Brock v. Morton Goldberg Auction Galleries, Inc.

671 So. 2d 1008, 95 La.App. 4 Cir. 1324, 1996 La. App. LEXIS 497, 1996 WL 114372
CourtLouisiana Court of Appeal
DecidedMarch 14, 1996
Docket95-CA-1324
StatusPublished
Cited by5 cases

This text of 671 So. 2d 1008 (Brock v. Morton Goldberg Auction Galleries, 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
Brock v. Morton Goldberg Auction Galleries, Inc., 671 So. 2d 1008, 95 La.App. 4 Cir. 1324, 1996 La. App. LEXIS 497, 1996 WL 114372 (La. Ct. App. 1996).

Opinion

671 So.2d 1008 (1996)

Lawrence BROCK
v.
MORTON GOLDBERG AUCTION GALLERIES, INC.

No. 95-CA-1324.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1996.

*1010 Timothy K. Lamy, Barker, Boudreaux, Lamy & Foley, New Orleans, for Plaintiff.

Fred T. Hinrichs, Christovich & Kearney, New Orleans, for Defendant.

Before SCHOTT, C.J., and ARMSTRONG and PLOTKIN, JJ.

ARMSTRONG, Judge.

This is the second appeal in this worker's compensation case. In the previous appeal, the plaintiff appealed from a judgment in favor of the defendants. For several reasons set out in our opinion on that previous appeal, we found it necessary to reverse and remand. Lawrence Brock v. Morton Goldberg Auction Galleries, Inc., No. 93-CA-1078 (La.App. 4th Cir. Jan. 13, 1994), 631 So.2d 512, writ denied, 94-C-0395 (La. Apr. 4, 1994), 635 So.2d 1105.

A second hearing was held below. It was heard by a different Hearing Officer because the previous Hearing Officer left the bench. At the second hearing, the evidence consisted of: (1) the entire record from the first hearing; (2) additional testimony by the plaintiff, who also had testified at the first hearing; and (3) a deposition of Dr. Montz, whose report had been introduced into evidence at the first hearing. The facts of the case are set out in our opinion on the previous appeal.

After holding the second hearing, the Hearing Officer ruled in favor of the plaintiff as to disability, and awarded him temporary total disability benefits, but denied the plaintiff's request for surgery. He also denied the plaintiff's request for penalties and attorney's fees. The defendants then took this appeal.

As their first specification of error, the defendants argue that the Hearing Officer erred by "disregarding" the testimony of Dr. Montz. Prior to the first hearing, Dr. Montz was selected and appointed by the Office of Worker's Compensation, pursuant to La.R.S. 23:1123, to examine the plaintiff and to render a report. Dr. Montz did so and he opined that the plaintiff was not disabled and was a malingerer.

After the second hearing, the Hearing Officer, obviously disagreeing with Dr. Montz, found that the plaintiff was disabled. In so finding, the Hearing Officer expressly relied upon the testimony of the plaintiff's treating physician, Dr. Manale, and expressly found the plaintiff's testimony credible (presumably as to his pain and other symptoms).

The defendants argue that the Hearing Officer was clearly wrong or manifestly erroneous because he disagreed with Dr. Montz' conclusions. Specifically, the defendants argue that it was error for the Hearing Officer to credit Dr. Manale's testimony, and to "disregard" Dr. Montz' testimony, because Dr. Montz was selected and appointed to conduct an examination pursuant to La.R.S. 23:1123. That statute provides:

If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination *1011 to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

La.R.S. 23:1122 (emphasis added).

The defendants point out the statute's provision that makes Dr. Montz' report "prima facie evidence." The defendants also cite Carlock v. Gross, 200 So.2d 353 (La.App. 4th Cir.), writ refused, 251 La. 60, 202 So.2d 662 (1967), for the proposition that Dr. Montz' opinion cannot be refuted legally by "mere contradiction" by the opinion of Dr. Manale. That case states:

The fact that the statute gives the force of prima facie presumption of correctness to the court-appointed expert's findings is indicative of legislative intent that this testimony carries a significant weight. An added measure of probative value is clearly implied by the statute in our opinion. It appears that the court in Dees v. Louisiana Oil Refining Corp., 162 So. 597 (La. App.2d Cir.1935), was of the same opinion. There it upheld the trial judge who apparently applied this rationale. We think the reason for this is obvious. The court-appointed medical expert is a wholly disinterested party, and it is more likely that his examination will be entirely objective. He has given no previous report or testimony which he might be inclined, though honestly, to vindicate. One who accepts the responsibility of performing a professional service which calls for the expression of an expert opinion is more likely to be sympathetic toward the interest of his client or patient. This is a factor to be considered, especially when the issue is a close one.
This prima facie presumption should not require a greater amount of evidence to refute than any other prima facie presumption, but a mere contrary opinion is not alone sufficient to overturn it. To hold otherwise would render LSA-R.S. 23:1123 meaningless.
The burden of proof which defendants carry in a case of this kind does not require more than a preponderance of the evidence. It may be assumed in every case there will be some testimony to contradict the court-appointed medical examiner.

It has been said:

"The divergence of opinion among the doctors in this case, as is in all others of a like kind, is regrettable, but in cases of this kind, if compensation were not allowed because of the conflicting opinions of the doctors, there would never be a case in which a compensation claimant could or would be awarded compensation." Nash v. Solvay Process Co., 189 So. 493 (La. App.2d Cir.1939) at 508.
The same may be said of the discontinuance or modification of the award.
If mere contradiction is construed as rebuttal sufficient to overcome a prima facie presumption, then the relief provided the employer by LSA-R.S. 23:1331 is more fanciful than real.

Carlock, 200 So.2d at 359-60 (footnote omitted). However, Carlock has been interpreted and added to by our more recent decision in Green v. Louisiana Coca Cola Bottling Co., 477 So.2d 904 (La.App. 4th Cir.), writ denied 478 So.2d 910 (La.1985), which states:

The Carlock case was a modification proceeding wherein the employer sought termination of compensation benefits. Although the Court in that case made it clear that the legislative intent of the statute was to give significant weight to the findings of a court appointed expert, the court also qualified that interpretation by stating:
"The court appointed medical expert, is a wholly disinterested (emphasis added) party, and it is more likely that his examination will be entirely objective."
"This prima facie presumption should not require a greater amount of evidence to refute than any other prima facie presumption, but a mere contrary opinion is not alone sufficient to overturn it." Carlock, supra. at pp. 359-360.
We interpret the Carlock decision to mean that if the trial court concludes that the appointed physician is a disinterested party, his conclusions will be entirely objective and accordingly his opinion will be given significant weight. However, the weight *1012 accorded that opinion can be refuted by other credible evidence. We add to the Carlock interpretation of La.R.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Halker v. American Sheet Metal
861 So. 2d 740 (Louisiana Court of Appeal, 2003)
Jason Halker v. American Sheet Metal
Louisiana Court of Appeal, 2003
Simmons v. Associated Hospital Services, Inc.
862 So. 2d 1043 (Louisiana Court of Appeal, 2003)
Dordain v. Anthony Seafood & Lobster House
860 So. 2d 1166 (Louisiana Court of Appeal, 2003)
Faulkner v. One Source
809 So. 2d 1123 (Louisiana Court of Appeal, 2002)
Angulo v. ATH PAINTERS AND CONST., INC.
733 So. 2d 1222 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
671 So. 2d 1008, 95 La.App. 4 Cir. 1324, 1996 La. App. LEXIS 497, 1996 WL 114372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brock-v-morton-goldberg-auction-galleries-inc-lactapp-1996.