Martin v. Criminal Sheriff of Orleans Parish

629 So. 2d 1234, 1993 La. App. LEXIS 3641, 1993 WL 492583
CourtLouisiana Court of Appeal
DecidedNovember 30, 1993
DocketNo. 93-CA-0278
StatusPublished
Cited by1 cases

This text of 629 So. 2d 1234 (Martin v. Criminal Sheriff of Orleans Parish) 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
Martin v. Criminal Sheriff of Orleans Parish, 629 So. 2d 1234, 1993 La. App. LEXIS 3641, 1993 WL 492583 (La. Ct. App. 1993).

Opinion

PLOTKIN, Judge.

Defendants/employers, Criminal Sheriff of Orleans Parish and the City of New Orleans, appeal a trial court judgment awarding worker’s compensation benefits to plaintiffiem-ployee Mable Martin. We affirm and amend the judgment to award $500 in attorneys’ fees for work done on appeal.

Facts

Ms. Martin suffered injury when she tripped over a concrete block in her work area on June 25, 1991, during the course and scope of her work as a baker for the Orleans Parish Sheriffs Office. She sought treatment for her injuries from a number of medical professionals, then filed a claim seeking worker’s compensation, which had been denied by the defendants. After a hearing on the matter, the hearing officer awarded benefits to the plaintiff and ordered the defendants to pay medical expenses. Additionally, the hearing officer found that the defendants had arbitrarily and capriciously denied the plaintiff benefits, making the defendants responsible for the plaintiffs attorney’s fees. The defendants appealed. The plaintiff answered the appeal, seeking additional attorney’s fees for work performed on appeal.

The defendants list four alleged errors: (1) the hearing officer improperly awarded compensation benefits to the plaintiff because they (the defendants) proved by clear and convincing evidence that the plaintiffs treating physician released her to return to work in August of 1991 and totally discharged her on November 19, 1991; (2) the hearing officer improperly awarded $1,980 in medical expenses charged by Dr. Charles Simmons; (3) the hearing officer improperly awarded $5,000 in attorney fees; and (4) the hearing officer improperly found the defendants’ actions to be arbitrary and capricious and without probable cause.

Award of compensation benefits

The defendants’ major argument on this issue centers around their contention that the testimony of Dr. Henry Hoerner, who released the plaintiff to return to work in August of 1991, should have been accepted by the hearing officer because Dr. Hoerner was the plaintiffs physician of choice. The record shows that Dr. Hoerner had treated the plaintiff for a number of years prior to the accident for various orthopedic problems and that after the accident, Dr. Hoerner continued to treat the plaintiff. The defendants claim that the trial court erred both by failing to accept Dr. Hoerner’s opinion that the plaintiff was able to return to work in August of 1991 since Dr. Hoerner was the plaintiffs physician of choice and by relying instead on the contradictory testimony of other doctors, who indicated not only that the plaintiff continued to be disabled after August of 1991, but that she was in fact temporarily permanently disabled at the time of trial.

The plaintiff claims that she was advised by the personnel at Methodist Hospital, where she was treated in the emergency room immediately after her fall, to contact a Dr. Craceo within three days of the accident. [1236]*1236She claims that she attempted to contact Dr. Craeco, but that he was on vacation and unavailable. The plaintiff indicated at the hearing that she decided to consult Dr. Hoer-ner only after seeking treatment from at least two other doctors. Additionally, she claims that she became dissatisfied with his treatment when Dr. Hoerner refused to x-ray her right side, which was causing her pain. Thus, she sought treatment elsewhere, despite the defendants’ refusal to approve her request to change her physician of choice. In fact, the plaintiff contends, the doctor she consulted for the x-rays, Dr. Tam-pira, informed her on the exact same day that Dr. Hoerner released her to return to work that she had two fractured ribs as a result of the accident.

LSA-R.S. 23:1121(B), relative to an employee’s right to select physicians, provides as follows:

The employee shall have the right to select one treating physician in any field or specialty. After his initial choice the employee shall obtain prior consent from the employer or his worker’s compensation carrier for a change of treating physicians within the same field or specialty. The employee, however, is not required to obtain approval for a change to a treating physician in another field or specialty.

Under the relevant jurisprudence, an employer is virtually required to consent to a change in treating physicians whenever “the employee presents a good reason for the requested change.” Pekinto v. Olsten Corp., 687 So.2d 68, 74 (La.App. 4th Cir.1991). In the Pekinto case, the employee was deemed to have presented a good reason for the requested change when the initial doctor recommended that the plaintiff return to work, discontinued physical therapy, and stated that he did not believe surgery would improve the plaintiffs condition, despite the fact the plaintiff was in constant pain. Id. Similarly, in the instant case, Ms. Martin had a good reason for seeking treatment from a physician other than Dr. Hoerner when he refused to take x-rays of a part of her body which was causing her pain; she had even greater “good reason” for her actions when Dr. Hoerner released her to return to work despite her pain.

The defendants in the instant case would have us create a rule disallowing any worker’s compensation payments once the doctor who initially treated the plaintiff decides that the plaintiff can return to work, even if the record contains a vast amount of evidence to the contrary. They provide no authority for the proposition, but urge this court to reverse the hearing officer’s decision simply on the grounds that the doctor who they contend is the plaintiffs “physician of choice” released her to return to work.

However, the adoption of such a rule would be in conflict with the existing jurisprudence on this subject. The Louisiana Supreme Court stated as follows in Johnson v. Insurance Co., 454 So.2d 1113 (La.1984):

An employee who can only work in substantial pain may be totally disabled. Plaintiffs uncontradicted evidence of pain can support a finding of substantial and appreciable pain. The opinion of a physician or other medical expert about disability does not necessarily determine legal disability.
In evaluating evidence, the trier of fact should accept as true the uncontradicted testimony of a plaintiff witness, absent a sound reason for its rejection. Lay testimony can be considered despite the absence of a conflict in medical testimony.

Id. at 1117. (Emphasis added; citations omitted.)

The hearing officer’s reasons for judgment in the instant case discuss the fact that Ms. Martin presented uncontradicted testimony concerning her pain and disability; the hearing officer also addresses Ms. Martin’s veracity, finding that she was completely believable. Further, the reasons for judgment detail testimony and reports from a number of medical professionals, all of whom verified the plaintiffs contention that she was disabled from returning to work at least up until the time of trial, both because of new injuries and because of aggravation of preexisting conditions, all caused by the work-related accident. Under the standards established by the Johnson case, the hearing officer properly considered all the evidence [1237]*1237presented at the hearing and based his decision on the preponderance of that evidence. Since the hearing officer’s decision on this issue is supported by the record, it is affirmed.

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Bluebook (online)
629 So. 2d 1234, 1993 La. App. LEXIS 3641, 1993 WL 492583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-criminal-sheriff-of-orleans-parish-lactapp-1993.