Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,431-WCA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
JOE WHITTEN Plaintiff-Appellant
versus
PATTERSON UTI DRILLING Defendant-Appellees COMPANY, LLC AND LIBERTY MUTUAL INSURANCE COMPANY
Appealed from the Office of Workers’ Compensation, District 1-W Parish of Caddo, Louisiana Trial Court No. 18-04453
Linda Lea Smith Workers’ Compensation Judge
FISCHER & MANNO Counsel for Appellant By: Mark K. Manno Timothy R. Fischer
THOMAS SOILEAU JACKSON, ET AL Counsel for Appellees By: Patrick F. Cole Haley G. Baynham Erica Marie Ducoing
Before MOORE, STONE, and McCALLUM, JJ. MOORE, J.
Joe Whitten appeals a judgment of the Office of Worker’s
Compensation that denied his claim for medical treatment on a finding that
after a work-related injury temporarily aggravated his degenerative disk
disease, his back had returned to its pre-injury condition. For the reasons
expressed, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Whitten, who lives in Kilgore, Texas, had been employed by
Patterson UTI Drilling (“UTI”) since 2002. By May 2016, he was working
as a driller, at an average weekly wage of $1,409.
On May 31, 2016, he was working on the 13th night of a 14-day shift
on a UTI rig in DeSoto Parish; he described that night’s situation as
“tripping out wet all over.” As he tried to go down a metal staircase to wash
up, he slipped on the oil and mud, fell down the stairs some 10-12 feet, and
landed on his back. In the fall, he struck his left knee, neck, and right
shoulder on the railing, but these injuries are not the subject of the appeal.
Rather, he landed on his back and hurt his lower back. Nonetheless, he
completed the night shift, rested, and then worked the final day of his 14-day
shift. He then took his 14-day off-time, and came back for his next 14-day
shift. He testified that during this time frame, if he got sore, he just took
some Ibuprofen. However, by the time he completed those 14 days, he was
“hurting all over.”
On June 30, he went to Willis-Knighton Work Kare in Shreveport.
He told Dr. John Goddard that he’d had “some back strains in the past, but
nothing that lasted more than a few days.” An X-ray was taken that day and
interpreted by Dr. James Price to show nothing acute, but degenerative changes and spondylolysis at L4. Dr. Goddard sent Whitten home to apply
heat and use nonprescription medicines, and released him to regular work.
Whitten returned to Work Kare in July and August, and each time, Dr.
Goddard released him to light work. In late August, however, owing to
Whitten’s continued complaints, Dr. Goddard ordered an MRI. This showed
disk degeneration at L1-2, L2-3, L3-4, facet arthrosis at L4-5, and disk
desiccation and facet arthrosis at L5-S1. As Whitten was rating his pain a
“5,” Dr. Goddard referred him to an orthopedist-spine specialist.
Whitten went to Dr. James Michaels, a pain management specialist at
Azalea Orthopedics, in Tyler, Texas. Dr. Michaels reviewed the MRI and
suggested a nerve root block, which Whitten took twice, in October and
December 2016. Although Dr. Michaels initially noted a “40-50%
response,” Whitten testified they were “no help at all.”
In January 2017, Dr. Michaels referred Whitten for a surgery consult.
A physician’s assistant at Azalea took X-rays in late March, and noted
degradation at L2-3 and L3-4 and “other spondylosis with radiculopathy.”
A different doctor at Azalea, Dr. Michael Merrick, recommended another
MRI, which was done on May 12. This found decreased disk space from L1
all the way down to S-1, with mild facet arthrosis at L4-5 and L5-S1. Dr.
Merrick then suggested a spinal cord stimulator (“SCS”). However, when
Whitten came back to Azalea on June 12, he saw Dr. Michaels, who told
him that no further treatment was needed.
Through this time, Whitten had used the Texas Department of
Insurance Workers’ Compensation system. UTI’s carrier had provided all
medical expenses and UTI had paid (and continues to pay) either indemnity
benefits or wages in lieu of compensation. Whitten testified that he hired 2 Louisiana counsel to “transfer his case” to OWC; the disputed claim was
filed July 5, 2018.
Meanwhile, Whitten had selected Dr. Euby Kerr, at Spine Institute of
Louisiana, as his treating physician, and saw him in December 2017. Dr.
Kerr looked at Whitten’s MRIs but told him he was not a surgical candidate
because of his excessive weight, nearly 400 lbs. However, like Dr. Merrick,
Dr. Kerr suggested an SCS, and ordered a new MRI. The February 2018
MRI showed a high-intensity zone lesion and posterior annular tear at L5-
S1, extensive degenerative changes from L2 to L4, and a “subtle
spondylolisthesis developing” at L4-5. Dr. Kerr later testified that he
considered the L4-5 condition “dynamic” rather than degenerative.
Another doctor at Spine Institute, Dr. Rama Letchuman, suggested a
“trial” SCS, which he implanted in April 2018. Whitten testified that this
“took the edge off” the pain, so Dr. Letchuman recommended implanting a
permanent one.
However, UTI’s carrier wanted a second opinion, and it hired Dr.
Gordon Mead, an orthopedic surgeon in Shreveport, to examine Whitten.
Dr. Mead saw him in late February 2018 and diagnosed preexisting
degenerative disk disease, aggravated by the fall at work in 2016. He
reported that Whitten had reached maximum medical improvement, and was
having chronic pain only because of his morbid obesity. Dr. Mead
expressed no opinion as to an SCS, suggested that Whitten have a functional
capacity evaluation, and said he could return to work.
UTI’s carrier had approved surgery to implant the permanent SCS, but
on September 6, 2018, one day before the planned procedure, it revoked
approval, citing Dr. Mead’s finding of maximum medical improvement. 3 Since that date, the carrier has provided no more medical benefits to
Whitten.
On September 14, Whitten amended his disputed claim to demand
approval of the SCS, with a penalty and attorney fee for UTI’s failure to
reasonably controvert this claim. Claims based on the other injuries
sustained in the fall (left knee, neck, shoulder) were withdrawn pretrial.
SUMMARY OF TRIAL EVIDENCE
The matter came to trial in April 2019. Counsel stipulated that the
only issue was whether the work-related fall caused Whitten’s spinal injury;
if so, whether UTI owed penalties for failing to reasonably controvert the
claim.
The only live witnesses were Whitten and his wife. Whitten fully
described how the accident happened, his course of treatment (outlined
above), his desire to continue working, and his confidence that Dr. Kerr
could perform a back surgery to restore him to health. He admitted being in
a minor auto accident in 2013, and missing one day of work as a result, but
insisted he had worked regularly his whole life until the accident at UTI (at
which time he was age 44). He also admitted that he needed to lose weight,
but claimed that he had already dropped from 410 to 370 lbs.
Whitten’s wife confirmed his testimony, adding that he had always
weighed from 300 to 350 lbs. and was never much for exercising or going to
the gym.
Whitten also offered Dr. Kerr’s deposition, which stated that he had
read only the radiology reports from after the auto accident (the actual 2013
X-ray films were no longer available), and these showed only minimal
subluxations from L2 to L4. However, after the work accident, the X-rays 4 and the first MRI showed degenerative disk disease and L4-5
spondylolisthesis, which he considered a “definite change” since 2013. Dr.
Kerr disagreed with Dr. Merrick’s view that there was no spondylolisthesis,
and with Azalea Orthopedics’ recommendation not to have surgery. As
noted, he considered Whitten’s condition “dynamic spondylolisthesis,”
definitely caused by the work accident, stated that an SCS would not help,
and felt that the patient’s only hope is a two-level, 360-degree fusion at L5-
S1 and L4-5. On cross-examination, Dr. Kerr admitted that most problems
at L4-5 are degenerative, though some can be traumatic; that he initially said
that Whitten was not a surgical candidate, but he changed his mind; and that
Whitten’s morbid obesity, diabetes, and overall health may have factored in
his current condition, but they did not cause it. Finally, although he now
favored surgery, Dr. Kerr said he would not perform it until Whitten lost
another 30-40 lbs.
Other documents offered by Whitten included medical records from
Good Shepherd Hospital, in Longview, Texas, that included the radiology
reports from November 2013 showing degenerative changes in Whitten’s
lumbar spine, some 2½ years before the work accident. Work Kare records
from Willis-Knighton showed that Dr. Goddard twice released Whitten to
light-duty work before September 2016, as did the Texas Workers’ Comp
system, in late 2016. OWC documents showed that UTI’s carrier initially
approved, and then withdrew approval for, the permanent SCS. Counsel’s
affidavit shows that Whitten had unpaid bills of $3,346.53 with Dr. Kerr,
and 20 hours of attorney fees, at $250 an hour.
UTI offered the deposition of Dr. Mead, who had been hired for a
medical second opinion and examined Whitten in February 2018. Based on 5 Whitten’s medical records, Dr. Mead found degenerative lumbar disk
disease that predated the work accident. He felt that the work accident
aggravated the preexisting condition, but that the period of aggravation had
passed, Whitten had reached maximum medical improvement, and the main
cause of his chronic back pain was extreme obesity. On cross-examination,
Dr. Mead admitted that his main field of practice was foot and ankle; that he
had no experience with the SCS; and that there was no evidence that obesity
caused disk degeneration.
ACTION OF THE WORKER’S COMPENSATION JUDGE
The WCJ wrote an 18-page opinion, identifying the issue as whether
Whitten’s present disability continues to be the result of an aggravation of
his preexisting, degenerative lumbar condition. She then catalogued
Whitten’s wide-ranging medical evidence. She stated Dr. Kerr’s position as
follows: even though Whitten has some degenerative changes, “the L4-5
spondylolisthesis and L5-S1 herniated disk are not degenerative and were
caused by the work accident.” She stated Dr. Mead’s position as that
“Whitten suffers from degenerative changes, and not injuries related to the
work accident[,]” the period of aggravation lasted about six months, and he
has returned to his pre-accident baseline. She also noted that Drs. Goddard
and Merrick, who treated Whitten earlier, had found “no acute, objective
injury to the lumbar spine.”
The WCJ found that Dr. Kerr’s view was not fully supported by the
medical records, or by Drs. Goddard’s and Merrick’s reports, and was
contradicted by Dr. Mead. She concluded that Whitten’s current condition
was a “progression of the degenerative disease from 2013 through 2016[,]”
in addition to “morbid obesity [and] other health issues.” In short, Whitten’s 6 current condition was no longer a result of the work accident. The WCJ
rendered judgment rejecting all claims.
Whitten has appealed, raising four assignments of error.
DISCUSSION
Incorrect Burden of Proof
By his first assignment of error, Whitten urges the WCJ erred as a
matter of law by requiring the claimant to meet a higher burden of proof
than required by law. He contends the WCJ made him “prove a negative,”
on the basis of this passage from the written opinion:
The issue herein is not whether there was an aggravation of the preexisting condition, but rather, whether that aggravation has ended. * * * The testimony and evidence fail to show whether the natural progression [of Whitten’s back problems] would not have naturally progressed.
He argues that in this way, the WCJ required him to prove that his current
condition was “not caused by something other than the accident.” He also
shows that the WCJ cited three cases: Koenig v. Christus Schumpert Health
Sys., 44,244 (La. App. 2 Cir. 5/13/09), 12 So. 3d 1037; Blake v. Turner
Indus. Group, 2012-0140 (La. App. 1 Cir. 9/21/12), 111 So. 3d 21, writ
denied, 12-2288 (La. 11/30/12), 103 So. 3d 376; and Henderson v. Graphic
Packaging Int’l Inc., 48,491 (La. App. 2 Cir. 11/20/13), 128 So. 3d 599. He
contends that these cases simply do not require the plaintiff disprove other
causes of the injury, including a natural progression of a preexisting
condition. He submits that this was legal error warranting de novo review.
An employee is entitled to workers’ compensation benefits if he
“receives personal injury by accident arising out of and in the course of” his
employment. La. R.S. 23:1031 A. The claimant is not required to prove the
exact cause of the disability, but he must show by a preponderance of the 7 evidence that the accident had a causal connection with the disability. Iberia
Medical Ctr. v. Ward, 09-2705 (La. 11/30/10), 53 So. 3d 421; Crawford v.
Town of Grambling, 51,090 (La. App. 2 Cir. 1/11/17), 211 So. 3d 660, writ
denied, 17-0284 (La. 4/7/17), 218 So. 3d 110. Where the claimant suffers
from a preexisting condition, he may still prevail if he proves that the
accident aggravated, accelerated, or combined with the disease or infirmity
to produce disability for which compensation is claimed. Peveto v. WHC
Contractors, 93-1402 (La. 1/14/94), 630 So. 2d 689; Hill v. IASIS Glenwood
Reg’l Med. Ctr., 50,531 (La. App. 2 Cir. 5/18/16), 195 So. 3d 536, writ
denied, 16-1357 (La. 11/7/16), 209 So. 3d 104. In this situation, the
employee is entitled to compensation for the duration of the aggravation.
Blake v. Turner Indus. Group, supra; Read v. Pel-State Oil Co., 44,218 (La.
App. 2 Cir. 5/20/09), 13 So. 3d 1191; Frye v. Olan Mills, 44,192 (La. App. 2
Cir. 4/8/09), 7 So. 3d 201; Merriett v. Budget Build Lumber & Supp., 2008-
1090 (La. App. 3 Cir. 3/4/09), 6 So. 3d 326, writ denied, 09-0776 (La.
5/22/09), 9 So. 3d 148.
We have closely examined the WCJ’s opinion and find that it did not
impose on Whitten a higher burden of proof than the law requires. The first
sentence of the contested passage correctly states the law that a claimant is
entitled to compensation for aggravation of a preexisting condition, for the
duration of the aggravation. The second sentence, though not artfully
expressed, still conveys the finding that the evidence showed that after a
period of aggravation, Whitten’s current condition was only the natural
progression of degenerative disk disease. We cannot find that the WCJ
misstated the burden of proof or imposed a higher burden than a
preponderance of the evidence. This assignment lacks merit. 8 Denial of Benefits
By his remaining assignments of error, Whitten contends the WCJ
committed manifest error in denying benefits: by finding that after he
suffered an aggravation, he had returned to his pre-injury condition, or that
his current condition was unrelated to the work accident; by failing to apply
the presumption of causation and aggravation of a preexisting injury; and by
finding that the work accident did not cause an injury to his lumbar spine.
He argues that the deposition of Dr. Kerr was enough to satisfy his burden of
proof, and suggests that Dr. Mead, UTI’s expert, is a foot-and-ankle doctor
who based his opinion on “experience,” not any study. He submits that the
opinion of the treating physician is entitled to more weight than that of one
hired merely to examine the patient, Leidelmeijen v. Ferncrest Manor
Nursing Home, 2015-1216 (La. App. 4 Cir. 3/16/16), 192 So. 3d 38, and
cites the presumption of causation, Smith v. Nu Verra Envtl. Solution, 52,908
(La. App. 2 Cir. 10/30/19), 281 So. 3d 827. Notably, he shows that in Smith
v. Nu Verra, this court reversed the same WCJ as in the instant case for
failing to apply the presumption of causation and to accept the unrebutted
testimony of the claimant; he contends the same result is warranted here. He
concludes it is just plainly wrong, on this record, for the WCJ not to find an
aggravation or a new injury.
Factual findings in workers’ compensation cases are subject to the
manifest error rule. Buxton v. Iowa Police Dept., 09-0520 (La. 10/20/09), 23
So. 3d 275; Crawford v. Town of Grambling, 51,090 (La. App. 2 Cir.
1/11/17), 211 So. 3d 660. Under this rule, the reviewing court does not
decide whether the WCJ was right or wrong, but only whether its findings
are reasonable. When there are two permissible views of the evidence, the 9 WCJ’s choice between them can never be manifestly erroneous or clearly
wrong. Id. The reviewing court is emphatically not permitted to reweigh
the evidence or reach its own factual conclusions from the record. Marange
v. Custom Metal Fabricators Inc., 12-2678 (La. 7/2/12), 93 So. 3d 1253;
Hill v. IASIS Glenwood, supra. Whether a claimant has carried his burden
of proof and whether testimony is credible are questions of fact for the WCJ.
Buxton v. Iowa Police Dept., supra.
As noted, an employee is entitled to workers’ compensation benefits if
he receives personal injury by accident arising out of and in the course of his
employment. La. R.S. 23:1031 A. Accident is defined as an “unexpected or
unforeseen actual, identifiable, precipitous event happening suddenly or
violently, with or without human fault, and directly producing at the time
objective findings of an injury which is more than simply a gradual
deterioration or progressive degeneration.” La. R.S. 23:1021 (1). The work-
related accident requirement is interpreted liberally, but the claimant still
must prove it by a preponderance of the evidence. Iberia Med. Ctr. v. Ward,
supra; Crawford v. Town of Grambling, supra. A claimant’s testimony
alone may be sufficient to meet this burden of proof, as long as no other
evidence discredits or casts serious doubt on the claimant’s testimony, and
that testimony is corroborated by the circumstances following the incident.
Id.
The opinion of the treating physician should be accorded greater
weight than that of a physician who sees the patient only once or twice.
Miller v. Clout, 03-0091 (La. 10/21/03), 857 So. 2d 458; Bradley v. St.
Francis Med. Ctr., 51,572 (La. App. 2 Cir. 9/27/17), 244 So. 2d 722, and
10 citations therein. However, the treating physician’s opinion is not
irrebuttable, and the WCJ is required to weigh all the medical testimony. Id.
Disability may be presumed to have resulted from an accident if,
before the accident, the claimant was in good health, but commencing with
the accident, the symptoms of the disabling condition appear and
continuously manifest themselves afterward, provided that there is sufficient
medical evidence to show a reasonable possibility of a causal relationship
between the accident and the disability, or the nature of the accident,
combined with the other facts of the case, raises a natural inference of
causation. Doucet v. Baker Hughes Prod. Tools, 93-3087 (La. 3/11/94), 635
So. 2d 166; Crawford v. Town of Grambling, supra.
We have closely reviewed the medical evidence. Dr. Kerr’s
description of “dynamic spondylolisthesis” is very cogent and, standing
alone, would probably warrant reversing the judgment. However, every
other doctor who treated Whitten described something different. Dr.
Goddard, at Work Kare, found merely degenerative changes and
spondylolysis, and released him to regular work; Dr. Merrick, at Azalea,
reviewed two MRIs and suggested the SCS; and his colleague at Azalea, Dr.
Michaels, reviewed the same MRIs and concluded no further treatment was
needed. Dr. Mead, who was retained only for a second opinion, described a
temporary aggravation that had resolved to maximum medical improvement.
Even Dr. Kerr did not initially suggest the two-level, 360-degree fusion
surgery; he first suggested the less invasive procedure of implanting an SCS.
Looming over the whole discussion was the specter of Whitten’s gross
obesity, which all experts seemed to agree placed an undue burden on his
lumbar spine and contributed to his current condition. As convincing as Dr. 11 Kerr’s later diagnosis and recommendation may seem, there was abundant
expert evidence from which a different conclusion could be drawn. On this
record we cannot say the WCJ was plainly wrong to find that after a period
of aggravation, Whitten’s current condition was not the result of the work-
related accident. Whitten’s second assignment of error lacks merit.
The presumption of causation hinges on a finding of sufficient
medical evidence to show a reasonable possibility of a causal relation
between the accident and disability. Doucet v. Baker Hughes, supra;
Crawford v. Town of Grambling, supra. The testimony and documents
already discussed – Drs. Goddard, Merrick and Michaels, and Mead –
provided a reasonable possibility that Whitten’s back had returned to its pre-
injury status and that any lingering problem was preexisting or a result of
obesity. This is unlike the situation in Smith v. Nu Verra, supra, in which
we found that the “medical evidence does not establish that claimant’s work-
related injury had resolved or that the aggravation of his pre-existing
degenerative condition was limited in duration.” Here, the WCJ chose
between two permissible views of the evidence, and we cannot say that she
was clearly wrong. Buxton v. Iowa Police Dept., supra; Crawford v. Town
of Grambling, supra. Whitten’s third assignment of error lacks merit.
Finally, the WCJ explicitly found that the claim “was accepted in
Louisiana for payment of benefits” and that “there was an aggravation of the
preexisting condition.” Whitten’s fourth assignment of error, asserting that
the WCJ found “that the work accident did not cause an injury to plaintiff’s
lumbar spine,” lacks merit.
12 CONCLUSION
For the reasons expressed, the judgment is affirmed. All costs are to
be paid by the appellant, Joe Whitten.
AFFIRMED.