Louisiana Insurance Guaranty v. Weller

977 So. 2d 29, 2007 La.App. 1 Cir. 0571, 2007 La. App. LEXIS 2047, 2007 WL 3246239
CourtLouisiana Court of Appeal
DecidedNovember 2, 2007
DocketNo. 2007 CA 0571
StatusPublished
Cited by2 cases

This text of 977 So. 2d 29 (Louisiana Insurance Guaranty v. Weller) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louisiana Insurance Guaranty v. Weller, 977 So. 2d 29, 2007 La.App. 1 Cir. 0571, 2007 La. App. LEXIS 2047, 2007 WL 3246239 (La. Ct. App. 2007).

Opinion

McClendon, j.

| ¡>In this workers’ compensation case, the defendant and plaintiff-in-reconvention, Earl Mae Weller, complains of the workers’ compensation judge’s findings that Ms. Weller is no longer totally and permanently disabled and that chiropractic care and mileage expenses were not reasonable or necessary. We affirm the judgment -in favor of the plaintiff and defendant-in-re-convention, Louisiana Insurance Guaranty Association (LIGA).

FACTS AND PROCEDURAL BACKGROUND

On April 1,1976, Ms. Weller was injured in the course and scope of her employment as a waitress at Cattleman’s Restaurant. Ms. Weller thereafter filed suit against her employer, Margie Brown d/b/a Cattleman’s Restaurant, and her employer’s workers’ compensation insurer, Rockwood Insurance Company, seeking workers’ compensation benefits. The matter was tried on January 22, 1979, and, in a judgment signed on February 13, 1979, the trial court awarded Ms. Weller weekly compensation benefits in the amount of $80.78 for total and permanént disability, commencing March 22, 1977, and continuing for as long as her disability remained, subject to statutory limitations. Additionally, Ms. Weller was awarded medical and drug expenses, which were reasonable and necessary and were incurred from date of trial for as long as her disability continued, subject to statutory limitations. Rock-wood Insurance Company and Margie Brown d/b/a Cattleman’s Restaurant unsuccessfully appealed the February 13, 1979 judgment. See Weller v. Brown, 398 So.2d 551 (La.App. 1 Cir.1979).

Years later, LIGA, as statutory successor to the then insolvent Rockwood Insurance Company, filed a petition in the Nineteenth Judicial District Court seeking termination or modification of the workers’ [..¡compensation benefits awarded to Ms. Weller pursuant to .the February 13, [32]*321979 judgment. The matter was tried on May 5, 1997, and judgment was signed on June 25, 1997. After concluding that Ms. Weller remained totally and permanently disabled, the trial court ordered LIGA to continue to pay $80.78 per week in disability benefits. The trial court further ordered LIGA to pay all travel expenses for treatment of Ms. Weller’s work-related injury, including past and future travel expenses. Additionally, the trial court ordered LIGA to pay for all unpaid chiropractic treatment rendered by Dr. Stanley Mouk.

Subsequently, LIGA filed an appeal of the June 25, 1997 judgment. On appeal, this court reversed the trial court’s finding that Ms. Weller was totally and permanently disabled and entitled to continued benefits. Weller v. Brown, 97-2155 (La.App. 1 Cir. 11/6/98), 724 So.2d 230, writ denied, 99-2872 (La.12/10/99), 751 So.2d 856.

On May 23, 2000, Ms. Weller filed a petition in the Nineteenth Judicial District Court seeking to nullify the June 25, 1997 judgment, alleging that the district court lacked subject matter jurisdiction to adjudicate the matter. Thereafter, on August 16, 2000, Ms. Weller filed a motion for summary judgment. Following a hearing on the motion, judgment was rendered vacating the June 25, 1997 judgment and dismissing LIGA’s petition, with prejudice, for lack of subject matter jurisdiction. This court affirmed. Weller v. Brown, 2001-0314 (La.App. 1 Cir. 3/28/02), 813 So.2d 635.

On January 22, 2003, Ms. Weller filed a disputed claim for compensation with the Office of Workers’ Compensation. On the same day, LIGA’s petition for modification or termination of disability status and benefits was filed. Ms. Weller answered the petition, and filed a | ¿reconventional demand requesting various medical and mileage expenses.

After a hearing, the workers’ compensation judge (WCJ) rendered judgment in favor of LIGA. The judgment, signed on June 16, 2006, held that Ms. Weller was “no longer disabled in any capacity as a result of the 1976 accident and all further benefits, including medical expenses [were] denied.” In addition, the judgment denied the claims sought by Ms. Weller in her reconventional demand. Costs were assessed to LIGA.

In oral reasons, the WCJ noted that, after considering all of the evidence, including the medical evidence, a surveillance videotape of Ms. Weller performing various physical activities, and Ms. Weller’s testimony and demeanor during the hearing, the WCJ found Ms. Weller not to be a credible witness. After again considering all of the evidence, and Ms. Weller’s lack of credibility, the WCJ found that LIGA had met its burden of proof and shown that Ms. Weller was no longer disabled due to the work injury, and denied the requested benefits and expenses. On the issue of medical payments for specific chiropractic treatments, the WCJ found that the services were not reasonable or medically necessary in relation to the work injury.

In her appeal, Ms. Weller assigned error to the findings that she “was no longer disabled as a result of her 1976 work accident,” and that the “chiropractic care and mileage expenses were not reasonable and necessary.” She essentially argues that she suffers from chronic pain syndrome, which stemmed from her work injury, and that the syndrome, coupled with other medical problems, makes it impossible for her to work. The appellant, LIGA, argues that Ms. Weller is not permanently and totally disabled, at present; but, alternatively, argues that if such a condition does [33]*33| Sexist, the disability is not causally related to her 1976 employment-related injury.

ANALYSIS

A worker is totally disabled only if he cannot engage in any gainful occupation for wages. LSA-R.S. 23:1221(2)(a) & (c); Magee v. Abek, Inc., 2004-2554, pp. 5-6 & 11 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807 & 811, writ denied, 2006-1876 (La.10/27/06), 939 So.2d 1287. A person who can engage in a gainful occupation is not totally disabled, even if such occupation is not the same or similar to his old occupation and even if it is not one for which he is particularly fitted by education, training, or experience. Magee, 2004-2554 at pp. 5-6 & 11, 934 So.2d at 807 & 811.

Ordinarily, the testimony of an employee’s treating physician should be afforded more weight than that of an examining physician. Johnson v. Travelers Insurance Co., 284 So.2d 888, 891 (La.1973); Graziano v. Lallie Kemp Charity Hospital, 400 So.2d 1164, 1165-66 (La.App. 1 Cir. 1981); McClendon v. Keith Hutchinson Logging, 96-2373, p. 11 (La.App. 1 Cir. 11/7/97); 702 So.2d 1164, 1172, unit denied, 97-2872 (La.2/13/98); 706 So.2d 995. Where the treating physician finds that the claimant can work, despite some restrictions, a worker’s compensation claimant is not entitled to benefits for permanent total disability. Spencer v. Gaylord Container Corp., 96-1230, p. 5 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 822.

However, the testimony of a specialist is entitled to greater weight when the subject at issue concerns the particular field of the specialist’s expertise. McClendon, 96-2373 at p. 11, 702 So.2d at 1172; see Graziano, 400 So.2d at 1165-66. The trier of fact is not bound to accept the testimony of an expert, even one whose testimony is presumptively given more weight, | fiif the trier of fact finds the opinion is less credible than that of other experts. McClendon, 96-2373 at pp. 11-12, 702 So.2d at 1172.

Over the years, Ms.

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977 So. 2d 29, 2007 La.App. 1 Cir. 0571, 2007 La. App. LEXIS 2047, 2007 WL 3246239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-insurance-guaranty-v-weller-lactapp-2007.