Magbee v. Fed. Express

• Decision Date: 12 December 2012
• Docket Number: No. 12–77.,12–77.
• Citation: 105 So.3d 1048
• Parties: Paul MAGBEE v. FEDERAL EXPRESS.
• Court: Court of Appeal of Louisiana — District of US

105 So.3d 1048

Paul MAGBEE

v.FEDERAL EXPRESS.

No. 12–77.

Court of Appeal of Louisiana,Third Circuit.

Dec. 12, 2012.

Michael B. Miller, Jacqueline B. Maneke, Crowley, LA, for Plaintiff/Appellant, Paul Magbee.

Foster P. Nash, III, Travis L. Bourgeois, Emily R. Adler, Degan, Blanchard & Nash, New Orleans, LA, for Defendant/Appellee, Federal Express Corporation.

Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.

PETERS, J.

[3 Cir. 1]The plaintiff, Paul Magbee, appeals certain issues arising from a workers' compensation judgment which awarded him indemnity benefits and awarded or denied various medical treatments, tests, penalties and attorney fees. For the following reasons, we affirm the judgment in part as amended, reverse it in part, and render judgment on issues arising from the reversal.

DISCUSSION OF THE RECORD

Mr. Magbee, a fifteen-year employee of Federal Express Corporation (FedEx), suffered a work-related injury on December 9, 2009, while attempting to open the hood of his delivery truck. At the time of the accident, he was standing in water, and his feet slipped out from underneath him as he raised his arms to lift the hood. Mr. Magbee fell backwards onto a cement floor, ending up flat on his back. The next day after the accident, Mr. Magbee was seen by Dr. Gregory Gidman, a Lafayette, Louisiana orthopedic surgeon, who was FedEx's choice of orthopedic surgeon. His numerous complaints at that time included neck, bilateral arm and leg, lower back, and thoracic spine pain. Dr. Gidman noted that Mr. Magbee complained of hurting from his posterior cervical spine down to the pelvic area and from his posterior arms down to his wrists and both legs, including his left knee.

Dr. Gidman also noted that Mr. Magbee's past medical history included being stricken with poliomyelitis (polio) at a very young age, an illness which left him with a shorter left leg as well as a left pelvic tilt; marked atrophy of that leg, thigh, and foot; and atrophy of the left arm, forearm, and hand. As a result of his physical difficulties arising from being stricken with polio, Mr. Magbee had undergone a triple arthrodesis of the left foot. Dr. Gidman also noted that Mr. Magbee received approximately seven months of treatment from a chiropractor for treatment of pinched nerves in his back and spine arising from a July 4, 2007 fall at [3 Cir. 2]a Wal–Mart department store. The doctor also concluded that Mr. Magbee suffered no residual problems from that accident. X-rays of Mr. Magbee's cervical spine, taken by Dr. Gidman, revealed multilevel degenerative changes with narrowing and spur formation at the C3–4, 4–5, 5–6, and 6–7 levels. X-rays of his lumbar spine revealed bilateral pars defects at L5 and small spur body at L3–4.

After concluding his examination, Dr. Gidman reached the opinion that Mr. Magbee was suffering from an acute contusion or sprain of his entire spine and his upper and lower extremities. The doctor instructed Mr. Magbee regarding various therapies, such as soaks, rubdowns, heat, stretching, strengthening, and range of motion exercises, and told him to return on December 14, 2009.

When Mr. Magbee returned to Dr. Gidman, he complained of suffering from lower back and bilateral leg pain, headaches, and an aching, throbbing tailbone. He also informed Dr. Gidman that he was transferring his care to Dr. John Cobb, a Lafayette, Louisiana orthopedic surgeon, who had previously treated him.

Mr. Magbee initially saw Dr. Cobb for his injuries sustained in this accident on December 21, 2009. He related the particulars of the accident to Dr. Cobb, asserting that he suffered immediate pain throughout his body when he fell and that he struck his head when he came in contact with the concrete floor. However, he denied losing consciousness. During his examination, Mr. Magbee complained of a constant throbbing ache in his head, neck, and upper back, with pain radiating down into his shoulders, arms, and legs; numbness, burning, and tingling in his arms, hands, and feet; pins and needles in both hands; burning and tingling in his neck, face, and chest with sneezing or coughing; and increased pain with walking, bending, stooping, and sitting.

Dr. Cobb's records note that Mr. Magbee had a history of two previous accidents: the Wal–Mart accident in July of 2007; and a June 17, 1998 automobile [3 Cir. 3]accident, wherein he sustained injuries to his neck and back and was treated in-house with physical therapy before being released. Dr. Cobb also noted Mr. Magbee's past history of polio at the age of five months, with the resulting left lower-extremity atrophy and pelvic hip tilt, left ankle surgery, and spina bifida. Dr. Cobb's office records further reflected Mr. Magbee's prior history of facet joint involvement at the L5–S1 level, without significant herniation.

Dr. Cobb concluded that Mr. Magbee was suffering from post-traumatic pain syndrome and a sprain or strain of the cervical and lumbar spine; a possible cervical disc-related condition, with no evidence of radiculitis; a possible lumbar herniated disc, without radiculitis; and a previous diagnosis of spondylosis, degeneration at C–5–6 and facet joint pain at L5–S1. Dr. Cobb recommended physical therapy for Mr. Magbee's cervical and lumbar spine and restricted him to light-duty work, with no lifting or driving.

When Mr. Magbee returned to Dr. Cobb on January 18, 2010, he complained to the doctor of constant headaches; anterior chest and neck pain; constant tingling in his hands and feet; pain in his fingers and aching in the joints; frequent urination and a change in his bowel movements; increased burning above his hips; pain and weakness in his legs, which prevented him from walking for any length of time; and cramping in his leg muscles. Mr. Magbee further told Dr. Cobb that although he had been released to light-duty work, FedEx had none available. Dr. Cobb's diagnoses (one month and nine days post-accident) was basically the same with the added diagnoses of possible carpal tunnel syndrome and/or ulnar nerve entrapment bilaterally. Dr. Cobb recommended MRIs of the cervical and lumbar spine, EMG and nerve conduction studies of both arms, and he discontinued the physical therapy.

[3 Cir. 4]On February 3, 2010, Bernadette Prevot, a case manager with Intracorp, Inc., notified Mr. Magee that she had scheduled him a March 3, 2010 appointment with Dr. Stanley Foster, a Lafayette, Louisiana orthopedic surgeon, at the request of FedEx's workers' compensation administrator, Sedgwick Claims Management (Sedgwick). Mr. Magbee did not keep this second medical opinion appointment.

At his February 22, 2010 appointment with Dr. Cobb, Mr. Magbee still complained of pain in his lower back and his left, and sometimes right, shoulder blade; burning across his lower back, radiating down into his legs and feet; numbness in both feet; and numbness and tingling in both hands. Dr. Cobb reviewed the results of a February 8, 2010 MRI of the cervical spine and noted that it revealed mild degeneration at C3–4, without significant stenosis or spondylosis, diffused spondylitic changes at C4–5, and minimal spondylosis without compression at C5–6. With regard to the lumbar MRI, Dr. Cobb noted that it revealed mild Scheuremann's disease and a mild disc bulge at L4–5. He attributed this latter finding to the degeneration process.

Dr. Cobb concluded that Mr. Magbee was not a candidate for surgery at this time and recommended continued physical therapy for his patient's cervical and lumbar spine and interlaminar epidural steroid injections at C6–7 and L4–5. The doctor felt that Mr. Magbee would reach maximum medical benefit from the physical therapy after approximately one month and that Mr. Magbee was physically able to perform light-duty work. He still recommended the EMG and nerve conduction studies of the upper extremities to rule out carpal tunnel syndrome and/or ulnar nerve entrapment.

On March 24, 2010, Mr. Magbee filed a disputed claim against FedEx and Sedgwick, alleging that the original weekly payment of $502.13 for workers' compensation indemnity benefits was too low, that the payment of his waiting [3 Cir. 5]week benefits was untimely, and that he was entitled to penalties, attorney fees, and legal interest. Mr. Magbee later amended his claim to seek penalties and attorney fees based on FedEx's termination of his indemnity benefits on April 1, 2010, its failure to approve recommended medical treatment, its untimely payment of indemnity benefits, and its failure to timely provide him Dr. Gidman's medical reports.

On April 25, 2010, Mr. Magbee reported to Dr. Cobb that physical therapy had improved his balance although it had not significantly reduced the pain. At this appointment, he complained of headaches; neck pain; bilateral leg pain, worse in the left knee; increased pain with standing and walking; numbness in his hands and feet; and difficulty sleeping. Dr. Cobb's diagnosis remained the same, with the added diagnoses of a possible twisting or meniscus injury of the left knee. Dr. Cobb continued the physical therapy as before; ordered an MRI of the left knee; and restricted Mr. Magbee from working.

On June 14, 2010, Dr. Cobb noted that Sedgwick denied coverage for Mr. Magbee's left-knee complaints. During the examination on that day, Mr. Magbee complained of back and bilateral hip pain, with burning down into his hips and legs, worse since the physical therapy was discontinued; stiffness in his cervical spine; tingling in his hands, legs, and feet; and a stretching and tearing sensation in his left knee when bent. Concluding again that Mr. Magbee was not a surgical candidate for his lumbar complaints, Dr. Cobb reiterated his recommendation for physical therapy and an interlaminar epidural steroid injection at L3–4.

Ms. Prevot notified Mr. Magbee on July 12, 2010, that she had obtained another second...