George v. Guillory

• Decision Date: 02 November 2000
• Docket Number: No. 00-00591-WCA.,00-00591-WCA.
• Citation: 776 So.2d 1200
• Parties: Ronald GEORGE v. Tillman GUILLORY and Louisiana Workers' Compensation Corporation.
• Court: Court of Appeal of Louisiana — District of US

776 So.2d 1200

Ronald GEORGE v. Tillman GUILLORY and Louisiana Workers' Compensation Corporation.

No. 00-00591-WCA.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2000.

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Thomas D. Travis, Egan, Johnson & Stiltner, LA, Counsel for Defendants-Appellants.

Dorwan G. Vizzier, Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, Counsel for Plaintiff-Appellee.

(Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges).

SAUNDERS, Judge.

FACTS

Plaintiff, Ronald George, was employed by Mr. Harold Dousay, a subcontractor of Tillman Guillory. Mr. George was employed to cut pulpwood and "Iongwood." At the time of his accident, Mr. George earned $5.00 per cord of pulpwood cut and $10.00 per thousand board feet of "longwood" cut. On February 1, 1993, a tree fell on Mr. George, injuring his left shoulder and side. Mr. George was taken to the Rapides Regional Medical Center emergency room for his injuries. Mr. George spent three days in the hospital for treatment. Because of his injury, Mr. George was unable to return to work, and he sought treatment from Dr. Douglas Waldman, an orthopedic surgeon.

During Mr. George's employment with Mr. Dousay, Tillman Guillory paid workers' compensation benefits for Mr. George as his statutory employer. Tillman Guillory was insured through Louisiana Workers' Compensation Corporation (LWCC). LWCC paid benefits to Mr. George for the work-related injuries he sustained during the accident on February 1, 1993.

As a woodcutter, Ronald George was paid based upon production. Under Louisiana Workers' Compensation Law, this type of wage was considered "other wages" for the purpose of calculating Mr. George's average weekly wage. See La. R.S. 23:1021(10)(d). Since Mr. George had worked less than twenty-six weeks immediately proceeding his accident, under the "other wages" provision, his average weekly wage was calculated by dividing his gross wages for the period, divided by the number of days he actually worked, multiplied by four. See Id. If there were no interruptions, Mr. George's normal workweek was five days a week, Monday through Friday. According to Mr. George's employment records, he worked for fourteen weeks.

LWCC used seventy days, five days a week for the entire fourteen weeks, as the number of days worked during the period, for the purposes of its average weekly wage calculation. Mr. George had not worked the full seventy days. The seventy days used by LWCC included three days after Mr. George's February 1, 1993 accident. Mr. George never returned to work, however, after the accident.

Using this calculation method, LWCC first paid Mr. George at the minimum workers' compensation indemnity benefit rate of $82.00 per week from February 9, 1993 until May 13, 1993. On May 13, 1993, LWCC made an adjusting payment of $662.16 because it discovered that Mr. George was being underpaid. Thereafter, Mr. George received indemnity benefits in the amount of $127.92 per week through the time he filed suit.

LWCC calculated Mr. George's benefit payment of $127.92 based on his gross wages of $3,918.54 less expenses. Mr. George's employer, Mr. Dousay, estimated that Mr. George's chainsaw related expenses were 540.00 per week. LWCC multiplied the $40.00 times the number of weeks Mr. George worked for Mr. Dousay, arriving at a total of $560.00 in expenses for Mr. George's fourteen weeks worked. LWCC then subtracted the $560.00 in expenses from its gross wage calculation of $3,918.54 and divided this figure by the total number of days Mr. George allegedly worked to arrive at Mr. George's average weekly wage. From its average weekly wage calculation, LWCC determined Mr. George's benefit rate to be $127.92 per week.

LWCC did not increase Mr. George's benefits after notification that Mr. George had not worked seventy days. LWCC did not make any adjustments to Mr. George's weekly benefits and continued to pay benefits based on seventy days employment at the time Mr. George filed suit.

In his suit, Mr. George brought claims regarding the inaccurate compensation rate discussed above as well as LWCC's failure to authorize a needed shoulder surgery. In his deposition of May 18, 1999, Dr. Waldman, Mr. George's treating orthopedic surgeon, testified that Mr. George needed an arthroscopic decompression surgery of the left shoulder to repair his injuries. Dr. Waldman stated that he believed if Mr. George underwent the suggested surgery, there would be a seventy-five percent chance of a good result. Dr. Waldman based this belief on the results he had achieved when he injected Mr. George's shoulder with cortisone. After each shot, Mr. George's pain had been completely relieved. Dr. Waldman testified that he had requested approval of the needed surgery seven times from LWCC, and it had refused to authorize the surgery each time.

During the time period after his injury, several doctors examined Mr. George and gave opinions as to the need for surgery suggested by Dr. Waldman. Dr. Riad Haj Murah, a neurologist with the Alexandria Neuro Center, first examined Mr. George in August 1993. Dr. Murah released Mr. George to light duty work on December 17, 1996. Then, on April 9, 1997, Dr. Murah found Mr. George to be at maximum medical improvement. On February 10, 1998, Dr. Murah indicated in his progress notes that he did not feel neck surgery was necessary, and he would leave the decision about shoulder surgery to Dr. Waldman. Likewise, in a January 21, 1999, progress note, Dr. Murah documented that he deferred to Dr. Waldman concerning the requested shoulder surgery.

Dr. Murah referred Mr. George to Dr. Babson Fresh, a neurosurgeon. Dr. Fresh examined Mr. George, and he wrote his findings in a report dated January 8, 1998. In his examination of Mr. George's neck, Dr. Fresh found tenderness in the midline at C3-05. Dr. Fresh noted that Mr. George's neck motion was limited in all planes. Dr. Fresh indicated that his impression was that Mr. George suffered from chronic neck pain. Dr. Babson's plan indicated that Mr. George was a non-surgical candidate and that he should be discharged from the clinic.

At the request of LWCC, Dr. Louis Blanda examined Mr. George on August 24, 1993. In his examination, Dr. Blanda found a previous non-displaced fracture of the left scapula, which was healing at that time, and a callous formation in the same area. Dr. Blanda's report indicated that the scapular fracture and right thumb fracture had improved as of August 24, 1993, and that Mr. George was "as good as he is going to get" and should probably recover without any significant difficulty. Dr. Blanda also noted that Mr. George's neurological evaluation regarding neck complaints and radicular components in the left hand were still pending, and Dr. Blanda deferred to Dr. Waldman for those conditions. Dr. Blanda's report indicated he did not agree with Dr. Waldman's assessment that shoulder surgery was necessary.

Dr. John Sandifer performed an independent medical evaluation on Mr. George and reported the results of that examination on May 24, 1994. Dr. Sandifer's report indicated that Mr. George's status was post-fracture of the left scapula. Dr. Sandifer noted that Mr. George had probable cervical strain with cervical nerve irritation. In addition, Dr. Sandifer stated that Mr. George, as of the date of the examination, would have difficulty returning to work as a log cutter, but that he should be trained for a job that was lighter in nature, such as driving a truck. Furthermore, Dr. Sandifer found that Mr. George should not lift anything over his head weighing over 10 to 15 pounds, bend from the waist repetitively, or lift 30 to 40 pounds below shoulder level. Dr. Sandifer did not assert an opinion as to whether the surgery recommended by Dr. Waldman should be performed.

Dr. Phillip Osborne performed a functional capacity examination on Mr. George on June 27, 1995. Dr. Osborne stated that Mr. George could perform heavy work, occasionally lifting 50-100 pounds, frequently lifting 25-50 pounds, and constantly lifting 10-20 pounds. Dr. Osborne stated that Mr. George would have problems lifting over shoulder level. Dr. Osborne found Mr. George to have a 4% whole person impairment with no evidence of brachial plexus abnormality, normal reflexes and strength. Finally, Dr. Osborne expressed no opinion as to whether Mr. George should undergo the recommended back surgery.

On January 2, 1996, at the request of LWCC, Dr. Vanda Davidson evaluated Mr. George. Dr. Davidson found Mr. George's range of motion in his left shoulder limited, which he attributed to his accident. In addition, Dr. Davidson reviewed the medical records of Dr. Murah, Dr. Waldman, Dr. Blanda, and Dr. Osborne; Mr. George's emergency room records; and his hospital admissions records in February 1993. Dr. Davidson noted that there were no x-rays available for his review of Mr. George's current condition. Based on the reports from the patient's prior EMG nerve conduction studies, CT scans of the cervical spine, thoracic CTs, CTs of the head, and the physical therapy reports from Rapides Regionall, he diagnosed Mr. George as having: "1) Late effect contusion brachial plexus with 2. 2) Late effect fracture of the scapula body." Dr. Davidson concluded that he would give the patient a higher impairment rating than the one given by Dr. Osborne, stating that he would increase Mr. George's impairment of the person as a whole by 3-5%.

In reviewing Dr. Waldman's records, Dr. Davidson agreed that Mr. George had probably reached his maximum medical improvement in May 1995. Dr. Davidson disagreed, however, with Dr. Waldman's suggestion that the patient should have a decompression of the shoulder. Dr. Davidson stated that he did not think the surgery would give Mr. George significant relief from his condition. Dr. Davidson opined that the source of Mr. George's pain may have been a change...