Dubuisson v. Amclyde Engineered Products Co.

112 So. 3d 891, 2012 La.App. 1 Cir. 0010, 2012 La. App. LEXIS 1735, 2012 WL 6758006
CourtLouisiana Court of Appeal
DecidedDecember 31, 2012
DocketNo. 2012 CA 0010
StatusPublished
Cited by9 cases

This text of 112 So. 3d 891 (Dubuisson v. Amclyde Engineered Products Co.) 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
Dubuisson v. Amclyde Engineered Products Co., 112 So. 3d 891, 2012 La.App. 1 Cir. 0010, 2012 La. App. LEXIS 1735, 2012 WL 6758006 (La. Ct. App. 2012).

Opinion

PARRO, J.

|2In this workers’ compensation case, Amclyde Engineered Products Co., Inc. (Amclyde) and its insurer, Louisiana Insurance Guaranty Association (LIGA),1 appeal a judgment in favor of Floyd D. Dubuisson, who was employed by Amclyde when he fell and sustained injuries. For the following reasons, we affirm the judgment in part and remand in part for further proceedings in accordance with the law and this opinion.

BACKGROUND

On March 24, 2000, while in the course and scope of his employment as a pipefit-ter with Amclyde, Dubuisson fell, injuring his neck. After conservative treatments produced no relief for the pain in his neck and right shoulder, in December 2002, Dr. John B. Logan, an orthopedic surgeon specializing in spine surgery, performed a cervical fusion on his neck. Although Dr. Logan deemed the surgery a success, after [894]*894some initial pain remission, Dubuisson experienced neck pain radiating into his right shoulder and arm. Consequently, he continued to receive treatment for his neck and right shoulder pain from Dr. Robert Fortier-Bensen, a pain management specialist who had treated him since the accident. In July 2003, Dubuisson was involved in a minor motor vehicle accident in which he struck the rear of another vehicle while under the influence of prescription medications. He admitted he was on medications, was handcuffed, and was taken to jail, where he became involved in a physical altercation with a jailer after being booked. All charges concerning the fight at the jail were eventually dropped, but he was convicted of DUI. After this incident, unless it was absolutely necessary for him to drive, Dubuisson depended on his wife and son for transportation.

Because Dubuisson continued to experience right shoulder pain, Dr. Logan ordered an MRI of the right shoulder without contrast, which was performed on August 14, 2003. That test showed degenerative changes of the acromioclavicu-lar joint, causing impingement into the supraspinatus tendon, possible tendinopa-thy in the | ¡¡rotator cuff, and the possibility of a partial tear. After years of treatment with no consistent relief from the right shoulder pain, Dr. Fortier-Bensen ordered another MRI. This test, an arthrogram, was done with contrast on October 30, 2007. The diagnostic report after this test concluded that there was a tear of the superior labrum extending from anterior to posterior and mild degenerative arthritis in the acromioclavicu-lar joint that appeared unchanged from August 2003.

In January 2008, Dubuisson consulted Dr. Brian L. Fong, an orthopedist, who diagnosed a superior labrum tear in his right shoulder and recommended arthroscopic surgery if cortisone injections did not relieve his pain. LIGA did not approve the surgery. In July 2010, Dr. For-tier-Bensen terminated Dubuisson as a patient, because he had tested positive for Xanax, which the doctor had not prescribed for him at that time.2 Dubuisson paid out-of-pocket for all of his medical expenses after July 2010.

On November 17, 2010, LIGA terminated his supplemental earnings benefits, and on January 21, 2010, Dubuisson filed a disputed claim for benefits. In January 2011, Dubuisson received approval from LIGA to see Dr. Logan again for his continuing complaints of right shoulder pain. Dr. Logan agreed that the right shoulder needed surgery and that, after this had been done, the cervical area needed a further workup to determine whether there were disc problems above and below the earlier fusion. Dr. Logan referred him to Dr. Richard P. Texada, Jr., an orthopedic surgeon with a specialty in sports medicine, for treatment of his shoulder injury, and to Dr. Scott Sondes, a medical doctor with a specialty in physical medicine, rehabilitative medicine, and emergency room care, for pain management. Again, LIGA did not approve these referrals.

Following the trial on May 23, 2011, the workers’ compensation judge (WCJ) found that Dubuisson was an Amclyde employee in March 20003 when the accident oc[895]*895curred and that he had sustained injuries to his neck and right shoulder in the work-[related4 fall. The judgment ordered Am-clyde and LIGA to pay him temporary total disability benefits from November 18, 2010, at the rate of $884 per week, plus legal interest until paid, and further ordered payment of all medical bills and expenses, including any unpaid mileage, to either the health-care providers who remained unpaid or to Dubuisson, if he had paid those items out-of-pocket. The judgment further granted Dubuisson the right to change his choice of pain management physician to Dr. Sondes and to Dr. Texada for treatment of the neck and right shoulder, and also ordered Amclyde and LIGA to pay for continuing treatment, including surgery for the labrum tear in Dubuisson’s right shoulder. Amclyde and LIGA appealed that judgment, which was signed on August 31, 2011.

STANDARD OF REVIEW

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the WCJ’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112, 117. To uphold the WCJ’s finding of fact, the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact and that the record establishes that the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); see also Dawson v. Terrebonne Gen. Med. Ctr., 10-2130 (La.App. 1st Cir.5/19/11), 69 So.3d 622, 626.

If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Connor v. Family Dollar Store, 09-1537 (La.App. 1st Cir.3/26/10), 36 So.3d 339, 345, writ denied, 10-0959 (La.6/25/10), 38 So.3d 344. Where there is [¡^conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1st Cir.6/27/03), 865 So.2d 98,105, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Richardson v. North Oaks Hosp., 11-1258 (La.App. 1st Cir.2/13/12), 91 So.3d 361, 365.

CAUSATION

Amclyde and LIGA contend Dubuisson’s right shoulder problem was not related to the March 2000 work accident, but was a new injury that occurred either in the automobile accident and/or the fight with the jailer in July 2003. They claim Du-buisson complained only of neck pain after his work injury and did not complain of right shoulder pain until after the July 2003 accident and confrontation.

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112 So. 3d 891, 2012 La.App. 1 Cir. 0010, 2012 La. App. LEXIS 1735, 2012 WL 6758006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubuisson-v-amclyde-engineered-products-co-lactapp-2012.