author: SANDRA CABRINA JENKINS, Judge.

text:
    Kathleen G. FROST v. Chris C. CARTER and Automobile Club Inter-Insurance Exchange.
    No. 2013-CA-0375.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2014.

      Don Anthony Almerico, St. Rose, LA, For PlaintiffiAppellee.
    Thomas M. Richard, Chad J. Landry, Chopin Wagar Richard & Kutcher, LLP, Metairie, LA, for Defendant/Appellant.
    Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CAJBRINA JENKINS.
   SANDRA CABRINA JENKINS, Judge.

hThe plaintiff, Kathleen G. Frost, initiated this action in order to recover damages for injuries she sustained in an automobile accident which occurred on September 8, 2009. Named as defendants were Chris Carter, the uninsured driver who rear-ended Frost’s vehicle, and Automobile Club Inter-Insurance Exchange (“ACHE”), Frost’s uninsured/underinsured insurance carrier. It was undisputed at trial that the plaintiff suffered from neck and back injuries, and from bilateral carpel tunnel syndrome prior to the accident. Following a bench trial, the trial court rendered judgment in favor of the plaintiff and awarded $13,000.00 in damages, plus interest and costs, for an exacerbation of the plaintiffs pre-existing neck, back, and left carpel tunnel symptoms. ACI-IE has filed this appeal arguing that the trial court manifestly erred in awarding damages to the plaintiff because the plaintiff failed to satisfy her burden of proving that her injuries were caused or aggravated by the automobile accident at issue in this case. For the reasons discussed below, we affirm the trial court’s judgment.

1 .BACKGROUND

Kathleen Frost alleges she injured her neck, back and wrist when a Jeep Cherokee driven by Chris Carter rear-ended her Volkswagen Beetle while stopped at a traffic light. As a result of the impact, Frost’s car was pushed into the pick-up truck stopped ahead of her.

During trial, Frost admitted that she suffered from pre-existing injuries to both her neck and back, and that she had been diagnosed with carpel tunnel syndrome prior to the 2009 automobile accident. She did not dispute that her problems began in 2001, when she fell out of a tree. Following the fall, she began treating with Dr. William J. Johnston, who diagnosed her with spondylotic stenosis and displaced in-tervertebral discs at C5-6 and C6-7. She also complained of problems with her hands, and was diagnosed with carpel tunnel syndrome in 2002. Frost was subsequently involved in two other automobile accidents in 2002 and 2005; after each, she presented to the emergency room with complaints of neck pain. Lastly, Frost claimed to have been injured in a slip and fall accident at a restaurant in July of 2008, for which she also filed a lawsuit. Although Frost remained under the care of Dr. Johnston until after the 2009 accident, Dr. Johnston died prior to trial and before his deposition could be taken. Frost did not call any other treating physicians or medical experts to testify on her behalf at trial.

laFrost testified that she went to the hospital the day after the accident, September 9, 2009, because she began aching in her “neck, back, and everything on down.” While there was no indication that she specifically complained of wrist pain at the hospital, at trial, Frost testified that the accident caused the pain from her previously diagnosed left carpel tunnel syndrome condition to worsen.

Frost’s boyfriend, Phillip Canella, also testified on her behalf at trial. Canella testified that he went to the scene of the accident, checked out Frost’s car to see if she could drive it home, and then followed her home. Canella stated that no one appeared to be seriously injured when he arrived at the scene, and that Frost told him that “she was hit hard and shaken but thought she would be okay.” According to Canella, in “the days following the accident,” Frost began to complain of “[plain and discomfort in her hands, arms, lower back, [and] legs.” Canella stated that “visibly, [she] wasn’t herself and was in discomfort.”

Frost’s testimony was further corroborated by emergency department records from East Jefferson General Hospital, which indicated that Frost presented to the emergency department on September 9, 2009, with complaints of head and neck pain; increasing soreness in her lower back; some radicular symptoms going down her butt into her right leg; and some stiffness and soreness in her neck and her interscapular area. She also reported symptoms of chronic arthralgias, myalgia and low back pain. She complained of occasional radicular symptoms that were worse on that day. She denied any loss of consciousness, dizziness or blurry vision. Frost reported a medical history of anxiety and a past surgical history that | ¿included a hysterectomy, appendectomy, oophorec-tomy, cervical fusion, lumbar laminectomy, breast reduction, and tonsillectomy. The emergency physician, Dr. Raul Guervara, reported that he discussed further management of Frost’s condition with Dr. Johnston who recommended treatment with Medrol Dosepak, Lodrine, and Neu-rontin, and further recommended that the plaintiff follow-up with his office in a week or two.

Included in the medical records introduced at trial was also a report dated October 12, 2009, from neurologist, Dr. R. Hugh Fleming, to Dr. Johnston. In the summary of the report, Dr. Fleming stated, “this patient was injured in an automobile accident several weeks ago when she was hit from behind. She has been having increasing pain and numbness in her back with radiation to both legs. She is also having increasing numbness in her hands.” He noted a past history of possible carpel tunnel syndrome, and neck and back surgery. EMG findings showed mild chronic changes in the legs bilaterally with no new or active denervation noted. A nerve conduction study showed evidence of moderately severe slowing of the median nerves through carpel ligaments bilaterally, and slightly greater on the left. Dr. Fleming’s impression was that the electrodiagnostic studies conducted showed evidence of moderately severe bilateral carpel tunnel syndrome, left greater than right, which may have been exacerbated by the accident. He was of the opinion that testing of the lower extremities showed evidence of chronic changes from previous disc pathology and surgery and scarring, but no evidence of new or recurrent root compression.

IfiMedical records further indicated that Frost had been treated by Dr. Michael Wilensky, periodically since 2002. Dr. Johnston last referred her to Dr. Wilensky for nerve conduction studies related to her carpel tunnel syndrome on July 28, 2009, a mere six weeks before the accident with Carter. Dr. Wilensky’s impression at that time was mild chronic neurogenic atrophy consistent with radiculopathy and moderate to severe left carpel tunnel syndrome.

Frost ultimately underwent left carpal tunnel release surgery in April of 2010, approximately seven months after the accident. According to the plaintiff, although she had been scheduled for the surgery prior to the accident, she had discussed it with her surgeon, Dr. Johnston, and they decided that she would hold off on that surgery until she could no longer tolerate the pain.

ACIIE’s medical expert, Dr. Kim Le-Blanc, testified and was of the opinion that the September 2009 accident had nothing to do with Frost’s left wrist carpel tunnel syndrome. Dr. LeBlanc explained that this opinion was based on his observation that Frost’s carpel tunnel predated the accident by at least seven years. In addition, he opined that Frost’s carpel tunnel syndrome was instead caused by normal anatomical variation referred to as marked hypertrophy, or enlargement, of the palmer aperneurosis, which Frost was born with. On cross-examination, Dr. Le-Blanc admitted Frost’s medical condition could have been aggravated under certain circumstances; however, he denied that it could have been aggravated under the circumstances in this case because he believed that Frost’s symptoms | fiwould have manifested no later than 7 to 14 days following the accident if they had been caused by a soft tissue injury to her wrist. He noted that the plaintiff testified that her wrist pain instead began two months later.

The report of defense expert, Dr. John England, was also admitted into evidence at trial. Dr. England similarly opined that there was nothing in the medical evidence or deposition testimony to indicate that Frost’s carpel tunnel syndrome symptoms became worse due to the accident. His opinion was based in part on his observation that the plaintiff testified during her prior deposition that she decided to have surgery on her left wrist due to problems with numbness and gripping things, and that the problems began approximately two months after the accident.

Counsel for ACHE additionally cross-examined Frost based on deposition testimony from her slip and fall claim against the restaurant, in an attempt to show that all of her injuries predated the 2009 motor vehicle accident.

JUDGMENT

In finding for the plaintiff, the trial court reviewed the evidence, including reports from Dr. Quería, Dr. Fleming, Dr. Le-Blanc, and Dr. England. After remarking that Dr. Fleming’s report was prepared on “October 12, 2009, only ... a month and 4 days” after the wreck, the trial court ruled in favor of the plaintiff, in effect, rejecting the defense experts’ opinions that there was insufficient evidence of proximal connection to link the plaintiffs complaints of increased wrist pain to the accident. The trial court also rejected the defendant’s position that Frost’s neck 17and back injuries were not aggravated by the accident. Based on its findings, the trial court rendered judgment in favor of the plaintiff, awarding general damages of $13,000.00, plus interest and court costs.

DISCUSSION

A. Evidence regarding exacerbation of Ms. Frost’s neck, back and wrist injuries

In its first assignment of error, the Defendant, ACHE, complains that the trial court erred in awarding damages for an exacerbation of Frost’s pre-existing neck and back injuries, because “Frost specifically testified at trial that the accident in question did not have any effect on her neck or back.” In its next two assignments of error, ACIIE complains that the trial court erred in awarding damages to Frost for an exacerbation of her left wrist carpal tunnel syndrome absent expert medical testimony to support it, and when such an award was contrary to, and unsupported by, the evidence admitted at trial. These three assignments of error are reviewed collectively below for ease of discussion.

In a personal injury action, the plaintiff bears the burden of proving — by preponderance of the evidence — that the injuries sustained were caused by the accident at issue. Maranto v. Goodyear Tire & Rubber Co., 94-2603, p. 3 (La.2/22/95), 650 So.2d 757, 759; American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991). “The test for determining the causal relationship between an accident and a subsequent injury is whether the plaintiff proved through medical or lay testimony that it is more probable than not that the ^subsequent injuries were caused by the accident.” Chavers v. Travis, 04-0992, p. 7, (La.App. 4 Cir. 4/20/05), 902 So.2d 389, 394 (citing Maranto, 94-2603, p. 3, 650 So.2d at 759). Proof to a reasonable medical certainty is not required. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

Whether an accident is the cause of the plaintiffs injuries is a question of fact which should not be disturbed absent manifest error, or unless the trial court was clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In other words, as the reviewing court, our duty is not to determine whether the trial court’s findings are right or wrong in an absolute sense, nor is it to determine whether we might have reasonably reached a different conclusion when presented with the same evidence; rather, our sole task is to ask whether the factfinder’s resolution of the conflicting evidence was reasonable in light of the record as a whole. Freeman v. Poulana/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Chavers, 04-0992, p. 8, 902 So.2d at 394 (citing Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)).

In addition, that an accident victim suffered from a pre-existing condition does not bar a victim from being compensated for an aggravation or worsening of that condition as a result of the new accident. Because a defendant “takes his victim as he finds him,” the defendant “is responsible for all natural and probable | gconsequences of his tortious conduct.” Laska, 625 So.2d at 1005. Consequently, if the defendant’s conduct is responsible for aggravating a pre-existing condition, he must compensate the victim for the full extent of the aggravation, “even if some or all of the injuries might not have occurred but for the plaintiffs preexisting physical condition, disease, or susceptibility to injury.” Chavers v. Travis, 04-0992, p. 7, (La.App. 4 Cir. 4/20/05), 902 So.2d at 394 (quoting 2 Stein on Personal Injury Damages 3d § 11.1). Nevertheless, the plaintiff must still prove causation; therefore, “[i]f the evidence establishes that a plaintiffs pre-accident and post-accident conditions are identical in all meaningful respects, the plaintiff has failed to carry his burden of proving causation.” Chavers, 04-0992, p. 9, 902 So.2d 389, 394-95 (citing Juneau v. Strawmyer, 94-0903, p. 8 (La. App. 4 Cir. 12/15/94), 647 So.2d 1294, 1300).

With regard to the plaintiffs neck and back injuries, our review of the record reveals that Frost did, in fact, testify that her neck and back were injured following the wreck, although her testimony was arguably inconsistent. While Frost specifically testified that she did not “feel any injury” immediately following the wreck, she stated that she started “aching the following day,” and went to the emergency room with complaints of pain to her neck and back. Later, when asked what injuries she sustained from the wreck, Frost responded, “I feel like it was my left carpel tunnel.” She further responded that swimming was therapeutic for her | minjuries, stating, “I have chronic pain in my neck and my back and if I don’t visit the water every day, I am an unhappy camper.”

During cross-examination, however, Frost was asked, “Now, in the September 8, 2009 accident you didn’t injure your neck or back, did you?” Frost responded, “Correct.” When asked if her back injury instead resulted from her prior fall at the restaurant, Frost again responded, “Correct.” The following dialogue continued:

Q: And those injuries, and those problems you were having [from the fall] continued after this accident?
A: Correct.
Q: This accident didn’t make them worse?
A: Correct.
Q: Didn’t aggravate your pre-existing condition?
A: Correct.
Q: So the only injury you believe that is related to the September 2009 motor vehicle accident is the. left sided carpel tunnel accident?
A: I believe it was aggravated, yes.

As regards her left wrist injury, Frost testified that she was unable to recall exactly when she began having problems with left carpel tunnel syndrome. She admitted that she was scheduled to have surgery before for accident, but claims that she told Dr. Johnston she wanted to postpone it “if [she was] not really hurting that bad” because she was “scared to death to undergo anesthesia.” Frost further claimed that Dr. Johnston told her that surgery could be postponed until she could not “handle it anymore.” She testified, “[A]nd that’s when I got in the wreck and it really started bothering me after the wreck and it got worse, so that’s when I decided to check it out and I think I finally ended up doing surgery in April.”

|nIn reaching a finding in favor of the plaintiff, the trial court stated:

The Court notes that there is no question that the accident happened, no question that the plaintiff went to the emergency room at East Jeff following the accident, no question that she made significant complaints, though her complaints were relative to her back and her neck, she related those to the accident. The plaintiff ... and I know that the defense counsel spent much time trying to discredit the plaintiff but the reality is if this young lady wanted to she could clearly, clearly have suggested that there was significant aggravation of a pre-existing problem with her neck and back. There is no indication that she attempted to do so. The Court notes the plaintiffs demeanor, her appearance, her attempt to answer the questions as posed by defense counsel. The Court does note that plaintiff was at a significant disadvantage to the extent that Doctor Johns[t]on is no longer living and therefore the Court notes that the plaintiff has the burden of ... proving by a preponderance of the evidence that ... any and all injuries sustained as a result of this incident were in fact caused by this accident.
Of significance the Court notes plaintiff appears to be a horrible historian.... The problem in this is you take your victim as you find them. We know that, that’s the law and there is no question that Miss Frost had a pre-existing back and neck problem. She was on ongoing treatment with her orthopedist. (Emphasis added).

The trial court’s oral reasons for judgment also recognized that the plaintiff “had existing carpel tunnel syndrome for which she had been recommended surgery and which she was attempting to undergo surgery,” and concluded:

[Bjecause she was in the process of undergoing the surgery, I believe based on what I reviewed that there was some exacerbation of her complaints relative to her wrist, relative to her back, relative to her neck, however, I cannot say and will not say that that exacerbation necessitated the surgery. The surgery was already preplanned. What she’s entitled to is the exacerbation that was caused by this incident. (Emphasis added).

| ^.The record shows that the trial court reviewed the medical evidence and heard live testimony from Frost, her boyfriend, and the defense expert, Dr. Kim Edward LeBlanc; thereafter, it made credibility determinations based on its observations. Where findings are based largely on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands that great deference be given to the trier of fact’s findings, for only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what was said. Scott v. State Farm Fire & Cas. Co., 47,-490 (La. App 2 Cir. 9/26/12), 106 So.3d 607; Ratcliff v. Normand, 01-1658 (La.App. 3 Cir. 6/5/02), 819 So.2d 434.

Applying the manifest error standard of review, we cannot say that the trial court erred in finding for the plaintiff. Although there were some inconsistencies in the plaintiffs testimony regarding whether she attributed any neck and back pain to the 2009 automobile accident, based on our review of the transcript, it was not unreasonable for a trier of fact to conclude that the plaintiff may have been confused or easily led by defense counsel; for instance, plaintiff repeatedly responded “correct” during cross examination, even when inconsistent with prior testimony on direct. For this reason, this Court is required to give deference to the trial court which was in the best position to view the plaintiffs demeanor and facial expressions, and to determine whether or not she, for instance, appeared truthful or confused. “The trial court’s credibility determinations must be given | 1sgreat deference because only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief of what is said.” Billiot v. Billiot, 01-1298, pp. 5-6, (La.1/25/02), 805 So.2d 1170, 1174 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

We also cannot agree with the defendant that this is the type of situation where the plaintiff was required to rely on expert testimony to carry her burden of proof. As explained by the Louisiana Supreme Court, “While expert medical evidence is sometimes essential, it is self-evident that, as a general rule, whether the defendant’s fault was a cause in fact of a plaintiffs personal injury or damage may be proved by other direct or circumstantial evidence.” Lasha, 625 So.2d at 1005 (La.1993). In other words, while expert evidence is sometimes needed to prove causation “[wjhere the conclusion is not one within common knowledge ... on medical matters within common knowledge, no expert testimony is required to permit a conclusion as to causation.” Id. (internal citations omitted); see also, Chavers, 04-0992, p. 10, 902 So.2d at 395.

Here, the trial court specifically stated that its ruling was not based on a finding that the plaintiffs carpel tunnel syndrome surgery was necessitated by the September 2009 automobile collision. Had the court so ruled, expert evidence to support the plaintiffs claims would have been expected. To the contrary, the court only found that the plaintiffs generalized complaints of increased pain and |usoreness were attributed to the accident. Because the causal link between trauma and increased pain and soreness is often within the realm of determinations not always requiring expert evidence, we cannot say the trial court manifestly erred.

B. Report by Dr. R. Hugh Fleming

In its fourth assignment of error, ACIIE complains that the trial court erred in basing its finding of medical causation, in whole or in part, on a report prepared by Dr. R. Hugh Fleming, whom Frost did not call to testify .at trial, who was not tendered or accepted as an expert witness, and whom ACIIE did not have an opportunity to cross examine. We find that this argument has no merit.

ACIIE jointly introduced the records from Dr. Fleming as part of the medical evidence prior to trial, and jointly stipulated to its authenticity. In addition, although the parties expressly reserved their right to object to the jointly introduced exhibits during trial, ACIIE failed to do so, and instead attempted to examine its own expert, Dr. LeBlane, regarding the information contained in Dr. Fleming’s October 12, 2009 report. Moreover, Dr. Le-Blanc testified that he relied on information contained in Frost’s medical records, including the EMG studies from Dr. Fleming dated October 12, 2009, and March 20, 2010. Lastly, defendant’s non-testifying expert, Dr. England, also referenced Dr. Fleming’s records in his report.

11fiBased on the foregoing, it is clear that the defendant knew well in advance that the plaintiff was relying on information contained in Dr. Fleming’s report. As a result, ACIIE could have deposed Dr. Fleming in advance of trial but chose not to do so. A defendant cannot waive its right to examine a treating physician whose records it introduces and relies on at trial, and then claim that the evidence was admitted in violation of its right. It is well-settled that when a party fails to contemporaneously object to the introduction of objectionable evidence, that party waives the right to complain of the issue on appeal. Trans-Global Alloy Ltd. v. First Nat. Bank of Jefferson Parish, 588 So.2d 443, 448-49 (La.1991). It is also a “ ‘well-established commonsense principle’ that [generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.’ ” Ohler v. U.S., 529 U.S. 753, 755, 120 S.Ct. 1851, 1853, 146 L.Ed.2d 826 (2000). Under these circumstances, we cannot say that the trial court erred in considering the contents of Dr. Fleming’s report.

C. Testimony of Dr. Kim LeBlane

In its fifth assignment of error, ACIIE argues that the trial court erred in misstating Dr. Kim LeBlanc’s testimony in order to justify an award of damages to Frost for an exacerbation of her pre-exist-ing left wrist carpal tunnel syndrome. 11fiMore specifically, ACIIE argues that the trial court misinterpreted Dr. LeBlanc’s testimony regarding the time frame within which plaintiffs alleged aggravation of her carpel tunnel injury should have manifested in order to be attributed to the wreck. We disagree.

Dr. LeBlane was of the opinion that if the plaintiff “was going to have any symptoms related to the accident that would exacerbate her carpal tunnel syndrome that should have occurred within 2 weeks of the accident.” He stated:

It’s in all, virtually all injuries, soft tissue injuries that are sustained for any reason, you have normal swelling that occurs, you have inflammation that occurs, that usually occurs within 24 to 48 hours, that’s the onset. Depending on the severity though it will be resolved within 7, 10, perhaps 14 days. So if she [Frost] was going to have any symptoms related to the accident that would exacerbate her carpel tunnel syndrome that should have occurred within 2 weeks of the accident

At trial, counsel for ACIIE asked Dr. LeBlanc whether he recalled Frost’s testimony as to the time-frame within which she said she experienced left carpel tunnel syndrome after the September 8, 2009 accident. He responded that he did, and he said it was approximately two months later. Moreover, both Dr. LeBlanc’s and Dr. England’s reports reference plaintiffs prior deposition testimony that her symptoms worsened approximately two months after the accident.

In its oral reasons for judgment, the trial court casually referred to this two month period as a “litmus test,” while noting that there was evidence that the plaintiff was treated for carpel tunnel syndrome much sooner than two months |17after the wreck. The fact that the court highlighted this discrepancy suggests that the court relied on the experts’ repeated references to the plaintiffs two-month estimate for when her wrist problems began to worsen — despite medical evidence to the contrary — to discredit the expert’s positions. In doing so the trial court essentially rejected the experts’ opinions regarding the time by which Frost’s pain should have manifested. The weight to be given expert testimony depends not only on the professional qualifications and experience of the expert, but also on the facts on which it is based. Meany v. Meany, 940251, (La.7/5/94), 639 So.2d 229, 236. For an expert opinion to be valid and merit much weight, the facts upon which it is based must be substantiated by the record; if the facts are not substantiated by the record, the trial court may reject the opinion. Miller v. Miller, 01-0356, p. 8 (La.App. 3 Cir. 10/31/01), 799 So.2d 753, 758; Gould v. Gould, 28,996, (La.App. 2 Cir. 1/24/97), 687 So.2d 685, 690; Rogers v. Roch, 95-242, p. 16 (La.App. 5 Cir. 10/18/95), 663 So.2d 811, 817-18; Meany, 94-0251, p. 11, 639 So.2d at 236. As a result, we cannot say the trial court’s finding was clearly wrong or unreasonable; therefore there is no merit to this assignment of error.

D. Motion for Involuntary Dismissal

In its sixth assignment of error, ACIIE argues that the trial court erred in denying ACIIE’s motion for an involuntary dismissal at the close of Frost’s case in chief because the Plaintiff did not prove medical causation by a preponderance of the evidence by the close of her case in chief.

11sLouisiana Code of Civil Procedure Article 1672(B) governing the motion for involuntary dismissal in a bench trial, states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and the law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the 'plaintiff and in favor of the moving party or may decline to render judgment until the close of all the evidence. (Emphasis added).

The trial court acted within its discretion when it denied ACIIE’s motion to dismiss and heard all of the evidence before rendering its decision. The plain language of Article 1672 affords the trial judge the discretion to render judgment or to decline to render any judgment until the close of all the evidence, and the decision of a trial court to deny a motion for involuntary dismissal at the close of the plaintiffs case leaves nothing to review on appeal. See e.g., Townsend v. Delchamps, Inc., 94-1511 (LaApp. 1 Cir. 10/6/95), 671 So.2d 513; Driggers v. Kroger Co., Inc., 29,431 (LaApp. 2 Cir.4/4/97), 692 So.2d 1338; Riser v. American Med. Int’l, Inc., 620 So.2d 372 (LaApp. 5th Cir.1993); Parker v. Winn-Dixie La., Inc., 615 So.2d 378 (LaApp. 5th Cir.1993). Therefore this assignment of error has no merit.

E. Damages

In its seventh and final assignment of error, ACIIE maintains that the trial court abused its discretion when it awarded Frost $13,000.00 for an exacerbation of her neck, back, and left wrist carpal tunnel syndrome symptoms because the |19award was excessive based on the record, which did not contain any evidence on the nature, extent, or duration of any such exacerbations.

General damages are those damages that are inherently speculative in nature and cannot be fixed with mathematical certainty, including pain and suffering. Parker v. Robinson, 05-0160, p. 1 n. 2 (La.App. 4 Cir. 2/22/06), 925 So.2d 646, 648. When damages are not susceptible to precise measurement, great discretion shall be left to the trial court for the reasonable assessment of these damages. La. C.C. art. 1999. This great discretion should rarely be disturbed on appeal. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Rather, reversal of a general damages award is only warranted where the trier of fact abused its great discretion, as evidenced by a finding that the award is so high or so low in proportion to the injury that it shocks the conscience. Lino v. Allstate Ins. Co., 06-0166, p. 8 (LaApp. 4 Cir. 8/2/06), 937 So.2d 888, 894. In addition, “[t]he defendant’s liability for damages is not mitigated by the fact that the plaintiffs preexisting physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant.” Lasha, 625 So.2d at 1005 (internal citation omitted). Under the circumstances of this particular case, we do not find that the damage award constituted an abuse of the trial court’s discretion; therefore this assignment of error lacks merit.

| ^CONCLUSION

For the reasons discussed above, the trial court’s judgment in favor of Kathleen G. Frost and against the defendant, Automobile Club Inter-Insurance Exchange, is affirmed.

AFFIRMED.

      . ACHE was determined to be liable based on the trial court's finding that Chris Carter was solely at fault.

      . Frost’s deposition transcript from this lawsuit was admitted into evidence.

      . The trial court accepted Dr. LeBlanc as an expert in the field of medicine with a specialty in family practice and sports medicine.

      . The plaintiff stipulated that she was not asserting a claim for property damage, loss of use, or loss of income prior to trial.

      . Frost, a school teacher, had a second job as a swim instructor.

      . It is well-settled law that the trial court’s oral or written reasons form no part of the judgment. State v. Williams, 11-0958, p. 9 (La.7/2/12), 94 So.3d 770, 776; Burmaster v. Plaquemines Parish Government, 07-1311, pp. 1-2 (La.8/31/07), 963 So.2d 378, 379 (per curiam). Nevertheless, it is not improper for an appellate court to consider the reasons for judgment in determining whether the trial court committed a legal error. Winfield v. Dih, 01-1357, p. 9 (La.App. 4 Cir. 4/24/02), 816 So.2d 942, 948; Donaldson v. Universal Eng’g of Maplewood, Inc., 606 So.2d 980, 988 (La.App. 3d Cir.1992).

      . In Chavers, 04-0992, p. 9, 902 So.2d at 395, we recognized that differentiating between damages caused by an accident and damages caused by the normal progression of a preexisting condition often presents complex legal and medical issues that can be analyzed by applying a five-part test that examines and compares the plaintiff's pre and post-accident symptoms.

      . There is nothing to indicate that the trial court applied the presumption of liability set forth in Housley v. Cerise, 579 So.2d 973, 980 (La.1991). Under Housley, a plaintiff's injuries are presumed to have resulted from an accident if the plaintiff was in good health prior to the accident but, commencing with the accident, the symptoms of the disabling condition manifest themselves.

      . An objection by plaintiffs counsel was sustained on the grounds that Dr. Fleming’s report was a written document that speaks for itself.

      . Although it is well-established that La. R.S. 13:3714 eliminates the requirement that the proponent of medicad records lay a foundation for their admission, beyond certification, here, the parties instead stipulated to the authenticity of the medical records. Cf. State v. Juniors, 03-2425, p. 43, (La.6/29/05), 915 So.2d 291, 324; Judd. v. State, Department of Transportation and Development, 95-1052, p. 3 (La. 11/27/95), 663 So.2d 690, 693-695. The purpose of this hospital records exception to the hearsay rule is to save parties the difficulty and expense of producing each person who assisted in the patient’s treatment as a witness. In addition, the statute shifts the burden to the opposing party to undermine the medical record’s evidentiary weight and veracity by cross-examining those who made the record. Judd, 95-1052, p. 3, 663 So.2d at 693.

      . Although ACIIE argues that the trial court mistakenly understood Dr. LeBlanc's testimony to be that the plaintiffs symptoms should have manifested no more than two months after the accident, rather than two weeks, that does not appear to be the case.


source: Caselaw Access Project

license: Public Domain

text:
    Cassandra AISOLA v. BEACON HOSPITAL MANAGEMENT, INC., LWCC.
    No. 2013-CA-1101.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2014.

      Robert W. Booksh, Jr., John B. Fox, John Fox & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Amanda H. Carmon, Jeffrey John Warrens, Johnson, Rahman & Thomas, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

1 t This is an appeal from a judgment rendered by a workers’ compensation judge, overturning a decision by the Louisiana Workers’ Compensation Corporation (“LWCC”) to deny a claimant’s request for medical treatment. The appellants, LWCC and Beacon Hospital Management, Inc., raise three assignments of error— each relating to Louisiana’s newly established procedures for disputing an LWCC treatment decision. In her answer to the appeal, the claimant, Cassandra Aisola, requests modification of the judgment and additional attorney fees. For the reasons stated below, we modify the judgment and affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Aisola injured her back during the course and scope of her employment as a registered nurse on July 20, 2011 — seven days after the promulgation of the Medical Treatment Schedule (“MTS”) by the Office of Workers’ Compensation (“OWC”). Soon after the accident, she began treatment with orthopedist, Dr. fyRalph Gess-ner, who submitted monthly reports of his treatment and recommendations to the LWCC. Following her initial examination, Dr. Gessner reported to the LWCC that Ms. Aisola suffered from muscle spasm, bilateral leg pain, and bilateral sciatic notch tenderness, and that he had advised her not to work and to restrict her physical activity. Dr. Gessner also reported that he wanted to obtain an MRI of Ms. Aisola’s lower back.

The MRI performed on August 15, 2011, revealed a lumbar spine subligamentous herniation at L5-S1 as well as bulges at L-3 and L-4. Dr. Gessner subsequently informed the LWCC that he would treat Ms. Aisola on a conservative, non-surgical basis, and that he was sending her for physical therapy three times a week. He reported that he had not assigned a disability, but initially estimated that she would be able to return to work in three months.

On September 13, 2011, Dr. Gessner filed a request with the LWCC seeking authorization for Ms. Aisola to receive a lumbar epidural steroid injection, or “ESI.” A utilization review performed by LWCC contractor, Dr. Katharine Rath-bun, determined that the requested ESI was not authorized under the LWCC’s newly promulgated MTS. A second request for an ESI by Dr. Gessner was also [sdenied. Neither Ms. Aisola nor Dr. Gessner sought review of these decisions by the OWC Medical Director as provided for under La. R.S. 23:1203.1(J)(1).

In October 2011, at the LWCC’s request, Ms. Aisola was seen by Dr. Robert Steiner for a second opinion. While Dr. Steiner did not expressly state that an ESI was unwarranted, he did opine that Ms. Aisola was not a surgical candidate and that she “was not anxious for an epidural injection.” Dr. Steiner also released Ms. Aisola to light work duty with restrictions.

In February 2012, the LWCC requested that OWC Medical Services appoint an Independent Medical Examiner (IME) to resolve what the LWCC characterized as a ■ “dispute regarding the injured employee’s medical condition and medical treatment needed” and specifically Ms. Aisola’s “work capabilities.” OWC appointed IME, Dr. Ralph Katz, who examined Ms. Aisola on April 11, 2012, opining in his report that he would give Ms. Aisola an ESI and have her perform a functional capacity evaluation (“FCE”) before making any determination regarding her work capabilities. In an April 27, 2012, addendum to this report — the LWCC |4had contacted Dr. Katz for Ms. Aisola’s current work status — Dr. Katz stated that Ms. Aisola was capable of sedentary-to-light duty. Thereafter, the LWCC cut off indemnity benefits related to Ms. Aisola’s temporary total disability status on July 6, 2012.

On July 12, 2012, Ms. Aisola underwent a second MRI, which confirmed a subliga-mentous extrusion of disc material and an annulus fibrosus tear at L5-S1. Dr. Gess-ner again requested an ESI for Ms. Aisola on July 13, 2012. Ms. Aisola concurrently filed a motion to select her choice of neurosurgeon, Dr. Bradley Bartholomew. Both requests were initially denied under the MTS, but the LWCC later relented as to the request to select a neurosurgeon and entered into settlement authorizing one visit to Dr. Bartholomew. In August and October of 2012, Dr. Gessner made two final requests for authorization to perform an ESI; both of these requests were also denied.

Dr. Bartholomew examined Ms. Aisola on October 2, 2012. Comparing her two previous MRIs, Dr. Bartholomew agreed with the radiologists’ reports of a tear and subligamentous herniation at L5-S1. Based on his assessment, Dr. Bartholomew recommended that Ms. Aisola receive ESIs, facet blocks, and fluoroscopic guidance, and submitted a request for these procedures to the LWCC | ¡¡along with a supporting Clinical Note from Dr. Bartholomew’s October 2, 2012 examination.

Bartholomew’s request was reviewed by Dr. Rathbun, who on October 19, 2012, denied the requested treatment as unauthorized under the MTS.. Dr. Rathbun’s denial referenced the October 12, 2012 Clinical Note, stating that it showed no progressive deterioration to Ms. Aisola’s herniation. Identifying the denial of similar requests by Dr. Gessner, Dr. Rathbun explained:

[t]he request for ESIs and facet blocks are [sic] denied under the OWCA Guidelines for the following reasons:
1. The ESIs have been denied twice for specific reasons. The evidence from the new physician does not change any of the reasons for denial, • and in fact corroborate the findings of the treating physician and the IME that the patient has a normal examination.
2. There is no evidence of specific nerve dysfunction, radiculopathy or ra-diculitis to be treated with ESI. The patient has a normal exam and a normal EMG/NCS.
3. There is no evidence that that patient is currently engaged in active rehabilitation or that rehabilitation is planned for immediately after the proposed injections as required by the Guidelines.
4. Neither physician has provided written activity limitations to facilitate therapeutic return to work as required by the Guidelines at every visit.
5. The patient has not received appropriate conservative treatment as required by the Guidelines....
Additional visits .with this provider are denied at this time. The treatment being provided or requested has been denied previously, and is not necessary or appropriate under the OWCA Guidelines.-

Dr. Bartholomew timely appealed Dr. Rathbun’s denial to OWC Medical Director, Dr. Christopher Rich, pursuant to La. R.S. 23:1203.1(J)(1). That appeal contained the Clinical Note supplied to Dr. Rathbun as well as the required copy of the 16denial letter. On November 6, 2013, Dr. Rich upheld Dr. Rathbun’s denial of the recommended ESIs, facet blocks, and fluoroscopic guidance. His denial stated that the documents submitted on appeal did not support the requested treatment under the MTS, elaborating

[o]nly one clinical record dated 10.02.2012 was submitted. No prior treatment records or imaging reports were submitted. The record notes a normal neurological exam, including strength, sensation, and reflex; no spasm, present was paravertebral tenderness and lack of extension.

Dr. Rich’s denial did not identify or discuss the portions of the October 2, 2012 Clinical Note and the underlying October 19, 2012 denial stating that Ms. Aisola had undergone two MRIs, which multiple doctors had determined to establish an annular tear at L5-S1. The last page of Dr. Rich’s denial advised Ms. Aisola and Dr. Bartholomew that they could seek judicial review of his decision by filing a Form 1008 — Disputed Claim for Compensation, and attaching thereto a copy of the underlying Form 1009 — Disputed Claim for Treatment (the appeal to Dr. Rich), and a copy of Dr. Rich’s denial.

On November 15, 2012, Ms. Aisola timely filed the required materials with the Office of Workers’ Compensation Court. On January 30 and February 7, 2013, a full trial was held to review the Medical Director’s decision. During those proceedings, the workers’ compensation judge (“WCJ”) also heard argument on Ms. Aiso-la’s choice of treating neurosurgeon and her disputed claim for compensation stemming from the LWCC’s July 2012 denial of indemnity benefits |7for which she sought reinstatement and back payment of benefits as well as fees and penalties. After a complete trial, the WCJ solicited post-trial briefing.

In its judgment, rendered April 18, 2013, the WCJ ordered the LWCC to reinstate Ms. Aisola’s temporary total disability benefits between July 6, 2012, and the date of judgment, and to continue paying these benefits “until such time as modification is appropriate.” It also ordered the LWCC to pay total disability benefits to Ms. Aiso-la for the period between July 21 and 27, 2011, during which time she was disabled by her injury and had yet to receive any compensation. In connection with the restoration of these benefits, the WCJ awarded $8,000.00 in penalties and $12,000.00 in attorney fees to Ms. Aisola for the LWCC’s arbitrary and capricious termination of her disability benefits pursuant to La. R.S. 23:1201(1), as well as interest on all back benefits, plus penalties and fees awarded.

With respect to Dr. Bartholomew’s request for ESIs, facet blocks, and fluoroscopic guidance, the WCJ reversed Dr. Rich’s denial and ordered the LWCC to authorize the requested treatments. In connection with this ruling, the WCJ further ordered Ms. Aisola to undergo an FCE and ordered the LWCC to reinstate vocational rehabilitation after Ms. Aisola completed the prescribed medical treatments and FCE. It also ruled that the LWCC was not responsible for payment of any future medical expenses incurred in connection with visits to Dr. Gessner, similarly denying Dr. Gessner’s referral to a pain management specialist and psychologist as premature. Finally, Ms. Aisola was awarded the cost of her OWC filing fees.

| «Appellants timely filed the instant appeal from that part of the judgment reversing the decision of OWC Medical Director Dr. Rich. Ms. Aisola timely answered the appeal, seeking modification of the judgment below as well as costs on appeal.

DISCUSSION

This Court has jurisdiction to hear direct appeals from administrative agency determinations in workers’ compensation matters under La. Const. art. V § 10(A). See also La. R.S. 23:1310.5(A)(2). In so doing, this Court is “mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, p. 6 (La.1/9/11), 56 So.3d 170, 174 (citing Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989)). Consistent with this principle, we review factual findings under the manifest error/clearly wrong standard of review. Pierre v. Tulane Univ., 07-0600, p. 1 (La.App. 4 Cir. 12/19/07), 984 So.2d 734, 735, writ not considered, 08-1716 (La.10/31/08), 994 So.2d 526 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Chatters v. Dorignac’s Food Center, 00-0477 (La.App. 4 Cir. 3/21/01), 787 So.2d 345, 349.) However, “[w]hen legal error interdicts the fact-finding process in a workers [sic] compensation proceeding,” our review of those findings is conducted de novo. Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-0179, p. 3 (La.App. 4 Cir. 6/29/11), 70 So.3d 988, 990 (citing MacFarlane v. Schneider Nat’l Bulk Carriers, Inc., 07-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188). We | likewise review the WCJ’s legal conclusions de novo. Id. (citing MacFarlane, 07-1386, p. 3, 984 So.2d at 188).

An employer’s obligation to furnish medical treatment to an injured employee is governed by La. R.S. 23:1201, et seq. The instant appeal comes to us through the appellate process outlined by La. R.S. 23:1203.1(J) & (K). In addition to setting forth the process for appeals, La. R.S. 23:1203.1(K) establishes that the decision of the OWC Medical Director “may be overturned when it is shown, by clear and convincing evidence, the decision ... was not in accordance with the provisions of this Section.” The provisions in question state that all authorized medical treatment decisions must be in accordance with the MTS promulgated by the OWC. See La. R.S. 23:1203.1(1). Under this new treatment regime all “medical care, services, and treatment due” shall mean “care, services, and treatment in accordance with the [MTS],” or any variance from the MTS that the OWC Medical Director deems to be “reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.” Id.

|inI. Appellants’ Assignments of Error

Appellants raise three inter-related assignments of error, each related to the WCJ’s reversal of the medical director’s decision. Taking issue with the WCJ’s handling of the proceedings, Appellants first contend that the WCJ erroneously went beyond the appropriate scope of its review by considering the opinion of the IME assigned to Ms. Aisola when evaluating Medical Director Rich’s treatment decision. Appellants next contend that the WCJ erred as matter of law in treating the IME report as prima facie evidence of the facts contained therein, pursuant to La. R.S. 23:1123. Finally, Appellants contend that the WCJ erred in finding that clear and convincing evidence established that the medical director’s decision was erroneous. We consider each assignment in turn, finding no prejudicial error in the WCJ’s review.

A. Assignment of Error One: Consideration of evidence beyond the WCJ’s scope of review

Appellants argue that the WCJ’s review on appeal from a medical director’s treatment determination should be limited to whether the director’s decision correctly applied the MTS. They specifically argue that the WCJ went beyond those limits when she considered the opinions of the IME as stated in the written reasons for judgment. We find that Appellants have waived this issue.

Appellants did not lodge any objection to the introduction of the IME report. It is well established that when a party fails to contemporaneously object to the introduction of objectionable evidence, that party waives the right to complain of the issue on appeal. See St. Martinville, L.L.C. v. Louisiana Tax Comm’n, 05-0457, p. 5 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 42 (citing Trans-Global Alloy Ltd. v. First Nat. Bank of Jefferson Parish, 583 So.2d 443, 448 (La.1991)). Moreover, Appellants are the party that offered the IME report into evidence and elicited testimony about the contents of the report from their own expert in the course of defending the medical director’s denial of the ESI, facet blocks, and fluoroscopic guidance. This is invited error and cannot be challenged by Appellants on appeal. Id., 05-0457, pp. 5-6 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 42 (“It is a Veil-established commonsense principle’ that ‘[gjenerally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted’ ”) (quoting Ohler v. United States, 529 U.S. 753, 755, 120 S.Ct. 1851, 1853, 146 L.Ed.2d 826 (2000)). As such, we do not reach the question whether an IME report, which was not formally submitted to Dr. Rich, may be considered on a Form 1008 appeal to the WCJ.

B. Assignment of Error Two: The WCJ’s reliance on La. R.S. 23:1123

Appellants néxt contend that the WCJ committed legal error when she held that the IME’s report constituted prima facie evidence of its contents in proceedings pursuant to La. R.S. 23:1123.

The portion of Dr. Katz’s April 11, 2012 IME report relied on by the WCJ contains the following statements regarding Ms. Ai-sola’s condition:

She has only subjective complaints of pain today with nothing objective on examination. However, because of persistent ongoing symptoms in the lower back, albeit subjective, and the fact she has some mild degenerative changes at L5-S1, I would offer her an [ESI] xl to see if it gives her any substantial improvement. If it does, thenjjgshe can go forward with the other two. However, if she does not have any improvement from the single epidural, I would put her at MMI.
If she gets improvement from the epidurals, I would give her a total of 8 weeks to recuperate from the injections and then at that point put her at MMI. She should have an FCE to determine appropriate level of work.

Disputes regarding an employee’s ability to return to work are governed by La. R.S. 23:1123, which requires the appointment of an IME and which states:

If any dispute arises as to the condition of the employee, or the employee’s capacity to work, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter. (Emphasis added)

In contrast, La. R.S. 23:1203.1(1) states:

After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.

Generally, there would be no legal error where a WCJ applies La. R.S. 23:1123 to conclude that the objective facts stated in ,an IME report are prima facie evidence of those things the IME observed. Here, however, the WCJ went beyond the objective facts. Specifically, the WCJ relied on the IME’s opinion that an ESI and FCE should be authorized to conclude that “the ESI and FCE were per se [-^reasonable and necessary treatment, and therefore due and owing under” the MTS. We find that conclusion erroneous. It is clear that whatever treatment is reasonably due and owing following promulgation of the MTS must be a treatment authorized by the MTS on the facts of a given case. See La. R.S. 1203.1(1).

Nevertheless, while the WCJ’s reliance on the IME’s report constituted legal error, it does not merit reversal. See Wooley v. Lucksinger, 09-0571, p. 77 (La.4/1/11), 61 So.3d 507, 572 (“Judgments are often upheld on appeal for reasons different than those assigned by the district judges”). As we explain in the next section, the WCJ’s error notwithstanding, the judgment below is correct for reasons different than those stated in the reasons for judgment.

C. Assignment of Error Three: the WCJ’s application of the clear and convincing evidence standard

Appellants lastly contend that the WCJ erred in her application of the clear and convincing evidence standard under which it must review the medical director’s treatment decisions. Appellants’ contention lacks merit.

The decision of medical director “may be overturned when it is shown, by clear and convincing evidence, the decision of the medical director or associate 114inedical director was not in accordance with the provisions of this Section.” La. R.S. 23:1203.1(K).

Preliminarily, the parties disagree as to the appropriate standard by which this Court should review the WCJ’s decision. Appellants urge that we review the WCJ’s finding de novo whereas Ms. Aisola suggests this Court review the WCJ’s decision for manifest error. While this Court has yet to address which standard of review is applicable to the WCJ’s ruling, the Third Circuit has recently examined the issue. See Vital v. Landmark of Lake Charles, 13-842, p. 1 (La.App. 3 Cir. 2/12/14),- So.3d -, 2014 WL 550912 (“The WCJ’s analysis is necessarily fact-intensive; therefore we conclude that, as with most findings of fact, the WCJ’s decision is subject to review under the manifest error/clearly wrong standard.” (citing Poissenot, 09-2793, p. 6, 56 So.3d at 174)); See also, Moran v. Cajun Well Serv., Inc., 13-821, p. 2 (La.App. 3 Cir. 2/12/14), — So.3d —, 2014 WL 551250 (holding a WCJ’s ruling that the OWC Medical Director erred in denying treatment was reviewed de novo because it involved no finding of fact).

In the instant case, the proceedings before the workers’ compensation judge consisted of a full trial on the merits. The WCJ received into evidence several hundred pages of exhibits, listened to two days of testimony, and reviewed the parties’ . post-trial briefing, which presenting the evidence in combination with the applicable law. Despite the fact that La. R.S. 23:1203.1(K) denominates these proceedings as an “appeal,” it is clear from a review of the record that both parties understood the WCJ to be serving as fact-finder. These observations compel the conclusion that the WCJ’s reversal of Dr. Rich’s decision should be treated as a factual finding subject to manifest error review. Therefore, we must affirm that h ¿ruling provided that the record reflects a reasonable basis for it. See Vital, 13-842, p. 1, — So.3d — (citing Poissenot, 09-2793, p. 6, 56 So.3d at 174).

Dr. Rich’s denial of the requested ESI, facet blocks, and fluoroscopic guidance was predicated upon the fact that the records submitted to him contained only one clinical note and no medical records or imaging. In addition, Dr. Rich appears to have based his denial on a lack of information as well as evidence in the clinical note indicating “a normal neurological exam, including strength, sensation, and reflex; no spasm, present was paravertebral tenderness and lack of extension.” Importantly, Dr. Rich’s denial does not mention the L5-S1 herniation identified by Dr. Bartholomew’s October 12, 2012 Clinical Note nor the underlying denial by Dr. Rathbun, both of which were submitted to Dr. Rich. Dr. Rich’s denial also understates what Dr. Bartholomew’s clinical note identifies as a “large amount of bilateral paravertebral tenderness” in and around the location of the herniation and that Ms. Aisola had “almost no extension because of her complaints of pain.”

Moreover, the lack of information submitted to Dr. Rich did not seem like a reasonable basis for denying Dr. Bartholomew’s request based on the evidence introduced at trial. Dr. Rathbun, who was the lone medical expert at trial, testified that she could access medical records and treatment requests within Ms. Aisola’s OWC file for purposes of conducting a utilization review even when that information had not been provided to her along with the given request she was reviewing. In fact, Dr. Rathbun’s denial of Dr. Bartholomew’s request demonstrates that Dr. Rathbun was able to access and consider records associated with prior treatment requests denied in reference to Ms. Aiso-la. No evidence at Lfithe compensation hearing suggested that Dr. Rich lacked similar access to claimant records.

The WCJ would have heard this, as well as Dr. Rathbun’s testimony that those same medical records showed that Ms. Ai-sola suffered from a herniation with attendant axial pain. The WCJ could have imputed the same knowledge to Dr. Rich on the basis of the clinical note he received (or even the medical evidence apparently accessible to him). The WCJ was also supplied with evidence that the then-operative MTS authorized ESIs in cases of annular tests verified by imaging and associated with axial pain. See LAC 40:I:2021(H)(3)(a)(iv)(c) (2011). The WCJ was likewise presented with LAC 40:I:2021(H)(3)(a)(iv)(b), which states that “[mjulti-planar fluoroscopic imaging is required for epidural steroid injections.” Similarly, the MTS notes that the facet blocks denied by Dr. Rich are diagnostic and appropriate for “patients with pain 1) suspected to be facet in origin based on exam fíndings[.]” LAC 40:I:2021(H)(3)(a)(v)(b).

Given this information, the WCJ could reasonably have concluded that the evidence available to both Dr. Rathbun and Dr. Rich demonstrated that the treatment requested by Dr. Bartholomew was reasonably necessary under the MTS such that Dr. Rich’s denial of that treatment was clearly and convincingly wrong. On this record, we do not find the judgment of the WCJ manifestly erroneous.

We affirm the judgment of the WCJ as challenged by Appellants.

117II. Ms. Aisola’s Answer to the Appeal

In her answer to the instant appeal, Ms. Aisola seeks fees on appeal and modification of the judgment in five discrete respects. Each assignment of error is addressed below.

A. Attorney fees on appeal

Ms. Aisola seeks attorney fees in connection with this appeal. ‘When the defendant in a workers’ compensation case appeals and obtains no relief, and when the appeal has necessitated additional work on the part of plaintiffs counsel, the appellate court usually awards an increase in attorney fees,” as long as the increase has been properly requested. Russell v. Orleans Parish School Bd., 05-1358, p. 9 (La.App. 4 Cir. 5/17/06), 933 So.2d 193, 200 (citing Parker v. ADM Milling Co., 01-649 (La.App. 5 Cir. 11/27/01), 804 So.2d 120); see also, McKelvey v. City of Dequincy, 07-604, pp. 11-12, (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. In light of the extensive briefing on appeal not dupli-cative of briefing in the trial court, we award an additional $5,000.00 in attorney fees for the successful defense of the appeal.

B. The WCJ’s ruling that referrals to neurosurgeon, pain management specialist, and psychologist/psychiatrist are premature

Ms. Aisola contends that the WCJ erred in ruling that her claims related to referrals for a neurosurgeon, pain management specialist, and psychologist/psychiatrist were premature. Ms. Aisola’s request to modify the judgment in this respect lacks merit.

|1sLa. R.S. 23:1121 provides that the employee shall have the right to select one treating physician in any field or specialty. Taylor v. Hanson North America, 12-0286, p. 10 (La.App. 1 Cir. 1/9/13), 112 So.3d 272, 278, writ denied, 13-0344 (La.4/1/13), 110 So.3d 586. Where a dispute relating to a referral or choice of physician arises, an “employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8).” La. R.S. 23:1121(B)(1). Such a proceeding is initiated upon the motion of either party. La. R.S. 23:1201.1(K)(8).

Ms. Aisola has not identified any portion of the record containing a choice of physician motion that seeks to establish her right to see a pain management specialist or psychologist/psychiatrist; moreover, this Court’s review of the record finds no evidence that Ms. Aisola ever filed one. Without such a motion, the WCJ would lack authority to rule on the matter under La. R.S. 23:1121. This is in contrast to the choice of physician motion Ms. Aisola filed in the underlying proceedings in connection with her referral to Dr. Bartholomew. Because Ms. Aisola’s choice of a pain management specialist and a psychologist/psychiatrist were not properly before the WCJ, the WCJ correctly concluded that granting the requested relief would have been premature. We do not find the WCJ’s ruling -with respect to this issue erroneous.

This Court further notes that while Ms. Aisola did move to resolve a dispute relating to her choice of neurosurgeon, based on the judgment, it appears that the | iatrial court effectively resolved this issue when it provided that the LWCC would pay for all treatment requested by “Dr. Bradley Bartholomew, [Ms. Aisola’s] choice of neurosurgeon.” We construe this as resolving the choice of neurosurgeon dispute in Ms. Aisola’s favor.

C. The WCJ’s judgment with respect to penalties and attorney fees

Ms. Aisola seeks modification of the penalties and fees awarded to her by the WCJ. The WCJ awarded Ms. Aisola $8,000.00 in penalties and $12,000.00 in attorney fees for the LWCC’s arbitrary and capricious termination of her benefits under La. R.S. 23:1201(I). However, Ms. Aisola contends that she is owed penalties and fees for the LWCC’s failure to approve referrals to a neurosurgeon, a pain management specialist, and a psychologist/psychiatrist. We agree that additional penalties and fees are due in connection with the LWCC’s refusal to authorize more than one visit to Dr. Bartholomew, but not the physicians for whom the WCJ deemed any action to be premature.

We note that Ms. Aisola only seeks additional penalties and fees in connection with her choice of physician claims. “Pursuant to [La.] R.S. 23:1201 F, |20an employer or insurer may be assessed with penalties and attorney fees for failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by [La.] R.S. 23:1121.” Youngblood v. Covenant Sec. SVC, L.L.C., 11-2382, p. 12 (LaApp. 1 Cir. 12/21/12), 112 So.3d 233, 241, writ denied, 13-0200 (La.3/8/13), 109 So.3d 363. An employer’s “failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty ... not [to] exceed a maximum of two thousand dollars in the aggregate for any claim.” La. R.S. 23:1201(F). Crucially, “[t]he maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.” Id. Similarly, the penalties that may be assessed against an employer who arbitrarily and capriciously “discontinues payment of claims due and arising under this Chapter ... shall be subject to the payment of a penalty not to exceed eight thousand dollars[.]” La. R.S. 23:1201(1).

We do not read La. R.S. 23:1201(1) to establish an $8,000.00 cap on all penalties awarded under Section 1201. La. R.S. 23:1201(1), for example, imposes penalties for arbitrary discontinuation of payments, whereas La. R.S. 23:1201(F) imposes penalties for the failure to consent to the selection of a treating physician. The specific wording of both provisions strongly suggests that one provision does not limit or control the other. Cf. Broussard v. Lafayette Parish Sch. Bd., 06-268, p. 12 (La.App. 3 Cir. 9/27/06), 939 So.2d 662, 671, writ denied, 06-2591 (La.1/12/07), 948 So.2d 152 (holding the cap on penalties expressed in LA. R.S. 23:1201(F) did not operate to limit penalties separately available under La. R.S. 23:1201(0). To conclude otherwise would flout the canon of construction that |21“[c]ourts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” Succession of Boyter, 99-761, p. 9 (La.1/7/00), 756 So.2d 1122, 1129.

Because the LWCC limited Ms. Msola to only one visit with her choice of neurosurgeon, Dr. Bartholomew, before the WCJ’s judgment, we hold that the maximum statutory penalty of $2,000.00 under La. R.S. 23:1201(F) is appropriate. We note that La. R.S. 23:1201(F) mandates “reasonable attorney fees for each disputed claim.” Therefore, some additional amount of attorney fees is due to Ms. Aisola. However, the WCJ is in the best position to determine the amount of reasonable additional fees.

Accordingly we remand this issue to the WCJ. In determining a reasonable fee due, we remind the WCJ that “La. R.S. 23:1201 F is penal in nature and, therefore, must be strictly construed” and that the “award of attorney fees in a workers’ compensation case is intended to discourage indifference and undesirable conduct by employers and insurers.” Schindler v. Orleans Reg’l Sec., 03-0522, pp. 13-14 (La. App. 4 Cir. 12/3/03), 862 So.2d 1032, 1041 (citing Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46).

D. The WCJ’s order for Ms. Aisola to undergo an FCE

Ms. Aisola seeks modification of the judgment to the extent that it requires her to undergo an FCE. Specially, she contends that the issue was not before the WCJ. Ms. Aisola’s argument has merit.

The WCJ is “vested with original, exclusive jurisdiction over all claims or disputes arising out of Title 23 of’ the Louisiana Revised Statutes. La. R.S. 23:1310.3(F) (emphasis added). Simply put, workers’ compensation courts lack Rathe power to rule on issues not presented to it through the appropriate claims process.

Here, no procedurally valid request for an FCE was made to the WCJ. Because the FCE relates to treatment, any claim relating to an FCE would fall under the MTS. See La. R.S. 23:1203.1(1). The WCJ judgment is modified to omit the order for an FCÉ.

E. The WCJ’s order releasing the LWCC from compensating further care with Dr. Gessner

Ms. Aisola seeks modification of the judgment insofar as it releases the LWCC from any duty to authorize or compensate further treatment from her treating orthopedist, Dr. Gessner. Because the issue was not properly before the WCJ, Ms. Aisola’s claim for relief has merit.

As noted above, the compensation courts are “vested with original, exclusive jurisdiction over all claims or disputes arising” under Title 23. La. R.S. 23:1310.3(F) (emphasis added). La. R.S. 23:1310.3(A) makes it plain that “[a] claim for benefits, the controversion of entitlement to benefits, or other relief under the Workers’ Compensation Act shall be initiated by the filing of the appropriate form with the office of workers’ compensation administration.” Similarly, “[t]he 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[.]” La. R.S. 23:1310.8(A)(1) (emphasis added). The | ^implication of these statutes is quite clear: the authority of a WCJ to resolve an issue requires that a procedurally valid claim or dispute be brought before it.

On October 11, 2012, the LWCC notified Dr. Gessner that it would no longer compensate Ms. Aisola for medical treatment provided by his office. This is clearly a choice of physician issue. However, the propriety of this action was not before the WCJ. See La. R.S. 23:1121(B)(1) (disputes relating to a choice of physician “shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8))”; La. R.S. 23:1201.1(K)(8) (a choice of physician proceeding is initiated by motion). Much like her failure to properly move for a pain management'specialist or psyehologist/psy-chiatrist, Ms. Aisola never procedurally moved for resolution of a choice of physician dispute with relation to Dr. Gessner. While Ms. Aisola complained of the LWCC’s withdrawal of authorization in her First Amended Petition, that alone was insufficient. A party seeking to resolve a particular choice of physician dispute must adhere to the procedures that furnish the OWC with jurisdiction to resolve the dispute. That did not happen here and so the WCJ was without authority to release the LWCC from any obligation to compensate Ms. Aisola for future treatment by Dr. Gessner. We modify the judgment to remove the WCJ’s order releasing the LWCC.

This is not to say that the LWCC must authorize treatment with Dr. Gessner going forward. If the LWCC chooses to stand on its October 11, 2012 determination to withhold further authorization, that determination may be [^challenged by Ms. Aisola in a summary proceeding pursuant to R.S. 23:1201.1(K)(8), provided Ms. Aiso-la moves the WCJ to hold such a hearing.

F. Ms. Aisola seeks to modify the judgment to require the LWCC to pay the cost of medications prescribed by Dr. Gessner

Ms. Aisola contends that the WCJ failed to award her the costs of medications prescribed by Dr. Gessner following the LWCC’s notification on October 11, 2012, that it would no longer pay for care supplied by Dr. Gessner. This claim was not properly raised.

Medication clearly falls under the board heading of “medical care, services, and treatment” due under the MTS. See La. R.S. 23:1203.1(1). Any dispute as to authorization for, or payment of, medication should have been submitted to the OWC following the procedures set forth in La. R.S. 23:1203.1(J)(1).

Here, no procedurally valid request for a payment/authorization was made to the OWC. The issue was therefore not before the WCJ. We find no error on this point and decline to modify the judgment in this respect.

CONCLUSION

Recognizing that the procedures for disputing an LWCC treatment decision are relatively new, for the forgoing reasons, we affirm in part, modify in part, and remand for further proceedings consistent with this opinion. Specifically, we affirm the WCJ’s judgment with respect to its reversal of the OWC medical director. In reviewing the record, we conclude that the parties provided the WCJ with sufficient evidence for her to reasonably reverse that decision, even under the stringent clear and convincing evidence standard set forth in La. R.S. |2B23:1203.1(K). In so ruling, we do not address the correct scope of the WCJ’s review; that issue was waived. We therefore affirm the judgment on those points challenged by Appellants.

However, we do modify the judgment, in part, based on the points raised by Ms. Aisola’s answer to the appeal. While the WCJ correctly found that Ms. Aisola’s claims for authorization to see a pain management specialist and psychologist/psychiatrist were premature, the WCJ should have awarded penalties and reasonable attorney fees in regards to Ms. Aisola’s meritorious claims regarding Dr. Bartholomew. While we have already awarded appropriate penalties of $2,000.00 against the LWCC pursuant to La. R.S. 23:1201(F), we remand to the WCJ for a determination of the reasonable attorney fees due. We further modify the WCJ judgment to omit the provision ordering Ms. Aisola to undergo an FCE and releasing the LWCC from further compensating Ms. Aisola’s visits to Dr. Gessner. In all other respects, the WCJ’s judgment is affirmed. Lastly, we award Ms. Aisola an additional $5,000.00 in attorney fees for the successful defense of this appeal.

AFFIRMED IN PART; MODIFIED IN PART; AFFIRMED AS MODIFIED; REMANDED.

      . The Louisiana Legislature passed La. R.S. 23:1203.1 in 2009 and the Medical Treatment Guidelines became effective on July 13, 2011. The guidelines provide a process by which a MTS is adopted to assist with the medical decision making process for injured workers. See, La. R.S. 23:1203.1(B); see also, Louisiana Workforce Commission, http://www. laworks.net/Downloads/OWC/Medical Guidelines_MedicalTreatmentGuidelineFAQs. pdf

      . When she attempted to return to work several days later, a supervisor told her that she would either have to sign a waiver or obtain a release to work from a doctor. Ms. Aisola chose to see a doctor.

      . Testimony at trial before the workers' compensation judge established that Dr. Rathbun works with contractor Mitchell International to provide utilization review services to the LWCC. At trial, an LWCC claims adjuster stated that denials by Mitchell International were denials by the LWCC for purposes of review.

      .La. R.S. 23:1203.1(J)(1) provides:
      After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers' compensa

        tion administration medical director or associate medical director on a form promulgated by the director. The medical director or associate medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.
      La. R.S. 23:1203.1(J)(1) (emphasis added).

      . The workers’ compensation judge found this contact was strictly prohibited and was conducted solely for the inappropriate purpose of inducing a work-capability determination from the IME.

      . Ms. Aisola instituted an action before the OWC regarding the LWCC's refusal to authorize treatment by her choice of neurosurgeon, Dr. Bartholomew. She filed a claim for reinstatement of her temporary total disability benefits at the same time. This action remained pending until trial.

      . In total, Dr. Gessner made five requests to perform ESIs that were denied.

      . Around the time of this recommendation, on October 11, 2012, the LWCC notified Dr. Gessner that it would no longer authorize or cover treatment that he provided to Ms. Aiso-la.

      . Appellee submits that the only ESI request denial appealed from was made by Dr. Bartholomew, rather than Dr. Gessner.

      . Pursuant to La. R.S. 23:1203.1(J) and (K), after a healthcare provider’s request for purportedly non-scheduled treatment is denied, the provider may file an appeal to the Medical Director on Form 1009, and any parly who disagrees with the decision of the Medical Director can file a disputed claim on Form 1008 with the OWC.

      . Maximum medical improvement.

      . The WCJ apparently disregarded the IME's addendum to his report as the product of illegal and inappropriate contact with Ms. Aisola’s LWCC claims adjuster, who attempted to “squeeze out of” the IME an opinion on whether Ms. Aisola could return to sedentary or light work duty. Appellants did not challenge these findings on appeal and we find them reasonable on the record.

      . It is well settled law that the trial court's oral or written reasons form no part of the judgment. State v. Williams, 11-0958, p. 9 (La.7/2/12), 94 So.3d 770, 776 (citing Burmaster v. Plaquemines Parish Government, 07-1311, pp. 1-2 (La.8/31/07), 963 So.2d 378, 379 (per curiam)). Nevertheless, "it is not improper for an appellate court to consider the reasons for judgment in determining whether the trial court committed a legal error.” Winfield v. Dih, 01-1357, p. 9 (La. App. 4 Cir. 4/24/02), 816 So.2d 942, 948 (citing Donaldson v. Universal Eng’g of Maplewood, Inc., 606 So.2d 980, 988 (La.App. 3rd Cir.1992)).

      . No evidence at trial suggested that Dr. Rich's review was limited to what he had received on appeal from Dr. Bartholomew. Moreover, Dr. Rathbun’s comments on the other requests within Ms. Aisola's file would reasonably lead the reader to believe that the information was easily accessible by OWC and LWCC personnel.

      . This Court notes that Ms. Aisola should have little trouble obtaining the appropriate authorization for these physicians in the future in light of the WCJ’s rulings with regard to her medical treatment.

      . La. R.S. 23:1201(1) states in full:
      Any employer or insurer who at any time discontinues payment of claims due. and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

      .Since we previously determined that the WCJ did not err in finding that Ms. Aisola’s claims for choice of a pain management specialist and a psychologist/psychiatrist were premature, we do not believe that the Ms. Aisola is entitled to penalties or fees for the LWCC’s refusal to authorize referrals to such specialists.