Benoit v. Martco Partnership

657 So. 2d 210, 94 La.App. 3 Cir. 1544, 1995 La. App. LEXIS 1103, 1995 WL 255789
CourtLouisiana Court of Appeal
DecidedMay 3, 1995
DocketNo. 94-1544
StatusPublished
Cited by2 cases

This text of 657 So. 2d 210 (Benoit v. Martco Partnership) 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
Benoit v. Martco Partnership, 657 So. 2d 210, 94 La.App. 3 Cir. 1544, 1995 La. App. LEXIS 1103, 1995 WL 255789 (La. Ct. App. 1995).

Opinion

| iTHIBODEAUX, Judge.

In this workers’ compensation case, Mart-co Partnership appeals a judgment of the Office of Workers’ Compensation which granted temporary total disability status to plaintiff, Jeffery Benoit, determined that Be-noit was not allowed his choice of a physician, and imposed attorney’s fees for Martco’s denial of Benoit’s choice of a physician.

^Benoit answers the appeal and seeks attorney’s fees for the work done on appeal.

I.

ISSUES

The issues are: (1) whether Martco improperly denied Benoit his choice of physicians; (2) whether Martco was arbitrary and capricious in disallowing the claimant his choice of physicians; (3) whether Benoit is temporarily and totally disabled; and, (4) whether further treatment by claimant’s physician was proper.

For the following reasons, we affirm the judgment of the Office of Workers’ Compensation and award $2,000.00 to Benoit as attorney’s fees for work performed at the appellate level.

II.

FACTS

On Saturday, November 9, 1991, Benoit injured his back when he bent over to pick [212]*212up some heavy chains while working for Martco. The sudden pain in his back sent him to his knees. Benoit continued to work for a couple of more hours after the accident and reported the incident to Everette Clan-ton. Benoit rejected Clanton’s offer to transport him to a doctor.

Benoit’s pain did not abate by Monday. Benoit asked his girlfriend, who also worked at Martco in the personnel department, to tell Warren Privette to have someone pick him up from home and bring him to the doctor. A Martco employee went to Benoit’s home, picked him up and brought him to Dr. Lionel Mayer’s office. Benoit did not request Dr. Mayer, but he knew he would be brought to Dr. Mayer who invariably treated Martco’s employees who suffered orthopedic problems.

hBenoit further testified that at the end of each visit with Dr. Mayer a follow-up appointment was scheduled. Benoit also testified that he spoke with Dr. Mayer about seeing another doctor. Dr. Mayer wanted to discharge Benoit to light duty work in December of 1991, but Benoit did not feel that he was capable at that time of even light duty work. Dr. Mayer did not discharge him until March 2, 1992.

Meanwhile, Benoit was paid workers’ compensation benefits from November 9, 1991 until March 20, 1992 at a rate of $137.70 per week. Martco also paid all of Benoit’s medical and mileage expenses. On March 2,1992, Benoit asked Privette about seeing another doctor to get a second opinion about his condition. Privette informed Benoit that he could see a physician of his choice but that Martco would not authorize and pay for any additional diagnostic testing. It is not disputed that Benoit treated with Dr. Mayer from November 9,1991 until his discharge in March of 1992.

On March 20, 1992, Benoit sought the assistance of an attorney because he received his last benefit check along with his termination papers. Benoit and his attorney discussed Benoit seeing either Dr. Louis Blanda or Dr. John McKay. Because Dr. Blanda had treated his father in the past with success, Benoit selected Dr. Blanda. On April 15, 1992, Benoit’s attorney wrote Martco and requested authorization to see Dr. Blanda, an orthopedist from Lafayette. By letter dated April 24, 1992, Martco advised Benoit that it would not agree to an evaluation by Dr. Blanda because there was a lawsuit pending between Martco and Dr. Blanda’s medical partner, Dr. John Cobb, unrelated to the present suit. As a result of Martco’s failure to authorize Benoit’s evaluation with Dr. Blanda, this lawsuit was filed.

A status conference was held in this matter and the hearing officer advised Martco that it could not deny Benoit a visit with Dr. Blanda simply because Uof Martco’s unrelated litigation with Dr. Cobb. By letter dated July 9, 1992, Martco offered Benoit only a records evaluation with Dr. Blanda. Benoit rejected that offer. The hearing officer determined that Benoit was entitled to see Dr. Blanda and, because Martco was arbitrary and capricious in failing to authorize that visit, assessed attorney’s fees. The issue of Benoit’s continued disability was taken under advisement by the hearing officer until Dr. Blanda’s evaluation was complete. Martco appealed the decision, which this court ultimately dismissed. After the dismissal of the appeal, Martco authorized a visit with Dr. Blanda.

Benoit’s first visit with Dr. Blanda took place on October 19, 1993, almost two years subsequent to the accident and eighteen months after Benoit first made written demand to see Dr. Blanda. After that initial visit, Dr. Blanda found that Benoit was disabled due to his back pain as evidenced by the muscle spasm he observed upon his physical examination. He also opined that Benoit could not engage in work requiring long periods of bending and standing, or heavy and repetitive lifting of fifty pounds or more during an eight-hour work day. Dr. Blanda ordered an EMG study and a repeat MRI.

Dr. Blanda’s examination revealed that Be-noit experienced muscle spasms in his lumbar spine and that his flexion and extension was restricted. Benoit also had a positive straight leg raising test on his right side. Furthermore, after Dr. Blanda’s review of the MRI films obtained by Dr. Mayer in January of 1992, Dr. Blanda opined that the [213]*213MRI showed degenerative changes at L4-5 and L5-S1 of Benoit’s back and a protrusion or herniation of the disc. Also, Benoit’s EMG studies showed significant nerve root irritability in the L4-5 musculature on Be-noit’s right side, which Dr. Blanda testified, coincided with Benoit’s clinical symptoms. Dr. Blanda found surprising that Benoit’s new MRI showed a right-sided disc herniation |sat L8-4, which was normal in January of 1992; however, the lower levels at L4-5 and L5-S1, which were abnormal in January, 1992, were now normal. Dr. Blanda recommended surgery and requested authorization from Marteo to perform the surgery. Mart-co denied authorization. Dr. Blanda explained that prior to performing the surgery, Benoit should undergo a myelogram and a CAT scan due to the contradictory findings in the two MRIs. Marteo denied request for authorization to perform those tests.

At the second trial, the hearing officer concluded that Benoit was temporarily totally disabled and awarded temporary total disability benefits from March 20, 1992 to the present. The hearing officer also found that Marteo was arbitrary and capricious for its refusal to authorize the myelogram and CAT scan as well as the additional treatment and ordered Marteo to pay $3,000.00 in attorney’s fees.

III.

LAW AND DISCUSSION

A. Choice Of Physician

Marteo alleges that the hearing officer was manifestly erroneous in finding that Benoit was denied his choice of a physician. The manifest error standard of appellate review applies in workers’ compensation actions, even though the evidence before the trier of fact consists solely of written reports, records, and depositions. Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987). La.R.S. 23:1121(B) provides that an employee shall have the right to select a treating physician. After the initial choice, the employee must obtain prior consent from the employer or workers’ compensation carrier for a change of treating | ephysician within the same specialty.

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Bluebook (online)
657 So. 2d 210, 94 La.App. 3 Cir. 1544, 1995 La. App. LEXIS 1103, 1995 WL 255789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benoit-v-martco-partnership-lactapp-1995.