Doucet v. Baker Hughes Production Tools

• Decision Date: 17 November 1993
• Docket Number: No. 93-45,93-45
• Parties: James DOUCET, Plaintiff-Appellee, v. BAKER HUGHES PRODUCTION TOOLS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 948

626 So.2d 948

James DOUCET, Plaintiff-Appellee, v. BAKER HUGHES PRODUCTION TOOLS, Defendant-Appellant.

No. 93-45.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 1993.

Michael Benny Miller, Crowley, for James Doucet.

Lisa Cloutier McCowen, Lafayette, for Baker Hughes Production Tools.

Before DOMENGEAUX, C.J., and GUIDRY, DOUCET WOODARD and DECUIR, JJ.

GUIDRY, Judge.

This is a worker's compensation case. Plaintiff, James Doucet, injured his lower back on April 23, 1990, while in the course and scope of his employment as a technical tools specialist for defendant, Baker Hughes Production Tools. Baker Hughes paid Doucet temporary total disability benefits through November 13, 1990. His benefits were terminated by Baker Hughes in reliance upon an October 24, 1990 report from his treating orthopedic surgeon, Dr. Gregory Gidman, who concluded that Doucet was no longer disabled from the April injury and capable of performing medium duty work. Apparently, out of an abundance of caution, Baker Hughes issued a supplemental earnings benefit (SEB) payment to Doucet on December 18, 1990. This was the final compensation payment made by Baker Hughes to Doucet.

On January 25, 1991, Doucet filed a disputed claim for compensation with the Office of Worker's Compensation (OWC), naming as defendants Baker Hughes and Travelers Insurance Company, their claims administrator. Travelers did not provide worker's compensation insurance coverage to Baker Hughes, it merely serviced claims through a subsidiary company, Constitution State Service Company (Constitution). Following trial of this matter, the hearing officer determined that Doucet sufficiently proved that, because of his accident, he was disabled from performing the duties of his pre-injury employment. The OWC awarded Doucet SEB of $1,186.80 per month and found that Baker Hughes' failure to continue SEB payments after December 18, 1990 was arbitrary and capricious. In accordance with this finding, the hearing officer ordered Baker Hughes to pay a 12% penalty on all due and unpaid compensation payments. Additionally, Baker Hughes was ordered to pay Doucet $5,000 in attorney's fees and assessed a 12% penalty on compensation payments issued late during May and June of 1990.

From this judgment, Baker Hughes appealed and, in seven assignments of error, urges that the hearing officer erred in concluding Doucet sufficiently proved he was disabled and entitled to SEB and finding that Baker Hughes' conduct in terminating benefits was arbitrary and capricious. Doucet answered the appeal seeking an increase in his calculated average weekly wage and the attorney's fees award. For the reasons which follow, we reverse concluding that the hearing officer erred in awarding Doucet SEB, penalties, and attorney's fees.

FACTS

On April 23, 1990, Doucet was working at a land-based oil rig. His job involved heavy manual labor. While moving elevators in an attempt to clear a parking space near the rig floor for his truck, he felt his back snap after sliding the elevators approximately three feet. He was initially examined by Dr. Scott Thompson, who referred Doucet to Dr. Gidman. At the first examination on April 27, 1990, Doucet complained to Dr. Gidman of lower back pain on hyperflexion. Dr. Gidman detected no evidence of muscle spasm. X-rays taken on this date revealed Grade I spondylolisthesis at L5-S1, characterized by Dr. Gidman as a congenital defect of the pars interarticularis with spinal instability at the point of the defect. Dr. Gidman placed Doucet on non-work status.

Dr. Gidman saw Doucet on six occasions following this initial examination. He noted improvement through therapy on each visit, but cautioned that it would be medically inadvisable for Doucet to return to his former employment because of an increased risk of reinjury. On September 10, 1990, Dr. Gidman released Doucet to limited work with no repetitive bending or lifting over fifteen pounds. On October 8, 1990, Dr. Gidman concluded that Doucet had reached maximum medical improvement and released him to medium duty work. His limitations included only occasional bending, squatting and climbing stairs with a maximum lifting capacity of 50 pounds occasionally and 25 pounds frequently. These restrictions were maintained because of spondylolisthesis which, in industrial terms, means Doucet has a Class V lumbar spine, the worst functional work capacity rating.

On October 24, 1990, Dr. Gidman narrated a progress report in which he stated, in pertinent part:

It is my feeling that Mr. Doucet can return to moderate type work. He should not return to heavy duty type work because of his spondylolisthesis at L5-S1. He has a grade V (five) spine. I think these restrictions would be placed on him regardless of whether or not he had an injury to his lower back. These restrictions are placed on him because of his spondylolisthesis. (Emphasis ours)

Based mainly upon this report and further documentation supporting the report, Constitution determined that Doucet had returned to his pre-accident condition. It terminated his weekly compensation benefits.

Doucet testified that, when Dr. Gidman released him to medium duty work, he felt that his back condition had not returned to its pre-accident status. He stated that he awakes in the morning with mild back pain approximately five days per week or usually experiences mild back pain during the day. However, the pain is not serious enough even to require mild pain medication such as Aspirin or Ibuprofen. He performs very little or no daily physical activity. Doucet agreed with Dr. Gidman's assessment that he had reached maximum medical improvement. However, he felt that, because of the mild back pain, he was incapable of returning to his former job with Baker Hughes. Doucet sought a medium duty job with Baker Hughes and was told on two separate occasions that no such employment was available. He also sought medium duty work elsewhere and submitted into evidence a list of 159 separate job inquiries he allegedly made from December 17, 1990 through May 31, 1991. His search for a job, as of the date of trial, had proven fruitless.

Dr. Gidman testified that, because of his congenital spondylolisthesis, Doucet is a prime candidate for serious spinal injury if he becomes involved with heavy lifting and repetitive bending. He characterized Doucet's spine as abnormally unstable because of the spondylolisthesis, a condition which will not improve but will worsen with further trauma or natural degeneration. Upon reviewing Doucet's pre-employment x-rays taken on March 7, 1988, Dr. Gidman concluded that the spondylolisthesis and resulting Class V spine existed at that point in time. He opined that Doucet's back straining accident made the preexisting spondylolisthesis symptomatic. Dr. Gidman explained that, with spondylolisthesis, greater physical activity puts Doucet at a higher risk for back pain and could eventually lead to a herniated disc due to his unsound spinal structure. He further stated that Doucet, on his final visit, agreed that he had reached maximum medical improvement. According to Dr. Gidman, Doucet would be best suited for a "desk job" in which his chances of experiencing symptomatic pain would be minimized. He ruled out any heavy manual labor.

Dr. Clifton Shepherd, an orthopedic surgeon, performed an independent medical examination on Doucet at Constitution's request on July 30, 1990. He agreed with Dr. Gidman's diagnosis of spondylolisthesis which, in his opinion, pre-dated the accident. Dr. Shepherd did not detect any spinal muscle spasm. He stated that a person with spondylolisthesis is predisposed to injure his back in a lifting or exertional episode. He testified that his gradation of Doucet's disability would be the same whether or not he experienced pain symptoms.

Don Perez, Constitution's claims representative, testified that the decision to terminate Doucet's benefits was based upon the reports of Drs. Gidman and Shepherd and his further investigation of the medical results. He understood the medical reports to reflect that the medium duty restrictions would have been placed on Doucet solely because of his spondylolisthesis and regardless of his injury. He believed that Dr. Gidman's report meant that Doucet had recovered fully from the April 23, 1990 accident as if his injury had not occurred. Seeking clarification, he wrote Dr. Gidman once and spoke to him twice over the telephone. Perez also stated that, although several of Doucet's weekly compensation payments were late, he was nonetheless given all the benefits that Baker Hughes was obligated to provide under the Worker's Compensation Act.

SEB

In a worker's compensation case, the claimant has the burden of establishing his disability and its causal relationship with the employment accident by a preponderance of the evidence. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985); Britton v. Morton Thiokol, Inc., 604 So.2d 130 (La.App. 2d Cir.1992). The issue of disability presents a legal, not a purely medical, question which must be determined through a consideration of both lay and medical testimony. Taylor v. Louisiana-Pacific Corporation, 602 So.2d 48 (La.App. 3rd Cir.1992), writ denied, 606 So.2d 541, 542 (La.1992); Pollock v. LIGA, 587 So.2d 823 (La.App. 3rd Cir.1991). The hearing officer's factual determinations with regard to the claimant's disability and entitlement to benefits may not be set aside on appeal in the absence of manifest or clear error, and, where there is conflict in the testimony, reasonable inferences of fact should not be disturbed on review. Britton, supra, 604 So.2d at 134 and cases cited therein.

To qualify for SEB, a claimant must initially prove by a preponderance of the evidence that a work-related injury resulted in his inability to earn wages equal to 90% or more of his wages at the time of injury. Kennedy v. Commercial Union Insurance...