author: SAUNDERS, Judge.

text:
    Roland ROMERO v. NORTHROP GRUMMAN CORP.
    No. WCA 2006-1210.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Aubrey D. Denton, Mark L. Riley, One-bane Law Firm, Lafayette, LA, for Plaintiff/Appellant, Roland Romero.
    Christopher M. Trahan, Raggio, Cappel, Chozen, & Berniard, Lake Charles, LA, for Defendant/Appellee, Northrop Grumman Corp.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SAUNDERS, Judge.

| T Claimant, Roland Romero, became ill after exposure to organic solvents at his place of employment. He filed a claim against his employer, Defendant, Northrop Grumman Corporation. After a trial on the merits, the WCJ ruled in favor of Claimant, finding that he proved his condition was causally related to workplace exposure to toxic chemicals. On April 1, 2002, Claimant filed a separate Disputed Claim for Compensation against Defendant, alleging that Defendant failed to pay for his reasonable and necessary medical treatment. Defendant filed an answer on May 1, 2002; on January 21, 2003, he filed a motion for an expedited hearing seeking an order to compel Claimant to submit to a medical evaluation. In response, Claimant filed a motion to dismiss as well as several exceptions on February 12, 2003. The WCJ denied all motions and exceptions, as Claimant was hospitalized at the time of the hearing.

Defendant again filed a motion for an expedited hearing, seeking to compel Claimant to submit to a medical evaluation on July 9, 2003, which the WCJ granted. Defendant filed a motion and order to terminate unnecessary medical treatment on March 25, 2004. After a hearing on the motion on September 29, 2004, the WCJ appointed its own Independent Medical Examination (IME) physician to review the evidence and render a report. On May 8, 2006, the WCJ granted Defendant’s motion, allowing the discontinuance of the unnecessary medical treatments. We affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Roland Romero, originally filed a Disputed Claim for Compensation (1008 claim) against Defendant, Northrop Grumman Corporation, on January 5, 1999, asserting that he had been diagnosed with organic brain syndrome and that his condition was the result of exposure to toxic chemicals during the course |2of his employment. Claimant was employed by Defendant as an aircraft structures mechanic from November 1997 until March 1998, when he suddenly became ill. As an aircraft structures mechanic, Claimant’s duties included cleaning the outboard sections of the wings of various aircraft, which he did using organic solvents.

Claimant first sought treatment of his illness with Dr. John Robert Mathias, a Houston, Texas neurogastroenterologist, on December 1, 1998. At that time, Claimant’s main complaints were nausea, vomiting, early satiety, bloating, distention, and constipation. Claimant stated that his problems had begun four months previously when he had been exposed to a large dose of Toluene while at work. In Dr. Mathias’ report dated December 8, 1998, he states that Claimant’s major problem was that he could not have a bowel movement. He also found that Claimant had developed severe migraine headaches, had a neurogenic bladder, and was approximately one hundred pounds overweight. Dr. Mathias also conducted a five-hour glucose tolerance test and diagnosed Claimant with diabetes mellitus, also referred to as diabetes, type II.

On April 22, 1999, Dr. Mathias prescribed weekly injections of 30g of intravenous immuno gamma globulin (IYIg) for twelve weeks. On June 10,1999, Claimant returned to Dr. Mathias’ office and reported a “slight improvement” in his condition. Therefore, Dr. Mathias continued the weekly injections.

Dr. Mathias contacted Ella Daley, a former licensed practical nurse and the owner of La Bon Sante Health and Wellness Center . in Lake Charles, Louisiana, regarding colon hydrotherapy to help alleviate Claimant’s constipation. Claimant received the colon hydrotherapy at La Bon Sante, and at the time of the hearing, he was continuing to receive colon hydrotherapy treatments five times a week.

[sOn January 11, 2001, Dr. Mathias wrote a prescription for equipment and home health care for manual lymphatic drainage, as well as a prescription for equipment and oxy-ozone sauna therapy treatment. Claimant then began receiving these treatments at La Bon Sante, as well as ear candling. On February -12, 2002, Dr. Mathias wrote a prescription stating that the lymphatic drainage could be done at Claimant’s home and that a massage table was medically necessary.

Dr. Mathias referred Claimant to Dr. James P. Gaharan, a physician board certified in internal medicine hematology and board eligible in medical oncology, for the administration of the IVIg treatment. Dr. Gaharan first saw Claimant on April 26, 1999 and performed a basic physical examination. Dr. Gaharan’s report reflects that Dr. Mathias had diagnosed Claimant with gastrointestinal motility disorder and that he had been receiving weekly 15g IVIg treatments.

Claimant’s initial claim against Defendant was heard on February 14 and February 16, 2000. The WCJ ruled in favor of Claimant, finding that he proved his condition was causally related to workplace exposure to toxic chemicals. Defendant did not appeal the ruling of the WCJ; however, Claimant appealed the ruling on the limited issues of whether the WCJ had properly left the record open for later evidence on the question of Defendant’s right to a credit and whether it erred in denying Claimant an award of penalties and attorney fees. On appeal, this court reversed the granting of a credit to the Defendant, as well as the denial of attorney’s fees and penalties. Accordingly, Claimant was awarded $2,000.00, and $7,500.00, and Defendant was required to pay Claimant indemnity for his medical treatment.

Claimant subsequently instituted the instant litigation by filing a new Disputed Claim for Compensation (1008 claim), under a different docket number, on April 1, | ¿2002, claiming that Defendant failed to pay for his reasonable and necessary medical treatment as required by the Workers’ Compensation Act. Defendant filed an answer to the claim on May 1, 2002. Claimant subsequently filed an amended Disputed Claim for Compensation on May 28, 2002. On October 16, 2002, a joint motion to continue the matter originally scheduled for October 17, 2002 was filed and signed.

After taking the depositions of Claimant’s two treating physicians, Defendant requested that Claimant submit himself to an evaluation by Dr. Richard Sachson, an endocrinologist in Dallas, Texas. Claimant, through his attorney, refused to submit to the requested evaluation. On January 23, 2003, Defendant filed a motion and order for an expedited hearing with the Office of Workers’ Compensation (OWC) pursuant to La.R.S. 23:1124, seeking an order to compel Claimant to submit to an evaluation by Dr. Sachson. The order was signed by the WCJ on February 5, 2003, and the hearing was set for March 10, 2003.

In response, Claimant filed a motion and order to dismiss his 1008 claim relating to the issue of his medical treatment on February 12, 2003. At the same time, he filed a motion in limine and peremptory exceptions of res judicata, no cause of action and/or no right of action, arguing that Defendant was precluded from questioning the medical treatment Claimant was receiving by virtue of the judgment handed down by the WCJ, which found his claim to be compensable. The motion in limine and exceptions filed by Claimant were set to be heard on March 10, 2003, along with Defendant’s motion for an expedited hearing.

Issuing its oral reasons for judgment at the hearing, the WCJ denied Claimant’s motion and exceptions, as well as Defendant’s motion for an expedited hearing because at the time of the hearing, Claimant was hospitalized with an infection and |Rthere was concern that, according to reports issued by two of Claimant’s physicians, it would be potentially dangerous for him to travel more than thirty to sixty minutes.

Defendant again filed a motion for an expedited hearing on July 9, 2003, seeking an order mandating Claimant to submit to evaluation by Dr. Bashar Saad, an internist and endocrinologist in Alexandria, Louisiana, and Dr. Austin J. Sumner, a neurologist in New Orleans. In response to Defendant’s motion, Claimant filed a motion for a protective order, which was signed by the WCJ on July 11, 2003, and the hearing on said motion was set for October 30, 2003. After the motion was heard on October 30, the WCJ granted Defendant’s motion, and Claimant was ordered to undergo evaluations by both Dr. Sumner and Dr. Saad.

Dr. Sumner, the Richard M. Paddison Professor of Neurology, professor of neuroscience, and Head of the Department of Neurology at Louisiana State University Health Sciences Center since 1988, was contacted on May 27, 2003 by defense counsel to determine whether Claimant’s treatment was appropriate. In particular, he was asked to determine whether Claimant was suffering from any disease process which would be properly treated with IVIg, manual lymphatic drainage, home colonics (colon hydrotherapy), oxy-ozone sauna therapy, or ear candling.

Dr. Sumner reviewed copies of Claimant’s medical records and various depositions and examined Claimant on January 14, 2004. He issued a report on his findings, dated March 12, 2004. During the examination, Claimant told Dr. Sumner that his “brain didn’t work” and that he “had numbness in the left side of his face and weakness around the left shoulder and left leg.” Dr. Sumner stated in his report that Claimant had diabetes mellitus and was morbidly obese. He also noted that Claimant complained of headaches, dizziness, nausea, vomiting, persistent metallic taste in his | (¡mouth, blurring of vision, photophobia, progressive weight gain, and bladder problems, which culminated in the placement of a suprapubic catheter.

Dr. Bashar Saad, was also asked to evaluate Claimant and determine whether Claimant’s medical treatment was appropriate. Before evaluating Claimant on January 19, 2004, Dr. Saad had the opportunity to review two boxes of medical records concerning Claimant’s previous care. He noted that at his examination, Claimant complained of diabetes, type II, neuropa-thy, organic brain syndrome, atonic bladder, depression, gastrointestinal motor dysfunction, sleep apnea, headache, dizziness, numbness, lack of feeling in hands and feet, shortness of breath upon exertion, occasional vomiting, constant abdominal pain, and significant weight gain. Dr. Saad further noted that Claimant has been on weekly infusions of IVIg since April 1999. The results of the examination yielded a normal blood pressure and heart rate. Dr. Saad also noted in his report that Claimant was morbidly obese.

On March 25, 2004, Defendant filed a motion and order to terminate unnecessary medical treatment, asserting that Claimant was receiving four types of treatment which were not medically necessary: IVIg injections, manual lymphatic drainage, oxy-ozone sauna therapy, and ear candling. Accordingly, Defendant requested the WCJ to authorize the termination of the unnecessary treatments. The motion was signed by the WCJ on March 29, 2004, and the hearing on the motion was set for May 13, 2004. However, on May 12, 2004, the hearing was continued to September 29, 2004.

At the conclusion of the hearing on Defendant’s motion to terminate unnecessary medical treatment, the trial WCJ requested that counsel for both parties submit post-hearing briefs and advised that it was considering appointing its own 17IME physician pursuant to the Workers’ Compensation Statute.

On June 7, 2005, the WCJ issued an order appointing Dr. Patricia Rosen, a toxicologist in Austin, Texas, to review the evidence and render a report on the issue of whether the IVIg treatments should be discontinued.

Dr. Rosen sent an email posing four questions to OWC on September 12, 2005, requesting additional information. The questions posed were:

1) What was the nature of exposures: specifically, what was the chemical and in what quantity (parts per million or other measure)?
2)Were others in the same environment affected and if so, how?
3) What was the period of time for each exposure?
4) Would I be able to evaluate Dr. Carson’s report?

However, on September 14, 2005, Dr. Rosen submitted her report, dated September 12, 2005, without first obtaining the additional requested information from OWC.

On February 21, 2006, the WCJ sent correspondence to Dr. Rosen asking whether the opinion expressed in her report would change had she received the additional information. Dr. Rosen responded on March 15, 2006, stating that her opinion as to whether the use of IVIg should be discontinued would not change.

On May 8, 2006, the WCJ handed down its written reasons for judgment, granting Defendant’s motion and allowing the discontinuance of the IVIg infusions, the manual lymphatic drainage, the oxy-ozone sauna therapy, and the ear candling. Claimant, now appeals with four assignments of error.

ASSIGNMENTS OF ERROR:

|sl) The WCJ erred in issuing a ruling in a matter which had been dismissed.

2) The WCJ erred in modifying the original judgment to allow the termination of medication already authorized based on the opinions of physicians who did not recognize the existence of Mr. Romero’s disease.

3) The WCJ erred in modifying the original judgment to allow the termination of treatment that aided Mr. Romero’s quality of life without properly considering the effects of termination on Mr. Romero.

STANDARD OF REVIEW

A trial court’s factual determinations are subject to the manifest error standard of review and may not be overturned unless they are found to be “manifestly erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, p. 844 (La.1989). In applying the standard, the appellate court must determine not whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Id. at 880. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106,1112 (La.1990).

LAW AND ANALYSIS

Assignment of Error No. 1:

In his brief, Claimant argues that the WCJ erred in issuing a ruling in a matter which had been dismissed. He asserts that the underlying matter of the instant litigation, “Romero v. Northrop Grumman, Docket # 02-02336 District 04 OWC”, | qwas filed pursuant to a 1008 claim filed by Claimant on April 1, 2002. On February 14, 2003, on the motion of Claimant, the matter was dismissed. Defendant later filed its motion to terminate unnecessary medical treatment on October 1, 2004. Claimant argues that without a new 1008 claim being filed, there was no pending litigation in which Defendant could file its motion and thus, no jurisdiction for the WCJ to issue rulings, as the claim had been dismissed.

Defendant counters, asserting that while La.R.S. 23:1310.3 provides that a claim for benefits shall be initiated “by the filing of the appropriate form with the office of workers’ compensation administration”, pursuant to La.R.S. 23:1310.8, the WCJ has continuing jurisdiction over each case, including the authority to order a physical examination of the employee. Louisiana Revised Statutes 23:1310.8 states, in pertinent part:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123....
B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

Therefore, Defendant avers that there is no requirement that each new dispute to be Imbrought before the workers’ compensation court be initiated by the filing of a new 1008 claim. Defendant asserts that by filing a 1008 claim with the Office of Workers’ Compensation (OWC) under a new docket number and instituting the instant proceedings, Claimant placed the provision of adequate medical care at issue. Defendant answered the claim and filed a motion for expedited hearing, requesting that Claimant be ordered to submit to a medical evaluation before Claimant moved to dismiss his claim. Therefore, Defendant contends that, although the provisions of workers’ compensation law do not strictly follow the rules of our Code of Civil Procedure, when Defendant filed its motion for an expedited hearing, it essentially filed a reconventional demand, stating its own cause of action by putting the issue of what constituted appropriate medical care at issue. Accordingly, when Defendant then filed its motion to terminate unnecessary medical care, it was filing the equivalent of a supplemental petition in accordance with the provisions of La. Code Civ.P. art. 1155. Therefore, Defendant argues that dismissal of Claimant’s principal demand did not affect or dismiss the reconventional demand, which had already been filed. Defendant additionally points out that at no time during the proceedings before the WCJ did Claimant object that any procedural flaw existed.

After examining the record, we do not find that any procedural flaw existed in the proceedings. Although Claimant filed a separate claim under a new docket number on April 1, 2002, La.R.S. 23:1310.8 clearly provides for continuing jurisdiction of the WCJ over each case. Pursuant to La.R.S. 23:1121, an employer has the right to have a claimant submit himself to an examination while the claimant is receiving payments from the employer under workers’ compensation. Additionally, as stated earlier, under La.R.S. 23:1310.8, the WCJ had continuing jurisdiction to l^make modifications or changes with respect to her former findings or orders upon Defendant’s application. Therefore, Defendant could have filed its motion to terminate unnecessary medical benefits in the original pro-ceédings. However, because Claimant filed a new 1008 claim, Defendant’s motion was filed under the docket number of new proceedings. Nonetheless, we find that because Claimant put his medical treatment at issue in the instant proceedings, and Defendant filed its motion for an expedited hearing, which placed the appropriateness of Claimant’s medical treatment at issue prior to Claimant’s dismissal, Defendant’s motion to terminate unnecessary medical benefits was properly before the WCJ. Further, as Defendant pointed out, Claimant made no objection at the trial court level. Had Claimant had any procedural objection, he should have raised such objection at the time of the hearing. Accordingly, we find that the WCJ did not err in ruling on the motion to terminate unnecessary medical treatment, as it was not dismissed with Claimant’s claim. Thus, the matter is properly before us, and we may now address the appropriateness of Claimant’s medical treatment.

Assignment of Errors Nos. 2 & 3:

Claimant contends that the WCJ erred in relying on the opinions of Dr. Saad, Dr. Sumner, and Dr. Rosen. He further contends that WCJ erred in modifying the original judgment to allow the termination of treatment that aided his quality of life without properly considering the effects of such termination.

Louisiana Revised Statutes 23:1203 A provides that the employer must furnish all reasonably necessary medical treatment to an injured employee. It states, in pertinent part:

In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care 11?,and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public or private facilities as will provide the injured employee with such necessary services.

Claimant argues that although the medical treatments he was receiving were not working toward curing his condition, they are palliative in nature, and are therefore, considered reasonable and necessary. See Dubois v. La. Forest Industries, Inc., 98-895 (La.App. 3 Cir. 12/9/98), 722 So.2d 409, writ denied, 99-49 (La.2/26/99), 738 So.2d 586, Veal v. Trans Gulf Inc. (La.App. 4 Cir. 9/23/98), 723 So.2d 987, and Ferrier v. Jordache-Ditto’s, 94-1317, 94-1318 (La. App. 3 Cir. 5/17/95), 662 So.2d 14.

Intravenous Immuno Gamma Globulin (IVIg)

Claimant’s treating physician, Dr. Mathias, initially prescribed the IVIg injections for Claimant. In his deposition, Dr. Mathias testified, “... if there were one thing that he was on that was controversial, it would be the gamma globulin.” In his deposition, Dr. Mathias testified, “[T]he assumption is that he has an inflammatory polyneuropathy and therefore, it may help him.” When asked what lead Claimant to be placed on IVIg, Dr. Mathias stated, “We have a man of severe disease. We have nothing to lose by trying it. He had slight improvement. That’s why we continued.” He further testified that he thought that Claimant felt better after receiving the IVIg treatment. However, he stated, “You know, whether we’re doing anything over the long haul with gamma is, as I said, this may be.the only thing that he’s on that is of question.”

Dr. Mathias testified that he would defer to Dr. Gaharan’s experience on the issue of the harm associated with discontinuing the IVIg. However, he stated that he | ^thought it would be reasonable to discontinue the IVIg on a trial basis. He further pointed out that the central line necessary for the administration of IVIg is a risk factor for sepsis. He explained that if Claimant were to develop sepsis, “it would be the end” since Claimant has diabetes, and his immune response function is considerably impaired.

Dr. Gaharan testified that he only conducted a basic physical examination of Claimant and that he made no independent diagnosis of Claimant. Instead, he relied on the diagnosis of Dr. Mathias and on his findings regarding whether Claimant’s condition necessitated IVIg treatment. In his deposition, when asked if he knew why Dr. Mathias prescribed the IVIg injections, Dr. Gaharan responded, “A demyeli-nating or polyneuropathy autonomic nervous system dysfunction secondary to toxic exposure from the chemicals that were mentioned in the first note.” He further testified that his role in Claimant’s IVIg treatments is basically that of a technician who administers the treatment and oversees the operations in the clinic.

Dr. Gaharan testified that if Dr. Mathias called and told him he was discontinuing Claimant’s IVIg, he would want to know the reason because “this is a similar situation to other folks that we’re treating immunoglobulin for demyelinating disorders and it’s been my experience in those situations that doing that sort of thing usually results in detrimental effects on the patient.” He expounded, “Based on my experience with other individuals ... discontinuing the medical treatments has resulted in a regression or progression, whichever way you want to phrase it, of their disease process. So, it’s not been a good thing to do in those individuals.” He went on to state that, in his opinion, it would not be good to do in Claimant’s case, as it would pose a substantial risk, and it could potentially worsen his condition.

|14Pr. Sumner was contacted by defense counsel and asked to review Claimant’s medical records, to perform an evaluation of Claimant, and to determine whether the medical treatment Claimant was receiving was appropriate. He was informed that WCJ had already made the determination that Claimant was suffering from an illness caused by workplace exposure to toxic chemicals. When asked in his deposition whether he felt that claimant’s treatment with IVIg was inappropriate, Dr. Sumner responded, “Absolutely I feel that he was getting it inappropriately.” He went on to state that he did not think “that there is any evidence, on the basis of my neurological assessment of Mr. Romero, that he suffers from immune mediated injury to the nervous system either centrally or peripherally.” He further stated that the only condition under which such treatment would have been appropriate was if Claimant had suffered from chronic inflammatory demyelinated polyradicular (CIDP) neu-ropathy. However, in his opinion, there was no basis of such diagnosis by Dr. Mathias in the record. He went on to testify that, in his opinion, Claimant does not have polyneuropathy, nor does he have a condition caused by toxic solvent exposure that affected his autonomic nervous system. Rather, in his opinion, Claimant’s symptoms are caused by diabetes. Thus, Claimant argues that Dr. Sumner, “while an undoubtedly excellent neurologist,” is of “no help” to the case at hand because he does not believe that Claimant suffers from organic brain syndrome, and therefore, he does not think Claimant needs IVIg treatment.

Defendant counters this argument by pointing out that Dr. Sumner further testified that the neurological problems caused by exposure to organic solvents are not appropriately treated with IVIg. In fact, when asked whether IVIg would be appropriate treatment for such disease, Dr. Sumner’s response was, “The answer is Inmost definitely no.” Dr. Sumner admitted in his deposition that Claimant does have some symptoms of organic brain syndrome, as is indicated by a mild degree of atrophy of the brain on an MRI. Therefore, he stated, there is a possibility that Claimant’s symptoms could be related to organic brain syndrome. He concluded by testifying that he did not find any evidence of any disease process which would be appropriately treated with IVIg, because even had he accepted that Claimant’s problems were due to toxic exposure, there is no evidence that the mechanism of the injury would respond to IVIg. Dr. Sumner testified that Claimant explained that as far as he could tell, IVIg was having “no effect” on his symptoms, as he was not aware of any difference before or after he received the treatment.

In Dr. Sumner’s opinion, there was at least as great a risk of death, if not greater, in continuing the IVIg treatment as in terminating it, as IVIg can induce kidney failure and stroke.

Dr. Rosen stated in her report to the WCJ:

It was unclear why the patient was receiving Gamma Globulin treatment. There is a prevalent opinion by the experts interviewed that Gamma Globulin is not indicated and may be deleterious to this patient’s health. The article of JAMA does not list any of Mr. Romero’s medical conditions as benefiting from the use of Gamma Globulin. The Med-line information also does not list any conditions that this patient has that would benefit from Gamma Globulin. Also, and of great concern, is that the person who is requesting this medication be given, does not feel it is indicated and is unsure of whether he recommended it in the first place. The person providing the medication says he is functioning as a technician and doesn’t know the diagnosis that would indicate the need for this therapy. Intravenous Gamma Globulin is not indicated for this patient.”

Claimant asserts that although Dr. Rosen stated in her report that IVIg is, in her opinion, unnecessary, the WCJ should not rely on this opinion, as she stated in the |1finext paragraph, “Additionally, the materials reviewed do not support injury of any sort by the chemicals is reported to be exposed to .... It is more likely that the patient’s illness is due to some other disorder such as Alzheimer’s.” Defendant, in its brief, admits that Dr. Rosen went beyond the scope of her assignment by expressing in her re report opinions relating to whether Claimant’s problems were caused by toxic exposure. Nevertheless, as Defendant points out, Dr. Rosen directly answered the question posed to her by the WCJ.

Dr. Rosen requested additional information from OWC on September 12, 2005; however, she submitted her report to the court on September 14, before she obtained the requested information. In response to a query from the WCJ, Dr. Rosen stated that the additional requested information would not change her opinion that IVIg injections were inappropriate and unnecessary to treat any of Claimant’s conditions.

Dr. James W.'Albers, professor of neurology at the University of Michigan Health System at Ann Arbor, Michigan, also issued a medical report on the use of IVIg, specifically in relation to Claimant’s medical condition. In his report dated September 8, 2002, he stated, “Based on my review of all materials you provided to me, I cannot determine the indication, or justification for the prescribed IVIg treatment.” He went on to state that he is familiar with the medication and that he prescribes it frequently, particularly for CIDP. In his report, Dr. Albers discussed the dangers of IVIg as well. Although IVIg is relatively safe, Dr. Albers noted that IVIg does have side effects which include headache, fever, chills, flushing, nausea, dyspnea, dizziness, and abdominal cramps. He noted that in more severe cases, IVIg has also been linked to renal dysfunction, acute renal failure, and vascular complications. However, Dr. Albers stated in his report that the strongest argument |17against the administration of IVIg is that the long term effects are unknown. He stated, “[i]f for no other reason, this should be the strongest argument against administering a medication to treat an undiagnosed condition using an expensive, potential dangerous medication, for which there is no justifiable indication.”

Dr. Albers concluded his report, stating, “Based on my education and experience, and consistent with the results of my literature review, it is my opinion that the scientific evidence does not support the use of IVIg treatment for adult onset diabetes mellitus, any forms of toxic neuropa-thy, neurogenic bladder, gastroparesis, occupational exposure to solvents, or, for that matter, any identified occupational disease.” He further states that Claimant does not suffer from any of the disorders for which IVIg has established medical efficacy, or for which IVIg is generally administered, consistent with the standard of practice.

Based on this evidence, we do not find that the WCJ committed manifest error in allowing the discontinuation of the IVIg treatments. The physician who prescribed the IVIg testified that he did so based on an “assumption” and that they had “nothing to lose.” All of the other physicians, with the exception of one, who did not conduct his own examination and admittedly relied on the diagnosis of Dr. Mathias, stated that the IVIg was inappropriate treatment for Claimant’s condition. Additionally, the majority of the medical testimony seems to show that continuation of the treatment may pose more risks than benefits for Claimant. Only one physician indicated that Claimant’s condition may worsen if treatment was discontinued. Even Dr. Mathias, the prescribing physician, had no objection to discontinuing the IVIg treatments on a trial basis. Considering the testimony of the physicians advising against the use of IVIg for Claimant’s condition, the minimal impact IVIg has had on his condition, and | ^the risks involved in continuing the IVIg treatments, we find it reasonable that the WCJ allowed termination of the IVIg treatments.

OTHER THERAPIES

In addition to IVIg, Claimant was also receiving colon hydrotherapy, oxy-ozone sauna therapy, manual lymphatic drainage, and ear candling at La Bon Sante Wellness Center. At the hearing, the WCJ allowed Ms. Daley to be offered as an expert witness in homeopathic treatment or alternative medicine. Ms. Daley testified that she was originally contacted by Dr. Mathias because Claimant had been unable to produce a bowel movement for several weeks, and Dr. Mathias wanted to try colon hydrotherapy, a process that uses the continual flow of water to flush out old stool and toxins, to alleviate the problem.

Ms. Daley testified that although she initially saw Claimant only in connection with the colon hydrotherapy treatment, she later received prescriptions for oxy-ozone sauna therapy and manual lymphatic drainage therapy. At the time of the hearing, Claimant was receiving three oxy-ozone sauna therapy treatments a week at La Bon Sante. Ms. Daley explained that in oxy-ozone sauna therapy, the patient gets into a steam cabinet where oxygen and water combine to create 03 steam, or ozone, which opens up the pores of the skin and allows toxins to flow out. She stated that she believes Claimant derives a benefit from the oxy-ozone sauna therapy. She explained, “Well, number one, it relieves the aches and pains of his body; also gets the oxygen going into the bloodstream and into the brain, and he always feels good afterward.”

Ms. Daley testified that she also performs manual lymphatic drainage therapy on Claimant. She described manual lymphatic drainage therapy as “a very light 11flmassage” that stimulates the lymphatic system which “picks up those toxins and moves them out of the body through urination and defecation.” When asked whether she believed Claimant benefits from the manual lymphatic drainage, Ms. Daley answered in the affirmative. She further explained, “He didn’t stay swollen all the time like he used to stay.... He just feels better.”

In addition to the oxy-ozone sauna therapy and the manual lymphatic drainage therapy, Ms. Daley testified that she also removes the wax from Claimant’s ears approximately once a week through a process called ear candling. Ms. Daley testified that Claimant accumulates an excessive amount of wax and- fungus in his ears, which causes them to swell and become painful, so he benefits from this process. She stated that before the ear candling, Claimant suffered from a number of ear infections that required medical treatment; however, since beginning his treatment, she stated that he has experienced a reduction in the number of ear infections he has had. However, she was unable to testify as to whether or how often he had been to an ear, nose, and throat physician over that time.

Dr. Jeffery Joseph, an otolaryngologist and facial plastic surgeon, reviewed Claimant’s medical records and was asked whether Claimant could benefit from ear candling. Dr. Joseph explained that ear candling is an alternative treatment for the removal of ear wax in which a hollow candle is placed in the ear and through some wicking action, cerumen or protective ear wax is sucked out of the ear. He also explained that the procedure is not one practiced by doctors. In his deposition, Dr. Joseph testified that the records reviewed reflected that Claimant was going to a spa once every couple of weeks, and at times, as much as once a week, to have this procedure performed. He testified that, in his opinion, ear candling has no medical | ¡.nefficacy and there is “no reason anyone would need to have ear wax removed once a week or every other week.” He went on to state that he was unable to find any literature to support that theory that exposure to organic solvents might cause excessive wax build up. He further testified that ear candling can be dangerous because there is a risk of burning the ear if hot wax drips into the ear canal, damaging the ear drum. Despite the danger associated with ear candling, Dr. Joseph testified that his main objection to the procedure is that it is not effective in removing ear wax.

Dr. Mathias testified that he had no opinion whether ear candling, oxy-ozone sauna therapy, or manual lymphatic drainage therapy were medically necessary. In fact, when asked, he did not even know what oxy-ozone sauna therapy was or what manual lymphatic drainage therapy accomplished, even though he is the physician who prescribed them for Claimant. He testified that he prescribed them after he had consulted with a physical therapist who recommended that Claimant might benefit from the therapies.

Dr. Sumner had “no idea” what oxy-ozone sauna therapy was, or why it was prescribed for Claimant’s condition. He further stated that he was not aware of manual lymphatic drainage as an accepted medical treatment and stated, “Certainly, it is not something that I would regard as appropriate treatment.” He testified instead that the appropriate treatment for swelling of Claimant’s legs would be elastic stockings or elevation of the legs when sitting.

Based on this evidence, we do not find that the WCJ committed manifest error in allowing the termination of oxy-ozone sauna therapy, manual lymphatic drainage, or ear candling, as there is no evidence that they are reasonable or medically necessary for the treatment of Claimant’s condition.

19, CONCLUSION

After our review of the record, we do not find that any procedural flaw existed in the proceedings. Therefore, we find that the instant matter was properly before the WCJ. Further, we do not find that the WCJ committed manifest error in allowing the termination of Claimant’s TVIg treatment, manual lymphatic drainage therapy, oxy-ozone sauna therapy, and ear candling, as they are not necessary medical treatments for his work-related condition. Accordingly, we affirm the decision of the WCJ. All costs are assessed against Claimant, Roland Romero.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Crickett MILLER v. BLACKTYPE FARMS.
    No. WCA 06-1202.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      John Goulding Swift, Swift & Rhoades, Ann Dore Latour, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Black-type Farms.
    Crickett Miller, In Proper Person, Maurice, LA.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SAUNDERS, Judge.

hAn employee brought an action against her employer in a workers’ compensation court. The employee requested reimbursement of past medical bills paid by her, reasonable expenses for future medical bills, and penalties for arbitrary and/or capricious denial of her claim.

The workers’ compensation judge (WCJ) was presented with conflicting testimony regarding the time and place of her injury. Furthermore, the WCJ was presented with conflicting testimony as to who was benefltting from the employee’s actions when she was injured.

The WCJ found that the employee was a 24 hour a day employee and, therefore, regardless of which version of events testified to by the litigants was true, she was within the course and scope of her employment when she was injured. Because of this finding, the WCJ awarded the employee the relief requested.

We reverse the WCJ’s ruling that the employee was a 24 hour employee as that ruling was based on an error of law. We conduct a de novo review of the record, render judgment that the employee failed to carry her burden of proof that she was within the course and scope of her employment when her accident took place, and dismiss the employee’s claim with prejudice.

FACTS AND PROCEDURAL HISTORY:

Cricket Miller (“Ms. Miller”) was employed by Blacktype Farms to feed and care for expensive racing horses. The owners of Blacktype Farms, Dr. Thomas Latour (“Dr. Latour”) and his wife, Roxie Latour (“Mrs. Latour”), arranged and paid for Ms. Miller to reside in a camp, owned by Mr. Rayburn Smith, located over a half-mile away from Blacktype Farms. Ms. Miller claimed that on or about December 3, 2003, while working at Blacktype Farms, she had an accident and sustained injuries to her pteeth, mouth and jaw. Ms. Miller testified that the accident took place at about six o’clock in the evening while she was in the Blacktype Farms’ arena attempting to unload hay from the back of a work truck. She testified that she was unloading the hay in order to feed horses owned by Blacktype Farms. Ms. Miller produced no other witnesses, nor did she produce any corroborating evidence as to the place or the purpose of her actions when the accident occurred.

The testimony of the owners of Black-type Farms presented a very different version of events surrounding Ms. Miller’s injury. First, Dr. Latour controverted Ms. Miller’s testimony that she was feeding the horses at six o’clock P.M. He testified that normal afternoon feedings happened between three and four in the evening. Dr. Latour claims he would never have allowed such a large deviation from the strict feeding schedule of his horses.

Further, Dr. Latour testified that Ms. Miller had spoken to him the next afternoon regarding her December 3, 2003, accident. In his testimony, Dr. Latour claimed that Ms. Miller stated that she had injured herself the day before when she fell and hit her mouth on the tailgate of the work truck after her duties were completed. Further, according to Dr. Latour, Ms. Miller said that she was using a swing knife in an attempt to clear brush from a gate located at her residence at the Smith Camp when she fell and was injured. Dr. Latour also said that Ms. Miller told him that when the accident took place, she was clearing this brush in order to prepare the land around her residence for storing her own horses.

The testimony of Mrs. Latour also contradicted some of Ms. Miller’s testimony regarding the circumstances surrounding her accident. Mrs. Latour testified that the series of events put forth by Ms. Miller is illogical. Mrs. Latour testified that if Ms. IsMiller’s series of events is to be believed, she would have to remove hay from the barn, carry that hay from the barn to the arena on a four-wheeler, load the hay from the four-wheeler into the work truck in the arena, then proceed to unload the hay from the truck back onto the four-wheeler to go and feed the horses. Mrs. Latour also testified that although use of the work truck was strictly for farm purposes, during times of wet weather, as was the case near the time of the accident, Ms. Miller was allowed to use the work truck to traverse the driveway to get to her residence at the Smith Camp due to the truck’s four-wheel drive capability.

Regardless of the conflicting testimony, the WCJ gave great weight to two facts:

(1) Dr. Latour paid the rent and utilities and had arranged for Ms. Miller to reside in the Smith Camp and (2) the work truck was normally used only for farm purposes. The WCJ reasoned that because of these two facts, regardless of where, when and why Ms. Miller was injured, case law mandated that Ms. Miller was a 24 hour a day employee, and, as such, regardless of which version of events actually took place, she was within the course and scope of her employment at the time of the accident. The WCJ awarded Ms. Miller the relief she sought.

Blacktype Farms appealed the WCJ’s judgment. We reverse the WCJ’s finding that Ms. Miller is a 24 hour a day employee. We conduct a de novo review of the record, and render the opinion that Ms. Miller did not carry her burden of proof necessary to recover under the workers’ compensation statutes. Ms. Miller’s workers’ compensation claim against Blacktype Farms is dismissed with prejudice.

ASSIGNMENTS OF ERROR:

1. Did the WCJ err in finding Cricket Miller within the course and scope of her employment when she was injured?
|42. Did the WCJ err in not determining if there was an accident under the Workers’ Compensation Act?
3. Did the WCJ err in awarding Cricket Miller to be paid the following by Blacktype Farms: (1) one thousand, seven hundred twelve dollars and forty-six cents ($1,712.49) reimbursement for medical expenses together with legal interest from the date of demand until paid, (2) reasonable and necessary medical treatment from health care providers of her choosing
4. Did the WCJ err in awarding Cricket Miller two thousand dollars ($2,000.00)for arbitrary and capricious, and/or unreasonable denial of her claim for medical benefits based upon its finding that Ms. Miller was in the course and scope of her employment?

ASSIGNMENT OF ERROR # 1:

Blacktype Farms argues that the WCJ erred in finding Ms. Miller within the course and scope of her employment when she was injured. We agree.

In general, an appellate court is to review factual findings issued in workers’ compensation matters according to the manifest error-clearly -wrong standard, set forth by the Louisiana Supreme Court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. However, when there are errors of law asserted on appeal, the appellate court must make a determination whether the workers’ compensation judge’s ruling was legally correct. McClain v. Pinecrest Development Center, 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112.

The WCJ was presented with two versions of events and ruled that even if the version of events as put forth by the testimony of Dr. Latour is believed, case law mandated that Ms. Miller should be found within the course and scope of her employment when she was injured. The WCJ based its ruling on cases sometimes referred to as “bunkhouse” cases.

These are cases where courts have found employees within the course and scope of employment on a 24 hour basis when housing is provided as part of the |5employment compensation received and when the main benefit of having its employee housed on or next to land where they work is to the employer. Furthermore, the employees in the “bunkhouse” cases are generally acting in furtherance of the benefit to the employer and not acting on a purely personal basis when they are injured.

We find that the WCJ’s application of those cases to the ease at bar is an error of law. The situation in the case at bar is different than those in the “bunkhouse” line of cases. Here, Ms. Miller’s residence was not located on land owned by or adjacent to Blacktype Farms. Moreover, the residence was not mainly provided to Ms. Miller for the benefit of the employer, nor was Ms. Miller engaged in an activity in furtherance of any benefit to Blacktype Farms when her injury took place.

The first case the WCJ cited was that of Prevost v. Gheens Realty Co., 151 La. 508, 92 So. 38 (La.1922). In Prevost the Supreme Court found that a worker who sustained an injury while going from work to the bunkhouse was within the course and scope of his employment. The bunkhouse in Prevost was owned by the employer, provided to the employee mainly for the employer’s benefit, and located on the premises where the employee worked.

If the version put forth by Dr. Latour is believed, unlike the claimant in Prevost, Ms. Miller was not traveling between her work and her residence when she was injured, nor was the residence provided to Ms. Miller mainly for Blacktype’s benefit, nor was the residence located on or adjacent to Blacktype Farms. Rather, Dr. Latour testified that when the accident occurred, Ms. Miller had already finished her work, was living in a residence provided to her mainly out of his benevolence, and Uwas clearing brush from a gate at her residence located on property not belonging to Blacktype Farms.

Further, the employer in Prevost directly benefitted from what its employee was doing when the injury took place. Traveling to the bunkhouse was a requisite to allow the employer to enjoy the benefit of having Mr. Prevost lodge on its grounds. According to Dr. Latour, Ms. Miller, who was injured while clearing brush from an interior gate, claimed to be doing this activity for the purpose of having her own horses kept on the Smith property, a purely personal endeavor. Accordingly, the application of the Prevost case to the case at bar is in error.

The WCJ also relied on Youngblood v. Rotor Aids, Inc., 491 So.2d 132 (La.App. 3 Cir.) writ denied 494 So.2d 1177(La.l986). In Youngblood, the claimant worked in shifts where he was on duty 24 hours a day for seven-day shifts. The injury in Young-blood happened when the claimant was engaged in an authorized rest period during one of those shifts. Here, there is no evidence that Ms. Miller ever performed shift work where she was on duty 24 hours a day for any period of time. Rather, according to the testimony of Dr. Latour, Ms. Miller had freedom in her job to come and go as she pleased as long as the horses got fed at appropriate times.

Furthermore, the claimant in Young-blood was required by his employer to reside in an employer provided trailer in order to be on call for 24 hours a day, a necessity of being able to perform his job. Therefore, the Youngblood claimant lived at the trailer during the seven days of his shift mainly for the benefit of the employer. Here, Ms. Miller was not required to live at the nearby Smith Camp in order to be employed. Furthermore, there is no evidence in the record that Ms. Miller was living at the Smith Camp mainly for the benefit of Blacktype Farms. Quite the contrary, Dr. |7Latour testified that he made arrangements for Ms. Miller to live close to the farm out of generosity and mainly for Ms. Miller’s convenience to have less travel time to get to her job, to help her get out of her parents’ house and to help her raise her child. Even though Mrs. Latour testified that it was of some benefit to Blacktype Farms to have Ms. Miller reside close to the farm, any such benefit was secondary. Accordingly, the WCJ’s application of Youngblood to the case at bar is in error.

Finally, the WCJ relies on the case of Vaughan v. Insurance Co. of North America, 482 So.2d 1014 (La.App. 3 Cir.1986). However, in Vaughan the issue as whether the rental value of the mobile home provided to the employee by his employer should be included in the claimant’s weekly wages. As before, the WCJ’s reliance on this ease is in error.

The WCJ misinterpreted cited case law, erroneously applied them to the case at bar, and committed an error of law in concluding that Ms. Miller was analogous to the employees in the “bunkhouse” line of cases. Based on this erroneous application, the WCJ decided that regardless of which version of events it held correct, Ms. Miller was within the course and scope of her employment when her accident happened. Accordingly, we vacate the WCJ’s finding that Ms. Miller was within the course and scope of her employment when she was injured.

Without a determination of whether Ms. Miller was within the course and scope of her employment, we have no basis to rule on Assignments of Error numbers 2, 3 and 4. In the interest of judicial efficiency, and because we have a complete record before us, we will conduct a review as to whether Ms. Miller was within the course and scope of her employment when she was injured.

| sIt is well settled that reviewing courts will defer to a reasonable decision of the WCJ on a matter or question properly within its discretion. However, if the WCJ’s decision is based on an erroneous interpretation or application of law rather than a valid use of discretion, the incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072.

Because the WCJ erroneously relied on “bunkhouse” case law, and because the WCJ made no finding as to which version of events put forth by the conflicting testimony it found correct, we will conduct a de novo review of the record to determine if Ms. Miller carried her burden of proof that she was within the course and scope of her employment when the accident that caused her injury took place. We render the finding that she did not.

In a workers’ compensation proceeding, as in most civil actions, the plaintiff must prove by a preponderance of the evidence the causation of his or her workers’ compensation claim. Therefore, the evidence, when taken as a whole, must show that it is more probable than not that the employment accident caused the injury. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974), see also La. R.S. 23:1031.

While it is clear from the record that Ms. Miller did suffer an injury, it is also clear that she did not establish that this injury occurred while she was within the course and scope of her employment. The only evidence put forth by Ms. Miller that she was injured while in the course and scope of her employment was her own self-serving testimony. While it is true that a worker’s testimony alone may satisfy the burden of proof to establish a work related injury, for this testimony alone to suffice no other evidence can discredit the worker’s version of events and the worker’s testimony must be corroborated by the circumstances following the accident. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992). These two elements are not present in the case at bar.

Ms. Miller’s testimony is controverted by that of Dr. Latour and Mrs. Latour. Dr. Latour’s testimony is in direct conflict with Ms. Miller’s testimony on many points.

First, Dr. Latour refuted Ms. Miller’s testimony as to what time she was feeding the horses when she was injured. He testified that normal afternoon feeding was from three to four P.M. and that Ms. Miller’s testimony that she was preparing to feed his horses at six P.M. would never be allowed to have happened.

Second, Dr. Latour testified that Ms. Miller had told him a completely different story as to the place where her accident happened. At trial, Ms. Miller said the accident happened in the arena at Black-type Farms. Dr. Latour controverted Ms. Miller’s statements by testifying that Ms. Miller told him she was injured on property not owned by Blacktype Farms, but rather at her residence, owned by Mr. Rayburn Smith, lpeated over a half-mile away.

Finally, Ms. Miller testified that she was intending to feed the horses when the accident happened. Dr. Latour again controverted this testimony by stating that Ms. Miller had told him her actions prior to injury were for the purely personal reason of clearing brush from a gate in order to prepare land owned by Mr. Smith for her own horses.

The testimony of Mrs. Latour also contradicted some of the facts that Ms. Miller testified to with regards to the circumstances surrounding her accident. Mrs. Latour testified that the series of events put forth by Ms. Miller, that she was in the arena unloading hay from the work truck in order to go feed the horses, is illogical. | inMrs. Latour testified that if Ms. Miller’s series of events is to be believed, she would have to remove hay from a barn, carry that hay from the barn to the arena on a four-wheeler, load the hay from the four-wheeler into the work truck in the arena, unload the hay from the truck back onto the four-wheeler, then go and feed the horses.

Because the record contains testimony that contradicts that of Ms. Miller, she must produce further evidence of her injury occurring within the course and scope of her employment. She has failed to do so.

Besides her self-serving testimony, the only other evidence that Ms. Miller produced was unauthenticated medical records that indicated that she was indeed injured at the time she alleges, but there is no mention in any of the medical records of the circumstances surrounding her injury.

When looking at the evidence in the record as a whole, we find, at best, that Ms. Miller proved that it is just as likely as not that she was injured within the course and scope of her employment. Unfortunately for Ms. Miller, her burden of proof is a preponderance of the evidence, a greater burden of proof than she is able to prove. Therefore, we must find that Ms. Miller did not carry her burden.

Accordingly, we find that Ms. Miller has failed to carry her burden of proof in establishing that she was more probably than not injured in a work-related accident. As such, we dismiss Ms. Miller’s workers’ compensation claim against Blacktype Farms with prejudice.

^CONCLUSION:

We reverse the judgment rendered I favor of Cricket Miller and against Black-type Farms, and render judgment in favor of Blacktype Farms, dismissing Cricket Miller’s claims with prejudice. All costs are assessed to Cricket Miller.

REVERSED AND RENDERED.


author: COOKS, Judge.

text:
    Mary Smith PATTON v. David SELF and William Hadlock.
    No. 06-1029.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Anselm N. Nwokorie, Brian G. Smith, Tikisha Y. Smith, Smith & Nwokorie, Bas-trop, LA, for Plaintiff/Appellee, Mary Smith Patton.
    Ronald J. Fiorenza, H. Bradford Calvit, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellant, David Self and William Hadlock.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   COOKS, Judge.

I,The Defendants, David Self and William Hadlock, appeal the trial court’s judgment which found the rights of Plaintiff, Mary Smith Patton, were violated during the arrest of Plaintiff for traffic infractions. The trial court awarded Plaintiff $20,000.00 for the violation of her civil liberties and any other damages suffered. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 29, 2001 at approximately 2:80 a.m., the Plaintiff, Mary Smith Patton, was driving her pick-up truck west on San Antonio Avenue in Many, Louisiana. Officers David Self and William Hadlock of the Many Police Department stated they observed Plaintiff driving off the right edge of the roadway and then crossing the cen-terline. Officer Hadlock had been alerted that a sedan-type automobile was being driven in an improper manner, and was dispatched to that immediate area when he saw Plaintiffs alleged traffic infractions. Officer Self was driving east on San Antonio Avenue to meet with Officer Hadlock when he observed Plaintiffs vehicle.

Officer Self made a U-turn in the parking lot where Officer Hadlock’s police unit was sitting and began following Plaintiffs mid-sized red pick-up truck, with Officer Hadlock following behind. The Officers observed Plaintiff make a right at the intersection of Church Street and San Antonio Avenue, continue down San Antonio Avenue and cross the center line again. At that point, Officer Self activated his lights to signal to Plaintiff to pull over. Plaintiff slowed and pulled over onto the right parking lane and curb of San Antonio Avenue immediately before Sorelle Street. UShe then slowly turned off of San Antonio Avenue onto Sorelle Street and stopped her vehicle when it became parallel with the curb of Sorelle Street.

Both officers then approached the vehicle and instructed Plaintiff to exit the truck. Both officers stated that as they approached the vehicle they detected the odor of alcohol coming from the cabin of the truck. They also stated Plaintiff had slurred speech and bloodshot eyes. Plaintiff remained in the vehicle and repeatedly asked through her rolled down window why she had been stopped. The officers continued to verbally instruct the Plaintiff to exit the vehicle. Plaintiff rolled her window back up to a gap of about three inches, locked the doors and remained inside. The officers became more aggressive in their demands for Plaintiff to exit the vehicle. Officer Self then shouted at Plaintiff to “look at me!” When Plaintiff looked toward him, Officer Self quickly sprayed pepper spray through the gap in the window. Eventually, Plaintiff unlocked the door and was quickly grabbed by the officers. She continued to ask the officers why she was being stopped, but did verbally assert that she would exit the vehicle. Before being allowed to exit, Plaintiff was physically removed by the officers and forced to the ground, face down, and arrested for driving while intoxicated, failure to drive on the right side of the road, resisting an officer, and for running a red light. No field sobriety test was executed and Plaintiff refused to submit to a breathalyzer test at the Many Police Department.

The stop and arrest was recorded by video camera mounted on the dashboard of Officer Selfs vehicle. However, the alleged traffic violations giving rise to the stop were not on video tape. Plaintiff did not admit to the alleged traffic violations band chose to go to court to oppose them.

A few days prior to her criminal trial on the traffic violations, Plaintiff complained to the district attorney over the actions of the defendants during the arrest. No action was taken.

On January 23, 2002, the various traffic offenses were tried and heard in the district court. The district court judge found plaintiff guilty of crossing the center line, but found her not guilty of the other offenses. As there was no video of the alleged driving infraction, the conviction was based on the testimony of the arresting officers.

The following day, the Louisiana Department of Public Safety, Office of State Police, began investigating plaintiffs allegations of police misconduct. A report was issued finding the complaint was unfounded and that the officers were left with “no option other than physical force to effect the arrest.”

On September 20, 2002, Plaintiff filed a suit for damages suffered as a result of the actions of Officers Self and Hadlock, who were named as defendants. Plaintiff argued that “during the arrest process, petitioner was sprayed with a chemical, forcibly removed from her vehicle and thrown to the ground.” All of these actions, Plaintiff contended, were “unwarranted and excessive.” The petition alleged Plaintiff suffered “personal injuries including to her neck, back, hip, thigh, knee and eye.”

The suit went to trial on May 4, 2006. The trial court gave extensive, written reasons for finding in favor of Plaintiff. It held that the Defendants did not have probable cause to stop Plaintiff, and then used excessive force to effectuate the arrest. After determining that there was no probable cause to stop Plaintiff, the trial court addressed the excessive force claim:

These findings render baseless, and heighten to a more egregious degree, the excessive use of force by the Defendants as spraying | ¿Plaintiff with pepper spray, pulling her out of the vehicle against her will and throwing her to the ground to be handcuffed. Curiously, the other officers in the video did not seem to share the same measure of concern over the Plaintiff. In the Court’s opinion, spraying her with pepper spray while she was locked in a truck was void of logic. To do so to a suspect under these conditions does.not pop locks on the vehicle doors or morph car windows into rice paper. Plaintiff posed no physical threat whatsoever to the officers necessitating deployment of pepper spray and by doing so did they abuse their police power given to them to protect the City of Many while its residents slept. The pepper spray also doomed their opportunity to conduct a field sobriety test before the impartial eye of the camera giving their allegations of intoxication a chance at credibility. After Plaintiff unlocked the door and was still blinded and at the height of the burning effects of the spray upon her eyes, nose and throat, she resisted further because, in this Court’s view, she was disoriented under the circumstances and unable to maneuver herself out of the truck. The Defendants, while trying to pull her from the vehicle, continued their directives to exit, to which she responded, “OK, I need a minute ...” Plaintiff consented by this point, but the officers, likely influenced by anger, chose to throw the Plaintiff to the ground, face down, absent any sign of threat to officer safety. Defendants claim she began “reaching to her right ...” when locked inside the vehicle, but this Court finds this allegation untruthful so as to account for their use of force. Viewed in this light, the brutality displayed was excessive and motivated by notions other than officer safety.

A judgment was entered in favor of Plaintiff finding the Defendants liable in solido for all damages arising from the “unlawful traffic stop and arrest.” The trial court set Plaintiffs damages “at the sum of TWENTY THOUSAND DOLLARS (U.S. $20,000.00), together with legal interest from date of judicial demand and for all costs incurred.” Defendants have appealed the judgment.

ANALYSIS

Defendants first contend the trial court erred, as a matter of law, in determining that the arrest complained of by plaintiff was without probable cause. Defendants argue that because plaintiff was convicted on one of the charges it “unequivocally establishes that the arrest was lawful and that [plaintiff] cannot establish the lack of probable cause for the arrest.” The record does indicate that plaintiff was convicted of violating La.R.S. 32:71, Driving on Right Side of Road, based on the officers’ | ¡¡testimony.

We note Plaintiffs petition did not claim or allege false arrest; but, instead was based on defendants’ use of excessive force. Although the trial court did find the stop of Plaintiff was made without probable cause and, thus, the arrest unlawful, he did indicate that even if the arrest were lawful, excessive force was used by the officers to effectuate the arrest. The trial court stated:

Academically, had this Court found that this traffic stop was lawful,' it would remain deeply disturbing to believe that mere misdemeanor traffic offenses, offenses malum prohibitum, even those as serious as driving while intoxicated, could result in such unprovoked acts of police aggression. It troubles this Court, nay, any Court, to see officers • forcibly dragging citizens, under cover of night, out of their vehicles during a traffic stop because they cross a center or fog line or ride up on the shoulder of the road.

The law is clear that “even if an officer has probable cause, the use of excessive force in effecting the arrest becomes an actionable claim for damages.” Zerbe v. Town of Carenero, 04-422, p. 5 (La.App. 3 Cir. 10/6/04), 884 So.2d 1224, 1228, citing Penn v. St. Tammany Parish Sheriffs Office, 02-893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157. “Excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for damages.” Penn v. St. Tammany Parish Sheriffs Office, 843 So.2d at 1161. Therefore, even if accepting Defendants’ argument that the conviction on the one charge of crossing the centerline precludes any question as to whether probable cause existed, and correspondingly whether there was a false arrest, Plaintiff was not prevented from bringing her suit for excessive force.

A determination of excessive or unnecessary force is a finding of fact which | ¿may not be disturbed unless: (1) the record evidence does not furnish a sufficient basis for the finding; or (2) that finding is clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Saucier v. Players Lake Charles, LLC, 99-1196 (La.App. 3 Cir. 12/22/99), 751 So.2d 312. In Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), the supreme court set forth several factors to consider in making a determination of whether the force used by a police officer to effect an arrest was reasonable under the circumstances. The factors include: (1) the known character of the arrestee; (2) the risks and dangers faced by the officer; (3) the nature of the offense or behavior involved; (4) the chance of escape if the particular means are not employed; (5) the existence of alternative methods of arrest or subduing the arrestee; (6) the physical size, strength and weaponry of the officers as compared to that of the arrestee; and (7) the exigencies of the moment.

Under the facts and circumstances of this particular case, we must determine if the trial court’s determination that Officers Self and Hadlock used unreasonable or excessive force is manifestly erroneous or clearly wrong. In this determination we need not rely merely on the testimony of the witnesses, but have the advantage of a videotape of the events in question.

After a careful review of the entire record, we find the trial court did not err in finding Officers Self and Hadlock did not act reasonably under the circumstances. We direct our attention to the first Kyle factor. Defendants argue Plaintiff was “driving erratically, apparently under the influence of alcohol, and had refused to comply with repeated verbal instructions.” Initially, we note the video showed no erratic driving by Plaintiff, but instead indicates she pulled off to the side of the road when the emergency lights of the officers’ vehicles were activated. We also note, Officer Hadlock originally stated that Plaintiff crossed the centerline and ran a red plight on a stretch of road that was included on the videotape. However, the video showed no crossing of any cen-terline by Plaintiff, and revealed Plaintiff went through a yellow light as she was being followed by Officer Selfs vehicle, which had its emergency lights activated.

As the trial court indicated, Officer Had-lock later changed his testimony, saying Plaintiff crossed the centerline earlier than he previously stated. Officer Self attempted to rectify this contradiction by testifying the actual centerline infraction occurred in the brief moment when the video camera lost sight of the Plaintiffs vehicle. The trial court found these clarifications to have little merit, and believed they were a “desperate and a veiled attempt to align their words with the unbiased gaze of the camera’s lens.”

The testimony at trial also established that approximately five months prior to the incident, a male friend of Plaintiff filed a civilian complaint with the Many Police Department alleging nearly identical claims against Officer Hadlock. In that case, Plaintiff was a passenger in that vehicle and served as witness to the civilian complaint. When questioned about that earlier civilian complaint, Hadlock admitted that Officer Self, on the night in question in the instant case, reminded him who Plaintiff was when he recognized her as the driver of the truck.

Plaintiff acknowledged that after being pulled over she repeatedly refused the officers’ commands to exit the vehicle. She stated she did so because she was scared of Officer Hadlock based upon the earlier complaint, and further stated she was aware of his reputation for aggressive behavior and had heard “even worse things” about Officer Self.

There is nothing in the record to establish that the officers had any known reason to believe Plaintiff was dangerous. The only previous knowledge Defendants had of Plaintiff was through her participation as a witness in the earlier civilian lscomplaint filed against Officer Hadlock.

The second Kyle factor is the risks and dangers faced by the officers. Defendants argue that Plaintiff initially stopped her vehicle, but then backed her truck up. They contend they were reasonable to believe that the truck was potentially a dangerous weapon. The trial court found Plaintiff “posed no physical threat whatsoever to the officers necessitating deployment of pepper spray” and the use of “pepper spray also doomed their opportunity to conduct a field sobriety test before the impartial eye of the camera giving their allegations of intoxication a chance at credibility.” The trial court also noted that the other officers in the video, who arrived after the initial stop, but before Plaintiff was removed from the vehicle, “did not seem to share the same measure of concern over the Plaintiff.”

We note that although Defendants claim they were concerned that Plaintiffs vehicle was potentially a dangerous weapon because she might back up in it, we find this concern was allayed when Defendants were standing next to the driver’s side door. Further, the trial court also found, after being pepper sprayed, Plaintiff, in response to the continued directives from the officers to exit her vehicle, responded, “OK, I need a minute ...” We also note the Plaintiff also stated “I’m fixing to step out” as she was being grabbed from her vehicle by the officers. As the trial court noted, Plaintiff was not given time to exit the vehicle, but was forcibly removed from her vehicle and taken to the ground. The video conforms the trial court’s account of these events.

The third Kyle factor concerns the nature of the offenses involved. In this case, the officers charged Plaintiff with multiple traffic violations, including an alleged DWI. There was no indication that any weapons were involved, and it was reasonable to assume that the officers’ apprehensions should have been allayed when 13they were able to approach the vehicle without incident.

The next Kyle factor is the arrestee’s chance of escape if particular means are not employed. The Defendants contended because Plaintiff was behind the wheel, the chance of escape was a legitimate concern. However, by the time the pepper spray was used, and Plaintiff was forcibly removed from her vehicle, other police had arrived at the scene and the Plaintiffs vehicle was blocked by the police units.

. The fifth Kyle factor is the existence of alternative methods. Defendants contend since Plaintiff had locked her doors, the only alternative was to use pepper spray or bust the window. The trial court noted the officers could have attempted to pop the lock on the vehicle. We further would note the officers did not attempt to reason with Plaintiff in a less confrontational manner or simply wait a few more minutes.

The sixth Kyle factor is the physical size, strength and weaponry of the officers as compared to that of the arrestee. There were initially two police officers (the defendants), and eventually more. Plaintiff was female, alone and unarmed.

The last Kyle factor concerns the exigencies of the moment. Officers Self and Hadlock argue as long as Plaintiff was behind the wheel, she was essentially in possession of a dangerous weapon, and thus the situation was far from stable. Even accepting this argument as marginally providing justification for the officers’ decision to use pepper spray, their actions in forcibly removing Plaintiff from the vehicle and throwing her to the ground after she verbally expressed intent to comply with the officers’ command “in a minute” was unreasonable.

Under the circumstances shown here, the force used by Officers Self and Had-lock was excessive. The Plaintiff, although not complying with the officer’s commands to exit the vehicle, presented little danger of harm or escape. We also note |inthe officers did not answer Plaintiffs question as to why she was pulled over. Although she was in her vehicle, Plaintiff had no real means of escape, as the vehicle was blocked in and other officers soon arrived on the scene. While reasonable minds may differ as to whether the officers’ use of pepper spray was warranted, we fully agree with the trial court that following use of the pepper spray, Plaintiff, who verbally indicated she would then comply and exit the vehicle, was not given a reasonable time to do so. Rather than give Plaintiff the opportunity to compose herself, the officers forcibly grabbed her from the vehicle and threw her to the ground, placed a knee in her back and handcuffed her. The trial court also made a credibility determination in rejecting the account of the defendants that Plaintiff reached to her right after the pepper spray was applied. We find the record supports the trial court finding that “the brutality displayed was excessive and motivated by notions other than officer safety.” Therefore, after reviewing the record and applicable law, we find the factfinder’s conclusion, which involved credibility determinations by the trial judge, that the force used by the officers was excessive under the circumstances, was a reasonable one.

Defendants also contend the damages awarded by the trial court were excessive. To overturn the trial court’s award there must be a showing that the trier of fact abused the great discretion accorded it in awarding damages. Simply put, the award must be so high or low in proportion to the injuries such that it “shocks the conscience.” Young v. Fitzpatrick, 03-1038 (La.App. 3 Cir. 2/4/04), 865 So.2d 969; Ross v. City of New Orleans, 00-1879 (La.App. 4 Cir. 11/21/01), 808 So.2d 751; Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir. 1991). In deciding whether an award is excessive, appellate courts must consider the individual circumstances of the subject case to determine if the trier of fact abused its much | ^discretion in setting the award. Only after determining that the award was improper may the appellate court consider awards in previous, similar cases. Kaufman v. Adrian’s Tree Service, Inc., 00-2381 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102; Garcia v. Louisiana Dep’t. of Transp. and Development, 00-0930 (La. App. 4 Cir. 5/16/01), 787 So.2d 1142.

Defendants argue Plaintiff had numerous physical problems which predated the incident. The record conformed Plaintiff did have prior physical problems, but also indicated she was not seeing a physician during the period prior to the accident. Plaintiff also testified that the injuries she suffered from the accident exacerbated her prior medical problems. The trial court was presented with this evidence at trial, and concluded that Plaintiff did suffer compensable injuries such that an award of $20,000.00 was appropriate. After a thorough review of the record, we cannot say the trial court abused its great discretion in its award of damages.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Defendants-Appellants.

AFFIRMED.

      . San Antonio Avenue makes a 90-degree right turn at its intersection with Church Street. At this intersection, one may continue forward onto Church Street or turn right continuing down San Antonio Avenue.

      . At her criminal trial, Plaintiff was found guilty only of violating La.R.S. 32:71, Driving on Right Side of Road, based on the officers’ testimony. She was found not guilty of the charges of Operating a Vehicle While Intoxicated (La.R.S.14:98), Resisting an Officer (La. R.S.14:108), and'Obedience To and Required Traffic-Control Devices (La.R.S.32:231).

      . Defendants also argued the trial judge erred when he visited the scene of the alleged traffic infractions. This assignment of error solely pertained to the false arrest issue. As we find no need to address that issue, this assignment of error is rendered moot.


author: EZELL, Judge.

text:
    Mamie KRAMER v. Raymond E. OLIVER, et al.
    No. CA 06-1494.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Keith Saverio Giardina, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant, Liberty Mutual Insurance Company.

      Joseph Frazer Gaar, Jr., Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Mamie Kramer.
    Thomas Randolph Juneau, The Juneau Firm, Lafayette, LA, for Defendant/Appel-lee, Star Insurance Company.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

| liberty Mutual Insurance Company (Liberty Mutual) appeals the trial court’s judgment dismissing its claim for intervention. The trial court found that Liberty Mutual had settled and waived its workers’ compensation lien right and that it had no intervention right under the provisions of the uninsured/underinsured policy. Liberty Mutual also appeals the failure of the trial court to grant a new trial based on newly discovered evidence.

FACTS

On October 14, 2001, Mamie Kramer was involved in a serious automobile accident. At the time, she was employed-as a truck driver for Gulf Mark Energy, Inc. (Gulf Energy). According to her original petition, Ms. Kramer was traveling southbound on Topsy Road in Jefferson Davis Parish. At the same time, Raymond Oliver was traveling northbound in a Ford F~ 150 truck. Mr. Oliver crossed the center line, entered the southbound lane, and struck Ms. Kramer’s vehicle head-on. As a result of the accident, Ms. Kramer sustained serious personal injuries.

Ms. Kramer filed suit against Mr. Oliver and his insurer, State Farm Insurance Company (State Farm). A claim against Star Insurance Company (Star), the uninsured/underinsured motorist (UM) carrier for Gulf Energy, was also filed. Meanwhile, Liberty Mutual, also the workers’ compensation carrier for Gulf Energy, began paying workers’ compensation benefits to Ms. Kramer. Liberty Mutual filed an intervention claim against all defendants and Ms. Kramer. .

A settlement agreement was reached with Mr. Oliver and State Farm. Thereafter, Ms. Kramer’s claim and Liberty Mutual’s intervention against them were dismissed on April 21, 2004. Subsequently, Liberty Mutual stopped paying workers’ compensation benefits to Ms. Kramer, so she filed a workers’ compensation claim |2against it. On May 25, 2004, Brenda Mistrot withdrew as counsel for Liberty Mutual in the tort proceedings, and Darrell Sims enrolled as counsel. Ms. Mistrot continued to represent Liberty Mutual in the workers’ compensation proceedings.

On March 18, 2005, Star filed a motion for summary judgment, alleging that its policy did not provide coverage for the claims asserted in the tort suit. Meanwhile, the workers’ compensation matter was settled between Ms. Kramer and Liberty Mutual for $80,000. In October 2005, a joint petition for the approval of the workers’ compensation settlement was submitted to the Office of Workers’ Compensation. On October 31, 2005, the order was approved and signed by the workers’ compensation judge.

On June 20, 2005, Ms. Kramer filed an opposing motion for summary judgment, alleging that Star’s policy did provide UM coverage for the accident. On June 30, 2005, the trial court signed a judgment denying the motion for summary judgment filed by Star and granting the motion for summary judgment filed by Ms. Kramer, holding that Louisiana law applied to the interpretation of the Star policy. Later, another judgment was signed on August 15, 2005, granting Ms. Kramer’s motion for summary judgment finding that there had not been a proper rejection of UM coverage under Louisiana law. Therefore, Star’s insurance policy had UM limits of one million dollars during the period of June 1, 2001, to June 1, 2002.

Star then appealed the issue to this court. In the interim, Star and Ms. Kramer mediated the issue and a settlement was reached. On February 27, 2006, the appeal was dismissed.

On February 21, 2006, Ms. Kramer filed a motion to dismiss the intervention claim of Liberty Mutual and/or alternatively a motion for summary judgment. She claimed that Liberty Mutual did not possess any intervention rights due to the Isworkers’ compensation settlement and that a policy exclusion in the Star policy specifically excluded Liberty Mutual’s intervention rights.

The trial court found that Liberty Mutual entered into a knowing and intelligent waiver of its intervention rights by settlement. The trial court also found that Liberty Mutual had no intervention rights by operation of law or by application of the policy exclusions found in Star’s UM policy. Judgment was signed on March 31, 2006. Thereafter, Liberty Mutual filed a motion for new trial claiming that it had newly discovered evidence which indicated that the settlement with Star contemplated Liberty Mutual’s lien claim. Ms. Kramer opposed the motion on the basis that the evidence was not newly discovered as Liberty Mutual had the evidence prior to the hearing. The trial court denied the motion for new trial, and Liberty Mutual appealed.

POLICY EXCLUSION

The evidence in the record indicates that the Star policy issued to Gulf Energy contained UM insurance coverage as part of the policy. However, attached to the policy was a general change endorsement which deleted the coverage. As discussed earlier, the trial court found that the endorsement was ineffective because a valid rejection, as required by Louisiana law, had not been executed. This ruling is now final.

The insurance policy between Star and Gulf 'Energy contained UM provisions. The endorsement to the policy which stated that these provisions were not applicable is no longer effective because there was not a valid rejection of UM coverage under Louisiana law. Since the endorsement is ineffective, the provisions are now applicable in this case.

|4The UM coverage provided by Star’s policy contained an exclusion which provides: “B. Exclusions.... 2. This coverage shall not apply directly or indirectly to benefit: a. any insurer [or] self-insurer under any workers’ compensation, disability benefits or similar law;”.

In Travelers Ins. Co. v. Joseph, 95-200 (La.6/30/95), 656 So.2d 1000, the supreme court analyzed almost identical language. The supreme court held that “[a]lthough a compensation insurer may seek reimbursement from a UM insurer, a UM insurer may expressly exclude a compensation insurer’s reimbursement in its UM policy under the Civil Code’s freedom to contract on all matters not forbidden by law or public policy.” Id. at 1005. It found that the UM policy contained a valid exclusion. See also Landry v. Martin Mills, Inc., 981395 (La.App. 3 Cir. 3/3/99), 737 So.2d 58, writ denied, 99-957 (La.6/4/99), 744 So.2d 625.

Based on the jurisprudence, we find that Liberty Mutual is not entitled to reimbursement from the proceeds of Star’s UM policy. Therefore, the trial court was cor-, rect in granting summary judgment in favor of Ms. Kramer as the Star Policy specifically excludes any direct or indirect benefit to the workers’ compensation insurer. Since this finding resolves the issue between the parties, there is no need to discuss the other assignments of error raised by Liberty Mutual.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Liberty Mutual Insurance Company.

AFFIRMED.