Baker v. Davison Transport

643 So. 2d 278, 1994 La. App. LEXIS 2432, 1994 WL 532968
CourtLouisiana Court of Appeal
DecidedSeptember 21, 1994
DocketNo. 26164-CA
StatusPublished
Cited by2 cases

This text of 643 So. 2d 278 (Baker v. Davison Transport) 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
Baker v. Davison Transport, 643 So. 2d 278, 1994 La. App. LEXIS 2432, 1994 WL 532968 (La. Ct. App. 1994).

Opinion

1 iNORRIS, Judge.

Davison Transport (“Davison”) and its worker’s compensation insurer, Commercial Union, appeal an adverse judgment ordering them to reimburse Willie Baker’s out-of-pocket payments for past medical treatment by Dr. Cenac and provide letters of guarantee to insure additional medical treatment, and reinstating his temporary total disability benefits. For the following reasons, we affirm the judgment in part and reverse in part.

FACTS

Willie Baker, a truck driver for Davison Transport in Ruston, was injured on October 27, 1990 around 11:45 p.m. when he arrived at Erco Chemical Company in Springhill. He attempted to fix a leak in the truck’s braking system, slipped and fell about five to six feet, striking his elbow on the truck frame and jamming his neck and shoulder. He reported the accident to the safety director at the Ruston terminal, Greg Gossler. Mr. Gossler sent Baker to Dr. James Finley, an orthopedic surgeon at the Green Clinic in Ruston.

Dr. Finley testified by deposition, introduced into evidence at the hearing, that he examined Baker on October 30; x-rays revealed nothing abnormal. According to Dr. Finley, Baker complained at this time only of pain in his left elbow. Dr. Finley reported that it was not until his fourth visit in late November that Baker complained of pain in his shoulder and neck, radiating down his left arm into the elbow. Dr. Finley ordered additional x-rays and an MRI of the neck. The MRI showed bulging discs; these findings, in Dr. Finley’s opinion, did not account for the radicular pain, normally resulting from nerve root impingement. Finley Dep., p. 8. By December 1990, Dr. Finley believed that Baker was suffering from sprain or strain that would eventually heal with time. He sent Baker for physical therapy, but as of January 1991, he still complained of pain with little or no overall improvement. In January, Dr. Finley stated that if the CT scan he ordered showed nothing, Baker would have to get a second opinion. Dr. Finley never identified the source of Baker’s pain. Dr. Finley learned that Baker was seeing another doctor, and sent a letter to Vicki Cary, the claims manager for Davison [280]*280Insurance working in 12conjunction with Commercial Union Insurance, stating that he had released Baker because he could find nothing objectively wrong with his arm, and in his opinion, Baker could resume all prior activities.

Baker testified that during Dr. Finley’s treatment he became dissatisfied because he “didn’t feel like Finley was doing anything for me.” According to Baker, he phoned Ms. Cary and told her that he wanted to see Dr. Liles, an orthopedic surgeon at the Ortho-paedic Clinic in Monroe. Baker testified that he specifically requested Dr. Liles because “that was the only doctor that I knew anything about that treated this kind of thing, and the way I knew about him was through friends.” R. p. 161. Ms. Cary, however, made an appointment with Dr. Myron Bailey, another orthopedic surgeon at the Clinic. Although Baker had never heard of Dr. Bailey, he went to the scheduled appointment. He testified, “I didn’t know that you could object to seeing a doctor that the insurance company sends you to.” R. p. 178. Baker insisted throughout his testimony that he specifically told Ms. Cary that he wanted to see Dr. Liles.

Ms. Cary testified, on the basis of two handwritten notations she made during conversations with Baker, that she did not document and could not recall him specifically requesting Dr. Liles. She documented a telephone conversation of November 19, 1990 wherein Baker allegedly stated he refused to go back to Dr. Finley, and requested an appointment at the Orthopaedic Clinic in Monroe because it had been recommended by friends. Baker did return to Dr. Finley, however, after this. Ms. Cary also testified that she needed to verify his worker’s compensation with the Clinic so that Commercial Union would pay for his treatment, and Baker said he would have them call her. She did not receive a call from the Clinic.

The second notation of January 1991 was written informally across the bottom of a report from Dr. Finley. It read, “Willie wants an appointment with The Orthopaedic Clinic in Monroe.” Ms. Cary could not recall if she saw him in person that day or took the message by phone. After this conversation, she claims that she made an appointment for him with Dr. Bailey at the West Monroe office, because it was the earliest one available hand Baker had indicated he was uncomfortable. She testified that if Baker had requested Dr. Liles, she believes her standard procedure would have been to write the name down. On cross examination, however, she admitted that she could not “swear” he did not request Dr. Liles, but just hoped she would have written it down. R. p. 192. In response to questions by the hearing officer, Ms. Cary admitted that she did not bring to court any documentation showing that she called Baker to inform him of the appointment with Dr. Bailey. In fact, she did not recall a conversation with Baker about this.

Dr. Bailey did not testify at trial and was not deposed. The following is gleaned from office reports documenting Baker’s treatment. Baker first saw Dr. Bailey in January of 1991. Dr. Bailey ordered an MRI of the elbow, and an EMG/NCS. The EMG was normal, but the MRI showed a “possible cartilaginous, loose body with slight irregularity of the distal end of the humerus or articular surface.” R. p. 11. Dr. Bailey recommended that Baker have an arthrosco-py. Baker had the surgery on March 26, 1991, and in April, began gentle progressive therapy. By May, he had quit therapy and still complained of pain in his neck, shoulder, elbow and forearm. Dr. Bailey’s office notes of May 3, 1991 read, “I am afraid from my standpoint, I am at my limits regarding future management or determination, and suggested that he seek another opinion.” On November 12, 1991, Baker returned to Dr. Bailey and told him his condition had not improved and he had not received worker’s compensation in six months. Baker returned once more on January 21, 1992, and again reported no improvement. Dr. Bailey documented that he suggests Baker return to work or seek another opinion. At some point in this time frame Davison discontinued Baker’s weekly compensation benefits; the exact date is not clear from the record.

Baker consulted an attorney who recommended Dr. Christopher Cenac, an orthopedic surgeon at the Bone and Joint Surgical Clinic in Houma. On April 29, 1992, Dr. [281]*281Cenac’s objective findings showed diminished grip and sensation in the left hand and diminished pronation of the left wrist. X-rays of the cervical spine showed very early degenerative changes. Dr. Cenac reported that “Baker remains disabled with residual |4from the injury.” R. p. 44. He recommended an MRI of the spine and shoulder, and an EMG/NCS of the left arm. Results of the shoulder MRI were normal, but the cervical studies showed disc protrusion at C5-6, and proximal root pathology. Dr. Ce-nac believed that Baker may have a surgical lesion. He scheduled him for invasive diagnostic procedures to the cervical spine; however, Baker could not pay for these. Defendants refused to pay for any treatment by Dr. Cenac. Baker filed a Disputed Claim for Compensation with the Office of Worker’s Compensation Administration on May 21, 1992. He had not worked since the accident in October 1990.

On September 23, 1992, at the hearing officer’s request and the insurer’s selection, Baker saw Dr. Gordon Mead for an independent medical exam. Dr. Mead found no objective evidence to support either a cervical problem or Baker’s complaints of severe pain.

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Bluebook (online)
643 So. 2d 278, 1994 La. App. LEXIS 2432, 1994 WL 532968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-davison-transport-lactapp-1994.