96 0191 La.App. 1 Cir. 11/8/96, Patterson v. Long

• Decision Date: 08 November 1996
• Citation: 682 So.2d 1327
• Parties: 96 0191 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1327

682 So.2d 1327

96 0191 La.App. 1 Cir. 11/8/96

Donald PATTERSON v. Raymond LONG.

No. 96 CA 0191.

Court of Appeal of Louisiana,

First Circuit.

Nov. 8, 1996.

Writ Denied Feb. 7, 1997.

Raymond Charles Vinet, Sr., Baton Rouge, for Plaintiff/Appellee, Donald Patterson.

Paul D. Buffone, Baton Rouge, for Defendant/Appellant, Raymond Long.

Before CARTER, GONZALES and PARRO, JJ.

[96 0191 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a decision by a hearing officer in a workers' compensation case.

FACTS

On May 28, 1993, plaintiff, Donald Ray Patterson, was injured during the course and scope of his employment as a ranch hand for Raymond Long (Long). While castrating bull calves, plaintiff was thrown against an iron fence, sustaining injuries to his back, neck, shoulder, and arm. On May 31, 1993, plaintiff reported the accident to Long, who instructed plaintiff to seek medical attention. On June 1, 1993, plaintiff consulted Dr. Connie Bryant, a chiropractor, who treated plaintiff and determined that he was disabled through September 13, 1993.

At the time of plaintiff's accident, Long's workers' compensation insurer was Louisiana Workers' Compensation Corporation (LWCC). From June 1, 1993, through September 8, 1993, LWCC paid plaintiff weekly benefits of $230.50. Plaintiff was evaluated and treated by various physicians. Surgery was ultimately recommended, but authorization was denied by LWCC. Plaintiff never returned to work after the accident.

On February 14, 1994, plaintiff filed with the Office of Workers' Compensation a "Disputed Claim for Compensation" (1008 Form), contending that he suffered a continuing disability. However, Long and LWCC (the defendants) contended that plaintiff had fully recovered and that plaintiff forfeited his rights to any benefits by willfully making false statements and/or representations for the purpose of obtaining workers' compensation benefits and medical treatment.

On February 14, 1995, trial was held. The parties stipulated to the following: (1) plaintiff was employed by Long on May 28, 1993; (2) plaintiff suffered an injury arising out of the course and scope of his employment on that day; (3) LWCC paid plaintiff weekly benefits of $230.50 from June 1, 1993, through September 8, 1993; (4) plaintiff's average weekly wage was $345.75; and (5) Long's workers' compensation insurer was LWCC. After hearing plaintiff's testimony, the hearing officer continued the [96 0191 La.App. 1 Cir. 3] trial. On June 7, 1995, the trial resumed. At the conclusion of the trial, the hearing officer took the matter under advisement. On August 28, 1995, the hearing officer rendered her decision, making the following determinations:

1. Claimant remains temporarily, totally disabled and is entitled to back-due benefits from September 9, 1993, through the present.

2. Defendants shall authorize surgery as recommended by Dr. Williams.

3. Defendants shall pay the balance of Dr. Connie Bryant's bill per the fee schedule.

4. Defendants were arbitrary and capricious in failing to pay the balance of Dr. Bryant's bill. Claimant is awarded $1,000.00 in penalties and $1,000.00 in attorney's fees.

5. The remainder of the claim was reasonably controverted and further claims for penalties and attorney's fees are denied.

6. Defendants are assessed with all costs of these proceedings, including but not limited to all costs and fees for doctors' depositions.

7. Defendants' motion for a dismissal per LSA-R.S. 23:1208 is denied.

The defendants appealed from the decision, assigning the following specifications of error:

1. The hearing officer committed manifest error in ordering the defendants to authorize surgery for which there existed no objective medical indication.

2. The hearing officer committed manifest error in finding the plaintiff to be temporarily and totally disabled from September 9, 1993, through the present.

3. The hearing officer committed manifest error in finding the defendants acted arbitrarily and capriciously in denying payment for the portion of Dr. Bryant's treatment for which Dr. Bryant had not obtained pre-certification.

Plaintiff answered the appeal, requesting additional attorney's fees on appeal.

TEMPORARY TOTAL DISABILITY

The defendants contend that the hearing officer erred in determining that plaintiff was temporarily totally disabled after September 8, 1993.

Pursuant to LSA-R.S. 23:1221(1)(c), a claimant has the burden of proving his temporary total disability by clear and convincing evidence. ¹ Penn v. Wal-Mart Stores, [96 0191 La.App. 1 Cir. 4] Inc., 93-1262 p. 3 (La.App. 3rd Cir. 6/15/94); 638 So.2d 1123, 1126, writ denied, 94-1835 (La.10/28/94); 644 So.2d 651; Polk v. Babineaux's Plumbing, Inc., 628 So.2d 71, 74 (La.App. 3rd Cir.1993). In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for temporary total disability benefits must fail. Tanner v. International Maintenance Corporation, 602 So.2d 1133, 1137 (La.App. 1st Cir.1992).

The issue of disability within the framework of the workers' compensation law is a legal rather than a purely medical determination. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd Cir.1991). The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. Taylor v. Louisiana-Pacific Corporation, 602 So.2d 48, 51 (La.App. 3rd Cir.), writs denied, 606 So.2d 541 and 542 (La.1992). The hearing officer is afforded great latitude in making credibility determinations and in weighing testimony. Harris v. Bronco Construction Company, 93-2139 p. 4 (La.App. 1st Cir. 10/7/94); 644 So.2d 805, 807, writ denied, 94-2740 (La.1/6/95); 648 So.2d 931. The determination of an expert's credibility is a factual question subject to the manifest error/clearly wrong standard of review. Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1277 (La.1991); Harris v. Bronco Construction Company, 644 So.2d at 807; Cheramie v. Horst, 93-1168 p. 5 (La.App. 1st Cir. 5/20/94); 637 So.2d 720, 723. Moreover, after weighing and evaluating all of the evidence, the fact finder is free to accept or reject the opinions expressed by the experts. Harris v. Bronco Construction Company, 644 [96 0191 La.App. 1 Cir. 5] So.2d at 807; Hoyt v. State Farm Mutual Automobile Insurance Company, 623 So.2d 651, 659 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La.1993).

The question of whether the claimant is entitled to temporary total disability benefits is ultimately a question of fact, and the trial court's resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Polk v. Babineaux's Plumbing, Inc., 628 So.2d at 74; Taylor v. Louisiana-Pacific Corporation, 602 So.2d at 51. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Shelton v. Wall, 614 So.2d 828, 832 (La.App. 2nd Cir.1993). When the trier of fact's findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993); Shelton v. Wall, 614 So.2d at 832. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one in view of the record in its entirety. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882-83; Harris v. Bronco Construction Company, 644 So.2d at 807.

Plaintiff testified that he was injured on May 28, 1993, while working as a ranch hand for Long. Plaintiff, along with three other men, was castrating bull calves when he was thrown against an iron fence, injuring his back, neck, shoulder, and arm. On May 31, 1993, plaintiff reported the accident to Long, who instructed plaintiff to seek medical attention. Plaintiff indicated that he saw Dr. Connie Bryant, a chiropractor, initially.

Plaintiff testified that, since the May 28, 1993, accident, he has been unable to perform any type of physical labor, to lift excessive weight, to walk long distances, to sit for prolonged periods, or to physically involve himself with his family. Plaintiff indicated that the period following the work-related accident has been mentally taxing. According to plaintiff, he enrolled at Jumonville Memorial Technical Institute and attended classes from 7:30 a.m. until 3:30 p.m., Monday through Thursday, for approximately fourteen [96 0191 La.App. 1 Cir. 6] days, but was unable to continue due to the pain he experienced from sitting for such long periods.

Plaintiff's wife, Janet, testified that, since the accident, plaintiff has been unable to assist with household chores or repairs. She indicated that plaintiff had enrolled in vocational-technical school, but he was forced to quit due to the extreme back pain caused by sitting for long periods of time.

Dr. Bryant's medical records reveal that plaintiff first consulted her on June 1, 1993. She had x-rays taken of plaintiff's spine, right wrist, and left shoulder, which revealed deviations from the normal structure. Dr. Bryant performed orthopedic, neurological, and chiropractic tests, noting palpable cervical and lumbar muscle spasms and thoracic tenderness. She recommended that plaintiff undergo twelve to sixteen weeks of conservative chiropractic care.

Dr. Bryant received a letter from LWCC, dated August 12, 1993, requesting information regarding plaintiff's disability, maximum medical improvement, and return to work. On October 25, 1993, Dr. Bryant responded to LWCC's letter, indicating that (1) plaintiff was disabled from June 1, 1993, through September 13, 1993; (2) due, to...