Fisher v. Lincoln Timber Co.
| Decision Date | 24 January 1999 |
| Docket Number | No. 31,430-WCA.,31,430-WCA. |
| Citation | 730 So.2d 973 |
| Parties | Roger FISHER, Plaintiff-Appellee, v. LINCOLN TIMBER COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Michael S. Coyle, Counsel for Defendant-Appellant.
Gary D. Nunn, Jonesboro, Counsel for Plaintiff-Appellee.
Before NORRIS, BROWN and CARAWAY, JJ.
Lincoln Timber Company ("LTC") appeals those portions of a Workers' Compensation Judge's order awarding its employee, Roger Fisher, temporary total disability benefits, payment for medical treatments by a chiropractor, and penalties and attorney's fees. We amend and affirm as amended.
On December 3, 1996, Fisher, a log cutter for LTC, was cutting a tree which suddenly began to slide towards him. In order to avoid it, he started to run backwards and fell, landing hard on his left hip and buttocks. The fall almost knocked him out and left him stunned on the ground for about five minutes. Following the fall, Fisher began experiencing pain in his hip and lower back which worsened after about 30 minutes. The fall also made him sick at his stomach. Fisher was alone at the time of the accident, but his supervisor, Henry Cleveland Jordan, arrived on the scene about 10 to 15 minutes later. Jordan found Fisher experiencing dry heaves and complaining that his lower back was hurting as a result of a fall. Jordan indicated Fisher "kind of appeared to be hurt." Jordan immediately called the office and the son of LTC's owner arrived to take Fisher to a doctor.
Thereafter, Fisher saw Dr. Loren Dale Boersma, a general surgeon. In response to Fisher's complaints of pain in the lower back, buttocks, and the left sacroiliac region, Dr. Boersma conducted a physical exam and diagnosed a contusion of the buttocks even though he found no visible bruises. Fisher exhibited difficulty with back bending and side bending and appeared "stove up."1 The doctor prescribed pain medication, heat, and bed rest and told Fisher to stay off work for approximately a week. However, Fisher returned on December 9 with continued complaints of pain. Pelvic x-rays revealed no abnormalities while a physical exam showed more limberness but some limited motion in the back as well as a slight curvature of the spine.
Between December 11 and 26, Fisher returned to Dr. Boersma four times with the same complaints; on December 23, he also complained of numbness in his groin area. An additional x-ray of the lumbar spine showed minimal scoliosis and arthritis but no existence of acute injury. It was the doctor's opinion that by December 26, Fisher should have been able to return to work in spite of a diagnosis of chronic arthritis. At that time, he discharged the patient from his care, being of the opinion the bump from the fall was relatively minor and that even had it jarred the arthritis and aggravated it, the injury would not be sufficient to keep Fisher from working. Dr. Boersma saw Fisher one additional time on February 4, 1997. Although the patient continued his original complaints, the doctor's opinion remained unchanged. Nonetheless, he agreed with a subsequent doctor's suggestion that an MRI be performed.
On December 30, 1996, Fisher went to Dr. John Timothy Ogden, an orthopedic surgeon, for a second opinion. Fisher persisted in his complaints of lower back pain radiating to the left hip, numbness in his groin and impotence. A physical exam showed some objective symptoms of pain including muscle spasms. An x-ray confirmed Boersma's diagnosis of spinal arthritis and slight scoliosis but did not disclose an acute injury. Thus, Dr. Ogden opined that Fisher had a lumbar strain. He recommended Fisher remain off work for approximately two weeks, prescribed pain medication, and referred him to physical therapy and a urologist.2 Fisher again saw Dr. Ogden on January 16, 1997. He maintained his complaint of lower back and hip pain and also indicated that the physical therapy was not providing relief. Another round of tests that indicated pain radiating into the lower back and hip and the continued groin numbness caused the orthopedist to change his diagnosis to that of lumbrosacral radiculitis, i.e. "pinched nerve." Fisher was again deemed unable to return to work.
On Dr. Ogden's recommendation, a lumbar MRI scan was performed in late February. That test revealed moderate multi-level degenerative change, disc disease, and arthritic changes which Dr. Ogden found to be normal for Fisher's age. Dr. Ogden concluded it was difficult to find anything on the MRI to explain Fisher's condition. Dr. Boersma also reviewed the MRI and consulted with Dr. Ogden. However, he did not change his diagnosis of chronic arthritis and was of the opinion that the accident could have exacerbated the situation but was not sufficient enough to cause a continued disability.
Dr. Ogden last saw Fisher on March 4 for another physical exam and review of the MRI results. Fisher continued his complaints of pain and showed some limited range of motion. At that time, Dr. Ogden went back to his original diagnosis of lumbar strain, a condition he noted usually gets better in four to six weeks but can persist for up to six months. Furthermore, as the symptoms were "subjective," the orthopedist felt that the extent of the care he could provide was over and therefore, recommended a pain management program. Dr. Ogden felt Fisher might be able to do modified work after April 1, but recommended Fisher not return to work because of continued complaints of pain. The doctor also recommended some type of rehabilitation therapy. While he believed Fisher could possibly return to work by June 3, 1997 after such treatment, he indicated that this estimate would depend upon how Fisher responded and the extent of his improvement. Nonetheless, Dr. Ogden testified that at no time when he saw Fisher did he think Fisher was capable of returning to work.
Continuing to have problems on May 23, 1997, Fisher began seeing Dr. Jeffrey L. Brockman, a chiropractor with over ten years experience. On that visit, Fisher continued his complaints of low back pain, left hip pain, impotence, and groin area numbness. Upon conducting a physical exam which revealed both objective and subjective symptoms of pain and reviewing the previous x-ray and MRI reports, Dr. Brockman diagnosed sacroiliac sprain/strain with radicular neuropathy. Based on Fisher's lack of a prior history of back problems, the chiropractor concluded that Fisher's problems were a direct result of his fall. Starting that day, Brockman began chiropractic treatment which continued until July 14, the day prior to giving a deposition later used at the hearing on the matter. Generally, Fisher showed steady improvement despite occasional setbacks. The chiropractor opined that the patient was not malingering and at the time of the deposition, concluded Fisher was still continuously and totally disabled and unable to return to work. He anticipated a return in six to eight weeks. Nonetheless, this view, expressed in a pretrial letter to Fisher's attorney, had changed in October after continued treatment. Then, Dr. Brockman found Fisher "still disabled from all but the most sedentary work."
At the time of his accident, Fisher earned an average weekly wage of $597.00. LTC paid temporary total disability ("TTD") benefits of $286.36 per week until April 4, 1997, having terminated them based on Dr. Ogden's report that Fisher should be able to return to work. Nonetheless, the employee's attorney contended that LTC actually owed the maximum weekly benefit of $341 and brought this to the employer's attention on several occasions starting in early January 1997. LTC attempted to make up the difference in May 1997 by issuing Fisher a lump sum check of $750.12, attributing the deficiency to a clerical error. As for medical treatment, LTC paid the expenses for the treatment by Dr. Boersma and Dr. Ogden. However, the employer, deeming it to be unnecessary, refused to pay for the chiropractic treatment by Dr. Brockman.
On February 7, 1997, Fisher filed the instant contested claim. The Workers' Compensation Judge ("WCJ") held a hearing on the matter on October 29, 1997. In a judgment issued on October 31, the WCJ found that Fisher had suffered a work-related accident and injury. Additionally, the WCJ concluded that Fisher is entitled to all reasonable and necessary medical treatment including but not limited to the treatment by Dr. Brockman. She further found him to be disabled through the day of trial and entitled to TTD benefits from the date of the accident until further order of the court. It was the WCJ's opinion that the disability was caused by the work-related fall. Finally, the WCJ found that LTC was arbitrary and capricious in failing to pay the correct rate of compensation and in failing to timely pay for an MRI, awarding $2000 in penalties and $2000 in attorney fees on each violation. A claim for penalties and attorneys fees relative to the chiropractic treatment was denied as being well controverted. LTC has appealed, advancing four assignments of error.
By its first assignment of error, LTC contends the WCJ erred in awarding Fisher TTD benefits from the date of his accident and continuing until further order of the WCJ. The employer maintains that no doctor found objective symptoms of an injury, and thus, plaintiff failed to prove he is disabled as a result of the employment accident.
In a compensation claim, the employee bears the initial burden of establishing the causal connection between the disability and the work-related accident by a reasonable preponderance of the evidence. The claimant does not necessarily have to establish the exact cause of the disability, but he must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. The causal relationship can be established when the employee proves that...
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