Ellis v. Alton Ochsner Medical Foundation

652 So. 2d 115, 94 La.App. 5 Cir. 893, 1995 La. App. LEXIS 449, 1995 WL 80291
CourtLouisiana Court of Appeal
DecidedMarch 1, 1995
DocketNo. 94-CA-893
StatusPublished

This text of 652 So. 2d 115 (Ellis v. Alton Ochsner Medical Foundation) 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
Ellis v. Alton Ochsner Medical Foundation, 652 So. 2d 115, 94 La.App. 5 Cir. 893, 1995 La. App. LEXIS 449, 1995 WL 80291 (La. Ct. App. 1995).

Opinion

JjDUFRESNE, Judge.

This is an appeal by Doris N. Ellis from an adverse determination of her workman’s compensation claim against Alton Ochsner Medical Foundation (AOMF), her former employer, for continuing benefits. Because we find no manifest error in the factual findings of the hearing officer, we must affirm her decision denying further benefits.

The procedural facts are not seriously disputed. On November 7, 1984, claimant suffered a job related injury to her neck in a hospital elevator when it dropped suddenly and stopped abruptly some 18 inches below the floor level. She was treated conservatively for this injury for several months, but eventually underwent a cervical fusion by Dr. Kenneth Vogel, a neurosurgeon. She was originally paid workers compensation at a rate of $537.58 per month beginning November 8, 1984, the day after the accident. Sometime in early 1985, AOMF sought review of this claim by the Office of Worker’s ^Compensation, and on April 15, 1985, a recommendation that benefits be continued was issued by that office and accepted by the employer. Almost four years later, AOMF again sought review by the Office of Worker’s Compensation seeking to terminate benefits on the grounds that claimant had recovered and was able to return to work. On February 2, 1989, a recommendation issued stating that claimant-was entitled to temporary total disability benefits from the date of injury until May 17, 1988, “the date of her release to return to work.” It further recommended that she be paid supplemental earnings benefits through February 2, 1989, “the date of termination of claimant’s disability.” Finally, it provided that she “may be entitled to continuing supplemental benefits” after that date if she were unable to earn at least 90% of her previous wages because of her injury. This recommendation was not rejected by claimant within thirty days of issuance and thus it was conclusively presumed to have been accepted as per prior La.R.S. 23:1310.1.

In the meantime, in October of 1985, claimant filed suit against the elevator company as a third-party tortfeasor, and the employer intervened to recover some $46,000.00 which it had paid in compensation and medical expenses. A jury trial in March of 1989, resulted in a verdict of $350,000.00, and the defendant elevator company appealed. Prior to that verdict, AOMF had assigned its intervention to the elevator company for $35,-000.00, and apparently reserved its rights to offset future compensation, if'any, by the amount of any judgment above its original claim of some $46,000.00. Several months later AOMF entered into an agreement with claimant whereby hit would continue paying compensation at the rate of $537.58 per month until the case was submitted for decision to the Fourth Circuit Court of Appeal. Claimant for her part agreed to reimburse AOMF the amount of these continuing payments if the final judgment in the case was sufficient to satisfy the intervention as well as these additional payments. It appears that the matter was originally submitted to the appellate court on August 1, 1990, but benefit payments were continued until Mai’ch 31, 1991. For reasons of no consequence here, the appeal was not finally resolved until January, 1992, Ellis v. Dover Elevator Co., 597 So.2d 1 (La.App. 4th Cir.1992). The eventual outcome of the matter was a judgment in claimant’s favor of $200,000.00, plus about $75,000.00 in interest. There is nothing in the record to show the amount of the post-trial benefits paid by AOMF or whether they sought reimbursement of these funds once the tort suit judgment was final.

The present matter was instituted by claimant on March 31, 1992. Her basic assertions were 1) that there were outstanding medical bills related to her original injury that AOMF had not paid, and 2) that she was totally and permanently disabled by the accident and thus entitled to continuing compensation payments. After hearing testimony and evidence, the hearing officer determined that there was no showing that any of the [117]*117medical bills presented for payment were related to claimant’s workplace injury. She further found that claimant failed to prove any change in her medical condition since the 1989 certificate was issued by the Office of Workman’s Compensation, and in the absence of such a change, La.R.S. 23:1310.8(B) precluded her |4from receiving further benefits. Claimant has now appealed that determination.

It is now well settled that the standard of appellate review of determinations by hearing officers in workman’s compensation cases is the same as that for review of district court judgments, i.e. whether the decision is based on manifestly erroneous factual findings, Doucet v. Baker Hughes Production Tools, 93-3087 (La. 3/11/94) 635 So.2d 166. Our review of the record discloses no such eiTor, and we must therefore affirm the decision of the hearing officer.

The evidence before the hearing officer consisted for the most part of transcripts from the trial of the tort suit. In those transcripts, Dr. Vogel, the neurosurgeon who treated her for her original neck injury testified as follows. He first examined her in January, 1985, for her neck injury. His initial impression was a lumbosacral strain which was resolving satisfactorily and a herniated cervical disc. Claimant also informed him that she had undergone a lumbar lami-nectomy in the 1970’s and had complete relief of pain from that procedure. On March 27, 1985, he performed an anterior spinal fusion at the C6-7 level. Although claimant experienced pain and problems swallowing after the procedure, by a January 2, 1986, examination she was approaching maximum improvement. In his January 8,1986, report of that examination, Dr. Vogel felt that she had incurred an approximate 10-15% whole body impairment and should avoid lifting, pushing, or pulling more than 35 lbs. or repeated bending, flexing or hyperextending her neck in the future. He also stated that she was expected to reach maximum improvement about one year from the | soperation. A June 2, 1986, report reiterated the 10-15% impairment and weight and flexing restrictions, and stated that “she is considered to have been totally disabled for gainful employment until the time of her maximum medical improvement which was reached on 3/27/86.” On September 4, 1986, claimant returned for a final post-operative check-up and was found to have mild neck pain and a mild limitation of movement in the neck.

The next visit to this doctor was on June 4, 1987, some ten days after claimant was in an automobile accident. The doctor stated that she had been in good health before the accident, but then had suffered an immediate onset of low back, left leg, neck and left shoulder symptoms after the accident. He further stated that after this accident she never again recovered to the point that she had reached on her last post-operative visit of September 4, 1986.

In a May 7, 1988, letter to counsel for AOMF, Dr. Vogel stated: The above captioned patient has reached maximum medical improvement after her surgery of 3/27/85. I would defer to a vocational specialist as to whether this patient can or cannot return to gainful employment if she will take into account her disability which is as reported and has not changed from that of 1/8/85, a copy of which is enclosed.

The doctor also noted in a later report of January 20, 1993, that claimant had further exacerbated her neck and back pain when she was a passenger in a car which struck a tree.

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Related

Ellis v. Dover Elevator Co.
597 So. 2d 1 (Louisiana Court of Appeal, 1992)
Doucet v. Baker Hughes Production Tools
635 So. 2d 166 (Supreme Court of Louisiana, 1994)

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Bluebook (online)
652 So. 2d 115, 94 La.App. 5 Cir. 893, 1995 La. App. LEXIS 449, 1995 WL 80291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-alton-ochsner-medical-foundation-lactapp-1995.