93-1497 La.App. 3 Cir. 6/1/94, Menard v. Winn Dixie Louisiana, Inc.

• Decision Date: 01 June 1994
• Citation: 640 So.2d 775
• Parties: 93-1497 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 775

640 So.2d 775

93-1497 La.App. 3 Cir. 6/1/94

Patrick MENARD, Plaintiff-Appellee, v. WINN DIXIE LOUISIANA, INC., Defendant-Appellant.

No. 93-1497.

Court of Appeal of Louisiana Third Circuit.

June 1, 1994.

Toxie L. Bush Jr., for Patrick Menard.

James Melville Taylor, Donna B. Wood, for Winn Dixie of Louisiana, Inc.

Before DOUCET, LABORDE and BERTRAND, ¹ JJ.

[93-1497 La.App. 3 Cir. 1] LABORDE, Judge.

Defendant appeals the hearing officer's finding claimant entitled to temporary total disability benefits, additional medical benefits, and attorney fees. We affirm the hearing officer's findings as to additional medical benefits and attorney fees, but remand for reconsideration of the employee's disability.

Facts

This case concerns benefits awarded claimant for persistent back and urological problems found to be employment-related.

Claimant first experienced back pains March 1, 1990, after loading five or six one hundred pound containers of cheese onto a truck for his employer. He was seen by Dr. Louis Latour, his family physician, who prescribed bed rest, oral medication, an injection of Celestone, X-rays and a later CT scan. After reviewing results of the X-ray, Dr. Latour recommended that claimant see Dr. Louis Blanda, an orthopaedic surgeon.

Before his appointment with Dr. Blanda, claimant was seen by Dr. Gregory Gidman, an orthopedist, at the request of Ms. Jane Frinz of Crawford Insurance Company. According to Dr. Gidman, claimant was very cooperative and unsuspicious. During examination, claimant complained of pains in the back when asked to perform certain diagnostic exercises, but other tests appeared [93-1497 La.App. 3 Cir. 2] normal. Dr. Gidman suggested physical therapy, continued medication, and an MRI of his lumbosacral spine. Dr. Gidman further noted that if the MRI yielded a very positive finding at L4-5 for a herniated disc, the patient might need a myelogram with follow-up MRI of the same region to complete the diagnosis; otherwise, Dr. Gidman "would just continue him with nonoperative treatment."

On March 23, 1990, claimant saw Dr. Blanda. Dr. Blanda's findings were consistent with those of Drs. Latour and Gidman, except that he further recommended a urological exam and recommended that claimant see Dr. Beacham for that purpose.

When claimant returned to see Dr. Blanda on March 30, Dr. Blanda reviewed the CT scan, myelogram, and MRI taken of claimant and diagnosed apparent bulging discs at L4-5 and L5-S1, with a probable small herniation at the latter. He suggested that claimant continue with therapy for an additional three weeks; if that did not work, claimant would have to consider options, including a discectomy.

On April 2, 1990, the day Dr. Blanda's March 30 notes were transcribed, Dr. Gidman again saw claimant. It was his opinion, based on the MRI, that claimant did not have a ruptured disc, but was nonetheless unable to work due to his persistent subjective complaints. Dr. Gidman prescribed intensive physical therapy as well as non-steroidal anti-inflammatory medication, and further recommended a myelogram and CT scan if claimant had not improved in the following four to six weeks. Dr. Gidman indicated that he would not make arrangements for a return visit since he was only asked to conduct an Independent Medical Examination.

When claimant returned to see Dr. Blanda May 1, 1990, still complaining of pains, Dr. Blanda noted that the physical therapy prescribed by Dr. Gidman never occurred. Dr. Blanda then recommended three to four weeks of physical therapy, noting that if claimant's symptoms were not alleviated, he would probably have to proceed with a discectomy.

Physical therapist Lorain Gilbert assisted claimant from May [93-1497 La.App. 3 Cir. 3] 9 until early June. She observed that claimant was a very motivated individual who attended his sessions punctually and gave great effort during his sessions. The therapist noted three principal problems: decreased lumbar motion as evidenced by his difficulty in bending forward, backward, and sideways; decreased flexibility of the hamstrings, extensors, and right flexor; and lumbar scoliosis.

Claimant was again seen by Dr. Gidman on August 20, 1990. Dr. Gidman again noted that claimant was "very cooperative" and showed no signs of exaggerating his complaints. The physician reviewed the x-rays and noted scoliosis. His understanding of the MRI of the lumbar region taken March 27, 1990 was that it showed degenerative discs at L4-5 and L5-S1, with mild bulging at the latter. The March 12, 1990, CT scan reported some herniation at L4-5. The X-rays corroborated these findings; nonetheless, in light of claimant's "totally normal" clinical examination, Dr. Gidman would not recommend any surgery. Instead, Dr. Gidman suggested a myelogram and follow-up CT scan. If they showed positive, he would recommend a discectomy; if they did not show "significant" problems, he would not, as he did not have faith in or use discography in his practice. He placed claimant on a no-work status.

Facts Pendente Lite

Suit was filed September 17, 1990, after defendant refused to pay for an operation Dr. Blanda believed was essential to alleviate claimant's persistent pains.

On December 26, 1990, Dr. Gidman examined claimant. For the third time, he noted that claimant was "very cooperative" and did not "see any suspicion of exaggeration of his complaints."

On January 3, 1991, Dr. Blanda concurred with Dr. Gidman's opinion that a myelogram and post-myelogram CT scan should be conducted in addition to an earlier CT scan to confirm the need for surgery.

On January 8, Dr. Robert Osborne performed cervical and lumbar myelograms. His impressions included L4-5 mild disc bulge; L5-S1 [93-1497 La.App. 3 Cir. 4] disc bulge or protrusion.

On January 9, after reviewing the myelogram and follow-up CT scan, Dr. Gidman noted bulging at the L4-5 and L5-S1 level. Claimant was complaining of lower back and right leg pains in addition to bladder troubles. Dr. Gidman concluded that the L4-5 bulge was "pathologic," but not the L5-S1. He suggested that claimant be seen by a neurosurgeon, but did not believe he had a herniated disc in the lower back, and if he did, "from an orthopedic standpoint," would recommend conservative treatments, not surgery. Dr. Gidman again noted that claimant could not return to work because of pains in his lower back.

On January 24, 1991, Dr. Blanda formally requested authorization for the discectomy from the employer's insurer in his progress notes, a courtesy copy of which he forwarded to the insurer. Dr. Blanda suggested that claimant return once he had a copy of the myelogram and CT scan. On January 31, 1991, claimant returned to Dr. Blanda with his CT scan and myelogram. His progress note of that date indicated that claimant "is still agreeable with [having a discectomy] and again it will be scheduled pending approval from the insurance company."

Claimant returned to Dr. Blanda on March 19, 1991. His progress notes of the day:

DATE: 3/19/91

PATIENT: MENARD, Patrick A.

PROGRESS NOTE:

Mr. Menard says he is still in limbo as far as treatment is concerned. He says the insurance company and Dr. Gidman are trying to get him to have his neck operated on. He says he doesn't know why. He says his neck really doesn't bother him except for occasional pain and headaches. It is his low back that is his major concern. His low back and right leg pain continue to be problem. I think this is the most absurd thing I every heard. The patient should not have surgery on his neck if it is not symptomatic. He said he went to see Dr. Flynn in Baton Rouge who examined his neck and his low back and I am curious as to what Dr. Flynn's recommendations might be. I will see Mr. Menard again in about 2 months. I gave him a prescription for plain Soma.

/s/L. Blanda MD

Louis C. Blanda, Jr., M.D.

LCB/eb

3/21/91

Dr. Flynn's findings related by a March 7, 1991 medical report [93-1497 La.App. 3 Cir. 5] were at odds with Dr. Blanda's. The exercises he chose for claimant showed negative. Reporting his interpretations of x-rays of the lumbar spine, a lumbar myelogram, and a contrast CT scan taken two months before, but not a more recent MRI, neurosurgeon Flynn found some degeneration at L4-5, which he believed to be pre-existing. He concluded that any pains could be attributed to an aggravation of this problem caused by repetitive bending or lifting. Dr. Flynn indicated that "one would expect, with conservative treatment, the transient aggravation to have subsided within 6-12 weeks of the date of the incident at work in March of 1990." These findings were essentially reiterated in an April 16, 1991, report after he reviewed certain unspecified "studies," probably X-rays, that had been forwarded by defendant.

On May 21, 1991, Dr. Blanda again saw claimant, having read Dr. Flynn's medical report. Dr. Blanda noted that Dr. Flynn did not find anything wrong with claimant and no need for surgery. Dr. Blanda indicated that without approval from his employer's insurer, no surgery could be undertaken.

On October 1, 1991, knowing claimant had not been approved for any type of treatment, Dr. Blanda nonetheless saw claimant. Claimant, now complaining of more frequent urological symptoms, indicated that he was told by a rehab nurse that he should be seen by a urologist. Dr. Blanda noted that he had long before wanted claimant evaluated by a urologist for urological symptoms of neurogenic origin, but could not get approval from the workers compensation insurer. Dr. Blanda noted that if claimant had neurogenic damage to the bladder, it was probably related to the back, "and if it is of any permanent nature it will be directly related to delayed treatment."

Claimant was seen by urologist Al Beacham November 14 and December 16, 1991. On the first examination, Dr. Beacham was unable to discern any uropathologic abnormalities and sought permission to conduct additional...