STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-1119
JEFFERY FUNDERBURK
VERSUS
NABORS DRILLING USA, INC.
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 2 PARISH OF RAPIDES, NO. 04-01335 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Jimmie C. Peters, Michael G. Sullivan, and Glenn B. Gremillion, Judges.
AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; AND RENDERED.
Harry K. Burdette The Glenn Armentor Law Corp. 300 Stewart St. Lafayette, LA 70501 (337) 233-1471 Counsel for Plaintiff/Appellant: Jeffery Funderburk Kevin A. Marks Galloway, Johnson, Tompkins, Burr & Smith 701 Poydras St., 40th Floor New Orleans, LA 70139 (504) 525-6802 Counsel for Secondary Defendant/Appellant: Nabors Drilling USA, Inc. GREMILLION, Judge.
The plaintiff, Jeffery Funderburk, appeals the workers’ compensation
judge’s finding that he has reached maximum medical improvement and is no longer
entitled to indemnity or medical benefits stemming from his work-related injury. The
defendant, Nabors Drilling USA, Inc., also appeals the workers’ compensation
judge’s award of indemnity benefits. We reverse in part finding him still temporarily,
totally disabled and entitled to further medical treatment and additional penalties and
attorney’s fees.
FACTS
The parties stipulated that Funderburk, a floor hand for Nabors Drilling
USA, Inc., suffered a work-related injury to his lower back on July 24, 2003. He was
treated at the Lake Charles Memorial Hospital Emergency Room and then driven to
Lafayette, Louisiana, where he was seen by Nabors’ orthopaedic surgeon, Dr.
Michael Duval. After he returned to the rig, the evidence is conflicting as to what
occurred; but, for whatever reason, Funderburk left the rig and returned home. He
has not worked since that day, and he was terminated by Nabors shortly thereafter.
Funderburk went to the Christus St. Frances Cabrini Hospital Emergency
Room in Alexandria on July 25, 2003, complaining of lower back pain, and was
diagnosed with lumbar strain with possible disc disease. He then sought treatment
from Dr. Elmer Raffai, an orthopaedic surgeon, in Eunice. Dr. Raffai noted muscle
spasms in Funderburk’s lower back and recommended that he undergo an MRI. The
August 15, 2003 MRI revealed degenerative changes in multiple levels of his lumbar
spine, with L3-4 being the worst. The radiologist noted diffuse degenerative bulging
1 discs at L2-3, L3-4, L4-5 and L5-S1 and a posterior annular tear and narrowing of the
spinal canal at L3-4 and L4-5. Dr. Raffai referred Funderburk to Dr. Michael
Holland, an orthopaedic surgeon, for consultation on the need for surgery.
Dr. Holland recommended a lumbar myelogram and CT scan after
finding only subjective complaints of pain during his examination. As these tests
revealed bulging at the above-stated levels, but no disc herniation, Dr. Holland found
no indication for surgery and referred Funderburk to pain management upon his
request. Funderburk then filed a disputed claim for compensation on February 25,
2004, alleging that Nabors arbitrarily and capriciously failed to authorize pain
management treatment as recommended by Dr. Holland.
Dr. Holland referred Funderburk to Dr. Stephan Katz, for pain
management treatment. After examining him on March 3, 2004, Dr. Katz felt that
Funderburk would benefit from epidural steroid injections into his lower back. Until
those were approved, he planned to treat him with medication. Nabors denied any
further authorization for treatment with Dr. Katz.
Dr. Duval evaluated Funderburk for a second medical opinion on March
9, 2004. After examining him, his medical records, and his previous tests, he felt that
a functional capacity evaluation (FCE) would be appropriate to determine a baseline
and to determine whether Funderburk was valid in his presentation. If the results of
the evaluation were valid, then Dr. Duval agreed that he should undergo further
treatment. At this point, Joseph Sarkies, a claims adjustor for Kenneth Livaudais
Claims Service, Inc., Nabors’ third-party adjustor, requested an FCE for Funderburk.
Dr. Holland agreed with this request.
2 On April 15, 2004, Funderburk sought treatment from the emergency
room at St. Frances Cabrini, complaining of continuous pain, muscle spasms, and leg
pain due to his lumbar spine complaints. The emergency room records reveal that the
attending physician noted palpable pain, muscle spasms, and negative point
tenderness in the spinous process.
After Sarkies scheduled a five-day, eight-hour-per-day FCE, Dr. Holland
received a letter from Funderburk’s counsel, which enclosed an April 19, 2004
statement from Dr. Katz that he did not believe Funderburk capable of withstanding
a comprehensive FCE, as he had not yet initiated treatment for his condition. On May
12, 2004, Nabors obtained an order from the workers’ compensation judge ordering
Funderburk to attend the FCE.
Funderburk began the FCE on July 12, 2004; however, he only
completed three days of the five-day evaluation. Trevor Bardarson, the administering
physical therapist, found that the effort displayed by Funderburk was poor due to
“inappropriate responses to valid tests and failed to find objective signs which
validate the subjective presentation of the symptoms or impairments of the client.
This behavior threatens the validity of this report.” Bardarson stated that although
he was unable to accurately determine Funderburk’s ability to work, a sedentary level
with restrictions was demonstrated. He further reported that Funderburk tested
positive in two of five Waddell’s categories: simulated rotation and distracted
testing, particularly the supine versus seated straight leg raising tests.
Funderburk filed an amended disputed claim for compensation on
August 31, 2004, again alleging that Nabors failed to authorize the pain management
3 treatment recommended by Dr. Holland and seeking penalties and attorney’s fees as
a result of its action.
Sarkies sent a copy of the FCE to Dr. Duval on September 9, 2004.
After reviewing the evaluation, Dr. Duval opined that Funderburk was at maximum
medical improvement (MMI). In his September 16, 2004 letter to Sarkies, he stated:
Given the fact that this patient’s myelogram shows no compressive lesions as well as the post-myelogram CT scan, I doubt seriously that a neurosurgical evaluation would be helpful or medically necessary. Given that the patient’s functional capacity evaluation suggests symptom magnification, I would also not think a trial of epidural steroid injections or pain management referral is medically necessary.
Since validity is in question, the best way to make an accurate assessment of this patient’s physical capabilities are his radiologic studies, which are purely objective. When considering this patient’s MR scan and CT myelogram alone, I would not place any physical limitations on his work capabilities.
Based on Dr. Duval’s opinion, Sarkies terminated Funderburk’s weekly indemnity
benefits on October, 14, 2004. In response to Sarkies’ inquiry, Dr. Holland also
found Funderburk at MMI on November 22, 2004. Dr. Holland agreed with Dr.
Duval that a trial of epidural steroids was unadvisable if Funderburk was magnifying
his symptoms and, based on the MRI, myelogram, and CT scan, he placed no physical
restrictions on his work status.
Funderburk sought medical treatment from the Louisiana State
University Health Sciences Center in Shreveport, Louisiana, after Nabors refused to
authorize further treatment. On October 19, 2004, he complained of lower back pain
radiating down into the left leg. He had a positive straight leg raise test on the left
and moderate muscle spasm. A November 24, 2004 MRI of the lumbar spine
revealed degenerative changes with desiccated discs at L3-4, L4-5, and L5-S1; disc
4 protrusion at L4-5, with a radial tear in the annulus fibrosis; and a small synovial cyst
on the left at L4-5.
On December 15, 2004, Funderburk returned to Dr. Raffai, still
complaining of pain in his lower back. Dr. Raffai noted point tenderness, severe
stiffness and muscle spasms at L5-S1 on palpation, and radiculopathy down both legs.
He restricted Funderburk from working at that time. On December 16, 2004,
Funderburk notified Nabors of Dr. Raffai’s finding and off-work slip and requested
that it reinstate his indemnity benefits. On January 4, 2005, he sent Nabors a copy of
the LSU medical reports and notified it that he was scheduled for an epidural
injection on January 5, 2005. On that date, he underwent a left lumbar transforaminal
epidural steroid injection at L4-5 due to nerve root compression. Funderburk again
forwarded LSU’s medical records to Nabors on March 1, 2005, and requested that it
pay all outstanding medical expenses.
This matter proceeded to a trial on the merits, after which it was taken
under advisement. The workers’ compensation judge issued oral reasons on June 24,
2005, finding that Funderburk was at MMI as of November 22, 2004, and that he was
entitled to temporary total disability benefits from October 15, 2004 through
November 22, 2004. He further awarded him $2000 in penalties and $2000 in
attorney’s fees as a result of Nabors’ arbitrary and capricious termination of his
indemnity benefits on October 14, 2004. Finally, the workers’ compensation judge
denied Funderburk’s request for pain management treatment and a neurosurgical
evaluation. A judgment was rendered in this matter on July 11, 2005. Funderburk
has appealed the judgment, as has Nabors.
5 ISSUES
On appeal, Funderburk argues that the workers’ compensation judge
erred in finding that he was not entitled to any further indemnity benefits, pain
management treatment, or a neurosurgical evaluation, and that Nabors was not
arbitrary and capricious in refusing to authorize the recommended treatment. Nabors
appeals arguing that the workers’ compensation judge erred in awarding Funderburk
indemnity benefits from October 15 through November 22, 2004. Funderburk
answered this appeal requesting additional attorney’s fees for work performed on
appeal.
STANDARD OF REVIEW
As in any other civil matter, the standard of review applied in workers’
compensation matters where the factual findings of the workers’ compensation judge
are called into question is the manifest error standard. This standard, which is based
upon the reasonableness of the factual findings in light of the record reviewed in its
entirety, is well established in our jurisprudence following the seminal cases of Rosell
v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of
Transportation and Development, 617 So.2d 880 (La.1993). We will proceed with
our review of the matter.
DISABILITY AND TREATMENT
In order to receive temporary total disability benefits, an employee must
prove that he is unable to physically engage in any employment or self-employment
as a result of his work-related injury. La.R.S. 23:1221(1)(c). The employee’s burden
of proof is by clear and convincing evidence; thus, Funderburk must prove that his
6 disability is highly probable or much more probable than not. Carrier v. Debarge’s
Coll. Junction, 95-18 (La.App. 3 Cir. 9/27/95), 673 So.2d 1043, writ denied, 96-0472
(La. 4/8/96), 671 So.2d 337.
With regard to medical treatment, La.R.S. 23:1203(A) provides that the
employer shall provide all necessary treatment, including “medical and surgical
treatment, or any nonmedical treatment recognized by the laws of this state as legal.”
An employee establishes a claim for medical benefits by proving by a preponderance
of the evidence and to a reasonable certainty, the need for such treatment following
his work-related accident. Ware v. Allen Parish Sch. Bd., 02-1011 (La.App. 3 Cir.
5/21/03), 854 So.2d 374.
Funderburk testified that he was taken to Lake Charles Memorial
Hospital’s emergency room after he injured his back, where he received shots and
pain medication for his injury. He said he was driven back to the rig and then to
Nabors’ Lafayette office so that he could see Dr. Duval, its orthopedic surgeon.
Funderburk testified that Dr. Duval recommended that he be placed on limited duty,
but that he was released to full duty after Sarkies requested it on the understanding
that he would perform only light-duty work at the rig.
Funderburk testified that when he returned to the rig he was told by the
tool pusher that no light-duty work existed, so he called his wife and went home. The
next night, he went to the St. Frances Cabrini’s emergency room due to lower back
pain and was again treated with injections and pain medication. Shortly thereafter,
he said that he requested treatment from Dr. Raffai, who ordered an MRI.
Subsequently, he stated that Dr. Raffai referred him to Dr. Holland for a surgical
7 consultation. Funderburk further testified that Dr. Holland ordered a myelogram and
post-myelogram CT scan and then told him that he did not require surgery. He said
that he returned to Dr. Raffai for further treatment which was not approved by
Nabors, and that he has not yet been released to work.
According to Funderburk, he sought treatment from Louisiana State
University in Shreveport when Nabors refused to approve any further treatment. He
stated that he underwent an epidural steroid injection and that he is scheduled for
follow-up treatment there. He testified that the doctors at LSU have discussed
surgery with him and that he is desirous of undergoing disc replacement surgery and
would like to be evaluated by a neurosurgeon in Lake Charles. He stated that he
requested authorization from Nabors to see that doctor, but that his request was
denied.
Funderburk stated that he has not worked since the accident nor has he
looked for work. He claims that he can drive short distances and use a computer; he
also admitted that he has taken his son hunting since his accident. He testified that
he takes pain medication approximately four times a day and that he was told to limit
his sitting by his LSU doctors.
Debra, Funderburk’s wife, testified that Dr. Raffai was Funderburk’s
choice of a treating physician. She stated that Dr. Raffai referred him to Dr. Holland
for a surgical evaluation and that Dr. Holland in turn referred him for pain
management and, possibly, for a neurosurgical evaluation. She testified that
Funderburk was seen once by Dr. Katz for pain management, but that Nabors refused
to authorize any further treatment by him. She stated that he is currently undergoing
8 treatment at LSU. She said that Funderburk is unable to drive or sit in the same
position for very long and that he currently takes pain medication which cautions
against driving while taking.
Sarkies testified that he initiated Funderburk’s indemnity benefits on
August 7, 2003, retroactive to July 25, 2003. He stated that payment of benefits
continued until October 14, 2004. He stated that he further authorized both
emergency room visits by Funderburk, his treatment with Drs. Raffai, Duval, and
Holland, and all diagnostic testing and physical therapy. After determining that
Funderburk’s myelogram was normal, Dr. Holland suggested that he undergo pain
management. Sarkies stated that he requested an FCE prior to Funderburk
commencing pain management, to which both Drs. Holland and Duval agreed. When
notified of the results, Sarkies testified that Dr. Duval felt that Funderburk was at
MMI, he did not require any further treatment, and he could return to work without
any restrictions. Based on Dr. Duval’s report, Sarkies stated that he terminated
Funderburk’s indemnity benefits on October 14, 2004. He said that he then sent this
information to Dr. Holland, who concurred with Dr. Duval’s opinion. Despite the
LSU medical reports, Sarkies did not think it would be reasonable for Drs. Holland
and Duval to render a new opinion as to Funderburk’s condition.
Dr. Holland saw Funderburk twice, once to examine him and once to
review his tests. During his examination, he stated that Funderburk complained of
pain with forward flexion, but did not exhibit any objective symptoms. He reviewed
Funderburk’s MRI, which revealed disc abnormality at L4-5, with a right-sided
paracentral disc protrusion and facet arthropathy. He ordered a myelogram and post-
9 myelogram CT scan in order to determine whether Funderburk was suffering from a
neural impingement. The tests revealed some bulging, but no disc herniation. They
also revealed anterior indentations at multiple levels. Dr. Holland explained that this
was considered normal in most cases. Although the tests revealed some findings, he
testified that they indicated no need for surgery and, probably, that Funderburk had
not even suffered an injury.
Based on the tests results, Dr. Holland agreed to Funderburk’s request
for six weeks of pain management treatment. However, at Sarkies’ request, he
consented to an FCE prior to Funderburk undergoing pain management. Upon Dr.
Katz reporting that Funderburk would be unable to withstand a comprehensive FCE
prior to receiving pain management treatment, he agreed that the epidural steroid
injections could precede the FCE. However, he stated that he perceived no reasons
why Funderburk could not withstand the FCE based on his previous presentation.
Subsequent to the FCE, Dr. Holland stated that he received a letter from
Sarkies containing the results and Dr. Duval’s opinion that Funderburk was at MMI.
Dr. Holland testified that based on this information, he felt that Funderburk was at
MMI on November 22, 2004. He further agreed with Dr. Duval that based on the
findings of symptom magnification in the FCE, he did not feel that a trial of epidural
steroid injections was necessary or that any physical restrictions should be placed on
Funderburk. However, Dr. Holland agreed that while the findings on Funderburk’s
MRI, myelogram, and CT scan contained objective findings of abnormal lumbar
discs, they revealed no indications for surgery. While he opined that surgery would
fail if performed, he admitted that this did not mean that Funderburk was not
10 suffering from back pain or from a back injury. He further testified that he never
found any signs of symptom magnification or positive Waddell’s signs while
examining Funderburk. He also added that a neurosurgical evaluation might be
beneficial if other physicians or an FCE discovered some inconsistencies in his
condition. Concerning the LSU medical reports, Dr. Holland refused to comment on
those, other than stating that he would defer to Funderburk’s treating orthopaedic
surgeon regarding his current medical condition.
Dr. Duval examined Funderburk twice, once on the date of the accident
and then for a second medical opinion on March 9, 2004. After the accident, Dr.
Duval testified that Funderburk complained of pain in his lower back and left buttock
and flank. He stated that he limped on his left leg and had difficulty squatting and
with forward flexion. Finding no indication of significant nerve root compression,
Dr. Duval recommended physical therapy, restricted Funderburk to light-duty work,
and prescribed muscle relaxers and pain medication. He stated that he reviewed the
August 15, 2003 MRI, which revealed three-level degenerative disc disease and a
small central disc protrusion at L4-5. Dr. Duval found no need for surgery after
reviewing this test.
On March 9, 2004, Dr. Duval testified that Funderburk complained of
pain and numbness in both legs and a loss of motion. Dr. Duval stated that he found
no objective physical findings in his examination and noted that Funderburk was
positive for two of the four Waddell’s signs. Based on this, he suggested that
Funderburk undergo an FCE to determine the validity of his presentation. Since the
FCE did reveal evidence of symptom magnification, Dr. Duval opined that
11 Funderburk was at MMI, that an evaluation by a neurosurgeon would not be fruitful,
and that pain management treatment was unnecessary. Dr. Duval stated that
Funderburk’s entire clinical picture suggested that he was not being valid in his
presentation. As his validity was in question, he testified that he looked to the
radiological studies. As these did not show any significant compressive lesions, Dr.
Duval felt that invasive procedures such as epidural steroids would be inappropriate
and that no physical restrictions should be placed on Funderburk.
In refusing his request for indemnity benefits and medical treatment, the
workers’ compensation judge reviewed Funderburk’s medical records. In reaching
his decision, he stated that he placed very little weight on the medical reports from
LSU, as they were very scant and because the doctors there found a left-sided bulge
at L4-5. The workers’ compensation judge noted that no such mention was reported
in either of the two MRIs or in the myelogram and post-myelogram CT scan. He
further stated:
While Dr. Holland admitted there are abnormalities on Mr. Funderburk’s diagnostic testing, he stated that those abnormal findings were not really abnormal for a person over the age of 30 and that based on his clinical evaluation and examinations that there was nothing significant found in the radiological studies. In particular, the myelogram and the post-myelogram CT scans showed no disc herniations. If you look at all the records over the course of time, Mr. Funderburk’s complaints begin at L5-S1, his sacrum. From there, they seem to move all around his back to both his legs, whether they’re left or right. There was questions asked of Dr. Holland about an annular tear and whether or not a closed MRI was better than an opened [sic] MRI. But the open MRI showed an annulus [sic] tear. Dr. Holland reviewed the films. He said there was nothing significant there. The physicians who saw Mr. Funderburk at LSU-Shreveport subsequent to the MRI – the closed MRI didn’t make any mentions about any annular tear. They find a L4-L5 left sided bulge. I don’t know. It’s not mentioned in the report from the closed MRI and it certainly wasn’t there in the MRI in
12 August of 2003. Nothing was there on the myelogram and post- myelogram CT scan.
Essentially, what I have here is a case where the only thing consistent in behalf of Mr. Funderburk’s case is the inconsistency of all of his presentations to all the various physicians, the inconsistencies affirmed by the FCE performed in July of 2004. I pledge great reliance on the testimony and examinations of Dr. Holland and Dr. Duval above those at LSU-Shreveport. I find that Mr. Funderburk has failed to prove by a reasonable preponderance that he is entitled to pain management, that he’s entitled to a neurosurgical evaluation. I also find that Mr. Funderburk has failed to prove that he is entitled to any further workers’ compensation benefits. He has a full release from Dr. Holland and Dr. Duval. The records from LSU-Shreveport make no mention of his working capacity.
After reviewing the record exhaustively, we find that the workers’
compensation judge was clearly wrong in finding that Funderburk was at MMI, that
he is no longer entitled to indemnity benefits, and that he is not entitled to any further
medical treatment. All of the diagnostic tests reveal that Funderburk has protruding
discs at multiple levels. The August 15, 2003 MRI found bulging discs at L2-3, L3-4,
L4-5, and L5-S1, with the bulge at L3-4 being left paracentral, the one at L4-5 being
somewhat central/right paracentral, and the one at L5-S1 being slightly more
prominent centrally. The myelogram and the post-myelogram CT scan also revealed
generalized disc bulging at L2-3, L3-4, and L4-5, whereas the post-myelogram CT
revealed generalized bulging at L3-4 and L4-5. Neither of these tests stated whether
the bulging was right, left, or centrally located. The November 24, 2004 MRI
revealed degenerative changes and disc desiccation at L3-4, L4-5, and L5-S1, with
a disc protrusion focal at L4-5 mostly compromising the left lateral recess and
anterolateral epidural space.
13 While Dr. Holland said that these findings are fairly common and are
considered normal in most cases, he admitted that they are still objective, abnormal
findings. Regardless of them, he found no need for surgical intervention. Despite
this finding, Dr. Holland admitted that it did not rule out whether Funderburk was
indeed suffering from back pain or a back injury. He limited his opinion to the need
for surgery.
In addition to the diagnostic tests, Funderburk exhibited objective
findings via muscle spasms noted in his lumbar spine on numerous occasions. Dr.
Raffai noted the presence of muscle spasms every time he examined Funderburk.
Muscle spasms were also noted in the emergency room records of St. Frances Cabrini
on April 15, 2004, and on three different occasions when he was examined at LSU,
the latest being December 30, 2004. We find that these are definitely objective
findings.
With regard to LSU’s medical records, the workers’ compensation judge
stated that he did not place any significant weight on them as they were scant and
because depositions were not taken of the physicians. However, in examining the
record, we find that none of the examining physicians’ medical records contain much
information. Funderburk was examined four times by Dr. Raffai, twice by Dr. Duval,
and once by Dr. Holland. He was examined on four different occasions at LSU, in
addition to receiving the epidural steroid injection. Although depositions were taken
from Drs. Holland and Duval, we do not feel that greater emphasis should be given
to their medical records, as we find that Funderburk has, in reality, received very little
14 treatment for his condition. All that has been determined is that Drs. Holland and
Duval found no need for surgery.
On the issue of symptom magnification, we find that this was noted only
twice in Funderburk’s records, first by Dr. Duval and then in the FCE report. Dr.
Duval found Funderburk positive for two of four Waddell’s signs; the FCE noted that
he was positive for two of five signs. However, Bardarson stated that a positive for
three of five would be clinically significant. No Waddell’s signs were noted by Dr.
Holland, who stated that he looked for such findings, and none were noted in either
Dr. Raffai’s medical records or in the medical records from LSU. Moreover, Dr. Katz
stated, in response to a question from Funderburk’s attorney, that he did not feel that
Funderburk would be capable of withstanding a comprehensive FCE, as he had not
yet initiated treatment for his condition.
After considering the foregoing evidence, we find that Funderburk has
carried his burden of proving that he is still temporarily, totally disabled. At his
December 15, 2004 examination, Dr. Raffai, who is Funderburk’s choice of treating
orthopaedic surgeon, restricted him from working after noting point tenderness,
stiffness, trouble walking, severe stiffness and muscle spasms at L5-S1, and
radiculopathy in both legs during his examination. We further find that he has proven
by a preponderance of the evidence that he is entitled to further medical treatment,
more specifically, pain management treatment and a consultation with a
neurosurgeon. Even Dr. Holland felt that an evaluation by a neurosurgeon would be
helpful if other physicians discovered inconsistencies in his condition. The finding
of nerve root compression by the physicians at LSU is such an inconsistency.
15 Accordingly, we find that the workers’ compensation judge erred in
terminating Funderburk’s temporary total disability benefits as of November 22,
2004. The judgment of the workers’ compensation judge is reversed and judgment
is now rendered ordering those benefits reinstated. We further find that the workers’
compensation judge erred in finding that Funderburk was not entitled to pain
management treatment and consultation with a neurosurgeon of his choice. Nabors
is, hereby, ordered to authorize both. Moreover, based on the foregoing findings,
Nabors’ assignment of error is rendered moot.
PENALTIES AND ATTORNEY’S FEES
In his next assignment of error, Funderburk argues that the workers’
compensation judge erred by finding that Nabors was not arbitrary and capricious in
failing to authorize the requested medical treatment.
An employer avoids the imposition of penalties and attorney’s fees by
satisfying its continuing obligation to investigate, assemble, and assess factual
information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc.,
05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526.
In this instance, Sarkies terminated Funderburk’s indemnity benefits and
refused to authorize any further medical treatment based on Drs. Duval and Holland’s
determination that he had reached MMI by September 16, 2004 and November 22,
2004, respectively. Funderburk’s weekly indemnity benefits of $416 were terminated
on October 14, 2004. Following the rendition of Drs. Duval and Holland’s opinions,
Nabors received notice of Dr. Raffai’s December 15, 2004 medical report and his off-
work slip for Funderburk by a December 16, 2004 letter from his counsel. It also
16 learned of LSU’s medical records in a January 4, 2005 letter. Additional information,
including that pertaining to the January 5, 2005 epidural steroid injection, was sent
on March 5, 2005, although Nabors insisted that it did not receive this information
until the morning of trial. The matter proceeded to trial on April 12, 2005.
Sarkies said that he never personally received the above-stated
information, although they were received by Nabors’ counsel. However, he stated
that he would not have provided this information to Drs. Duval or Holland, as they
had already said that no further testing or treatment was necessary. Based on this
information, we find that Nabors was arbitrary and capricious in failing to investigate
Funderburk’s claim in light of its reliance on Drs. Duval and Holland’s opinions.
Accordingly, we award Funderburk $2000 in penalties and his award of attorney’s
fees to increase it from $2000 to $5000 as a result of Nabors failure to further
investigate his claim and to authorize further medical treatment.
ANSWER ON APPEAL
Finally, Funderburk has answered Nabors’ appeal requesting that he be
awarded further attorney’s fees based on the work performed by his counsel on
appeal. Based on our decision, we award him an additional $3000 for attorney’s fees.
CONCLUSION
For the foregoing reasons, the workers’ compensation judge’s judgment
is affirmed in part, amended in part, and reversed in part. Judgment is now rendered
in favor of the plaintiff-appellant, Jeffery Funderburk, finding that he is temporarily,
totally disabled and entitled to weekly indemnity benefits of $416 per week and
further medical treatment in the form of pain management treatment and a
17 neurosurgical evaluation. It is further ordered, adjudged, and decreed that
Funderburk is awarded an additional $2000 in penalties, and we amend his award of
attorney’s fees to increase it to $5000 for the failure of Nabors Drilling USA, Inc. to
further investigate his claim and to authorize further medical treatment. We also
award him an additional $3000 in attorney’s fees for additional work performed on
appeal. The costs of this appeal are assessed to the defendant-appellee-appellant,
AFFIRMED IN PART; AMENDED IN PART; REVERSED IN
PART; AND RENDERED.