STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-288 consolidated with 09-672
JUDY DAVIS
VERSUS
STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF RISK MANAGEMENT
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - #1E PARISH OF OUACHITA, NO. 04-09196 BRENZA IRVING, WORKERS’ COMPENSATION JUDGE
**********
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Shannon J. Gremillion, Judges.
MOTION TO FILE LATE REPLY BRIEF DENIED. JUDGMENT AFFIRMED.
Thibodeaux, Chief Judge, dissents and assigns written reasons.
George A. Flournoy Flournoy & Doggett Post Office Box 1270 Alexandria, LA 71309 (318) 487-9858 COUNSEL FOR PLAINTIFF/APPELLANT: Judy Davis
Leanne M. Broussard Assistant Attorney General State of Louisiana Post Office Box 1710 Alexandria, LA 71309 (318) 487-5944 COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana, through the Department of Transportation and Development, Office of Risk Management AMY, Judge.
Although the claimant’s employer provided workers’ compensation benefits
due to a series of work-related accidents, the claimant filed a disputed claim form due
to the employer’s denial of benefits related to fibromyalgia. After a hearing, the
workers’ compensation judge found insufficient proof of causation between
fibromyalgia and the claimant’s work-related accident. It denied benefits related to
that diagnosis and denied other requested relief. Subsequently, the claimant filed
another disputed claim form which was dismissed upon a granting of the employer’s
exception of res judicata. The claimant appeals both judgments. For the following
reasons, we affirm the denial of further benefits. However, we reverse the granting
of the exception of res judicata.
Factual and Procedural Background
The claimant, Judy Davis, was employed as a laborer for the Department of
Transportation and Development when she allegedly sustained injuries to her right
hand, wrist, arm and shoulder while shoveling asphalt in May 2000. Subsequently,
in September 2000, Ms. Davis fell from a dump truck and allegedly sustained injury
to her right side, neck, shoulder, back, and her hip. Finally, the claimant alleges that
she slipped while exiting her truck and injured her right shoulder.
Although DOTD provided workers’ compensation indemnity and medical
benefits, it denied benefits related to fibromyalgia as diagnosed by the claimant’s
internal medicine and rheumatology physician, Dr. Miguel Garcia. The claimant filed
the disputed claim for compensation instituting this matter in December 2004. She
designated the following issues for consideration: 1) Extent and duration of
disability; 2) Failure to pay indemnity benefits; 3) Failure to pay for medical
treatment; 4) Failure to provide vocational rehabilitation; 5) Failure to provide treatment for fibromyalgia; and 6) Penalties and attorney fees. At the time of the
December 2007 hearing, the employer continued to provide indemnity benefits.
During the hearing, the workers’ compensation judge excluded various exhibits
offered by both the claimant and the defendant due to the parties failure to follow a
pre-trial scheduling order. In light of the evidence presented, the workers’
compensation judge found that the claimant failed to carry her burden of proving
entitlement to benefits related to the fibromyalgia diagnosis. The judgment, signed
on April 17, 2008, ordered “that claimant’s request for workers’ compensation
benefits, as related to fibromyalgia, is denied[.]” The workers’ compensation judge
also denied the claimant’s remaining requests.
On the same day as the hearing, December 7, 2007, the claimant filed a new
disputed claim for compensation asserting that, among other things, the previous
compensation rate was incorrect and again asserting that Dr. Garcia’s treatment
should be provided. DOTD filed an exception of res judicata arguing that the causes
of action alleged in the new claim form arose out of the same transaction or
occurrence that was the subject matter of the April 17, 2008 judgment and were,
therefore, extinguished. The workers’ compensation judge granted the exception and
dismissed the claimant’s claim.
The claimant appeals both the merits of the April 17, 2008 judgment and the
granting of the exception of res judicata.1 On appeal of the merits, the claimant
assigns the following as error in her brief:
1 The appeals of the separate, final judgment were consolidated for dispositional purposes only by order of this court. Both appeals are discussed under Docket Number 09-228, which is an appeal of the merits of the claim and contains the decretal language for the merits of the claimant’s suit. The decree relating to the claimant’s appeal of the granting of the exception of res judicata is set forth in the companion case, Judy Davis v. Louisiana Dep’t of Transp. & Dev., et al., 09-672 (La.App. 3 Cir. _ /_/09), _ So.3d _.
2 I. Did the WCJ err, as a matter of law, in disregarding the unopposed and uncontradicted opinions of plaintiff’s treating physician that she suffered from fibromyalgia as a result of her work-related injuries?
II. Should the WCJ decision terminating all indemnity and medical benefits be reversed as a result of the WCJ’s abuse of discretion in disallowing plaintiff’s exhibits and refusing to allow a proffer, thereby necessitating a remand for a determination of (1) plaintiff’s AWW, (2) whether plaintiff is totally or partially disabled and (3) the propriety of an award of penalties and attorney fees.
With regard to the granting of the exception of res judicata, the claimant asserts that
the ruling was inappropriate as the April 17, 2008 judgment was not yet final. She
also asserts that certain aspects of the subsequently filed claim form had not been
ruled upon by the workers’ compensation judge.
Discussion
Motion to File a Late Reply Brief
The claimant filed a motion to file a late reply brief, which the employer
opposed. The filing was referred to this panel for consideration with the merits. We
deny the claimant’s motion pursuant to Uniform Rules–Courts of Appeal, Rule 12.7,
which provides that “[t]he reply brief, if any, of the appellant shall be filed not later
than 10 calendar days after the appellee’s brief is filed.” In this case, the employer
filed its appellee’s brief on May 5, 2009. Yet, the claimant’s motion to file a late
reply brief was not filed until May 26, 2009, after the ten-day period set forth in the
rule. Further, the claimant did not set forth reasons for the delay.
Causation
In her first assignment, the claimant argues that the workers’ compensation
judge erred in rejecting what she contends was the uncontradicted evidence of
causation offered by her treating physician, Dr. Garcia. She asserts that there was no
3 sound reason for the workers’ compensation judge to disregard Dr. Garcia’s opinion
that the fibromyalgia diagnosis was related to the work-related accidents.
It is the claimant’s burden to establish, by a preponderance of the evidence, a
causal link between the work-related accident and the subsequent disabling condition
for which benefits are sought. Guilbeaux v. Office of Dist. Attorney, 07-89 (La.App.
3 Cir. 5/30/07), 957 So.2d 959. With regard to causation of fibromyalgia, the
claimant presented only Dr. Garcia’s deposition testimony.2 The workers’
compensation judge’s reasons for ruling indicate full consideration of the testimony
in his three depositions. The workers’ compensation judge explained:
As to causation, Dr. Garcia found that based on her history and official findings, claimant has fibromyalgia, secondary to the accident of September, 2000.
Dr. Garcia’s deposition was taken again on October 29th, 2003. It was taken in an effort to, “clear up” defendant’s contention that Dr. Garcia’s findings of causation is not supported by the medical community. Dr. Garcia noted he arrived at the diagnosis of fibromyalgia by ruling out other diseases. He noted that fibromyalgia is an entity that is completely clinical. There is not a test that diagnoses fibromyalgia. “What causes fibromyalgia? We don’t know. We know things that go to a basic pattern seem to cause the symptomatology. That is why it is a syndrome, not a disease.”
Dr. Garcia further found that “anything that will make a person maintain – and maintain that patient without having stage three and four sleeping, sooner or later that person will develop symptoms of fibromyalgia no matter who it is.” Dr. Garcia went on to say, “after she had the accident she had problems sleeping, which is the main road to develop fibromyalgia in every patient that has it.” He further notes, “one thing is to say that trauma causes fibromyalgia. The other thing is to say that fibromyalgia can be caused by the inability to sleep, caused by the pain that an accident or trauma has caused.” Dr. Garcia opined that the only thing that we know that causes fibromyalgia is sleep pattern disturbance. He found that the fibromyalgia is secondary to the pain and the inability to sleep that claimant reported after the injury as a result of the accident.
2 As will be discussed below, the workers’ compensation judge excluded certain exhibits by both the claimant and the defendant for failure to follow a pre-trial scheduling order.
4 Counsel for defendant noted literature indicating fibromyalgia did not exist. It was a fallacy. Dr. Garcia acknowledged literature indicating there is no such thing as traumatic fibromyalgia. He notes his agreement with that literature. In an effort to explain that agreement versus his findings of causation in reference to claimant, he notes “It is not the trauma that causes the fibromyalgia. What causes fibromyalgia is injuries to a patient that prevents them from sleeping.”
Lyme Disease and Hypersensitivity Syndrome to pain were discussed as alternative diagnoses for claimant’s symptoms. However, testing for those problems were not performed. There are no laboratory tests available for diagnosing fibromyalgia. Doctors must rely on patient’s histories and self-reported symptoms.
Dr. Garcia admitted fibromylgia symptoms overlap with other symptoms and conditions and diseases of the body. He also acknowledged that fibromyalgia is a chronic, painful musculoskeletal disorder of unknown etiology and/or physiology. There is no consensus on fibromyalgia in terms of causation. There is no professional scientific consensus.
Dr. Garcia’s deposition was taken for a third time on November th 29 , 2007. Once again he acknowledged that fibromyalgia is a syndrome that can be caused by different factors. The most frequent factor is disturbance in the sleep process. He felt claimant’s accident caused her to be depressed, which led to a sleep disturbance. He also noted that claimant is five feet and three inches tall and weighs 197 pounds. Those factors place her at risk of having sleep apnea which will exacerbate fibromyalgia.
Dr. Garcia was shown a report generated by defendant’s choice of physician, Dr. Merlin Wilson.3 Dr. Wilson found claimant had tender points that were suppose to be negative which were control points. In Dr. Wilson’s opinion, claimant had “something else.”
....
Claimant has been diagnosed with fibromyalgia. According to her own treating physician, fibromyalgia is a syndrome, not a disease. It is a diagnosis of exclusion. According to Dr. Garcia, a syndrome is, “you don’t know what causes it. It can be multiple things.” He arrived at the diagnosis by ruling out other things, but he admits claimant was never tested for diseases including Lyme Disease and Hypersensitivity Syndrome to Pain. According to Dr. Garcia’s testimony, fibromyalgia is related to sleep disturbance and may be caused by pre and post
3 Although Dr. Wilson’s report was excluded at the hearing, the workers’ compensation judge’s references are to the discussion regarding Dr. Wilson’s findings during Dr. Garcia’s deposition.
5 menopause. Dr. Garcia noted fibromyalgia is a chronic, painful musculoskeletal disorder of unknown etiology.
The findings of an unknown etiology prevents claimant from meeting her burden of proof in this case. The medical evidence falls short of a finding that claimant’s injuries of May 16th, 2000 and September 14th, 2000, caused her to have fibromyalgia, a syndrome which is questionable even in its form, nature and existence. Any finding that claimant has fibromyalgia and that the fibromyalgia is related to her work accident would be based on speculation and conjecture. Jurisprudence has held where evidence leaves the probabilities evenly balanced or shows only a possibility of a causative accident or leaves it to speculation or conjecture, then the claimant’s case must fail.
Furthermore, defendant’s choice of physician, Dr. Merlin Wilson, disagreed with Dr. Garcia’s diagnosis as noted in the deposition of Dr. Garcia.
For these reasons, claimant’s request for workers’ compensation benefits, as related to fibromyalgia, is denied. Medical evidence demonstrating a causally related disability due to claimant’s work accident was not presented to this Court, and her requests are denied.
In Winford v. Conerly Corp., 04-1278, pp. 15-16 (La. 3/11/05), 897 So.2d 560,
569-70, the supreme court set forth the standard of review as follows:
It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97) 696 So.2d 551, 556. (citations omitted). In applying the manifest error-clearly wrong standard, the appellate court must determine whether the factfinder’s conclusion was reasonable, not whether the trier of fact was right or wrong. Banks, 696 So.2d at 556 (citing Stobart v. State, 617 So.2d 880, 882 (La.1993)). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. (citations omitted). Thus, even where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.
Under this review, we find no manifest error in the workers’ compensation judge’s
denial of benefits related to fibromyalgia. The workers’ compensation judge
considered Dr. Garcia’s testimony at length, reproducing much of his testimony in the
nine-pages of written reasons. Although Dr. Garcia opined that the claimant’s
6 condition is secondary to her work-related accident, he also explained that the
condition is a syndrome rather than a disease, is a diagnosis of exclusion, and can be
caused by various factors. We find no manifest error in the workers’ compensation
judge’s determination that this type of explanation was insufficient to meet the
claimant’s burden of proving causation. This is true even in light of Dr. Garcia’s
further statement that the fibromyalgia diagnosis was secondary to the work-related
accident. It is clear that a trier of fact is charged with the evaluation of expert
testimony and that the trier of fact may accept or reject an expert’s opinion in whole
or in part. Ryan v. Zurich American Ins. Co., 07-2312 (La. 7/1/08), 988 So.2d 214.
Dr. Garcia’s testimony as a whole regarding the circumstances surrounding a
diagnosis of fibromyalgia provide a sufficient basis for the workers’ compensation
judge’s rejection of Dr. Garcia’s ultimate conclusion that the claimant’s condition was
secondary to her work-related accident.
Finally, the claimant points out that fibromyalgia has been found to be a
compensable workers’ compensation claim. However, each of the cases cited by the
claimant4 are ones in which the workers’ compensation judge initially found that the
claimant demonstrated causation under the facts of that case. That determination was
affirmed on appeal under the applicable deferential standard of review. This case is
distinguishable as the workers’ compensation judge determined that the plaintiff
failed to meet her burden of proof. The workers’ compensation judge considered,
evaluated, and weighed the evidence before finding Dr. Garcia’s testimony as to
4 The claimant cites to the following: Frith v. Riverwood, Inc., 03-1672 (La.App. 5/14/04), 879 So.2d 763; Lizana v. Gulf Coast Pain Inst., 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763; Woodrum v. Olive Garden Rest., 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911; Theus v. Schumpert Med. Ctr., 25,750 (La.App. 2 Cir. 4/5/95), 653 So.2d 178; Herren v. State, 25,564 (La.App. 2 Cir. 2/23/94), 632 So.2d 880.
7 causation insufficient to meet the claimant’s burden of proof. We do not find this
determination manifestly erroneous under the deferential standard of review.
This assignment lacks merit.
Termination of Benefits
Next, the claimant addresses the workers’ compensation judge’s exclusion of
certain exhibits for violation of the pretrial scheduling order as well as testimony
regarding the inclusion of fringe benefits in the calculation of the claimant’s average
weekly wage. The claimant contends these rulings were in error and asserts that the
lack of evidence prevented her from demonstrating entitlement to continued benefits,
notwithstanding the benefits claimed for fibromyalgia.
The workers’ compensation judge excluded the evidence at issue for three
reasons. First, the workers’ compensation judge excluded evidence regarding fringe
benefits as the issue was not listed on the claimant’s disputed claim form. Second,
the workers’ compensation judge excluded payroll documents as the claimant’s
subpoena for the evidence was untimely served. Third, exhibits of both the claimant
and the employer were excluded as neither properly produced a pretrial statement as
required by the pretrial scheduling order.
With regard to the issue of fringe benefits, the workers’ compensation judge
observed that the issue was not raised in the claimant’s 1008 form, which lists the
following issues to be determined:
a. Extent and duration of disability b. Failure to pay indemnity benefits c. Failure to pay for medical treatment d. Failure to provide vocational rehabilitation e. Failure to provide treatment for fibromyalgia f. Penalties and attorney fees
No mention is made of the calculation of the claimant’s average weekly wage.
Further, the Scheduling Conference Order of February 2, 2006 lists these same issues
8 and directed the parties “to submit a pre-trial statement within 7 days. Failure to do
so may result in exclusion of evidence and/or testimony.” In excluding the evidence
as to fringe benefits, the workers’ compensation judge observed that neither the 1008
listed the fringe benefit issue and noted the claimant’s failure to file a pretrial
statement. The judge also referenced 40 La.Admin. Code tit. I, § 6007, which relates
to the pretrial statement and provides:
A. The pretrial statement shall include: 1. Stipulations agreed to by all parties; 2. issues to be litigated; 3. contentions; 4. a list and brief description of all exhibits to be offered at trial; 5. a list of all witnesses to be called at trial; 6. desirability of mediation. B. Amendments to the pretrial statement shall only be by written motion and permitted only for good cause shown.
(Emphasis added.)
Although La.R.S. 23:1317 provides that “[t]he workers’ compensation judge
shall not be bound by technical rules of evidence or procedure other than as herein
provided,” we find no abuse of the workers’ compensation judge’s discretion in its
enforcement of the rules of its office. We conclude that the limited contents of both
the 1008 and the pre-trial scheduling order, as well as the claimant’ failure to file a
pretrial statement, support the exclusion of evidence regarding fringe benefits.
Similarly, the workers’ compensation judge enforced its scheduling order in
excluding the exhibits of both parties due to their failure to file a pretrial statement.
The exclusion of the claimant’s evidence effectively prevented the claimant from
presenting her case regarding her entitlement to disability benefits for conditions
other than fibromyalgia and prevented the employer from rebutting evidence
regarding the causation of fibromyalgia. The workers’ compensation judge did,
however, tailor its ruling and permitted the claimant to present evidence on which the
9 employer lodged no objection. This evidence included Dr. Garcia’s depositions. As
above, we find no abuse of discretion in the workers’ compensation court’s
enforcement of its rule.
Finally, the claimant disputes the exclusion of payroll records produced by the
employer and the workers’ compensation judge’s refusal to allow the proffer of the
records. The exclusion of these records was based on the claimant’s failure to abide
by the office’s rule that “[i]n order to be enforceable, subpoenas for hearing shall be
served seven (7) days prior to the scheduled hearing date[.]” 40 La.Admin. Code tit.
I, § 5909. Instead, the claimant filed the subpoena involving the payroll records only
two days prior to hearing. Given the clear language of the order, we find no abuse
of discretion in the workers’ compensation judge’s exclusion of the records and, since
they were improperly produced, its refusal to allow a proffer of the records.
Additionally, the workers’ compensation judge permitted the claimant’s attorney to
provide a statement setting forth the nature of the evidence pursuant to La.Code
Civ.P. art. 1636(A)(which provides that “[w]hen the court rules against the
admissibility of any evidence, it shall either permit the party offering such evidence
to make a complete record thereof, or permit the party to make a statement setting
forth the nature of the evidence”).
Exception of Res Judicata
As explained above, the claimant filed an additional disputed claim form on the
day of the December 7, 2007 hearing on the merits of this case. The employer filed
an exception of res judicata on the basis that the issues contained therein were
adjudicated at the initial hearing. The workers’ compensation judge granted the
exception, ordering “that the 1008 form, docket number 07-09286, filed on December
10 7, 2007, is dismissed with prejudice[.]” The claimant disputes the dismissal of the
claim form on appeal.
While La.R.S. 13:4231 generally addresses res judicata, workers’ compensation
cases have an even more specific reference in La.R.S. 23:1310.8(E) which provides
that “[a] judgment denying benefits is res judicata after the claimant has exhausted
his rights of appeal[.]” Accordingly, as the initial judgment denied benefits and
appellate rights had not yet been exhausted, the exception of res judicata was
improperly granted. We reverse the granting of the exception of res judicata.
DECREE
For the foregoing reasons, the workers’ compensation judge’s judgment of
April 17, 2008 is affirmed. All costs of this proceeding are assessed to the appellant,
Judy D. Davis.
11 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
STATE, THRU DOTD, OFFICE OF RISK MANAGEMENT
THIBODEAUX, Chief Judge, dissenting.
I dissent. While an appellate court must be deferential to the reasonable
findings of a trier of fact, it is not compelled to slavishly adhere to those findings
when the record, read as a whole, dictates otherwise. See Ambrose v. New Orleans
Police Dep’t Ambulance Serv., 93-3099 (La. 7/5/94), 639 So.2d 216. This is such a
case. A careful reading of the entire record cries out for a reversal of this judgment.
Exclusion of Exhibits
The workers’ compensation judge (WCJ) erred in several procedural
rulings that resulted in the exclusion of almost all of the parties’ evidence at trial.
At trial, Ms. Davis’ attorney examined Kayla Crowe regarding the
inclusion of fringe benefits in the DOTD’s calculation of AWW. Ms. Crowe’s
answer was uncertain, and the WCJ specifically instructed her to review the file and
to be ready to answer the question regarding fringe benefits at the end of trial.
Subsequently, when Ms. Davis’ attorney began examining Kenneth Morris, the
DOTD’s business manager, regarding the inclusion of fringe benefits in the
calculation of Ms. Davis’ wage benefits, the DOTD objected on the basis that the
subpoena of those records had not been served timely. The WCJ then excluded evidence of fringe benefits on the basis that “fringe benefits” was not a specifically
listed dispute on the 1008 claim form, rejecting Ms. Davis’ arguments that a correct
calculation of average weekly wage (AWW) necessarily included consideration of
fringe benefits such as paid leave and medical insurance contributions by the
employer. Ms. Davis was correct. See Johnson v. Louisiana Container Co., 02-382
(La.App. 3 Cir. 10/2/02), 834 So.2d 1052, writ denied, 02-3099 (La. 5/9/03), 843
So.2d 394 (whether the employer provided the claimant fringe benefits is relevant to
the issue of the proper calculation of his wage rate).
In the present case, the WCJ made this ruling after allowing earlier
testimony on the issue and instructing adjuster Kayla Crowe to report at the end of
trial whether fringe benefits were included in her calculation of AWW. Wage
benefits were a major issue at the trial, and it was unreasonable and inconsistent to
remove the issue based upon the absence of the specific words, “fringe benefits,” on
Ms. Davis’ 1008, particularly when the DOTD did not object to the earlier
examination of their adjuster, Kayla Crowe, on the issue, and where the WCJ had on
several prior occasions stated that AWW was an issue to be determined at trial.
After the WCJ removed the issue of fringe benefits from the trial, and
sustained the DOTD’s objection to the untimely subpoena of the payroll records, the
WCJ agreed to a proffer and left the courtroom in order for Ms. Davis’ attorney to
receive the records and testimony of Mr. Morris. However, the DOTD stopped Mr.
Morris from handing over the payroll records. The WCJ then returned to the
courtroom, agreed with the DOTD, and disallowed the proffer of the actual records.
The exclusion of the payroll records was based upon Louisiana
Administrative Code (LAC) 40:I:5909, which provides in pertinent part:
B. In order to be enforceable, subpoenas for hearing shall be served seven days prior to the scheduled hearing date;
2 subpoenas to compel attendance of medical experts shall be served 10 days prior to hearing. Subpoenas for hearing may be issued after expiration of these time limits only by leave of court for good cause shown or upon written consent of all parties.
In the present case, the subpoena of the payroll records for 2000 and
2001 was issued two days before trial. However, Mr. Morris was present at the trial
and had the records with him. Moreover, Ms. Davis’ attorney had been trying to get
the records since at least February 2002, having requested payroll records and
evidence of fringe benefits, specifically, in discovery requests and correspondence.
The DOTD’s 2002 responses to discovery indicated that they attached partial records
and would forward the remainder when they were received. The DOTD was not
surprised or prejudiced by this request where they had known for at least five years
that fringe benefits would be an issue in determining AWW and had allowed Mr.
Morris to appear and bring the payroll records with him.
Moreover, it is well-settled that in workers’ compensation proceedings
technical rules of evidence and procedure are materially relaxed. While the majority
recognizes this concept, it refuses to apply it. Our jurisprudence has repeatedly held
that the courts are not bound by technical rules of evidence or procedure in workers’
compensation suits. See Leson Chevrolet, Inc. v. Triche, 98-1328 (La.App. 5 Cir.
9/28/99), 742 So.2d 1047; Lummus v. Shoney’s, 99-90 (La.App. 5 Cir. 6/1/99), 738
So.2d 117; Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La.App. 3 Cir. 5/5/99),
731 So.2d 525. In fact, this concept is statutory in Louisiana, pursuant to La.R.S.
23:1317, which provides in pertinent part as follows:
[R.S. 23:]1317. Hearing on the merits; rules of procedure; effect of judgment; costs; fees of medical witnesses
A. If an answer has been filed within the delays allowed by law or granted by the workers’ compensation
3 judge, or if no judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the workers’ compensation judge shall hear the evidence that may be presented by each party. Each party shall have the right to be present at any hearing or to appear through an attorney. The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.
The WCJ refused to allow the attorney for Ms. Davis to proffer the
payroll records that were there and available in the courtroom. Louisiana Code of
Civil Procedure Article 1636(A) provides: “When the court rules against the
admissibility of any evidence, it shall either permit the party offering such evidence
to make a complete record thereof, or permit the party to make a statement setting
forth the nature of the evidence.” The opportunity to proffer the excluded evidence
is mandatory, “but the trial court has the discretion to receive the proffer in full, or to
require a statement setting forth the nature of the evidence.” Mitchell v. Limoges,
05-832 (La.App. 3 Cir. 3/1/06), 923 So.2d 906, 909, writ denied, 06-0723 (La.
6/16/06), 929 So.2d 1285. In this case, the WCJ did allow a statement setting forth
the nature of the evidence, indicating a fulfillment of La.Code Civ.P. art. 1636(A).
However, under the facts of this case, where the witness was testifying with the
documents in his possession, the WCJ violated the letter and the spirit of La.R.S.
23:1317 by excluding evidence that would have helped resolve the issues summarily
and simply.
4 In another procedural ruling, the WCJ, on her own initiative, interrupted
the examination of Ms. Davis’ husband, stating that Mr. Davis could not testify
because Ms. Davis had not filed a pre-trial statement listing him as a witness. The
WCJ then allowed a proffer of this testimony. When Ms. Davis’ attorney attempted
to enter his twenty-five exhibits into the record, the DOTD objected, stating that it
had just gotten Ms. Davis’ exhibit list that morning. Except for the three depositions
of Dr. Garcia, Ms. Davis’ exhibits, including her medical records, were excluded from
trial for failure to list them in a pre-trial statement. This included the deposition of
Dr. Quillin, which was taken by the DOTD. Each exhibit was described individually
and proffered by Ms. Davis’ attorney, who then had no choice but to rest his case.
When the DOTD attempted to call their adjuster, Kayla Crowe, as their witness, Ms.
Davis’ attorney objected on the grounds that the defendant had not timely filed its
pre-trial statement. The record indicates that the defendant’s pre-trial statement was
faxed the day before trial but was file stamped on the morning of trial. Accordingly,
the DOTD’s witness testimony was excluded, then proffered, and the trial was
concluded.
The exclusion of evidence for failure to file a pre-trial statement, or an
untimely filing of a pre-trial statement was based upon the Louisiana Administrative
Code’s hearing rules at LAC 40:I:6005 and 6007.1 Again, our courts have often
1 §6005. Pretrial Conference: A. When requested by the court, each party to the dispute shall file a pretrial statement with the appropriate district office within the time frame designated by the court. . . .
§6007. Pretrial Order: A. The pretrial statement shall include: 1. stipulations agreed to by all parties; 2. issues to be litigated; 3. contentions; 4. a list and brief description of all exhibits to be offered at trial; Exhibits to be used for impeachment or rebuttal need not be included in the list...; 5. a list of all witnesses to be called at trial.... Except for the witnesses listed, no other witnesses may be called to testify except for good cause shown. This requirement shall not apply to impeachment and rebuttal witnesses; 6. outstanding discovery and depositions to be taken. . . .
5 found that the requirement to file a pre-trial statement is a technical requirement that
the courts are not bound to apply.
In Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03),
858 So.2d 830, the claimant failed to file a pre-trial statement. He then offered his
testimony and that of his wife, as well as several exhibits. The WCJ allowed the
evidence, given that the employer had taken the claimant’s deposition and that his
documentary evidence was either generated by or otherwise available to the
employer. Similarly, in the present case, the excluded deposition of Dr. Quillin was
taken by the DOTD, and it clearly had this evidence in its possession, as well as Ms.
Davis’ medical records, employer reports, and payroll information which constituted
the exhibits sought to be introduced by Ms. Davis. See also Parrish v. Van-Tel
Communications, 07-454 (La.App. 3 Cir. 10/10/07), 967 So.2d 592.
In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir.
5/4/94), 640 So.2d 585, 587, writ denied, 96-152 (La. 3/15/96), 669 So.2d 429, we
quoted Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228 (La.App. 3 Cir. 1987),
stating that La.R.S. 23:1317 reflected the legislature’s intent in compensation cases
to “materially relax evidentiary and procedural rules and subordinate procedural
considerations to the discovery of the truth and the protection of substantive rights.”
As the second circuit explained in Vernon v. Wade Correctional Institute, 26,053, p.
5 (La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688, “[t]he theory inherent in pretrial
procedure is the avoidance of surprise and the allowance of the orderly disposition
of the case.”
In the present case, where the excluded evidence caused no prejudice and
no surprise, the WCJ’s procedural rulings had the opposite effect. They prevented
the resolution of the issues by prohibiting both parties from presenting witnesses and
6 exhibits necessary to discover the truth regarding benefits. Accordingly, the WCJ
again committed legal error by violating the letter and spirit of La.R.S. 23:1317 and
by inflexibly binding the parties to procedural rules, excluding competent evidence
available at trial, and preventing the resolution of the issues; i.e., the nature and extent
of disability, whether temporary or permanent, whether partial or total, and the
amount of indemnity/wage benefits due the claimant. Therefore, I would consider all
proffered evidence by both parties in an attempt to resolve the issues susceptible of
resolution, given the record before us.
Fibromyalgia
The judgment of the WCJ stated that Dr. Garcia noted that fibromyalgia
was a chronic, painful musculoskeletal disorder of unknown etiology, and that such
findings prevented Ms. Davis from meeting her burden of proof in this case. The
majority agrees. The WCJ further stated that the medical evidence fell short of
proving that Ms. Davis’ injuries of May and September 2000 caused her to have
fibromyalgia. The majority again agrees. The record reveals otherwise. The record
shows that Dr. Garcia was deposed three times, and each time he testified that Ms.
Davis’ fibromyalgia was a result of her work injuries in 2000. The record further
reveals that Dr. Garcia’s opinion on the relatedness of fibromyalgia is supported by
Louisiana jurisprudence, and was supported in this case by Dr. David Levinsohn, Ms.
Davis’ first orthopedist; Dr. Michael Dole, Ms. Davis’ pain management specialist;
Dr. James Quillin, Ms. Davis’ psychologist; and, Dr. Baer Rambach, a second
orthopedist who treated Ms. Davis.
Dr. Levinsohn saw Ms. Davis in June 2000 after the May 2000 accident.
His impression was right wrist extensor tendinitis. In early November, he opined that
all of her problems were related to her work injuries: neck pain, right mild rotator
7 cuff tendinitis, possible right cervical radiculopathy, right lateral epicondylitis, low
back pain, deQuervain’s tenosynovitis, and extensor tendinitis of the right wrist,
exacerbated by depression. Dr. Levinsohn suspected fibromyalgia in December 2000
and a month later reported that there was “[c]ertainly evidence of fibromyalgia.” In
March 2001, his impression was fibromyalgia. Dr. Levinsohn’s impression of
fibromyalgia did not change, and it existed before Ms. Davis slipped again, while on
“light duty” on the truck, pulling and re-injuring her shoulder in June 2001. Dr.
Levinsohn referred Ms. Davis to Dr. Miguel Garcia.
Dr. Miguel Garcia is board-certified in internal medicine and
rheumatology, diseases that involve muscles, bones, joints, and pain-causing
illnesses. He was accepted at trial as an expert in internal medicine, rheumatology,
and fibromyalgia. Having been referred to Ms. Davis by Dr. Levinsohn and Dr.
Coney, Dr. Garcia began seeing Ms. Davis in March 2001. His treatment for
fibromyalgia consists of medication, injections into soft tissue, tendons, or joints, and
infusions into the veins. He testified that there was no surgical remedy for
fibromyalgia.
Dr. Garcia explained that patients who have fibromyalgia generally feel
as if they have the flu 365 days a year. They are tired, achy, sore, stiff, fatigued; they
exhibit mood changes, depression, and tenderness to palpitation over muscular areas.
Dr. Garcia indicated that the diagnosis of fibromyalgia currently describes eighteen
tender points with control points to rule out malingering. Dr. Garcia testified that the
first time he examined Ms. Davis, she exhibited eighteen of the eighteen tender
points and was negative for all of the control points. He stated categorically that
there was no doubt in his mind that she had fibromyalgia and that there was no
differential diagnosis.
8 Dr. Garcia further testified that fibromyalgia patients are not normal in
three aspects: (1) an electroencephalogram will indicate changes in brain waves; (2)
there are changes in sleep patterns with markedly decreased sleep in stages three and
four where muscle rest takes place; (3) there are decreased levels of growth hormone
and active compounds that help muscles to regenerate. He further stated that
fibromyalgia patients have increased levels of Substance P, which primes the central
nervous system to feel pain. Dr. Garcia admitted that the diagnosis is one of
exclusion (ruling out other diseases), but stated that the common denominator for
distinguishing fibromyalgia from other problems with similar symptoms is the
inability to sleep. He stated that some symptoms are subjective, such as fatigue and
achiness, but depression is diagnosed by the physician, and tenderness to palpitation
is tested using control points. Dr. Garcia diagnosed Ms. Davis as having
fibromyalgia and restless leg syndrome, which she developed shortly after the third
DOTD accident in June 2001.
The WCJ stated that at the time of Dr. Garcia’s examination, “no
physical injuries were identified or diagnosed from claimant’s fall” and that the
medical evidence fell “short of a finding that claimant’s injuries of May 16, 2000 and
September 14, 2000 caused her to have fibromyalgia . . . .” However, this is not
supported in the record. Dr. Garcia testified that Ms. Davis did not have a fracture,
but after the accidents, she started with pain that did not stop, causing her to wake up
every thirty minutes. He stated that her history indicated that she fell from a dump
truck five feet straight down to her right side, hitting her shoulders, neck and low
back, and that there was no pain or symptoms before the accident. The WCJ also
stated that Dr. Garcia’s testimony that fibromyalgia was of an “unknown etiology”
prevented Ms. Davis from carrying her burden of proof. The testimony of Dr. Garcia,
9 while stating that fibromyalgia was not a disease but a syndrome, thereby providing
little in the way of causation except for the history of the patient, clearly presented
evidence that the fall at work caused the pain that caused Ms. Davis’ sleep
deprivation, which was the cornerstone symptom of fibromyalgia.
With regard to the relatedness of Ms. Davis’ condition to her work
injuries, Dr. Garcia repeatedly testified that she developed fibromyalgia after the
September 2000 accident and therefore had classic fibromyalgia secondary to the
September 2000 accident.
The WCJ in her reasons for judgment intimated that other symptoms of
fibromyalgia could have been caused by weight gain or menopause. However, Dr.
Garcia testified that Ms. Davis was post-menopausal, that the symptoms were not of
the same degree, and that since she had already been on a regimen of hormones,
symptoms of menopause would not be expected. He further testified that two of her
medications, Miropex and Zanoflex, could cause weight gain, and those were
therefore switched out for others. The DOTD did not object to the admission of Dr.
Garcia’s three depositions, and his testimony clearly related Ms. Davis’ work injuries
to her pain, depression, sleep loss, and fibromyalgia. Dr. Garcia was still treating Ms.
Davis at the time of trial. About mid-way through his treatment, Dr. Garcia referred
Ms. Davis to Dr. James Quillin, a psychologist, for her ongoing depression.
Dr. Baer Rambach, an orthopaedic surgeon with Mid-South
Orthopaedics, saw Ms. Davis in November 2001. His impression was fibromyalgia
secondary to the September 2000 accident. He ordered an MRI in December 2001
wherein the radiologist reported no significant disc bulge or herniation. In February
2002, Dr. Rambach’s records indicate that Ms. Davis’ symptoms upon examination
10 were consistent with fibromyalgia, and that she could not return to her former
occupation.
In May 2003, Dr. Merlin Wilson, a rheumatologist, examined Ms. Davis
on behalf of the DOTD. Dr. Wilson’s impressions were soft tissue injuries to wrist,
neck, and back, while working in a highway crew in 2000. He also diagnosed
osteoarthritis. Dr. Wilson reported that Ms. Davis may have fulfilled the criteria for
fibromyalgia on previous visits to Dr. Garcia but did not fit the criteria according to
his examination. Dr. Wilson stated that, upon his examination, Ms. Davis was
positive for all eighteen tender points found in fibromyalgia patients (eleven of
eighteen is sufficient for the diagnosis). However, Dr. Wilson also stated that Ms.
Davis was positive for eight of the ten control points that should have been negative.
Dr. Wilson did not offer narrative detail on the control points that led him to discount
a diagnosis of fibromyalgia. Nor do Ms. Davis’ medical records appear to provide
the locations of the eighteen tender points or the locations of the ten control points.
Therefore, while Ms. Davis commented during one visit with Dr. Garcia that Dr.
Wilson only touched her neck in four places, we cannot know whether that was
sufficient or insufficient. However, we do know that Dr. Wilson saw Ms. Davis one
time only and for non-treatment purposes.
Dr. James Quillin, the psychologist referred to Ms. Davis by Dr. Garcia,
for Ms. Davis’ ongoing depression, first saw her in October 2003. During his
treatment, Dr. Quillin’s impression was that she had chronic pain syndrome related
to her occupational injuries. Fibromyalgia is a chronic pain syndrome. Dr. Quillin
testified in his deposition that Mrs. Davis was never pain free from her first accident,
that she had severe depression due to the chronic pain; she could not sleep, had crying
spells and low energy. He further reported that she was improving at one point until
11 her medication was stopped, due to non-approval by the adjuster, and that without
medications, her condition deteriorated.
In June of 2006, Dr. Quillin reported that Ms. Davis was in more pain
and was more tearful than in the previous visit, and this required a bump up in her
medication. Dr. Quillin described Ms. Davis as a tough, sweet lady who usually tried
to smile but was weeping at their visit, and he thought she had “passive death wishes
. . . .” That is, she was not suicidal but did not care if she died. He stated that she did
not have day-to-day garden variety depression, but suffered from neurovegetative
changes affecting her sleep, appetite, sexual function and energy level. Dr. Quillin
stated that diffuse pain is a cardinal symptom of fibromyalgia, which is a very painful
condition. He stated that he had training in physiology, but would defer to Dr. Garcia
on the diagnosis of fibromyalgia, as that is a rheumatological diagnosis. He was still
treating Ms. Davis at the time of trial. Dr. Quillin referred Ms. Davis to Dr. Michael
Dole for pain management.
Dr. Michael Dole is board certified in internal medicine and physical
medicine and rehabilitation. His pain management records indicate that on her first
visit with him in November 2005, Ms. Davis’ chief complaint was diffuse pain, a
symptom of fibromyalgia, and Dr. Dole listed his first impression as fibromyalgia
with thirteen positive tender points out of eighteen. Over the next two years, Dr. Dole
reported a diagnosis of fibromyalgia at least sixteen times. His records indicated
eighteen out of eighteen tender points in November of 2006, sixteen out of eighteen
in October 2006 and May of 2007. These fluctuations are consistent with Dr.
Garcia’s testimony that the symptoms wax and wane with the level of pain and with
time. On July 13, 2006, Dr. Dole stated that Mrs. Davis’ symptoms were consistent
with fibromyalgia and were secondary to her work injury in September 2000. In July
12 of 2007, five months before trial, he reported her pain level at eight out of ten (8/10),
with ten being the highest pain indicator. Dr. Dole’s clinical impression at that time
was fibromyalgia “with an acute flair,” neck pain, and bilateral upper extremity pain.
Dr. Dole was still treating Ms. Davis at the time of trial.
The above medical evidence overwhelmingly outweighs the report of Dr.
Wilson, the rheumatologist who examined Ms. Davis once on behalf of the DOTD.
In a recent case, we articulated as follows:
As a general rule, the testimony of a treating physician should be given greater weight than that of a physician who examined a claimant for diagnostic purposes only. Winch v. Double M, Inc., 99-1793 (La.App. 3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La. 6/16/00), 765 So.2d 339. This is because the treating physician has the advantage of familiarity, since he or she is more likely to know the claimant’s symptoms and complaints due to repeated examinations and sustained observations. Alexander v. Autozone, Inc., 04-871 (La.App. 3 Cir. 12/8/04), 889 So.2d 366. Additionally, positive findings of medical experts are to be afforded greater weight than the negative findings as to the existence of a particular condition. Campbell v. Luke Const. Co., 465 So.2d 688 (La.1985).
Fontenot v. Wal-Mart, 08-158, p. 14 (La.App. 3 Cir. 3/4/09), 5 So.3d 298, 307, writ
denied, 09-0770 (La. 5/29/09), 9 So.3d 165. The majority refuses to recognize this
well-settled rule in its analysis.
While the WCJ intimated, by her reference to an “unknown etiology,”
that fibromyalgia is not a compensable illness, Louisiana jurisprudence has held
otherwise. Our courts have consistently held that fibromyalgia is compensable under
a rebuttable presumption theory “if there is evidence of the injured person's good
health before the accident and medical testimony showing a reasonable possibility
that the accident caused the disability.” Maddox v. City of Oakdale, 99-726, pp. 6-7
(La.App. 3 Cir. 11/3/99), 746 So.2d 764, 769, writ denied, 99-3388 (La. 2/11/00), 754
13 So.2d 936. Fibromyalgia has also been found compensable under the rebuttable
presumption theory in: Herren v. State, 25,564 (La.App. 2 Cir. 2/23/94), 632 So.2d
880; Theus v. Schumpert Med. Ctr., 25,750 (La.App. 2 Cir. 4/5/95), 653 So.2d 178,
writ denied, 95-1442 (La. 9/22/95), 660 So.2d 475; and Woodrum v. Olive Garden
Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911.2 Fibromyalgia was also
compensable in Malbrue v. St. Landry Parish School Bd., 95-1426 (La.App. 3 Cir.
1996), 673 So.2d 1157 (compensability not challenged); Lizana v. Gulf Coast Pain
Institute, 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763; and Frith v. Riverwood,
Inc., 03-1340 (La.App. 1 Cir. 4/2/04), 878 So.2d 595, writ granted, 04-1086 (La.
1/19/05), 892 So.2d 7 (reinstated and increased attorney fees; addressed applicability
of 1990 Amendments; reversed award of permanent total disability).
In addition to the above medical reports, Ms. Davis’ husband of twenty-
eight years testified that prior to the DOTD accidents Ms. Davis was extremely hearty
and active, bailing hay and mowing the yard. Before the accidents, she did not have
pain all over her body, weakness, fatigue, depression, crying spells, and was not up
and down all night, as she was after the accidents. The symptoms of fibromyalgia
began very shortly after Ms. Davis’ work injuries in 2000. The DOTD attempted to
rebut the presumption by arguing that the symptoms of fibromyalgia could be caused
2 The DOTD cites the clearly distinguishable case of Floyd v. Louisiana Dept. of Public Safety, 08-899 (La.App. 3 Cir. 2/4/09), 3 So.3d 657, writ denied, 09-519 (La. 4/17/09), 6 So.3d 798. There, the claimant alleged an occupational disease due to chemical exposures at work and failed to prove that her fibromyalgia diagnosis was related to her work injuries. Mrs. Floyd struggled with two negatives that do not exist herein: the lack of immediacy inherent in occupational diseases, as opposed to identifiable accidents, as in Ms. Davis’ case; and the timing of the diagnoses. In Floyd, the first mention of fibromyalgia was more than two years after the claimant’s leave from work; the claims of MCE, mutiple chemical exposures, did not appear until six years after the alleged exposure, and there were no visits to doctors for acute exposure to chemicals in the workplace. Moreover, two physicians testified that the fibromyalgia derived from the chemical exposures and not from claimant’s epicondylitis, as the claimant asserted. In the present case, Ms. Davis had symptoms of fibromyalgia shortly after her five foot drop from the asphalt dump truck onto her side in September 2000. Dr. Levinsohn suspected fibromyalgia in December 2000 and confirmed his impressions of fibromyalgia in January 2001, just four months after the fall. Additionally, Drs. Quilllen, Rambach, Dole, and Garcia related Ms. Davis’ symptoms to her work accidents.
14 by hormonal imbalances or weight gain, but those arguments fail, as explained by Dr.
Garcia’s testimony discussed above. Accordingly, based upon the jurisprudence
above, and the overwhelming record evidence, Ms. Davis has established the
existence and the relatedness of fibromyalgia to her DOTD work injuries in 2000.
The WCJ’s Termination of All Benefits
The record contains the medical reports and deposition testimony
indicating that five of Ms. Davis’ physicians related her symptoms to her DOTD
accidents: Drs. Levinsohn, Rambach, Quillin, Garcia, and Dole. Dr. Michael Brunet
of Tulane University Hospital treated Ms. Davis for rotator cuff injury and burning
sensations in her right shoulder. In October 2001 he ordered a functional capacity
evaluation (FCE) from a MISS-LOU Physical Therapy in Natchez, Mississippi. The
results indicated that Ms. Davis put forth consistent maximum voluntary effort. She
could lift up to ten pounds (considered light lifting), could sit or stand for
approximately a half hour of each; could occasionally carry sixteen pounds, could
push and pull twenty-two and twenty-four pounds respectively; and her dominant
right hand was thirty-five to sixty percent (35% - 60%) weaker than her non-dominant
left hand. In referring to the report, Dr. Brunet opined that Ms. Davis’ condition was
permanent and not likely to change with time. In February 2002, Dr. Rambach
assessed Ms. Davis with a twenty-five percent (25%) permanent partial disability, and
indicated that she would be relegated to sedentary work. A June 2006 FCE indicated
that Ms. Davis could only lift up to ten pounds occasionally, and that her complaints
of increased pain in her back, neck and right shoulder correlated with an increased
heart rate during testing. On a continuum of job classifications, from Very Heavy,
Heavy, Medium (her DOTD job), Light, and Sedentary, Ms. Davis was assessed with
a functional capacity for Sedentary work only.
15 In July of 2006, Dr. Dole provided a disability evaluation indicating that
Ms. Davis had a ten percent (10%) whole person impairment and was extremely
limited in her functional abilities for lifting, reaching, and stooping, pursuant to the
FCE performed two weeks prior. Dr. Dole reported that Ms. Davis’ prognosis for
returning to work was extremely guarded, that she would likely need vocational
counseling and re-education. He further reported that, given her rural residential area
and limited education (11th grade), it would be difficult to find employment that met
her physical limitations.
During the December 2007 trial, Ms. Davis’ attorney called as a witness
the employer’s adjuster, Kayla Crowe. Ms. Crowe reviewed Dr. Dole’s medical
records and effectively testified that she did not consider his impression of
fibromyalgia one that rendered it a compensable condition, but she agreed that Dr.
Dole’s other two impressions, of neck pain and upper extremity pain, were matters
“that without controversy” were “part of Mrs. Davis’ injuries.” At the time of trial,
adjuster Kayla Crowe was still paying wage benefits to Ms. Davis based upon
DOTD’s own calculations, and was approving and paying for Dr. Michael Dole’s
services for pain management and Dr. Quillin’s treatment of Ms. Davis for
depression.3 She was also paying the medical bills of Dr. Clark Gunderson, the
orthopaedic surgeon who had performed a cervical fusion on Ms. Davis prior to trial.
Dr. Gunderson first saw Ms. Davis in May 2007 and reported possible
cervical radiculopathy, pain with axial compression of head and neck, diminished
grip strength on the right and diminished sensation in both thumbs. A June 2007
cervical MRI was abnormal, and Dr. Gunderson reported disc bulging at C5-6. A
3 In fact, Ms. Davis’ attorney subsequently argued that most of the benefits being paid were not even being disputed by the DOTD. At one point during the proceedings, the WCJ herself stated that “entitlement to benefits is not an issue because she’s receiving them.”
16 discogram reproduced Mrs. Davis’ pain at C4-5. Our review indicates that this result
is consistent with “tiny bulges” seen at C4-5 on Ms. Davis’ November 2000 MRI.
In 2007, Ms. Davis had tenderness from C5 - C7, and her range of motion was two
thirds (2/3) of normal. Dr. Gunderson recommended surgery, which was approved
by adjuster Kayla Crowe on October 29, 2007. Dr. Gunderson explained to Ms.
Davis that she would not be pain free after the surgery but could have significant
improvement. On November 15, 2007, Dr. Gunderson performed an anterior cervical
fusion at C4-5 with anterior plate. Ms. Davis was also put on a bone stimulator. She
appeared at trial three weeks later, on December 7, 2007, still wearing a neck brace.
Given the above evidence in the record, the WCJ manifestly erred in
terminating Ms. Davis’ wage benefits and in terminating all of her medical payments.
The majority errs in deciding otherwise. Even the defendant’s medical expert, Dr.
Wilson, opined that Ms. Davis could not return to her former job and would likely be
able to do only clerical-type work.
For the foregoing reasons, I dissent.