Duhon v. Snelling Personnel Services

702 So. 2d 922, 97 La.App. 3 Cir. 00347, 1997 La. App. LEXIS 2518, 1997 WL 657033
CourtLouisiana Court of Appeal
DecidedOctober 8, 1997
DocketNo. 97-347
StatusPublished
Cited by3 cases

This text of 702 So. 2d 922 (Duhon v. Snelling Personnel Services) 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
Duhon v. Snelling Personnel Services, 702 So. 2d 922, 97 La.App. 3 Cir. 00347, 1997 La. App. LEXIS 2518, 1997 WL 657033 (La. Ct. App. 1997).

Opinion

JiCOOKS, Judge.

David Duhon appeals the judgment of the Office of Workers’ Compensation. For the following reasons, we affirm.

FACTS

Duhon alleges on February 17, 1995, he was injured during the course and scope of his employment with Snelling. Snelling’s workers’ compensation insurer is Credit General Insurance Company. As a result, Snell-ing and Credit General paid indemnity benefits to Duhon at a rate of $303.75 per week. Aside from the recommended treatment at issue, Snelling authorized all requested and necessary medical treatment to Duhon.

Duhon complained he suffered from pain in his neck, right shoulder and right arm. In an effort to alleviate the pain, Duhon’s treating physician, Dr. John Cobb, [¿recommended he undergo a cervical diseogram, and then a cervical diskectomy and fusion at C5-6 and possibly C6-7. Thereafter, at Snelling’s request, Duhon underwent an independent medical examination (IME) by Dr, James C. [924]*924McDaniel, an orthopaedic surgeon. In Dr. McDaniel’s opinion neither the diseogram nor the diskectomy and fusion were medically necessary. Moreover, Dr. McDaniel faded to relate Duhon’s ulnar nerve irritation to the work accident.

Because Dr. Cobb’s and Dr. McDaniel’s opinions conflicted, Snelling submitted Du-hon’s medical records to American International Health & Rehabilitation Services, Inc., a private utilization review company. Performing the utilization review, Dr. Frank K. Kriz (an orthopaedic surgeon located in Tampa, Florida) examined Duhon’s medical records and concluded no documentation or-objective findings indicated any need for Duhon to undergo an anterior cervical disc fusion surgery. Further, in Kriz’s opinion, Duhon could return to full employment; and like Dr. McDaniel he did not relate Duhon’s ulnar nerve condition to the February 17, 1995 work accident.

Snelling then requested an IME through the Office of Workers’ Compensation (OWC). The OWC appointed Dr. Dale Bernauer, an orthopaedic surgeon, to perform an IME. Dr. Bernauer reported:

At this time this patient looks to have an ulnar nerve compression syndrome at his right elbow. I think this is what is causing the numbness in his hand. The neck pain is caused by some arthritic changes. His examination is somewhat inconsistent because people with pain on the right side of the neck should hurt when the head is turned to the left not to the right. I would not suggest doing an anterior cervical dis-kectomy and fusion for a degenerative neck disk. I do not think this will help this patient. I do think he probably needs an ulnar nerve transposition done. Whether this is related to his accident, I cannot say. It does not seem to be.

Nevertheless, Duhon filed a Petition for Workers’ Compensation Benefits, ^Penalties and Attorney’s Fees on October 30, 1995. On October 2, 1996, Hearing Officer Charlotte Bushnell conducted a trial on the merits. After trial, she denied Duhon’s claims for the recommended medical treatment by Dr. Cobb, finding it was not medically necessary as required under the Workers’ Compensation Act. Further, she found Duhon’s ulnar nerve problem was unrelated to the work accident; the evidence was insufficient to prove that all requested medical records in Snelling Personnel Services’ possession were not provided to Duhon; Snelling did not violate La.R.S. 23:1127 by providing medical information to the utilization review company; and, Snelling was not arbitrary and capricious in handling Duhon’s claim.

Duhon appeals the hearing officer’s judgment asserting the following assignments of error:

1. The hearing officer erred in failing to award weekly compensation benefits to David Duhon in the amount of $303.75 per week.
2. The hearing officer erred in failing to find that defendants violated La.R.S. 23:1127 by providing medical records to Dr. Kriz.
3. The hearing officer erred in failing to provide sanctions for defendants’ violation of La.R.S. 23:1317.1.
4. It was error for the hearing officer to rely upon the medical testimony of Dr. Dale Bernauer.
5. The hearing officer erred in holding that the ulnar nerve problem of David Duhon is not related to the work accident and denying the diseogram and surgery recommended by Dr. Cobb.

LAW & DISCUSSION

It is well settled in workers’ compensation cases appellate'courts should apply the “manifest error — clearly wrong” standard of review. To determine whether manifest error occurred, the record must be reviewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La. 1/14/94); 630 So.2d 706; LeCroy v. Brand Scaffold Bldg., Inc., 95-1522 (La.App. 1 Cir. 2/23/96); 672 So.2d 181, writ denied, 96-1442 (La. 9/27/96); 679 So.2d 1352. The factual findings of the hearing officer may not be set aside without first determining that those factual findings are manifestly erroneous or clearly wrong. Key v. Insurance Co. of North America, 605 So.2d 675 (La.App. 2 Cir.1992). Great weight is given the hearing officer’s factual [925]*925conclusions, reasonable evaluations of credibility and reasonable inferences of fact. Dixon v. Louisiana Restaurant Ass’n, 561 So.2d 135 (La.App. 3 Cir.1990).

ASSIGNMENT OF ERROR NO. 1

By this assignment, Duhon contends because Snelling continuously paid indemnity benefits in the amount of $303.75 per week before and after trial, the hearing officer erroneously failed to enter judgment against Snelling awarding him $303.75 per week in indemnity benefits. In support of this contention, Duhon notes Dr. Cobb has not released him to return to any work activities. He further points out the record is devoid of testimony from any physician releasing him to work as a roughneck in the oil field. In conclusion, he posits the “hearing officer merely overlooked this when entering her judgment....” However, Snelling argues the hearing officer correctly omitted an award of indemnity benefits because it was voluntarily paying these benefits to Duhon and it did not admit to any liability for said benefits. Snelling supports its argument by citing La.R.S. 23:1204 which states:

Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.

Snelling asserts there was no dispute between the parties in reference to payment of indemnification benefits; hence, a finding by the hearing officer that it is liable for benefit payments is premature at this stage and contrary to La.R.S. 23:1204. We Magree. The hearing officer did not err in failing to reach this issue or to award indemnity benefits in the judgment.

ASSIGNMENT OF ERROR NO. 2

Duhon alleges the hearing officer erred in failing to find Snelling and Credit General violated La.R.S. 23:1127 by providing his medical records to Dr.'Km without his authority. We disagree. La.R.S. 23:1127(A) states in pertinent part:

In any claim for compensation, a health care provider who has at any time treated the employee shall release any requested medical information and records relative to ■the employee’s injury, to the employee, employer, or its worker’s compensation insurer or the agent or representative of the employee, employer, or its worker’s compensation insurer.

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Bluebook (online)
702 So. 2d 922, 97 La.App. 3 Cir. 00347, 1997 La. App. LEXIS 2518, 1997 WL 657033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duhon-v-snelling-personnel-services-lactapp-1997.