Mosley v. Pennzoil Quaker State

850 So. 2d 1100, 2003 WL 21697194
CourtLouisiana Court of Appeal
DecidedJuly 23, 2003
Docket37,199-WCA
StatusPublished
Cited by17 cases

This text of 850 So. 2d 1100 (Mosley v. Pennzoil Quaker State) 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
Mosley v. Pennzoil Quaker State, 850 So. 2d 1100, 2003 WL 21697194 (La. Ct. App. 2003).

Opinion

850 So.2d 1100 (2003)

John MOSLEY, Sr., Plaintiff-Appellant,
v.
PENNZOIL QUAKER STATE, (formerly known as Westland Oil Company), Defendant-Appellee.

No. 37,199-WCA.

Court of Appeal of Louisiana, Second Circuit.

July 23, 2003.

*1101 S.P. Davis, for Appellant.

Franklin H. Spruiell, Jr., for Appellee.

Before WILLIAMS, STEWART and PEATROSS, JJ.

WILLIAMS, J.

In this workers' compensation case, the claimant, John Mosley, Sr. ("Mosley"), appeals from a judgment in favor of the defendant, Pennzoil Quaker State Company ("Pennzoil"),[1] denying his request for a second surgery as recommended by his treating physician. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On or about April 10, 1995, the claimant, John Mosley, Sr., injured his lower back while loading and unloading cases of oil during his employment as a forklift operator for Pennzoil. In June 1995, Mosley was examined by Dr. Carl Goodman, an orthopedic surgeon, who concluded that Mosley had a herniated disc at L4-5 and required surgery. In July 1995, Mosley began treatment with Dr. David Cavanaugh, a neurosurgeon. Dr. Cavanaugh attempted conservative treatment of Mosley until February 4, 1998, when he performed *1102 lower-back surgery. Mosley's surgery consisted of a micro-surgical bilateral laminotomy and diskectomy at the L4-5 and L5-S1 discs. These procedures involved the complete removal of the disc material at both disc levels. After the surgery, Dr. Cavanaugh released Mosley from work until August 1, 1999.

In October 1998, a post-surgical MRI was conducted. According to Dr. Cavanaugh, Mosley was recovering satisfactorily and there was no evidence of disc herniation or stenosis at L4 or L5. In August 1999, Mosley returned to work, in the position of inspector/packer, with various work restrictions in accordance with Dr. Cavanaugh's orders. Pennzoil accommodated Mosley's physical condition as requested by Dr. Cavanaugh by eliminating certain functions of Mosley's position. Complaining of continuous and persistent pain, Mosley did not perform the required work and subsequently sought treatment from another physician, Dr. Pierce Nunley, an orthopedic surgeon. In December 2000, Dr. Nunley ordered another MRI of Mosley's lower back. Based upon this MRI, Dr. Nunley concluded that Mosley was suffering from a recurrent disc herniation at L4-5 and recommended that Mosley undergo a decompression and spinal-fusion surgery. In response to the recommendation, Pennzoil had Mosley re-examined by Dr. Goodman, who found no evidence of a recurrent herniation, but noted that the MRI showed the existence of scar tissue from the previous surgery.

Because of the conflicting interpretations of the MRIs, Pennzoil filed a formal request for Mosley to submit to an independent medical examination ("IME"), pursuant to LSA-R.S. 23:1123 and 1317.1. The workers' compensation judge ("WCJ") appointed Dr. Robert E. Holladay, IV, also an orthopedic surgeon, to perform the IME. In December 2001, Dr. Holladay examined Mosley. He opined that Mosley had not suffered a recurrent disc herniation and refused to recommend surgery.

Subsequently, the WCJ conducted a hearing to determine whether Mosley should be allowed to undergo the decompression and fusion surgery, at Pennzoil's expense, as recommended by his treating physician. After ordering briefs and taking this matter under advisement, the WCJ denied the claimant's request for decompression and fusion surgery and dismissed his claim. Mosley appeals.

DISCUSSION

Mosley contends the WCJ erred in denying his request for a second surgery for a recurrent herniated disc as recommended by Dr. Nunley, his treating physician. He argues the judge improperly gave greater weight to the opinions of Drs. Goodman and Holladay than to the opinion of his treating physician.

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, 96-2840 (La.7/1/97), 696 So.2d 551; Smith v. Louisiana Dep't of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Banks, supra; Freeman, supra; Stobart v. State, 617 So.2d 880 (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. Banks, supra; Stobart, supra. Thus, if the factfinder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not *1103 reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, supra.

As a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. McDonald v. New Orleans Private Patrol, 569 So.2d 106 (La.App. 4th Cir. 1990). However, the treating physician's testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Celestine v. U.S. Fidelity & Guaranty Co., 561 So.2d 986 (La.App. 4th Cir.1990).

Mosley contends the trial court was required to give Dr. Nunley's testimony and opinion more weight than the opinion of Drs. Goodman and Holladay. As support for this contention, he cites McCartney v. Columbia Heights Nursing Home, Inc., 25,710 (La.App.2d Cir.3/30/94), 634 So.2d 927. We do not find that McCartney stands for the proposition that the treating physician's opinion must prevail over that of other medical experts in every case. The factfinder is not precluded from making determinations regarding the credibility of witnesses and respect should be given to those conclusions. After weighing and evaluating the medical testimony, the trier of fact may accept or reject the opinion expressed by the medical expert. The factfinder should evaluate the expert testimony by the same rules which are applicable to other witnesses and the trial court is not bound by expert testimony. Id. Further, the treating physician's testimony must be weighed in light of other credible evidence. Latiolais v. Jernigan Bros., Inc., 520 So.2d 1126 (La. App. 3d Cir.1987).

An IME's medical conclusions should be given significant weight because the IME is an objective party. Fritz v. Home Furniture-Lafayette, 95-1705 (La. App. 3d Cir.7/24/96), 677 So.2d 1132. Nevertheless, the opinion of the IME is not conclusive and the WCJ must evaluate all of the evidence presented in making a decision as to a claimant's medical condition. Brasseaux v. Abbeville General Hosp., 97-1062 (La.App. 3d Cir.3/18/98), 710 So.2d 340, reversed in part on other grounds, 98-1066 (La.6/5/98), 720 So.2d 673. "[T]he significant weight [given to the testimony of a court-appointed expert] can be less or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians' examinations and tests, and any other relevant factors." Green v. Louisiana Coca Cola Bottling Co., Ltd., 477 So.2d 904 (La.App. 4th Cir. 1985), writ denied, 478 So.2d 910 (La.1985) (emphasis added).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stupp Bros., Inc. v. Alexander
243 So. 3d 22 (Louisiana Court of Appeal, 2018)
Jackson v. Aramark Healthcare Servs.
239 So. 3d 878 (Louisiana Court of Appeal, 2018)
Chelsea Jackson v. Aramark Healthcare Services
Louisiana Court of Appeal, 2018
Leidelmeijen v. Ferncrest Manor Nursing Home Luba Workers' Comp.
191 So. 3d 38 (Louisiana Court of Appeal, 2016)
Prince v. Superior Energy Services, L.L.C.
181 So. 3d 961 (Louisiana Court of Appeal, 2015)
Kinard v. New Iberia Wastewater Treatment Facility
116 So. 3d 5 (Louisiana Court of Appeal, 2013)
Morgan v. Glazers Wholesale Drug Co.
79 So. 3d 417 (Louisiana Court of Appeal, 2011)
Richardson v. Lil' River Harvesting
33 So. 3d 418 (Louisiana Court of Appeal, 2010)
Douglas Richardson v. Lil River Harvesting
Louisiana Court of Appeal, 2010
Frye v. Olan Mills
7 So. 3d 201 (Louisiana Court of Appeal, 2009)
Harrington v. Wilson
8 So. 3d 30 (Louisiana Court of Appeal, 2009)
Vega v. State Farm Mutual Automobile Insurance Co.
996 So. 2d 1164 (Louisiana Court of Appeal, 2008)
Mosley v. Pennzoil Quaker State
911 So. 2d 327 (Louisiana Court of Appeal, 2005)
Truitt v. Temp Staffers
915 So. 2d 786 (Louisiana Court of Appeal, 2005)
Young v. Physicians & Surgeons Hosp.
895 So. 2d 723 (Louisiana Court of Appeal, 2005)
Johnson v. Johnson Controls, Inc.
873 So. 2d 923 (Louisiana Court of Appeal, 2004)
Scott v. Wal-Mart Stores, Inc.
873 So. 2d 664 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
850 So. 2d 1100, 2003 WL 21697194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosley-v-pennzoil-quaker-state-lactapp-2003.