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Dietz v. Lowe's Home Ctrs., Inc.

Court of Appeals of Louisiana, Third Circuit

November 5, 2014

RYAN DIETZ
v.
LOWE'S HOME CENTERS, INC

Page 991

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 4, PARISH OF ACADIA, NO. 09-10162. HONORABLE SHARON MORROW, WORKERS' COMPENSATION JUDGE.

M. Blake Monrose, Hurlburt, Monrose & Ernest, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE: Lowe's Home Centers, Inc.

Michael B. Miller, Jacqueline B. Manecke, Michael Miller & Associates, Crowley, LA, COUNSEL FOR PLAINTIFF/APPELLANT: Ryan Dietz.

Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

OPINION

Page 992

[14-401 La.App. 3 Cir. 1] AMY, Judge.

The claimant challenged his employer's assertion that he could return to work following a work-related accident. He further sought continued treatment for injury to his brachial plexus, for mental injury, and for cervical complaints. The employer, however, sought return of indemnity benefits paid after an orthopedic surgeon approved a submitted job description. While the workers' compensation judge continued pain treatment for the claimant's shoulder injury, she found no work-related causation of the cervical complaints and rejected the mental injury claim. The workers' compensation judge found that no indemnity benefits were owed after the treating physician's approval of the job position. The parties' respective claims for penalties and attorney fees were denied. The claimant appeals and has also filed a motion to strike. For the following reasons, we deny the motion to strike and affirm the ruling under review.

Factual and Procedural Background

Ryan Dietz alleges that he sustained injury while moving a refrigerator in the course and scope of his employment at Lowe's Home Centers, Inc. in July 2009. In December 2009, Mr. Dietz filed an initial disputed claim form challenging Lowe's compensation rate and seeking his choice of orthopedic physician. Mr. Dietz also requested penalties and attorney fees. In response, Lowe's sought an offset/credit in the event the workers' compensation judge found compensation benefits due.

Acting upon the initial dispute, the workers' compensation judge ordered that Mr. Dietz was permitted to see Dr. Robert Morrow, an orthopedic surgeon, as his initial choice of physician " with a sub-specialty in hands." Dr. Morrow's records indicate that Mr. Dietz complained of upper left body pain extending up to [14-401 La.App. 3 Cir. 2] his neck. A 2010 MRI of the cervical spine was read as negative. Dr. Morrow's treatment ultimately focused on injury to the brachial plexus.

The parties agreed to a December 2010 consent judgment indicating that the claimant was injured in the course and scope of his employment and that Lowe's would pay a penalty and attorney fees to cover those issues through October 14, 2010. The consent judgment also reflected that Lowe's " agreed to pay weekly compensation benefits in the amount of $277.88 beginning on November 30, 2009 through the present and that the actual weekly

Page 993

compensation rate calculation will be reserved to be established at a later date."

Mr. Dietz returned to the workers' compensation judge, requesting psychiatric treatment as recommended by Dr. Morrow. He also sought penalties and attorney fees associated with Lowe's refusal to provide the treatment. Lowe's responded with an exception of improper use of summary proceedings, noting that medical treatment was not covered by the consent judgment. The workers' compensation judge granted the exception, converting the matter to a disputed claim for compensation in October 2011.

By November 2011, Mr. Dietz began treating with Dr. James Blackburn, a psychiatrist. Thereafter, and upon motion of Lowe's, the workers' compensation judge ordered Mr. Dietz to submit to an evaluation by the employer's choice of psychologist, Dr. Charles Frey, and by the employer's choice of neurosurgeon, Dr. Ricardo Leoni.

Lowe's additionally filed an answer to the converted disputed claim for compensation in which it denied Mr. Dietz claims on the merits and sought offsets for benefits previously provided. Before the merits of the underlying claim were addressed, however, Mr. Dietz filed an amended motion for penalties and attorney [14-401 La.App. 3 Cir. 3] fees, again citing the December 2011 consent judgment for the proposition that Lowe's failure to approve treatment as recommended by Dr. Morrow warranted the imposition of penalties and attorney fees. In this instance, the contested care was the previously discussed psychiatric care as well as physical therapy for Mr. Dietz's cervical spine complaints, failure to pay mileage requests, failure to approve pain medication, and failure to approve a cervical MRI as recommended by Dr. Daniel Hodges, a physical medicine and rehabilitation physician.

In response, Lowe's noted that the workers' compensation judge previously denied Mr. Dietz's request for penalties and attorneys fees under the consent judgment, converting that claim to a disputed claim form. Despite that ruling, Lowe's continued, Mr. Dietz filed the identical motion for penalties and attorney fees again, adding the additional claims. Lowe's sought sanctions pursuant to La.Code Civ.P. art. 863, asserting that: " The items set out [in] plaintiff's original motion and order for penalties and attorney's fees as well as the amended motion and order for penalties and attorney's fees has absolutely nothing to do with the Consent Judgment entered on December 6, 2011, even though [Mr. Dietz] avers in his motion that they do, and even though [the workers' compensation judge] has already ruled that the allegations set out in the original motion, which are identical to the allegations set out in the amended motion, do not." Lowe's also filed an exception of improper use of summary proceedings. The record indicates that the workers' compensation judge granted the exception, but deferred ruling on the sanctions issue until the time of trial.

In March 2012, Lowe's sought an Independent Medical Examination of Mr. Dietz for recommendations regarding psychological treatment as previously commented upon by Dr. Blackburn and Dr. Frey. Over Mr. Dietz's objection, the [14-401 La.App. 3 Cir. 4] workers' compensation judge appointed an " OWC IME" in April 2012. See, e.g., La.R.S. 23:1123; La.R.S. 23:1124.1.

When Mr. Dietz again filed an amended motion and order for penalties and attorney fees for alleged failures to comply with the consent judgment in May 2012, Lowe's repeated its claim of improper use of summary proceedings and res judicata. As before, Lowe's noted the prior filings as well as the workers' compensation judge's

Page 994

earlier ruling. Lowe's again sought sanctions pursuant to La.Code Civ.P. art. 863, noting that it was defending Mr. Dietz's claims for the third time. Subsequently, Mr. Dietz filed an amended claim form to include his claims for penalties and attorney fees. In its answer, Lowe's reasserted its prior defenses and again sought dismissal of all of Mr. Dietz's claims.

In June 2012, and pursuant to the workers' compensation judge's order for an IME, Mr. Dietz was evaluated by Dr. Harold Ginzburg, a psychiatrist. Dr. Ginzburg explained in his July 10, 2012 report that he concurred with the opinion expressed by Dr. Sandra Weitz, a pain management specialist, who suggested that Mr. Dietz suffered from brachial plexopathy and that he would be able to return to work in some capacity with better medication management and with some counseling. Dr. Ginzburg found no clinical evidence of malingering at that time. However, in a supplemental report, Dr. Ginzburg modified his prior opinion, finding clinical indication of secondary gain and malingering.

Although the hearing was conducted in September 2012, the workers' compensation judge rendered verbal reasons for ruling in August 2014 and determined that Mr. Dietz had, in fact, sustained an accident on July 11, 2009, causing injury to his brachial plexus. The workers' compensation judge rejected Mr. Dietz's contention that the accident caused injury to his cervical spine. [14-401 La.App. 3 Cir. 5] Neither did the workers' compensation judge find that the claimant had proven a mental injury as a result of the accident. With regard to indemnity benefits, the workers' compensation judge found that Mr. Dietz was temporarily totally disabled from the date of the accident through March 14, 2011, the date that Dr. Morrow approved the modified job position submitted by Lowe's and found the employer entitled to a credit for any possible future indemnity obligation for any indemnity benefits that it paid after that date. As for medical treatment, the workers' compensation judge found that Mr. Dietz was entitled to continue receiving treatment for his brachial plexus injury from Dr. Hodges, and that he was entitled to treatment by his choice of an anesthesiologist/pain medicine physician for that injury. The workers' compensation judge found ...


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