author: SUSAN M. CHEHARDY, Judge.

text:
    Jeannie REDMANN v. MARTIN’S WINE CELLAR.
    No. 10-CA-135.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      D. Steven Wanko, Jr., Mark R. Ladd, Attorneys at Law, Covington, LA, for Plaintiffi'Appellant, Jeannie Redmann.
    Frank R. Whiteley, Judge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Attorney at Law, Metairie, LA, for Defendant/Appellees, Martin Wine Cellar and David Y. Martin, Jr.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

12This is a worker’s compensation claim for back injury. Jeannie Redmann appeals a judgment that denied her claim for medical benefits and weekly compensation for lower-back surgery prescribed for her. The trial court found the claimant failed to carry her burden of proving that her current problem is connected to the work-related incident. We affirm.

PROCEDURAL HISTORY

Redmann was an employee of Martin Wine Cellar (hereafter “Martin”) when she sustained a back injury at L5-S1 in January 2006. She was paid compensation and medical benefits, and was off work for several months. Although she eventually returned to work, in January 2007 Martin terminated her employment because she could not perform her job duties. She continued to receive worker’s compensation wage benefits for some time afterward.

On January 18, 2008 Redmann filed a Disputed Claim for Compensation against Martin. She listed the date of injury as January 7, 2006, and described the accident as follows: “Claimant suffered immediate injury to lower back while handling products in cheese cooler.” As disputed items she listed wage benefits, Roosts, penalties, interest, and attorney’s fees. Red-mann sought payment of additional benefits and medical expenses for treatment of lower back pain in the L3-4 area, although the problems for which she had been treated in the months after the 2006 accident were at L5-S1.

The case was tried in July 2009 and judgment was rendered in September 2009. The Office of Workers’ Compensation judge found that Redmann sustained injury to her L5-S1 disc on January 7, 2006, during the course and scope of her employment with Martin Wine Cellar, but that Redmann failed to prove connexity between the 2006 injury and the L3-L4 injury for which she currently seeks benefits. The judge refused to approve surgery for Redmann, but found that Martin had failed to controvert Redmann’s need for treatment and diagnostic tests, including the EMG, epidural steroid injections, and the selective nerve blocks, on a reasonable and timely basis. The judge assessed penalties and attorney’s fees against Martin in the amount of $8,000 each.

Redmann has appealed. She asserts the Office of Workers’ Compensation judge erred in finding her current injury not related to her prior injury when her treating surgeon related it to the prior injury, and there is no history of other accident or injury. She argues the judge erred in failing to apply the presumption that this injury was caused by the 2006 accident where no intervening accident was shown, and the medical evidence establishes a reasonable possibility of causal connection.

Martin asserts the judgment is correct.

EVIDENCE

At trial Martin stipulated to Redmann’s employment status and to the following facts: an accident occurred on January 7, 2006; there was an initial |,(injury from that accident; the claimant’s average weekly wage was $1,202.92; and the maximum compensation rate at the time was $454.00 per week.

The only live testimony was from the claimant. The parties filed in evidence, as joint exhibits, medical records from Dr. Scott Simeon, Dr. Alexis Waguespack, Dr. J. Monroe Laborde, Dr. Gary Glynn, Dr. Donald Dietze, Dr. William Johnston, and The Movement Science Center, as well as depositions of Dr. Dietze and Dr. Johnston.

Jeannie Redmann testified she began working as the deli/catering manager at Martin Wine Cellar in June 1999 and remained in that position until January 17, 2007. She said Martin terminated her employment because her back was not getting better and they needed someone to run the deli.

Redmann said she never had back problems prior to the accident in 2006. She had the accident on a Saturday and she went to the doctor the following Monday. She could barely walk. She underwent X-rays and an MRI. Her primary care physician, Dr. Scott Simeon, told her she needed to see a back doctor.

Redmann saw Dr. Alexis Waguespack, an orthopedic surgeon, who recommended an epidural injection for pain relief. Red-mann testified she was not able to return to work at that time, but spoke to Jill Baraloux, Martin Wine Cellar’s human resource manager. Baraloux advised Red-mann she was being placed on medical leave. Approximately two weeks after the accident Redmann was contacted by the worker’s compensation insurance administrator.

Redmann was not able to get the epidural injection until seven months after the accident, because the worker’s compensation administrator would not approve it. Redmann said the claim representative for the worker’s compensation administrator told her that they considered the injection medically unnecessary. The claim representative would not put the denial in writing, however. Redmann |fisaid she repeatedly phoned the claims representative, Amanda Majors, but Majors did not return her calls. She estimated she made more than two dozen calls to Majors.

Redmann stated the injection in July 2006 provided relief only for a day or two at most. Dr. Waguespack recommended a second epidural, but it was never approved by the worker’s compensation administrator. Redmann testified that after she received the epidural injection, Dr. Waguespack said her back would not have worsened if she had been allowed to have the injection at the beginning.

Redmann was off work due to the back injury from January 2006 through May 2006.Martin continued to pay her full salary. In May 2006 Dr. Waguespack released her to part-time light-duty work, and she returned to work. While she was working part-time she received checks from the worker’s compensation insurer.

Following the July 2006 injection by Dr. Waguespack, Redmann said, she was told there was nothing more that Dr. Wagues-pack could do for her. Redmann believed Dr. Waguespack meant that the worker’s compensation administrator was refusing to pay for further treatment.

Thereafter the worker’s compensation administrator sent Redmann to Dr. J. Monroe Laborde for a second opinion. After the consultation with Dr. Laborde, Dr. Waguespack received approval for the epidural injection.

Redmann testified she later sought treatment on her own from Dr. Gary Glynn, because she was still having severe problems. She had returned to work part-time. Dr. Glynn was unable to help her, however.

In January 2007 Martin sent her to Dr. William J. Johnston, a neurologist. Red-mann said there was no problem getting the worker’s compensation administrator to approve the visit to Dr. Johnston. Dr. Johnston ordered three tests — a myelo-gram, a nerve-conduction study, and a CT scan — but the worker’s | (¡compensation insurer approved only the myelogram. Red-mann said Dr. Johnston told her that he was aggravated nothing was being approved and that she wouldn’t even be there if the worker’s compensation insurer had approved her treatment in the beginning. Redmann said the worker’s compensation insurer refused to approve an MRI ordered by Dr. Johnston, but sent her back to Dr. Waguespack and approved an MRI ordered by Dr. Waguespack.

Redmann underwent the second MRI in 2007. She liked Dr. Johnston and would have liked to continue being treated by him. After the myelogram was performed, Dr. Johnston recommended she see a Dr. Knight for pain management and physical therapy. However, the insurer never approved treatment by Dr. Knight.

Subsequently Redmann was treated by Dr. Dietz, who recommended surgery in 2008, but the surgery was not approved by the worker’s compensation insurer.

Redmann said all the doctors — Wagues-pack, Johnston, and Dietz — told her the surgery would help with the pain and, without the surgery, her condition would continue to worsen. Redmann felt her condition had worsened due to the lack of treatment over the years.

Redmann said she has prescription pain medication, but uses it as little as possible because it makes her “loopy and sleeping and unable to function.” She testified that at the time of trial she was still receiving worker’s compensation benefits checks.

Counsel for Martin elicited testimony establishing that Redmann, although not working, maintains a busy schedule volunteering at her children’s schools, driving their school earpool; and driving to their sports activities; that she has been on several lengthy automobile trips for family vacations; that she is able to swim, |7to clean her house, and do volunteer work for friends who opened a small business. She is able to walk a mile for exercise, and to sit or stand for three hours at a time.

Redmann stated, however, that there are days when she is unable to do these activities because of back pain. She stated she was not in court claiming she could not do anything, but rather simply seeking medical treatment. She believes her present problems are related to the accident at Martin Wine Cellar, because there has been nothing in between that could have caused them.

She stated she realized how limited she was due to her injury when she attended a football game and climbing the stadium stairs caused her back to go into spasm. She said the only reason Dr. Waguespack considered her to be at MMI (maximum medical improvement) was because the worker’s compensation insurer was denying her further treatment.

The medical records show that following the MRI on January 12, 2006, Redmann’s initial injury was diagnosed as “degenerative changes in the lower lumbar spine including a posterior annular tear and bulge at L5-S1,” with “borderline nerve root contact in the left L5-S1 exit foramen with no other areas of'potential nerve root contact detected.” She was certified as disabled from work.

Dr. William J. Johnston, a neurological surgeon, stated in his deposition he initially saw Redmann on January 12, 2007, on referral from Dr. Gary Glynn. He reviewed two MRIs. The first, from January 2006, showed “a central disc prolapse ... a retrolisthesis with SI anterior on L5.” He recorded no findings at the L3-4 level. The symptoms Redmann reported to him in January 2007, a year after that MRI, were consistent with an L5-S1 disc problem.

Dr. Johnston testified that because Red-mann’s radicular symptoms seemed to be typical of those involving the left SI nerve root, implicating the disc or some 1 sproblem at the L5-S1 disc level, he recommended further studies consisting of an EMG (electromyogram), myelogram and a CT scan, with some routine medications. When he saw her in March 2007, her symptoms still were consistent with an L5-S1 problem. After that visit he recommended a myelogram and CT scan. He saw her again a few weeks later to review the results of the diagnostic testing, but could not identify a neurologic explanation of her symptoms. He stated that the L5-S1 level was also negative — he could identify no nerve root compression at that level.

Dr. Johnston saw Redmann again in June 2007, at which time she told him she had been off all her medicines and had done well until she climbed stairs at a football game and after that had increasing low back pain.

In November 2007 Dr. Johnston discharged Redmann from his care, recommending she see her primary physician for symptomatic treatment of musculoskeletal back pain. He could identify no new neu-rologic impairment or deficits that would suggest a surgical lesion.

In May 2008 Redmann returned to Dr. Johnston, complaining of pain in the L3-4 distribution area. Dr. Johnston described it as a different distribution than the L5-S1 pain. The new pain involved her groin, the dermatome in the part of the leg more typically supplied by the L3 and L4 nerve roots, clearly different from that subserved by the SI nerve root. What she was describing seemed to be a different level of radicular pain. Dr. Johnston recommended another MRI to investigate the new problem.

The second MRI was performed on May 28, 2008. After reviewing it, Dr. Dietze recommended an anterior L3^i discectomy and artificial disc replacement with possible interbody fusion at L3-4. Dr. Johnston testified he would not ^recommend a procedure of the magnitude proposed by Dr. Dietze without substantial documentation of a change from what he saw on the myelogram.

Dr. Johnston said there had been a change between the date of the myelogram he ordered on March 15, 2007, and the second MRI in May 2008. He concluded that if Redmann has unstable retrolisthesis at L3-4 now, then it is not related to her accident in January 2006. He said that change could have been the evolution of degenerative disease, or it could have been a new injury.

Dr. Donald Dietze testified in his deposition that he saw Redmann on December 8, 2008 and reviewed MRI scans from January 2006 and May 2008. His notes stated the 2006 MRI showed moderate L5-S1 disc disease, with broad-based disc protrusion, and the L3-4 disc had minimal spon-dylotic changes. His report noted, “There clearly has been progression of disc disease at L3-4 between 2006 and 2008 MRI scans .... 2006 lumbar MRI demonstrates NO L3-4 disc derangement. Therefore, it can be deduced that L3-4 disc pathology is directly related to her work injury.” He also stated, however, “I do not feel that her L5-S1 disc disease accounts for her radiculopathy.”

In the deposition, however, Dr. Dietze concluded there was an event between the two MRIs that caused the L3-4 problem.

LAW AND ANALYSIS

A worker’s burden of proving personal injury by accident is not relaxed and must be shown by a preponderance of the evidence. Coats v. American Tel. & Tel. Co., 95-2670, p. 4 (La.10/25/96), 681 So.2d 1243, 1245.

Because the rulings in the judgment were factual findings, the standard of review is manifest error. Mack v. River Oaks Psychiatric Hosp., 94-372, p. 13 (La.App. 5 Cir. 11/16/94), 646 So.2d 1082, 1087.

JjThe trial court’s determinations as to ... whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely upon written reports, records or depositions. [Citations omitted.]

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

Applying these principles to the facts elicited at trial, we cannot say the Office of Workers’ Compensation judge was manifestly erroneous. Her conclusion that the claimant failed to carry her burden of proving connexity between the 2006 incident and her 2008 diagnosis of L3-4 problems is not clearly wrong. Rather, Redmann’s problems started with L5-S1 complaints, which improved, and the L3-4 condition developed later and was not persuasively established to result from the 2006 injury.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the appellant, Jeannie Redmann.

AFFIRMED.

      . A document in the record indicates Red-mann was paid wage benefits until October 2009.

      . Redmann’s claim form incorrectly called the company “Martin's Wine Cellar,” but the correct name is "Martin Wine Cellar.” The employer's proper name is David Y. Martin, Jr., Inc., which does business as Martin Wine Cellar. Also made defendant is the worker’s compensation insurer, Bridgefield Casualty Insurance Company.

      . Martin did not appeal the assessment of penalties and attorney’s fees against it.

      . Retrolisthesis is "a specific form of spondy-lolisthesis ... where the superior body slips backwards on the lower body. It's a misalignment of the bones.... ” Exh. 8, Deposition of Donald D. Dietze, M.D., pp. 33-34.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Roxana B. RASTEGAR v. The MAGNOLIA SCHOOL, INC.
    No. 10-CA-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Daren Sarphie, Attorney at Law, Me-tairie, LA, for PlaintiffiAppellee.
    J. Douglas Sunseri, Peter J. Perez, Jr., Attorneys at Law, Metairie, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

Un this workers’ compensation case, the employer/insurer appeals from a ruling awarding compensation benefits, penalties and attorney’s fees. In addition, the claimant has answered the appeal on several grounds. For the reasons stated herein, we amend and affirm as amended.

On August 31, 2001, Roxana B. Rastegar filed a disputed claim for compensation seeking compensation benefits and medical treatment, as well as penalties, attorney’s fees and interest as a result of a work - related injury she sustained on October 15, 2000. Claimant’s employer, The Magnolia School, Inc., and its insurer, Bridgefield Casualty Insurance Company, answered the claim admitting the initial work-related injury, but denying that additional benefits were owed.

After protracted discovery, trial in this matter commenced on July 2, 2003. The trial was interrupted by the removal of defense counsel and the subsequent reassignment of the case to another workers’ compensation judge. Trial eventually concluded on June 9, 2008. Judgment was issued in favor of the claimant on June 23, 2009. In its ruling, the workers’ compensation judge found that claimant was | sentitled to temporary total disability benefits from September 25, 2001 through January 8, 2003 and supplemental earnings benefits from January 9, 2003 through March 27, 2004. The judgment also ordered the employer/insurer to pay for certain medical care and expenses, and further awarded penalties and attorney’s fees as provided by statute.

Magnolia School/Bridgefield suspensively appeal from this judgment on the basis of several assignments of error. Specifically, defendants argue that the claimant’s pre-existing mental condition as well as evidence that she completed nursing school after this accident shows that she was not entitled to additional compensation benefits. Defendants also contend that the workers’ compensation judge erred in awarding penalties and attorney’s fees in this matter.

Testimony and evidence presented at trial indicates that Roxana Rastegar was employed as a nurse by The Magnolia School, Inc. on October 15, 2000 when she was attacked and injured by an adult male patient at the facility. Claimant testified that the attack by the patient lasted for 20 or 30 minutes. After this incident, claimant went to the emergency room complaining of headaches and pain in her shoulders and neck. Claimant was seen the following day by Dr. Dabney Ewin, who diagnosed her with cervical strain and anxiety and prescribed physical therapy. Claimant was subsequently diagnosed with post-traumatic stress disorder, and she was released to return to her employment on restricted activity on October 23, 2000. She was released to regular duty on October 28, 2000.

Claimant attempted to return to work at this time, but asked to be relieved of her duties when the male patient who attacked her returned to the facility causing a relapse of her symptoms. Claimant testified that she continued to experience depression, anxiety and stress, and in November of 2000, she consulted with Dr. Kaleem Arshad, a psychiatrist who had previously treated her for depression. Dr. |4Arshad found claimant to be unable to return to work based on her emotional and mental symptoms, and claimant stopped reporting to work after November 6, 2000.

On November 10, 2000, defendant’s workers’ compensation claims representative made a recorded statement of Ms. Rastegar’s claims, and on November 20, 2000 claimant began receiving compensation benefits retroactive to October 16, 2000. The benefits were calculated at a rate of $320.53 per week, based on an average weekly wage of $480.40. However, this amount did not include overtime, and defendants did not dispute that the correct compensation rate should have been $355.39. Defendants terminated the compensation benefits on December 24, 2000 on the basis that the medical records did not indicate that claimant’s continuing mental health issues were related to the work-related incident.

In 2001, Dr. Arshad found that claimant was incapacitated from returning to work due to her mental condition, and he referred claimant to a neurologist. Dr. Arshad also recommended that claimant return to school. Claimant enrolled in Nunez College in Baton Rouge and then in Delgado Community College. However, Dr. Arshad continued to disable her from work.

Claimant filed this disputed claim for compensation in August of 2001. In June of 2002, claimant was evaluated by Dr. Richard Roniger at the request of defendants. Dr. Roniger issued a report opining that claimant’s psychiatric problems were not related to the work-related incident, and that since claimant was enrolled in school, she should be able to return to work.

In order to resolve the conflicting opinions between the two psychiatrists, the workers’ compensation judge appointed an independent psychiatrist to conduct an examination for the court. Dr. Doris Le-Blanc examined claimant on February 3, 2003 and found claimant to be suffering from post-traumatic stress disorder and 1 ¿recurrent depression which was caused by the incident of October 15, 2000. Dr. LeBlanc opined that claimant was totally disabled from work and that she should continue with psychiatric treatment. The deposition of Dr. LeBlanc was taken on June 20, 2003, and this deposition was introduced at trial. Claimant also submitted the deposition of Dr. Arshad regarding her pre-existing medical condition and her inability to return to work as a result of the October 15, 2000 attack.

Claimant attempted to return to part-time work in 2003 but was unsuccessful because of recurring symptoms. She returned to full time work earning at least 90% of her pre-accident weekly wage in May of 2004. She continued to treat with Dr. Arshad until 2004 when her husband’s health insurance stopped payment. In July of 2003, prior to trial, defendant tendered to claimant a lump sum representing indemnity benefits from December 24, 2000 to September 27, 2001.

Defendants argue on appeal that claimant was not entitled to temporary total disability benefits or medical expenses incurred as a result of her mental condition from September 27, 2001 to May 1, 2004. In support of this argument, defendants contend that in September of 2001, claimant submitted a sworn certification to the Louisiana Board of Nursing that she was free from any type of psychological condition precluding her from the practice of nursing. In January of 2002, claimant enrolled in nursing school, and defendants argue that she was no longer disabled from performing her previous duties as an LPN. Defendants further argue that any psychological problems claimed by Ms. Rastegar existed prior to the work-related incident in this case. Defendants rely on evidence that marital problems had caused claimant’s depression prior to 2000, and these problems continued after the incident.

Although the medical records in claimant’s file indicate that she had been treated for depression by Dr. Arshad prior to this incident in 2000, the record also | indicates that this condition did not prevent claimant’s employment as an LPN. Following the October 15, 2000 incident at work, Dr. Arshad diagnosed claimant with post-traumatic stress disorder (“PTSD”) and recurrent depression as a result of the attack, a diagnosis not made prior to this incident. He stated that the depression symptoms have been more difficult to treat since the incident because of the PTSD element involved. Dr. Arshad was of the opinion that claimant’s mental and emotional symptoms were aggravated by and had gotten worse since the work-related incident, and claimant was disabled from her work. Further, although claimant enrolled in a nursing program in 2002, Dr. Arshad explained in his deposition that he believed that claimant would be able to cope with the role of a student better than that of an employee.

The record also contains the report of Dr. Richard Roniger who examined claimant in July of 2002 at the request of defendants and opined that claimant’s psychiatric problems were not related to the attack, and that she should be able to work as an LPN if she was able to attend nursing school. However, claimant was also examined in 2003 by Dr. Doris Le-Blanc, an independent psychiatrist who was appointed by the court based on the conflicting medical opinions presented. Dr. LeBlanc found evidence that claimant suffered from PTSD and recurrent depression, and opined that both were the cause of the work-related incident in 2000. Dr. LeBlanc found that claimant was totally disabled and recommended future psychiatric treatment.

Dr. LeBlanc’s deposition is contained in the record, and indicates that the psychiatrist found clear and convincing evidence of a causal relationship between the diagnosis of PTSD and the work-related incident. Dr. LeBlanc explained that the claimant’s previous mental issues were not related to this diagnosis and that she believed the claimant was disabled from working although she was capable of 17attending nursing school. Dr. LeBlanc believed that as a result of this diagnosis, claimant would require psychological treatment for approximately two years.

The appellate court’s standard of review in a workers’ compensation case is governed by the manifest error or clearly wrong standard. The reviewing court is compelled to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Clement v. Blanchard, 05-531 (La.App. 5 Cir. 2/14/06), 924 So.2d 295, 296, (citing Bruno v. Harbert Int’l, 593 So.2d 357, 361 (La.1992)). In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. “Thus, ‘if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Turner v. Delta Beverage Group/Pepsi America, 07-529 (La.App. 5 Cir. 11/27/07), 973 So.2d 764, 775, writ denied, 08-15 (La.2/22/08), 976 So.2d 1289, citing Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380-381.

In order for an employee to establish entitlement to temporary total disability benefits, she must prove by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment regardless of its nature. La. R.S. 23:1221(l)(c). A claimant must introduce objective medical evidence to establish by clear and convincing evidence that she is unable to engage in any type of employment. Fassitt v. Jefferson Parish Hosp. Service, 07-695 (La.App. 5 Cir. 12/27/07), 974 So.2d 757, 760.

|sIn the present case, the claimant submitted both lay testimony and medical evidence to support her claim of disability. During trial of the matter, the workers’ compensation judge heard conflicting medical testimony and opinions regarding claimant’s alleged psychological injuries as a result of the work-related injury. We have reviewed the entire record in this matter, including the pleadings, trial testimony and numerous exhibits, and we find from the record that a reasonable basis exists for the determinations made by the factfinder.

Both Drs. Arshad and LeBlane opined that claimant suffered from PTSD which was caused by the incident at work on October 15, 2000 and rendered her with temporary total disability, while Dr. Roni-ger disagreed with both the diagnosis and the disability status. Both Mrs. Rastegar and her husband testified that although she was depressed at times prior to the incident in 2000, her condition dramatically changed following the incident at work. Although Mrs. Rastegar admitted that she returned to school in 2002, there was ample testimony to support the factfinder’s determination that this action did not change her disability status with regard to employment.

After listening to this testimony and reviewing the evidence presented, the workers’ compensation judge chose to credit the testimony of claimant and Drs. Arshad and LeBlane rather than the testimony of Dr. Roniger. A review of the record reasonably supports this determination, and we find no manifest error in the judgment awarding additional compensation benefits and medical expenses related to her continued injury.

Defendant also disputes the award of penalties and attorney’s fees in this case. La. R.S. 23:1201(F) imposes a penalty for “failure to provide payment.” In Bordelon v. Cox Communications, 05-40 (La.App. 5 Cir.2005), 905 So.2d 1107, 1113, writ denied, 05-1759 (La.1/27/06), 922 So.2d 549, this Court stated as follows:

When an employer has failed to pay benefits, the proper standard for review of that decision is whether the employer reasonably controverted the claim. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. A claim for workers’ compensation is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Brown v. Texas-LA Cartage, Inc., supra. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes, such as the statutes awarding penalties and attorney fees, are to be strictly construed. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41

In the present case, the workers’ compensation judge assessed defendant with three separate penalties in the amount of $2,000 each: 1) for the improper payment of temporary total disability benefits based on the improper calculation of the claimant’s average weekly wage; 2) for the failure to authorize and pay Dr. Arshad’s invoice and 3) for the failure to reimburse claimant for replacement eyeglasses. Further, the workers’ compensation judge imposed attorney’s fees on defendant in the amount of $30,000, and defendant claims the amount is excessive.

The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

Upon review of the record, we fail to find manifest error in the workers’ compensation judge’s assessment of penalties for failure to pay medical bills and expenses. The record in this case contains sufficient factual information from | inwhich to conclude the employer/insurer failed to pay the invoices of the claimant’s treating physician, Dr. Arshad, although these invoices were sent by claimant’s counsel. In addition, the record shows that the employer/insurer failed to reimburse claimant for medical expenses. The record supports a finding that these expenses were not reasonably controverted by the employer/insurer, thus triggering the imposition of penalties and attorney’s fees. Further, as previously noted, the workers’ compensation judge correctly determined that defendants improperly calculated claimant’s average weekly wage by failing to include overtime pay. We find no error of the trial court in awarding penalties against the employer for this miscalculation which should have been known to the employer.

However, as set forth in claimant’s answer to the appeal, we note that the ruling of the workers’ compensation judge failed to include in its judgment an adjustment to the tender made to claimant in July of 2003 for this difference in the average weekly wage. We therefore amend the judgment in the amount of $1,402.40 to reflect this difference.

Further, we find merit in claimant’s answer to the appeal that the workers’ compensation judge improperly credited the employer for the payment of benefits made by the tender. The record indicates the tender applied to the period of December 25, 2000 through September 27, 2001. As reflected in the judgment, claimant was found to be entitled to be temporary total disability benefits from September 25, 2001 through January 8, 2003, a time period only covered by the time period for two days. We conclude therefore that the workers’ compensation judge erred in awarding defendants a credit of $12,821.20 and we hereby amend the ruling to provide that no such credit is owed to the employer based on the findings of the workers’ compensation judge that claimant was entitled to temporary total disability benefits for this time period. Finally, based on evidence Inin the record, we fail to find merit in claimant’s argument that she is entitled to multiple penalties for the employer’s failure to pay medical expenses in this case.

With regard to the assessment of attorney’s fees, claimant’s attorney submitted an affidavit with detailed billing sheets indicating that the attorneys had invested over 300 hours in the prosecution of this claim. Further the affidavit indicated that the litigation persisted over the course of several years, including multiple trial dates. The record in this case consists of several volumes of pleadings and trial testimony and numerous exhibits. Our review of the record in this case fails to show an abuse of discretion in the award of attorney’s fees.

Claimant also seeks costs and reasonable attorney’s fees which were incurred by counsel in opposing defendant’s appeal. We find claimant is entitled to an additional $2,000.00 for this purpose, and the judgment is amended to reflect this amount.

Accordingly, for the reasons assigned herein, the judgment of the workers’ compensation judge is amended as specified herein, and as amended, is affirmed. Defendants shall bear all costs of this appeal.

AFFIRMED AS AMENDED.


author: MARC E. JOHNSON, Judge.

text:
    Son ELDER v. SIERC INCORPORATED OIL & FUEL.
    No. 10-CA-144.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2010.

      Son Elder, In Proper Person, Convent, LA, Plaintiff/Appellant.
    Jeffrey J. Warrens, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gPlaintiff/appellant, in proper person, appeals a judgment denying him workers’ compensation benefits. For the reasons that follow, we affirm.

Appellant filed a claim for workers’ compensation benefits asserting that for 40 days, between October 31, 2007 and January 23, 2008, he was exposed to carbon monoxide from an exhaust leak in the truck he was assigned to drive. He claimed that as a result of the carbon monoxide exposure, he suffered high blood pressure, migraines, sleep apnea, and shortness of breath/COPD. The workers’ compensation judge ruled that appellant failed to meet his burden of proving he was exposed to carbon monoxide from October through January during the course and scope of his employment. She noted that appellant proved an exhaust leak existed in the truck in January 2008, which was fixed on January 21st, but that he failed to prove carbon monoxide actually entered the cab of the truck or that he was actually exposed to carbon monoxide. She further found appellant failed to meet his burden of proving his medical conditions were causally related to any carbon monoxide exposure. As such, the workers’ compensation judge concluded appellant was not entitled to any workers’ compensation benefits.

|sWe note that appellant’s brief is not in compliance with Rule 2-12.4 of the Uniform Rules — Courts of Appeal. Although appellant states in general that he objects to the trial court’s judgment of November 16, 2009, which is the judgment denying him workers’ compensation benefits, he fails to specify assignments of error and the issue(s) presented for appeal. To avoid delay in this case, we will not require appellant, who is in proper person, to file a new brief under Rule 2-12.13. Rather, we will review the correctness of the judgment denying appellant workers’ compensation benefits under La.C.C.P. art. 2164, which provides that “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record of appeal.”

At trial, it was established that appellant, Son Elder, began his employment as a truck driver with defendant/appellee, Siarc Incorporated Oil and Fuel, a wholesale oil and gas distributor, on September 24, 2007. Mr. Elder testified that he first discovered the truck had an exhaust leak on October 23, 2007, while he was still in training. According to Mr. Elder, he told Robert Crais, the owner of Siarc, about the leak on that day and that Mr. Crais said he would take care of it. Mr. Elder stated he did not mark the problem on the inspection report for the truck because Mr. Crais told him that he handled the paperwork.

Mr. Elder explained that he started driving the Mack truck at issue on October 31, 2007. He stated he told Mr. Crais that the truck still had an exhaust leak and that Mr. Crais again told him that he would take care of it. Mr. Elder testified that at the end of his work shift, he felt bad from the carbon monoxide exposure. Over the next three months, Mr. Elder continued to drive the truck but not continuously. Mr. Elder explained that every day or two he told Mr. Crais that the truck had an exhaust leak and it needed to be fixed. He stated that every time |4he told Mr. Crais about the problem, Mr. Crais would let him drive a different truck the next day.

On January 5, 2008, the Mack truck had a flat tire. According to Mr. Elder, he fixed the tire and Mr. Crais told him to take the truck to Tony, a mechanic, for inspection. Mr. Elder stated that Tony did not have a chance to look at the truck on January 5th and he had to bring it back to him on January 7th at which time Tony ordered a part for the truck. Mr. Elder testified the truck was not fixed until January 21st. He stated he continued to drive the truck off and on during the interim. He stated he told Kevin Crais, Mr. Crais’ son who worked with the company, on January 8th about the exhaust leak problems and that the carbon monoxide exposure was making him sick, but Kevin told him there was nothing wrong with the truck. Mr. Elder last worked with Siarc on January 23, 2008 and then quit. He testified he quit because appellee refused to give him medical attention for the carbon monoxide exposure he suffered while driving their truck.

Robert Crais did not recall Mr. Elder reporting a carbon monoxide leak on October 31, 2007, and denied ever telling Mr. Elder not to fill out a driver’s inspection report. He testified he periodically drove the truck between October 2007 and January 2008 and never noticed an exhaust leak. He pointed out that he personally filled out a driver’s inspection report on November 27, 2007, and did not note that the truck had an exhaust leak. Mr. Crais explained that he has never turned down an employee’s request for truck repairs and stated that the truck was repaired when Mr. Elder reported the exhaust leak. Although he did not recall the date, Mr. Crais noted the work ticket showing the repair was done on January 21, 2008. He explained the 18 inch flex pipe, which runs underneath the bottom of the truck and connects the engine to the muffler, was repaired. He stated there is no connection of the flex pipe or exhaust inside the cab of the truck.

|sRon Derenbecker, a Siarc employee, corroborated Mr. Crais’ testimony. He testified he has never had a requested repair to a company truck refused and stated that things were fixed when they needed to be fixed. Mr. Derenbecker further stated that Mr. Crais told Mr. Elder to take the truck in for repairs on the same day Mr. Elder reported the exhaust leak.

Kevin Crais testified that the truck was fixed on January 21st, after Mr. Elder brought the exhaust leak problem to his attention the day before. Kevin stated that he did not recall Mr. Elder complaining about an exhaust leak prior to that time. Kevin explained that the company had extra trucks available for driving and, therefore, the timing of the repair was not an issue.

Mr. Elder testified that by the beginning of December, he was coughing at night, he could not sleep and he started having migraine headaches. He attributed his health problems to carbon monoxide exposure from the exhaust leak. He scheduled a doctor’s appointment for the end of December, but stated he was unable to keep it because appellee would not let him off of work. Mr. Elder stated he first saw a doctor for his health problems on January 18, 2008 and was subsequently diagnosed with high blood pressure, shortness of breath, migraines, sleep apnea and small vessel disease. He admitted on cross-examination that he had borderline hypertension in 1998, but that he was never prescribed medication. He pointed out that he had a pre-employment physical one month before his employment with Siarc which did not indicate he had high blood pressure. Additionally, Mr. Elder admitted he had seen a doctor in 2005 with complaints of inability to sleep but claimed it was due to shoulder pain at the time. He further admitted that he has been a smoker for over 30 years.

Mr. Elder submitted his medical records, which showed he was diagnosed with high blood pressure on January 18, 2008 and prescribed medication. A | finotation in his records on that date showed his headaches were likely due to his high blood pressure. Additionally, a sleep study was ordered. The sleep study revealed Mr. Elder suffered from obstructive sleep apnea. Mr. Elder subsequently saw Dr. Hugh Fleming, a neurologist, in April 2008. Dr. Fleming noted Mr. Elder’s headaches could be secondary to chronic carbon monoxide exposure but ordered a head MRI because of the continued nature of his headaches. The MRI showed Mr. Elder suffered from small vessel disease. When asked whether Mr. Elder’s headaches were related to carbon monoxide exposure, Dr. Fleming responded that “Mr. Elder’s MRI is non-specific and does not show cause for his history of headaches.” The records also show that in response to his complaints of shortness of breath, Mr. Elder underwent a pulmonary evaluation to rule out chronic obstructive pulmonary disease (COPD). It was noted that there was poor patient effort in the pulmonary evaluation.

As part of its defense, Siarc presented the deposition of Dr. Douglas Swift, the co-medical director of East Jefferson Hospital’s Occupational Medicine Clinic. Dr. Swift testified that he had reviewed Mr. Elder’s medical records and found nothing to support the proposition that Mr. Elder’s medical condition is associated with carbon monoxide exposure. He stated that carbon monoxide is a chemical asphyxiant that removes oxygen from the environment and noted that smoking is a source of carbon monoxide. Dr. Swift explained that in a person, carbon monoxide binds to hemoglobin in the blood and prevents the hemoglobin from carrying oxygen throughout the body. He stated the effects of carbon monoxide on the body are quickly observable, but that the effects cease within a few hours after the person is removed from the carbon monoxide exposure.

Dr. Swift explained that even if Mr. Elder had been exposed to carbon monoxide while driving a truck, his symptoms should have improved once he was 17out of the cab. Dr. Swift noted that the fact Mr. Elder’s headaches had not improved as of April 2008, despite the fact he had not driven the truck since January 2008, demonstrated his condition was not related to chronic carbon monoxide exposure. He stated that carbon monoxide exposure does not lead to chronic headaches. Additionally, Dr. Swift explained that carbon monoxide exposure shows on an MRI in the basal ganglia area and not the white matter where Mr. Elder demonstrated high signal intensity. Dr. Swift further stated that carbon monoxide exposure does not cause lung damage or affect lung function. He added that Mr. Elder’s daytime sleepiness was attributable to his sleep apnea and not to any carbon monoxide exposure.

The trial court found that Mr. Elder proved the truck had an exhaust leak sometime in January 2008 that was fixed on January 21, 2008. However, the trial court found . Mr. Elder failed to prove he experienced an exhaust leak during the entire period of October 31, 2007 through January 23, 2008. Additionally, the trial court determined Mr. Elder failed to prove that carbon monoxide actually entered the truck cab or that he was actually exposed to carbon monoxide because of the exhaust leak. Thus, the trial court concluded Mr. Elder failed to prove he suffered an injury or occupational disease as a result of his employment with defendant. The trial court further found Mr. Elder failed to meet his burden of proving a causal relationship between his medical conditions and the alleged carbon monoxide exposure. As such, the trial court determined Mr. Elder was not entitled to any workers’ compensation benefits.

The appellate court’s review of the workers’ compensation judge’s findings of fact is governed by the manifest error standard. A court of appeal may not overturn a judgment of the workers’ compensation judge absent an error of law or a factual finding, which is manifestly erroneous or clearly wrong. Newsome v. New Orleans Saints, 08-311, p. 4 (La.App. 5 Cir. 10/14/08), 996 So.2d 637, 639. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though we may feel that our own evaluations and inferences are as reasonable. Thus, if there are two permissible views of the evidence, a fact finder’s choice of them can never be manifestly erroneous or clearly wrong. Cenacle Retreat House v. Dubose, 04-571, p. 4 (La.App. 5 Cir. 11/30/04), 888 So.2d 409, 411, writ denied, 05-157 (La.3/24/05), 896 So.2d 1040.

An employee is entitled to workers’ compensation benefits if he suffers a personal injury by an accident arising out of and in the course and scope of his employment. La. R.S. 23:1031. The chain of causation required by the workers’ compensation statutory scheme is (1) the employment causes the accident, (2) the accident causes injury, and (3) the injury causes disability. La. R.S. 23:1031; Buxton v. Iowa Police Dept., 09-520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283. The employee has the burden of proving a work-related accident and resulting injury by a preponderance of the evidence. Viars v. St. Anthony’s Nursing Home, 02-1042, p. 4 (La.App. 5 Cir. 1/28/03), 836 So.2d 1143, 1145-46. The test for determining the causal relationship between an accident and subsequent injury is whether the claimant proved through medical or lay testimony that it is more probable than not that the accident caused the subsequent injuries. Newsome, 08-311 at 7, 996 So.2d at 640. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Brock v. Marathon Ashland Oil Refinery, 07-471, p. 8 (La.App. 5 Cir. 5/13/08), 986 So.2d 694, 699.

The workers’ compensation judge gave oral reasons for her judgment. She stated that the evidence showed the exhaust pipe was replaced on January 21, |fl2008. She noted that there was no evidence to show the length of time the pipe was leaking except appellant’s own testimony, which was not corroborated by any other testimony. The judge specifically stated that the statements of appellant’s co-worker and supervisors did not support appellant’s rendition of the facts.

The judge also noted there was no evidence of a relationship between appellant’s medical conditions and carbon monoxide exposure. She relied on the deposition testimony of Dr. Swift and noted Dr. Swift testified appellant did not have any medical condition associated with carbon monoxide exposure. She noted that Dr. Swift stated that appellant’s continued headaches after being removed from the environment is not indicative of carbon monoxide exposure but rather are likely attributable to his high blood pressure or sleep apnea. The judge also noted that Dr. Swift testified that neither sleep apnea nor lung damage is associated with carbon monoxide exposure. The judge acknowledged Dr. Fleming’s comment that appellant’s headaches could be secondary to carbon monoxide exposure but found that such a statement did not meet the preponderance of the evidence standard required. She further noted the MRI failed to confirm carbon monoxide exposure.

Upon review of the record, we do not find the trial court erred in determining appellant was not entitled to workers’ compensation benefits. The record supports the trial court’s findings that even if appellant was exposed to carbon monoxide, he failed to prove a causal connection between any carbon monoxide exposure and his current medical conditions. None of the evidence presented by appellant linked his medical conditions to carbon monoxide exposure. Although Dr. Fleming initially stated appellant’s headaches could be secondary to chronic carbon monoxide exposure, a subsequent MRI did not show this to be the case. Additionally, when directly asked whether appellant’s headaches were caused by carbon monoxide exposure, Dr. Fleming answered that appellant’s MRI | inwas non-specific and did not show the cause of his headaches. This evidence does not carry appellant’s burden of proving by a preponderance of the evidence that his medical condition was caused by carbon monoxide exposure. Furthermore, Dr. Swift testified that nothing in appellant’s medical records indicated any connection of his medical conditions to carbon monoxide exposure. Where evidence leaves the probabilities evenly balanced or shows only a possibility of a causative accident or leaves it to speculation or conjecture, then the claimant’s case must fail. Buxton v. Iowa Police Dept., 09-520 at 25, 23 So.3d at 291.

Accordingly, we affirm the judgment of the workers’ compensation judge denying appellant workers’ compensation benefits for both indemnity and medical benefits.

AFFIRMED.