Smith v. Lafarge North America, L.L.C.

111 So. 3d 379, 2012 La.App. 1 Cir. 0337, 2012 WL 5377677, 2012 La. App. LEXIS 1440
CourtLouisiana Court of Appeal
DecidedNovember 2, 2012
DocketNo. 2012 CA 0337
StatusPublished
Cited by4 cases

This text of 111 So. 3d 379 (Smith v. Lafarge North America, L.L.C.) 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
Smith v. Lafarge North America, L.L.C., 111 So. 3d 379, 2012 La.App. 1 Cir. 0337, 2012 WL 5377677, 2012 La. App. LEXIS 1440 (La. Ct. App. 2012).

Opinion

CARTER, C.J.

^Claimant, Darrin Smith, appeals a determination of the Office of Workers’ Compensation (OWC) that lumbar surgery was not reasonable or medically necessary. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Darrin Smith was involved in a motor vehicle accident on Highway 25 in Folsom, Louisiana, on April 24, 2007, while in the course and scope of his employment with Lafarge North America, L.L.C. (Lafarge). Smith was driving a ready-mix cement truck, which flipped several times after Smith attempted to avoid colliding with a vehicle merging into his lane of travel. Smith was extracted from the cement truck, which came to rest upside down in a ditch, and air-lifted to St. Tammany Hospital for treatment. Following the accident, Smith’s employer, Lafarge, paid and continues to pay medical and indemnity bene[381]*381fits to Smith.1

Despite medical treatment following the April 24, 2007 accident, Smith continued to complain of constant pain in his neck, shoulder, and back. Smith’s treating physician, neurosurgeon Dr. Bradley Bartholomew, recommended Smith undergo lumber surgery, specifically, a percutaneous discectomy.2 Lafarge requested a second medical opinion (SMO) from neurosurgeon Dr. Najeeb Thomas, who opined that Smith was not a candidate for lumbar surgery. The OWC appointed neurosurgeon Dr. James Tran to perform an independent medical examination (IME) due to the conflicting opinions concerning the reasonableness | sand necessity of the lumbar surgery. After the IME, Dr. Tran did not recommend Smith undergo lumbar surgery, but instead suggested that Smith receive radiofrequency ablation treatments 3 in his lumbar spine.

As a result, Smith filed a Disputed Claim for Compensation on May 12, 2010, seeking authorization for the percutaneous discectomy, as recommended by Dr. Bartholomew, his treating physician, as well as costs, penalties, and attorney’s fees.4 La-farge filed an answer to Smith’s claim, denying the necessity of the surgery based on the recommendations of Dr. Thomas and Dr. Tran.

The dispute proceeded to trial and was heard before the OWC on October 17, 2011. The parties stipulated that the only issue before the OWC was whether Smith was entitled to undergo the lumbar surgery as recommended by Dr. Bartholomew. Following the submission of the parties’ post-trial briefs, the OWC took the case under advisement. On November 18, 2011, the court signed a written judgment, ruling that Smith carried his burden of proof that he suffered back injury as a result of the April 24, 2007 accident; however, Smith did not carry his burden of proving that the lumbar surgery recommended by Dr. Bartholomew was reasonable and medically necessary.

Smith now appeals.

| ¿DISCUSSION

The issue in this case is whether the workers’ compensation judge (WCJ) erred in giving more weight to the testimony of the evaluating physicians versus the [382]*382treating physician for the purpose of recommending lumbar surgery for Smith.

In workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the manifest error-elearly wrong standard. Dawson v. Terrebonne General Medical Center, 2010-2130 (La.App. 1 Cir. 5/19/11), 69 So.3d 622, 626. For an appellate court to reverse a WCJ’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the WCJ and that the record establishes that the finding is clearly wrong. Dawson, 69 So.3d at 626.

In workers’ compensation cases, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Dawson, 69 So.3d at 627. Even though an appellate court may feel its own evaluation and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Dawson, 69 So.3d at 627. Furthermore, where two permissible views of the evidence exist in a workers’ compensation case, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Dawson, 69 So.3d at 627.

When faced with the question of whether to accept the opinion of a non-treating physician specialist over the opinion of a treating physician specialist, this circuit has previously held that the trial court ultimately retains the discretion to weigh and consider such competing testimony, despite any applicable | ¿presumptions. Ponthier v. Vulcan Foundry, Inc., 95-1343 (La.App. 1 Cir. 2/23/96), 668 So.2d 1315, 1317-18.

Following the April 24, 2007 accident, Smith sought medical attention from his primary care physician, Dr. Charles Du-combs. Smith complained of head, shoulder, and lower back pain. Dr. Ducombs ordered a CT scan of Smith’s head and a lumbar MRI, which was performed on May 29, 2007. Due to the nature of Smith’s back injuries,5 Dr. Ducombs referred Smith to Dr. Brett Chiasson, an orthopedic surgeon.

In June 2007, Smith saw Dr. Chiasson, who prescribed pain medication and physical therapy. Smith had additional followup appointments with Dr. Chiasson from July through November 2007. Dr. Chias-son consistently opined that Smith was not a candidate for lower lumber spine surgery. In November 2007, Dr. Chiasson recommended Smith make an appointment with neurosurgeon Dr. John Nyboer; however, on the recommendation of his attorney at the time, Smith first saw neurosurgeon Dr. Bradley Bartholomew on May 15, 2008. Based on Smith’s physical exam and a review of the MRI scans, Dr. Bartholomew recommended Smith receive cervical facet blocks to his spine.

Smith continued to complain of constant pain in his head, shoulders, and lower back. Dr. Bartholomew then recommended Smith undergo a lumbar disco-gram. After the results of the discogram revealed positive results in certain portions [383]*383of Smith’s spine, at an appointment in March 2009, Dr. Bartholomew | (¡offered Smith several lumbar surgical options, including a percutaneous discectomy.

On July 17, 2009, Smith was involved in a non-work related motor vehicle accident. Following the accident, Smith again visited Dr. Bartholomew. Smith averred the preexisting pain in his neck and back was intensified by the recent car accident. Dr. Bartholomew ordered Smith to undergo a second lumbar MRI, which was performed on August 18, 2009.6 Dr. Bartholomew reviewed the films and noted no evidence of disc herniations, no spinal stenosis, and no narrowing of the spinal canal. Dr. Bartholomew continued to offer to perform a percutaneous discectomy on Smith’s lumbar spine.

At Lafarge’s request for a SMO, Smith was examined by neurosurgeon Dr. Thomas on September 22, 2009.7 Dr. Thomas reviewed Smith’s 2007 and 2009 MRI films, noting that Smith’s films were fairly normal and that he suffered from degenerative disc disease in his cervical and lumber spine. Dr. Thomas indicated that Smith suffered cervical and lumbar strains from his injuries, but at the time of his examination, Smith was at maximum medical improvement. Dr. Thomas opined Smith was not a surgical candidate.

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Bluebook (online)
111 So. 3d 379, 2012 La.App. 1 Cir. 0337, 2012 WL 5377677, 2012 La. App. LEXIS 1440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-lafarge-north-america-llc-lactapp-2012.