Bush v. Avoyelles Progress Action Committee

970 So. 2d 63, 2007 WL 3171266
CourtLouisiana Court of Appeal
DecidedOctober 31, 2007
Docket07-685
StatusPublished
Cited by9 cases

This text of 970 So. 2d 63 (Bush v. Avoyelles Progress Action Committee) 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
Bush v. Avoyelles Progress Action Committee, 970 So. 2d 63, 2007 WL 3171266 (La. Ct. App. 2007).

Opinion

970 So.2d 63 (2007)

Patricia A. BUSH
v.
AVOYELLES PROGRESS ACTION COMMITTEE and Louisiana Workers' Compensation corporation.

No. 07-685.

Court of Appeal of Louisiana, Third Circuit.

October 31, 2007.

*65 Robert A. Mahtook, Jr., Marc D. Moroux, Mahtook & LaFleur, Lafayette, Louisiana, for Defendant-Appellant, Avoyelles Progress Action Committee and Louisiana Workers' Compensation Corporation.

Norris J. Greenhouse, Greenhouse Law Office, L.L.C., Marksville, Louisiana, for Plaintiff-Appellee, Patricia A. Bush.

Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

Defendants, Avoyelles Progress Action Committee and Louisiana Workers' Compensation Corporation (LWCC), appeal the judgment of the Workers' Compensation Judge (WCJ) ordering that Defendants authorize a surgery recommended by Claimant's treating physician, finding that Defendants' behavior in refusing to authorize the surgery was arbitrary and capricious, and awarding penalties in the sum of $2,000.00 and attorney's fees in the sum of $5,000.00. For the following reasons, we affirm the judgment of the WCJ in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Claimant, Patricia A. Bush (Bush), was employed by Avoyelles Progress Action Committee as Assistant Executive Director. On May 14, 2003, as part of her employment duties, Bush was attending a seminar at Argosy Casino in Baton Rouge, Louisiana. While there, she slipped and fell in the ladies' room and injured her neck, right arm, lower and upper back, and right hip. She reported the accident to the Executive Director of Avoyelles Progress Action Committee and to an employee of the conference center. She was immediately seen by an EMT who applied an ice pack to her right wrist. Bush stayed at the conference but reportedly developed pain in her upper back later that night. Bush continued to work after the accident.

On May 16, 2003, after returning home from the conference and continuing to have pain and swelling, Bush went to the emergency room at Avoyelles Hospital and complained of pain to her right wrist and upper and mid-back around her shoulders. X-rays were taken, and she was given pain medication and instructed to follow up with her family physician. She saw Dr. Bryan C. McCann, her general practitioner, on May 21, 2003. She related the details of the slip and fall and her complaints of pain. Dr. McCann noted that he had treated her for injuries to her neck and right shoulder from an automobile accident in November of 2000 but that she had been well since he last saw her in November of 2001. Dr. McCann treated her with injections of anti-inflammatory medications and ordered an MRI of the thoracic spine. The MRI was performed on May 22, 2003, and was interpreted as showing mild degenerative disc changes from T2 through T6 with slight increased thoracic kyphosis (also referred to as "humpback"). Dr. McCann continued treating her conservatively for the next several months with injections and massage therapy.

On December 20, 2003, Bush sought treatment from Dr. Yvel Moreau, an orthopedist, after she reportedly developed severe spasm in her mid back which caused her to fall and fracture her right elbow. Dr. Moreau treated the elbow fracture and referred Bush to Dr. Louis C. Blanda, an orthopedic surgeon, for treatment of her neck and back. Dr. Moreau, however, ordered an MRI of the cervical spine before *66 Bush saw Dr. Blanda. This MRI was performed on January 16, 2004 and was interpreted as showing moderately severe cervical spondylosis at C4-5 with moderate bilateral bony neuroforaminal narrowing as well as moderate cervical spondylosis at C5-6 with mild bilateral bony neuroforaminal narrowing at that level. Dr. Blanda indicated that spondylosis is a degenerative condition which would have pre-existed the May 14, 2003 accident.

Dr. Blanda first saw Bush on February 17, 2004, and she complained of injury and pain in her lower back and neck. There was some spasm on palpation in the neck. Dr. Blanda reviewed the films of the MRI of the cervical spine taken January 16, 2004. Dr. Blanda saw Bush several times over the following months. During this time, she complained of numbness in her hand and continued to attend physical therapy. On May 18, 2004, EMG/NCV of the right upper extremity were performed and interpreted as "essentially normal." EMG/NCV of the bilateral upper extremities performed on November 30, 2004, indicated low grade physiologic C6 changes bilaterally with a right C7 component. Through September 28, 2004, Bush's complaints of numbness increased and began to involve both arms. Dr. Blanda ordered further EMG testing, which was done in December of 2004. Dr. Blanda related that this testing showed that the numbness was coming from the neck.

Defendants sought a second opinion from Dr. G. Gregory Gidman. Dr. Gidman examined Bush on November 23, 2004. Dr. Gidman conducted an examination of the cervical spine, upper extremities, and lumbar spine. He also ordered x-rays of the pelvis, thoracic spine, and lumbar spine, which he interpreted as normal. He also reviewed reports from the MRI of the cervical spine performed on January 16, 2004 and from the MRI of the thoracic spine performed on May 22, 2003. Based on his examination, Dr. Gidman was of the opinion that no surgical intervention was necessary and that there was no need for any repeat electrical studies of the upper extremities. He recommended conservative treatment consisting of home therapy, home cervical traction, nonsteroidal anti-inflammatory medication, and mild analgesics. However, Dr. Gidman did assign a ten percent whole body impairment from the subject injury.

Defendants then requested an IME, and the Office of Workers' Compensation appointed Dr. Thad S. Broussard to perform the examination. Dr. Broussard saw Bush on February 22, 2005. Dr. Broussard reviewed the reports of the radiographic studies but not the films themselves. Based on his examination and the history of contusion and sprain of the cervical and lumbar spine, Dr. Broussard's impression was that Bush was suffering from spondylosis but that she had reached maximum medical improvement. Dr. Broussard also indicated his opinion was that there was nothing in the records that he had reviewed at that time to indicate that surgery was required; however, he did state that it would be malpractice for a treating physician not to review any films prior to making a recommendation as to surgery. Dr. Broussard also indicated that if the symptoms worsened, there might be some indication of progression such that Bush would be considered a surgical candidate.

Dr. Blanda ordered a second MRI of the cervical spine, which was performed on May 23, 2005, and was interpreted as showing a subluxation (or forward slip) at C4-5 with central disc protrusion. Dr. Blanda testified in his deposition that this may or may not have been present when the MRI of the cervical spine dated January 16, 2004 was taken. Dr. Blanda specifically ordered that the May 2005 MRI be *67 taken with a stronger machine. Further, in Dr. Blanda's opinion, the first MRI was taken soon after the injury and it can take months for the "full picture" to develop due to the progressive protrusion or herniation of the discs. Dr. Blanda also recommended a cervical myelogram, but approval was denied based on Dr. Gidman and Dr. Broussard's opinions that Bush was not a surgical candidate. On June 7, 2005, based on his diagnosis of an unstable disc herniation at C4-5 and spondylosis and central disc bulging at C5-6, Dr. Blanda then recommended a three level surgery.

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Bluebook (online)
970 So. 2d 63, 2007 WL 3171266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-avoyelles-progress-action-committee-lactapp-2007.