Bourgeois v. Brown's Deli & Market, Inc.

21 So. 3d 1072, 9 La.App. 3 Cir. 290, 2009 La. App. LEXIS 1759, 2009 WL 3270807
CourtLouisiana Court of Appeal
DecidedOctober 14, 2009
Docket09-290
StatusPublished
Cited by12 cases

This text of 21 So. 3d 1072 (Bourgeois v. Brown's Deli & Market, Inc.) 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
Bourgeois v. Brown's Deli & Market, Inc., 21 So. 3d 1072, 9 La.App. 3 Cir. 290, 2009 La. App. LEXIS 1759, 2009 WL 3270807 (La. Ct. App. 2009).

Opinions

[1074]*1074GREMILLION, Judge.

L Brown’s Market & Deli, Inc. (Brown’s) appeals the judgment of the workers’ compensation judge (WCJ) allowing its employee, Tida Rose Bourgeois (Bourgeois), to obtain treatment from a second orthopedic surgeon; ordering that Bourgeois be supplied with a spinal cord stimulator; and assessing Brown’s with a $2,000 penalty and $4,500 in attorneys fees for failing to approve the spinal cord stimulator. Bourgeois answered the appeal and requests that we award additional attorney fees for work performed in the appeal. For the reasons that follow, we affirm and award Bourgeois additional attorney fees.

FACTS

Bourgeois was employed at Brown’s when, on January 1, 2005, she slipped on ice while in the freezer. As a result, she sustained a scapholunate dislocation in her left wrist. An orthopedic surgeon, Dr. M. Alan Hinton, performed an open reduction and internal fixation of the dislocation and reconstruction of the scaphoid lunate ligament on January 6, 2005. Dr. Hinton ordered Bourgeois off work.

Soon after surgery, Bourgeois began to complain of left elbow pain. Dr. Hinton ordered an MRI that revealed no injury or defects to the elbow. Dr. Hinton felt these problems were more probably than not related to Bourgeois’s wrist trauma.

In March 2005, Bourgeois reported to Dr. Hinton that she was experiencing pain in her left shoulder. Dr. Hinton immediately suspected that Bourgeois was developing or had developed reflex sympathetic dystrophy (RSD), but ordered an MRI of the shoulder to rule out trauma and an EMG/nerve conduction study of the left arm to rule out carpal tunnel syndrome. The MRI ruled out trauma, as Dr. Hinton suspected, and he referred Bourgeois to a pain management specialist for treatment | ¡.of RSD.

Brown’s obtained an independent medical examination (IME) of Bourgeois from Dr. Patrick Juneau, in June 2005. He confirmed the diagnosis of RSD and concurred in the referral to pain management.

Initially, Bourgeois saw Dr. Kevin Gorin for pain management. Dr. Gorin treated Bourgeois until December 2005, when he closed his practice.

Bourgeois’s current pain management specialist is Dr. Christopher Y. Lew of Slidell, Louisiana, whom she first saw in February 2006. Dr. Lew confirmed the diagnosis of RSD and began a regimen of treatment.

In March 2006, Bourgeois complained to Dr. Lew — for the first time to any health care provider — of neck pain. During this same visit with Dr. Lew, Bourgeois indicated to him that her attorney suggested that she obtain a second opinion regarding her wrist, as Dr. Hinton had indicated that he had nothing more to offer her. Dr. Lew desired an MRI of the neck, and agreed that a second opinion regarding Bourgeois’s wrist would be useful.

Brown’s sent Bourgeois back to see Dr. Juneau in May 2006, after the cervical complaints materialized. He saw no causal relationship between the on-the-job accident and the cervical complaints. Dr. Juneau opined that Bourgeois had reached maximum medical improvement (MMI). In addition to Dr. Juneau, Bourgeois was sent to Dr. Sandra Weitz, a pain management specialist of Brown’s choosing. Dr. Weitz opined that there was no causal relationship between the cervical complaints and the accident.

In September 2007, the WCJ appointed Dr. Clark A. Gunderson, a Lake Charles orthopedic surgeon, to perform an IME. Dr. Gunderson diagnosed Bourgeois |swith [1075]*1075a complex regional pain syndrome — essentially, RSD — and opined that the late-onset cervical complaints were not related to the on-the-job accident. He further opined that Bourgeois was restricted from lifting more than five to ten pounds, with her right hand only.

In November 2007, Bourgeois returned to Dr. Hinton, who indicated that she continued to have pain, loss of motion and dysfunction in the wrist. He reported that she was not at MMI. However, in April 2008, Dr. Hinton reported to Bourgeois’s vocational rehabilitation counselor, Jeanne Tarver, that Bourgeois was at MMI from an orthopedic standpoint.

Dr. Lew disagrees with the other physicians in this matter, and feels that Bourgeois’s cervical complaints are the result of “sympathetic cervical disc disease,” and are causally related to the on-the-job accident. He also requested that Bourgeois be approved for a trial of a spinal cord stimulator to see whether it would provide any relief from the “chronic pain she has in her neck and to her left upper extremity,” resulting from her sympathetic disc disease.

Bourgeois’s Disputed Claim for Compensation (Form 1008) was filed in April 2005. In the 1008, Bourgeois requested that she be allowed to seek treatment with Dr. Robert Morrow, an orthopedic hand surgeon in Lafayette, Louisiana, specializing in hand and wrist problems.

The case was tried on submissions, stipulations and briefs. The principal issues were the causal relationship between the cervical complaints and the accident, the referral to Dr. Morrow, the trial of the spinal cord stimulator and penalties and attorney fees. The WCJ found that the cervical complaints were not related to the on-the-job accident, ordered that treatment with Dr. Morrow be authorized and ordered |4that the spinal cord stimulator be authorized. She also awarded Bourgeois a $2,000 penalty for Brown’s refusal to authorize the stimulator and awarded her $4,500 in attorney fees.

ANALYSIS

Standard of Review:

A finding by a WCJ that medical treatment is necessary is reviewed under the manifest error standard. Figgins v. Wal-Mart, 06-806 (La.App. 3 Cir. 11/15/06), 945 So.2d 153, writ denied, 06-2977 (La.2/16/07), 949 So.2d 421. That standard requires that the appellate court, in order to reverse, must find that the record reflects that there is no reasonable basis for the WCJ’s factual determinations. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124. Similarly, we are bound by the same standard in reviewing a WCJ’s assessment of penalties and attorney fees. Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, mit denied, 05-1027 (La.6/3/05), 903 So.2d 467.

Further, the responsibility of determining which, among differing experts, is most credible is reserved to the trier of fact. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073. If a trial court gives greater weight to one expert’s testimony, this finding cannot be reversed absent manifest error. Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So.2d 1339, writ denied, 97-1939 (La.11/7/97), 703 So.2d 1272.

The decision to impose penalties is a factual question, which will not be disturbed on appeal in the absence of manifest error. Frank v. Kent Guidry Farms, 01-727 (La.App. 3 Cir. 5/8/02), 816 So.2d 969, writ denied, 02-1608 (La.6/27/03), L847 So.2d 1273.

[1076]*1076Referral to Dr. Robert Morrow:

Dr. Lew discussed referring Bourgeois to Dr. Morrow for surgical evaluation in his report of January 19, 2007. That is the only mention of Dr. Morrow in any of Dr. Lew’s reports. But it is clear that, although this referral came at the suggestion of Bourgeois’s attorney, Dr. Lew thought it prudent.

Dr.

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Bourgeois v. Brown's Deli & Market, Inc.
21 So. 3d 1072 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
21 So. 3d 1072, 9 La.App. 3 Cir. 290, 2009 La. App. LEXIS 1759, 2009 WL 3270807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourgeois-v-browns-deli-market-inc-lactapp-2009.