to catch this bundle that was falling on the side and the stack had started to fall, something popped in [her] back." The record reflects that, despite the popping in her back, she did not report the injury immediately, but, instead, continued to work. The plaintiff also stated that she began to get "stiff" later that evening and that her pain was worse when she woke up the next morning.

The claimant reported her injury the following day to Michael Miniex, a safety manager at the defendant's facility. She testified that she worked about two hours on that day and then asked for permission to leave. Upon leaving work, the claimant went to Dr. Mark Dawson, her family physician, who excused her from work until October 18, 1994.

Rather than return to Dr. Dawson on October 18, the date of her follow-up visit, the claimant sought treatment from Dr. Donald Marx, a chiropractor. Dr. Marx testified, by deposition, that he had periodically provided treatment to the claimant for various problems since 1983. Dr. Marx stated that these early treatments involved treatment for neck and back pain. Dr. Marx further testified that he treated the claimant in 1989 for injuries she sustained in an automobile accident. His reports, which were entered into evidence, indicate that after the automobile accident he felt that "[t]he probability of consistently recurring neck pains and headaches for the next 2 to 3 years is good." He then began seeing the claimant "on an as needed basis."

With regard to the work-related accident at issue in the instant matter, Dr. Marx testified that the claimant came into his office complaining of low back and neck pain, tingling in her fingers, pain in her left arm, and cramping in her right hand. He stated that she attributed this pain to the accident of October 13, 1994. Additionally, he stated that, after examination, he diagnosed the claimant as having "a mild to moderate cervical thoracic and lumbar strain." On October 26, Dr. Marx excused the plaintiff from work dating back to October 18.

Dr. Marx' records further indicate that in November 1994, the claimant requested a referral to Dr. Louis Blanda, an orthopaedic *487 surgeon, for additional treatment. After receiving the referral, the plaintiff first visited Dr. Blanda on January 12, 1995. Dr. Blanda subsequently ordered a cervical and lumbar MRI which, according to his records, revealed that the claimant had "2 levels of small disk herniations in the low back, L4-5 and L5-S1." He also opined that the claimant had "a markedly positive disk herniation at the C5-6 level." Dr. Blanda recommended an anterior cervical fusion. The defendant, however, did not authorize the surgery. In May 1995, Dr. Blanda ordered a myelogram and CAT scan which, he reported "confirmed the findings of the MRI."

At the defendant's request, the claimant was evaluated by Dr. Clifton Shepherd, an orthopaedic surgeon. Dr. Shepherd initially examined the plaintiff in January 1995 and reported that the "examination [was] characterized by lack of objective findings, the presence of severe inconsistencies, and poor efforts." Dr. Shepherd reevaluated the claimant on March 30, 1995. At that time, Dr. Shepherd reviewed the MRI ordered by Dr. Blanda and found that it revealed "slight bulges which are variations of normal." He further reported that "[t]he tests suggest a small left sided disc herniation in the neck." Because he was unsure of the significance of the left sided bulge, Dr. Shepherd ordered a CAT scan. Dr. Shepherd's report of May 3, 1995 reveals that, after reviewing the CAT scan, he found no disc herniation in the neck and concluded that the MRI finding was a false positive. He further opined that the claimant did not have a surgical condition and encouraged a return to her regular activities.

Finally, the Office of Worker's Compensation appointed Dr. James LaFleur, also an orthopaedic surgeon, to perform an independent medical examination (IME). After reviewing the MRI, myelogram, and CAT scan, Dr. LaFleur opined that the claimant's "cervical complaints are associated with the work-related injury." He recommended the discectomy proposed by Dr. Blanda. For the back injury, Dr. LaFleur recommended only conservative treatment.

The defendant initially refused to pay compensation benefits after the October 13, 1994 injury. According to Michael Miniex, the injury was not considered compensable at that time. Additionally, Miniex testified that the claimant never brought a medical excuse to work from either Dr. Dawson or Dr. Marx. Beginning December 21, 1994, however, the defendant paid compensation and made the payments retroactive to the day after the claimant reported the accident. These payments ceased after the defendant received a report on July 19, 1995 from the claimant's estranged husband, Jackie Alleman. The defendant investigated Jackie Alleman's allegations that the claimant was not injured, but had, in fact, engaged in very rigorous activities after the accident. The defendant also gathered reports from Jackie Alleman's sister and mother who confirmed the claimant's activities. Despite having terminated payments, the defendant issued a $3,139.50 check in November 1995. According to Miniex, the check was mistakenly issued, but was subsequently cashed by the claimant.

The claimant filed a Disputed Claim for Compensation form on April 21, 1995 alleging that the defendant had failed to provide copies of Dr. Shepard's medical reports, that benefits had been wrongly discontinued, and that the defendant refused to approve the surgery recommended by Dr. Blanda. Following an April 24, 1996 hearing, the hearing officer found in favor of the defendant. The hearing officer denied the request for additional compensation and for the recommended surgery. Neither penalties nor attorney's fees were awarded.

The claimant timely filed this appeal and now asserts the following: 1) The hearing officer erred in denying the claimant's request for surgery; and 2) The hearing officer erred in failing to award penalties and attorney's fees.

LAW

Denial of Surgical Procedure

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Cite This Page — Counsel Stack

Bluebook (online)
692 So. 2d 485, 1997 WL 92013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alleman-v-fruit-of-the-loom-crowley-lactapp-1997.