Silverman v. Weatherford International, Inc.

83 So. 3d 11, 2011 WL 5036014
CourtLouisiana Court of Appeal
DecidedOctober 19, 2011
DocketNos. 46,402-WCA, 46,403-WCA
StatusPublished
Cited by6 cases

This text of 83 So. 3d 11 (Silverman v. Weatherford International, Inc.) 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
Silverman v. Weatherford International, Inc., 83 So. 3d 11, 2011 WL 5036014 (La. Ct. App. 2011).

Opinions

CARAWAY, J.

|, In these consolidated workers’ compensation actions an employee seeks benefits from his two former employers based upon claims that he received work-related knee [14]*14injuries during the course and scope of his employment with each. The workers’ compensation judge (“WCJ”) awarded temporary total disability benefits from the time of plaintiffs second accident through the trial (and thereafter). The WCJ found the two employers solidarily liable however, for only the three-month period immediately following the second accident, assessing benefits thereafter against the first employer. Both the employee and the first employer appeal. Finding error in the WCJ’s ruling concerning the second employer, we reverse.

Facts

Samuel Silverman (“Silverman”) filed separate disputed claims for workers’ compensation against his employer, Weather-ford International, Inc. (“Weatherford”) and his prior employer, BJ Services Company (“BJ Services”) on June 23, 2009. The cases were consolidated.

Against Weatherford, Silverman alleged that he fell and hyper-extended his left knee on March 12, 2009, during the course and scope of his employment. Silverman claimed that the added weight of a piece of heavy equipment unexpectedly released by a co-worker pulled him forward, causing him to fall to his knees and bend his left leg beneath his body. Silverman alleged that this accident aggravated a preexisting condition that resulted from an injury he sustained while employed by BJ Services on July |⅞2, 2005, when a crane operator prematurely released a cement head which pinned Silverman’s left knee between two pieces of equipment.

Silverman had his first left knee surgery, a partial ACL tear repair, in 1990 and numerous other surgeries prior to 2005. Silverman had another knee surgery following the BJ Services accident. In 2006, Silverman began seeing Dr. Steven Atchison as his primary orthopedic physician. Dr. Atchison performed two left knee arthroscopic surgeries on Silver-man in 2007. He continued to experience pain, “locking” and “give-way” episodes, but was able to work. Silverman indicated that his knee had “given-out” 50-100 times between July 2005 and March 2009. During some of these episodes his knee would bruise and swell. Over the course of his treatment, Dr. Atchison diagnosed Silver-man with an ACL deficient knee.

Silverman began working for Weather-ford in 2007. He reinjured his knee in a home accident in the summer of 2007 which caused him to take a two-three month leave from work. On August 4, 2008, Atchison referred Silverman to ACL specialist, Dr. Googe, for “possible [ACL] surgical evaluation.” Silverman however was not evaluated by Dr. Googe and returned to work.

On March 12, 2009, immediately after the Weatherford accident, Dr. Atchison saw Silverman and diagnosed him with a deficient ACL. In his deposition testimony, jointly entered into evidence by the parties, Dr. Atchison stated, “Mr. Silver-man’s on-the-job injury of March 12 is an aggravation of his July 2, 2005 on-the-job injury.... I think, just like you have stated, that there is a — this is just another event in a long line of events |sthat has led up to, stemming from, leading back, to this July 2, 2005.” Dr. Atchison again referred Silverman to Dr. Googe who evaluated Sil-verman on April 17, 2009, and recommended ACL surgery.

Dr. Cambize Shahrdar was appointed by the court and conducted an independent medical exam (“IME”) on March 25, 2010. Dr. Shahrdar also recommended ACL surgery and concluded that Silverman’s “knee diagnosis (ACL tear) is as a result of his two work related knee injuries.” His deposition testimony consistently reflected that the 2005 accident partially tore the ACL and caused knee instability that was [15]*15present in March of 2009. He believed that the March 12, 2009 fall completed the ACL tear and that the March 12, 2009 fall aggravated Silverman’s pre-existing July 2005 injury.

Weatherford initially paid compensation benefits and medical expenses for four weeks following the accident. The payments were terminated after a nurse employed by Weatherford, who provided medical assistance to Silverman on March 12, 2009, issued a report concluding that Silverman’s injury was related to a prior injury that never resolved. Subsequently, Silverman began these proceedings against B J Services and Weatherford.

Prior to trial, Silverman and B J Services allegedly entered into a partial settlement in which BJ Services agreed to approve medical treatment and pay indemnity benefits in return for Silverman’s waiver of any claim for penalties or attorney fees against BJ Services. This partial settlement is not a part of the record before us. However, consistent with the parties’ Ldescription of the settlement, BJ Services has not appealed the WCJ’s judgment holding it responsible under the Act for Silverman’s present disability.

In a pretrial statement, BJ Services stipulated with Silverman to the fact that there was a July 2, 2005 accident which resulted in a compensable injury. BJ and Silverman further stipulated the following:

[T]hat plaintiff sustained an accident and aggravation to his preexisting condition/injury to his left knee during the course and scope of his employment with Weatherford International, Inc. on March 12, 2009 and/or the injury(s) of March 12, 2009 combined with his previous knee injury to cause an increase in his disability which precluded his return to employment with Weatherford International, Inc.

At trial, Silverman and his supervisor testified consistently with the facts set forth above. Additionally, Weatherford presented the testimony of a field investigator and the Weatherford nurse who rendered medical assistance to Silverman on March 12, 2009. Trial testimony indicated that Silverman has not been able to return to any full-time employment since the March 12, 2009 injury. He described his knee as “totally unstable” from which he experiences greater pain.

The WCJ signed a judgment on September 9, 2010, and made the following findings:

• Silverman did sustain a compensable accident on March 12, 2009 which resulted in a temporarily disabling injury to his left knee.
• Silverman was temporarily totally disabled between March 12, 2009 and June 12, 2009 for which BJ Services and Weatherford were held liable, in solido, for three months of medical and indemnity benefits.
• The weekly benefit to which Silverman is entitled from March 12, 2009 through June 12, 2009 is $546.00.
Is* Silverman is entitled to receive temporary total disability benefits after June 12, 2009, from BJ Services Company at $438.00 per week.
• Weatherford is to be credited for the benefits already paid.
• B J Services was solely responsible for Silverman’s continuing disability, beyond June 12, 2009, as a result of the July 2, 2005 accident, as well as for any corrective surgery on the plaintiffs knee that was injured in that accident.
• The court denied Silverman’s claims against Weatherford for attorney fees and penalties holding that the claim was reasonably controverted by the parties.

[16]*16Silverman and BJ Services appeal from this judgment.

Discussion

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

Related

Gilliam v. Brooks Heating & Air Conditioning
146 So. 3d 734 (Louisiana Court of Appeal, 2014)
Our Lady of the Lake Hospital, Inc. v. Jackson
147 So. 3d 221 (Louisiana Court of Appeal, 2014)
Henderson v. Graphic Packaging International, Inc.
128 So. 3d 599 (Louisiana Court of Appeal, 2013)
Gleason v. Lafayette General Medical Center
118 So. 3d 431 (Louisiana Court of Appeal, 2012)
Dugas v. AutoZone, Inc.
103 So. 3d 1271 (Louisiana Court of Appeal, 2012)
Jason D. Dugas v. Autozone, Inc.
Louisiana Court of Appeal, 2012

Cite This Page — Counsel Stack

Bluebook (online)
83 So. 3d 11, 2011 WL 5036014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverman-v-weatherford-international-inc-lactapp-2011.