96-889 La.App. 3 Cir. 2/5/97, Savoy v. Cecil Perry Imp. Co.
| Decision Date | 05 February 1997 |
| Citation | 691 So.2d 692 |
| Parties | 96-889 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Shane M. Mouton, Rayne, for Brian Savoy.
Michael W. Whitehead, New Orleans, for Cecil Perry Improvement, Co.
Gregory David Frost, New York City, for intervenor Our Lady of the Lake Hosp., Inc.
Before WOODARD, SULLIVAN and GREMILLION, JJ.
[96-889 La.App. 3 Cir. 1] GREMILLION, Judge.
In this workers' compensation case, the defendants, Cecil Perry Improvement Company and its insurer, Louisiana Safety Association of Timbermen, appeal a decision by the hearing officer awarding the plaintiff, Brian Savoy, indemnity benefits and the intervenors, Our Lady of the Lake Hospital, Inc. and Radiology Associates (referred to collectively as OLOL), payment for medical treatment provided. OLOL answered the appeal seeking an increase in penalties and attorney's fees. We affirm in part, reverse in part, and render.
Savoy, employed as a truck driver for Perry, received serious injuries when the truck he was operating overturned on June 7, 1993. Savoy was approaching [96-889 La.App. 3 Cir. 2] a curve on Louisiana Highway 16, when he claimed he saw a car in the opposing lane of travel cross the center line and enter his lane of travel. In an attempt to avoid a head on collision, Savoy veered his truck to the shoulder. When he tried to bring his truck back onto the road's surface, he was unable to make the curve, and, as a result, his truck crossed the opposing lane of travel and overturned in a roadside ditch. Savoy was transported to the Baton Rouge Medical Center where he was tentatively diagnosed with a non-displaced fracture of the cervical spine.
At the request of Dr. Robert E. Hanchey, a neurosurgeon, Savoy was transported to OLOL. A urine drug screen was performed on Savoy once he reached the hospital, which tested positive for marijuana, cocaine, and benzodiazepine. Savoy told Dr. Hanchey that he had done illicit drugs in the past. An MRI performed on him revealed a probable acute disc rupture with protrusion of the disc into the spinal canal at C6-7. After his examination, Dr. Hanchey determined that Savoy was suffering from a C6-7 fracture subluxation with acute disk rupture and acute radiculopathy. In order to temporarily stabilize Savoy's spine, Dr. Hanchey placed Gardner Wells tongs on him and transferred him to the surgical intensive care unit for overnight observation.
Dr. Hanchey performed surgery on Savoy the following day: an anterior cervical C6-7 microdiscectomy and cadaver graft interbody Smith-Robinson fusion, and a Synthes C6-7 anterior plating. On June 9, 1993, Savoy requested a second drug screen. The urine sample was drawn by the hospital and tested by Smith Kline Beecham. The drug test was positive for marijuana. The medical records reveal that Savoy admitted to a nurse that he took a Valium on the Thursday before the accident, [96-889 La.App. 3 Cir. 3] and that he smoked marijuana "on the weekend." Savoy also testified at the workers' compensation hearing that he took the Valium and smoked a marijuana cigarette and that the friend who rolled the cigarette tended to put cocaine in with the marijuana.
As a result of the positive drug screen, Perry refused to pay Savoy's medical expenses beyond the time that his condition "stabilized" and he was transferred out of the emergency room. Due to Perry's refusal to pay, OLOL intended to transfer Savoy to a charity hospital following the surgery. Instead, Savoy asked that he be discharged so that he could recuperate at his mother's home. He was released on June 10, 1993, two days after surgery.
Savoy filed a disputed claim with the Office of Workers' Compensation on August 12, 1993, contesting Perry's denial of benefits. Perry answered Savoy's claim, denying compensation and raising the affirmative defense of intoxication. Motions to intervene in the action were filed by OLOL and Radiology Associates, seeking payment for medical services rendered to Savoy as a result of his accident.
A hearing was held on December 6, 1995, and the hearing officer rendered a decision on March 5, 1996. The hearing officer held that Perry failed to prove that Savoy was intoxicated at the time of the accident or that his intoxication was the proximate cause of the accident. The hearing officer awarded Savoy temporary total disability benefits from the date of the accident until such time that he becomes employed. However, she held that Savoy was not entitled to compensation for the period of time he was or remained incarcerated. With regards to the intervention, the hearing officer awarded both OLOL and Radiology Associates full payment for their medical services, attorney's fees of $3,500.00, and a penalty [96-889 La.App. 3 Cir. 4] of twelve percent of the outstanding medical bills. Perry and its insurer suspensively appeal this decision.
Perry raises five assignments of error on appeal. It argues that the hearing officer erred in rejecting Perry's intoxication defense; that accepting the intoxication defense, the hearing officer erred in finding Perry responsible for Savoy's medical treatment once his condition stabilized and was no longer an emergency; that the hearing officer erred in awarding OLOL penalties and attorney's fees; that the hearing officer erred in charging Perry with paying full medical benefits in excess of the schedule contained in La.R.S. 23:1034.2; and that the hearing officer erred in awarding Savoy temporary total disability benefits in the absence of evidence establishing disability. OLOL answered the appeal seeking an increase in the amount of penalty awarded to Radiology Associates, an increase in attorney's fees, and the award of legal interest.
At the outset, we will address issues raised by Perry concerning the hearing officer's decision to admit into evidence the deposition of Dr. John Cobb, an orthopedic surgeon, and her refusal to admit a laboratory report from Smith Kline Beecham.
Dr. Cobb's deposition was introduced by OLOL to assist the hearing officer in determining when Savoy's condition had stabilized sufficiently so that he could be discharged from the acute care facility. See La.R.S. 23:1081(13). OLOL wanted to introduce the deposition as a result of the parties' failure to redepose Dr. [96-889 La.App. 3 Cir. 5] Hanchey, whose original deposition was taken prior to OLOL's intervention. Following his treatment of Savoy, Dr. Hanchey moved to Georgia. Three attempts were made to depose him, all failed. OLOL argued that, although Dr. Cobb is not a neurosurgeon, his testimony was relevant because he performs this same procedure. Perry objected on the basis that Dr. Cobb is not a neurosurgeon and because he never personally examined Savoy.
The hearing officer admitted the deposition into evidence finding that, although Dr. Cobb never examined Savoy and would normally not treat this condition, he was a medical expert, thus, his opinion was relevant and would go to the weight of the evidence. The decision to admit a deposition into evidence rests within the sound discretion of the hearing officer. Absent manifest error, her decision will not be reversed on appeal. Faul v. Tilden A. Bonin, Contractor, 95-1236 (La.App. 3 Cir. 8/7/96), 678 So.2d 627, writ denied, 96-2221 (La.11/15/96), 682 So.2d 769; We find no error in the hearing officer's decision. Dr. Cobb is a medical expert who has performed this type of procedure, therefore, he is well qualified to give an opinion on whether Savoy's condition had stabilized after the application of the tongs. The hearing officer committed no abuse of discretion in this instance.
Next, Perry attempted to introduce a laboratory report from Smith Kline Beecham, concerning the drug test requested by Savoy. Perry sought this report pursuant to a subpoena to Smith Kline Beecham. The hearing officer refused to admit the report under the business records exception to hearsay since it contained no signed verification stating that it was a certified copy of all of Smith Kline Beecham's records. Perry proffered the report. Although the hearing officer has [96-889 La.App. 3 Cir. 6] great discretion, we find that she erred in this instance. As pointed out by Perry, the results of the drug test were located in OLOL's records, in the exhibits attached to Dr. Cobb's deposition, and in the toxicology reports of both Dr. William J. George (Perry's expert) and Dr. Vincent M. Papa (Savoy's expert). Therefore, when the hearing officer relied on Dr. Papa's report in her reasons for judgment, in actuality, she relied on the Smith Kline Beecham laboratory report. Thus, the entire laboratory report should have been admitted into evidence.
An employee injured while in the course and scope of his employment is denied workers' compensation benefits if he was intoxicated at the time of the accident, and the intoxication caused the accident. La.R.S. 23:1081(1)(b). If the employer proves, by a preponderance of the evidence, the employee's use of a controlled substance, then the employer is entitled to a presumption that the employee's injury was caused by the intoxication. La.R.S. 23:1081(8). It is presumed that the employee was intoxicated, if, at the time of the accident, there is evidence of either on or off the job use of a non-prescribed controlled substance by the employee. La.R.S. 23:1081(5). Once the employer proves entitlement to the presumption, the burden shifts to the employee to prove that his intoxication did not cause the accident. La.R.S. 23:1081(12).
In her reasons for judgment, the hearing officer stated:
No evidence was presented that, at the time of the accident, Savoy had used non-prescribed controlled dangerous substances. It is true that the evidence submitted indicates that, at the time of...
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