Dousay v. Dousay Floor Covering

966 So. 2d 677, 2007 WL 2609245
CourtLouisiana Court of Appeal
DecidedSeptember 12, 2007
Docket07-195
StatusPublished
Cited by6 cases

This text of 966 So. 2d 677 (Dousay v. Dousay Floor Covering) 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
Dousay v. Dousay Floor Covering, 966 So. 2d 677, 2007 WL 2609245 (La. Ct. App. 2007).

Opinion

966 So.2d 677 (2007)

Donnie DOUSAY
v.
DOUSAY FLOOR COVERING.

No. 07-195.

Court of Appeal of Louisiana, Third Circuit.

September 12, 2007.

Robert L. Beck Rivers, Beck, Dalrymple & Ledet, Alexandria, Louisiana, for Appellant, Donnie Dousay.

Walter S. Salley Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, Louisiana, for Appellee, Dousay Floor Covering State Farm Fire and Casualty Insurance Company.

Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

Plaintiff, Donnie Dousay (Mr. Dousay), appeals the judgment of the workers' compensation judge (WCJ) in favor of the Defendants, Lynn Dousay d/b/a Dousay Floor Covering (Dousay Floor) and its *679 workers' compensation insurer, State Farm Fire and Casualty Insurance Company (State Farm), dismissing his claim for permanent total disability (PTD) benefits. Mr. Dousay also appeals the WCJ's ruling that his alleged lumbar (back) injury is not related to his prior on-the-job cervical (neck) injury and that Dousay Floor and State Farm are, therefore, not responsible for his back-related medical treatment. For the following reasons, we affirm.

FACTS

The instant matter emanates partly from the termination of Mr. Dousay's benefits and partly from his allegations of having suffered another injury, a lower back injury, during a functional capacity evaluation (FCE). Mr. Dousay contends that his lumbar injury should be deemed related to his prior on-the-job cervical injury and that his injuries entitle him to PTD pursuant to La.R.S. 23:1221(2)(c).

Mr. Dousay suffered an on-the-job cervical injury on August 9, 1994, while working for Dousay Floor as a carpet installer. Consequently, Mr. Dousay received supplemental earnings benefits (SEB) from State Farm on behalf of Dousay Floor from March of 1995; however, his entitlement to SEB was exhausted in February of 2005.[1] Mr. Dousay had several surgeries including: (1) anterior cervical diskectomies with fusion at C4-5 and C5-6 performed by Dr. Anil Nanda, State Farm's choice of neurosurgeon; (2) a thoracic outlet syndrome surgery performed by Dr. James David, a vascular surgeon; (3) a revision of the anterior fusion and diskectomy and fusion at C6-7, with anterior plating, performed by Dr. Thomas Whitecloud, an orthopaedic surgeon; and (4) a surgical C7-T1 bilateral facet rhizotomy to obliterate the facet nerves performed by Dr. Lawrence Drerup, a neurosurgeon.

On February 14, 2003, Dr. Nanda opined that Mr. Dousay had reached maximum medical improvement and recommended that he undergo an FCE. An FCE was performed on August 5, 2003. Subsequent to the FCE, State Farm sought to have Mr. Dousay submit to either a CT/myelogram and/or an MRI as per Dr. Nanda's recommendation that either of these tests be performed on him within 12 months of the FCE. Initially, Mr. Dousay did not submit to either of these follow-up tests.

On February 17, 2005, Dousay Floor and State Farm filed a disputed claim for compensation, commonly referred to as a 1008, asserting that Mr. Dousay was no longer entitled to the receipt of SEB and that he refused to be re-evaluated by Dr. Nanda for the administration of either a CT/myelogram and/or an MRI. Dousay Floor further requested that the Office of Workers' Compensation (OWC) address the issue of Mr. Dousay's disability status.

On March 9, 2005, Mr. Dousay answered the claims of Dousay Floor and State Farm by denying that he was capable of gainful employment and asserting his entitlement to PTD. Mr. Dousay further denied the assertion that "he should be ordered to submit to an MRI/myelogram for the purposes of a second opinion medical evaluation by Dr. Nanda."

On May 4, 2005, Mr. Dousay filed a 1008 requesting penalties and attorney fees.[2] On November 10, 2005, Mr. Dousay amended his 1008 to request that *680 penalties and attorney fees be cast against Dousay Floor for its "denial of medical treatment for low back recommended by Dr. Jonathan Forrester." Mr. Dousay sought lumbar treatment from his primary physician, Dr. Forrester, for his alleged back injury. Mr. Dousay contends that his alleged lumbar injury is related to his on-the-job cervical injury because it occurred during the FCE. Dousay Floor and State Farm deny responsibility for Mr. Dousay's alleged lumbar injury and all costs of his medical treatment associated therewith, arguing that it was not related to his prior on-the-job cervical injury.

On August 9, 2006, the parties litigated Mr. Dousay's disability status and the issue of whether Dousay Floor should be responsible for his lumbar medical treatment. On November 9, 2006, via recorded teleconference, the WCJ ruled that Mr. Dousay failed to establish by a preponderance of the evidence that his lumbar injury was related to his on-the-job cervical injury and, further, that Mr. Dousay failed to prove by clear and convincing evidence his entitlement to PTD. Specifically, the WCJ stated, in pertinent part:

Based on his history that he had reported back pain prior to the performance of the FCE, [it] would be this Court's conclusion that Mr. Dousay has failed to establish that he sustained a back injury in the FCE as he has alleged. Moreover, I would like to add to this case in the event it may be determined that he has established a back injury, Dr. Forester recommended this MRI but Dr. Forester said he hadn't done any examination of Mr. Dousay's lower back.
. . . .
[I]n this court's view, he's failed to carry his burden of proof by [] clear and convincing evidence in light of Dr. Drerup's testimony that he can consistently and reliably perform sedentary and light duty work. The records indicate that he consistently drove his tractor until two weeks before the trial and that he did this on a daily basis. This is [an] additional indication to this Court that he can consistently and reliably do light duty work or sedentary work. The claims of Mr. Dousay are denied.

It is from this judgment that Mr. Dousay appeals.

ISSUES

The issues presented for review are: (1) whether Mr. Dousay proved by clear and convincing evidence his entitlement to permanent total disability benefits; and (2) whether Mr. Dousay proved by a preponderance of the evidence a causal link between his alleged lumbar injury and his prior on-the-job cervical injury.

LAW AND DISCUSSION

Standard of Review

Appellate review of workers' compensation cases was set forth by our supreme court as follows:

In worker's compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the "manifest error-clearly wrong" standard. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The court of appeal may not reverse the findings of the lower court even when convinced that had it been *681 sitting as the trier of fact, it would have weighed the evidence differently.

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117 (citations omitted).

Permanent Total Disability Benefits

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Cite This Page — Counsel Stack

Bluebook (online)
966 So. 2d 677, 2007 WL 2609245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dousay-v-dousay-floor-covering-lactapp-2007.