Halker v. American Sheet Metal, 03-678.

• Decision Date: 01 January 2005
• Docket Number: 03-678.
• Parties: JASON HALKER v. AMERICAN SHEET METAL
• Court: Court of Appeal of Louisiana — District of US

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JASON HALKER
v.
AMERICAN SHEET METAL03-678.Court of Appeals of Louisiana, Third Circuit.

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT - 3 PARISH OF CALCASIEU, NO. 01-4520, HONORABLE CHARLOTTE L. BUSHNELL, WORKERS' COMPENSATION JUDGE.

H. Douglas Hunter, Guglielmo, Lopez, et al., Opelousas, LA, Counsel for Defendant/Appellant: American Sheet Metal.

Marcus M. Zimmerman, Attorney at Law, Lake Charles, LA, Counsel for Plaintiff/Appellee: Jason Halker.

Court composed of Ned E. Doucet, Jr., Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.

DOUCET, Chief Judge.

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Defendant, American Sheet Metal (American), appeals a judgment of an Office of Workers' Compensation (OWC) judge finding Claimant, Jason Halker, suffered a compensable accident on March 20, 2000, ordering American to pay for all necessary medical treatment and awarding Claimant weekly compensation benefits of $346.68 from the date benefits were terminated, April 15, 2001, until January 14, 2002, the date he was released to return to work. The OWC judge also ordered American to make up the short-fall caused by its miscalculation of benefits; awarded interest on the back due payments and the short-fall; but denied penalties and attorney's fees. American appealed. Claimant answered the appeal seeking penalties and attorney's fees.

FACTS

The following are the "Findings of Fact" found by the OWC judge in her reasons for judgment:

1. Jason Halker was injured during the course and scope of his employment with American Sheet Metal on March 20, 2000.

2. Jason Halker was involved in a previous accident during the course and scope of his employment with American Sheet Metal on March 17, 1999 [sic].

3. Claimant settled his claim for the March 17, 1997 accident. The settlement documents state, in part, "The employee initiated treatment with a local orthopaedist, Dr. Lynn Foret. Dr. Foret diagnosed bilateral DeQuarvain's. A surgical release of the right wrist was performed on or about April 28, 1997. A similar surgery was offered on the left wrist, but refused by the patient. Given the employee's reluctance to proceed with further treatment, Dr. Foret ordered a functional capacity evaluation. This evaluation was completed at the Industrial Rehabilitation Center of Lake Charles Memorial Hospital on June 23 and 24, 1998. The results of this evaluation showed the employee could return to work at medium level. Dr. Foret has no further treatment to offer.

4. Claimant had an EMG/nerve conduction study of the left extremity in 1998 that was normal.

5. On August 21,2000, EMG nerve conduction studies were done on claimant and were interpreted as mild to moderate left carpal tunnel syndrome.

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6. Dr. Foret had not seen claimant from July 17, 1998 until the second incident occurred.

7. Dr. Lynn Foret, claimant's treating physician, performed a left carpal tunnel release on claimant on September 27, 2001. On January 9, 2002, Dr. Foret indicated "the patient has finished up on the left side. The left hand was reviewed of his injuries with the second accident it irritated and aggravated and caused essentially went into the carpal tunnel on the left side..." His impression was that claimant's left hand was healed and he was released to go back to work.

8. Prior to the carpal tunnel surgery, Dr. Holland, defendant's choice of physician opined claimant had subjective left wrist pain, with no significant, — - injury. He was of the opinion that claimant did not need surgery and could work.

9. Dr. Clark Gunderson, the Independent Medical Examiner, opined that claimant complaints were not related to a nerve root entrapment syndrome. He did not recommend a carpal tunnel surgery. He recommended a course of Occupational Therapy and indicated he may be a candidate for evaluation by someone who limits their practice to hand and upper extremity surgery.

10. Defendants sent claimant to a hand specialist, Dr. Joe Morgan. Dr. Morgan, testifying by deposition, indicated" I thought the de Ouervain's tendinitis went back to the time when he had had the problem back in '97, and I thought that was something that was ongoing from back then. I thought it was not caused by anything that occurred in 2000, and I didn't think that the carpal tunnel syndrome was caused by injury. You can have carpal tunnel syndrome caused by injury. If it is caused by injury, it can be caused after someone has something like a fractured wrist, and we call that acute carpal tunnel syndrome, and they will probably require surgery early to get the pressure off the nerve. Otherwise, people have carpal tunnel syndrome for no particular reason. It just comes about over time. . . ."

The record supports these findings. Additionally, the OWC judge reached the following "Conclusions of Law:"

As a general...