Halker v. American Sheet Metal

• Decision Date: 10 December 2003
• Docket Number: No. 03-678.,03-678.
• Citation: 861 So. 2d 740
• Parties: Jason HALKER v. AMERICAN SHEET METAL.
• Court: Court of Appeal of Louisiana — District of US

861 So.2d 740

Jason HALKER v.AMERICAN SHEET METAL.

No. 03-678.

Court of Appeal of Louisiana, Third Circuit.

December 10, 2003.

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

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

Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.

DOUCET, Jr., Chief Judge.

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.

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 rule, the testimony of a treating physician should be given more weight than that of a physician who examined a claimant for diagnostic purposes.Johnson v. NATCO,651 So.2d 494(La.App.3 Cir.3/1/95).In this case, Dr. Foret's opinion is given greater weight than the opinions of the other physicians.Dr. Foret opined that claimant's second injury aggravated and essentially caused the carpal tunnel on the left side.

The significant weight given to the opinion of the court appointed expert can vary in accordance with the various factors which a trial judge utilizes in evaluating the testimony of any other witness.Thus, the significant weight can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians' examinations and tests, and any other relevant factors.Brock v. Morton Goldberg Auction,671 So.2d 1008(La. App. 4 Cir.3/14/96).In the case at hand, in reference to the independent medical examiner, Dr. Gunderson, the court finds that his opinion is not conclusive as he referred claimant to a hand doctor.The hand specialist, Dr. Morgan, did not entirely agree with Dr. Foret; however, he agreed that claimant would need a carpal tunnel surgery.

Therefore, after reviewing the record, considering the law and the evidence, the court finds that claimant suffered a new and compensable accident on March 20, 2002[sic] during the course and scope of his employment with American Sheet Metal and Fabrication, Inc.

It is well settled that an employer should not be penalized for bringing close factual or legal issues to court.Lindon v. Terminix Services, Inc.,617 So.2d 1251(La.App. 3 Cir.), writ denied,624 So.2d 1226(La.1993).Based on the evidence presented and the inconsistencies in medical testimony, the court finds this claim was reasonably controverted.However, costs are to be paid by the defendant.

LAW AND DISCUSSION

The law as set forth by the OWC judge is correct.Additionally, we note that the following is well settled:

In compensation cases, the claimant has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability suffered.Delco v. Heritage Manor Nursing Home,441 So.2d 309(La.App. 3d Cir.1983),writ denied,443 So.2d 1123(1984).A worker's preexisting condition does not bar his or her recovery under the workers' compensation laws because an employer takes the worker as he finds him or her.Guillory v. U.S. Fidelity & Guaranty Ins. Co.,420 So.2d 119(La.1982);Frederick v. Town of Arnaudville,572 So.2d 316(La.App. 3d Cir.1990),writ denied,575 So.2d 373(1991).An abnormally susceptible worker is entitled to no less protection under the workers' compensation statute than a healthy worker.It is immaterial that the diseased or weakened condition of the worker might eventually produce the disability suffered outside of the employment situation.Guillory, supra;Toth v. Ensco Environmental Services,546 So.2d 188(La.App. 1st Cir.),writ granted, reversedin part on other grounds, 551 So.2d 623, writ denied,551 So.2d 632(1989).Said another way, the worker's claim for disability benefits will not be disqualified if the work-related injury aggravates, accelerates, or combines with a disease or infirmity to produce death or disability for which compensation is claimed.Cadiere v. West Gibson Products, Co., Inc.,364 So.2d 998(La.1978);Delco, supra;Toth, supra.

Baker v. Conagra Broiler Co., 93-1230, pp. 8-9(La.App. 3 Cir.5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289.

Furthermore, in Tate v. Cabot Corp., 01-1652, pp. 5-7(La.App. 3 Cir.7/3/02), 824 So.2d 456, 461-62, writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044, this court observed the following:

Because an employer takes his employee as he finds him, a preexisting condition does not prevent recovery through workers' compensation.Curtis v. Wet Solutions, Inc., 98-789 (La.App. 3 Cir. 12/9/98);722 So.2d 421.Aggravation of a preexisting injury may constitute a disabling injury when, for example, the plaintiff begins to suffer new symptoms after the second workplace accident.Howell v. Service MerchandiseCo., Inc., 95-79 (La.App. 3 Cir. 8/9/95);663 So.2d 96.To be compensable, the aggravation of a preexisting injury must result from an identifiable and discernable incident.City of Eunice v. Credeur, 99-302 (La.App. 3 Cir.10/13/99);746 So.2d 146, writ granted in part, judgment vacated in part, 99-3249 (La.1/28/00);753 So.2d 226.Moreover, there must be a causal link between the aggravation and a work related incident.As we have recently explained,

[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed.Thus, the element of causation is satisfied if the employee's work-related accident was a factor in bringing about the employee's disabled status.Whether a causal relationship exists between the disability and the employment is a question of fact.The hearing officer's determination in this regard cannot be reversed unless it is manifestly erroneous

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