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Carter v. Iberia Parish School Board

Court of Appeals of Louisiana, Third Circuit

December 13, 2017



          William Stevens Bordelon David John Shea Bordelon & Shea, LLP P. O., COUNSEL FOR: Defendants/Appellees - Iberia Parish School Board and Gulf South Risk Services

          David Christopher Whitmore Blake Jones Law Firm, LLC, COUNSEL FOR: Plaintiff/Appellant - Laura Carter

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.


         Plaintiff, Laura Carter, appeals a judgment in favor of Defendant, Iberia Parish School Board, et al. (hereafter "IPSB"), determining that Ms. Carter did not sustain a cervical injury causally connected to her work-related incident. Ms. Carter alleges that the trial court improperly admitted the cumulative testimony of two physicians in the same specialty. Furthermore, Ms. Carter asserts that the trial court erred in failing to impose penalties and award attorney fees when there was a delay of four years in her medical care for the cervical injury. We affirm the judgment in favor of IPSB.

         I. ISSUES

         We must determine whether the trial court improperly allowed the employer to use two physicians in the same field of practice and whether this evidence was cumulative. This court must also determine whether the trial court erred in its determination that the employee did not suffer a cervical injury that was causally connected to her work-related injury. If we find the trial court erred, we must determine whether the trial court should have awarded the employee penalties and attorney fees.



         Ms. Carter was employed by IPSB and worked as a cook at Dodson Elementary School. On May 4, 2011, Ms. Carter was lifting a heavy food chopper with two co-workers. Ms. Carter sustained a low back injury when the co-workers released the food chopper and Ms. Carter had to bear all the weight of the equipment.

         Ms. Carter sought medical care at the Occupational Medicine Clinic ("OMC") on the day of the incident. She also went to the emergency room at Dauterive Hospital later in the day complaining of low back pain. Ms. Carter returned to work for the remainder of the school year. Ms. Carter went back to OMC on July 27, 2011, for an annual physical, but did not receive any medical treatment in May, June, or for the majority of the month of July of 2011 for her low back complaints.

         Ms. Carter sought treatment from Dr. John Cobb, an orthopedic surgeon at the Lafayette Bone & Joint Clinic in Lafayette, Louisiana. She had her first office visit with Dr. Cobb on August 3, 2011, only complaining of low back pain. Ms. Carter also saw Dr. Cobb on August 31, 2011. Dr. Cobb ordered diagnostic testing and epidural steroid injections, which were performed by Dr. Jindia on December 1, 2011 and January 11, 2012, at Lafayette Surgical Specialty Hospital. Dr. Cobb passed away on December 4, 2011, and Ms. Carter subsequently saw Dr. Cobb's partner, Dr. Louis Blanda, on December 28, 2011 and January 4, 2012.

         During her visits with Dr. Jindia, Ms. Carter completed pain drawings on which she only indicated low back pain. Ms. Carter was also seen by Dr. John Sledge, with the first visit occurring on February 1, 2012. Dr. Blanda recommended low back surgery in March 2012. Ms. Carter saw Dr. Sledge again on April 2, 2012, and he recommended a microdiscectomy at L5-S1 level of the lumbar spine. Ms. Carter also went to twelve physical therapy sessions at the Southern Spine Institute. Ms. Carter admitted that she made no complaints regarding her cervical pain to her physical therapists.

         At the request of IPSB, Ms. Carter saw Dr. Douglas Bernard on March 12, 2012. Dr. Bernard opined that lumbar surgery was contraindicated. Furthermore, Dr. Bernard noted that he believed that Ms. Carter exhibited signs of "exaggeration, " "unphysiologic numbness, " and that Ms. Carter "self-limited" and gave an "unreliable effort" during two Functional Capacity Evaluations (FCEs). Again, when Ms. Carter saw Dr. Bernard she only mentioned her low back pain.

         Ms. Carter also complained of right knee pain for which the employer authorized medical treatment. Dr. Sledge ordered an MRI of Ms. Carter's lumbar spine, which revealed a herniated disc at L5-S1. After conservative treatment failed, Dr. Sledge performed the L5-S1 microdiscectomy on January 8, 2013.

         Dr. Sledge's notes from June 4, 2012 reflect the first time that Ms. Carter mentioned neck pain. Dr. Sledge's notes state, "[S]he also indicates to me that on May 8, 2012, she experienced [a] rather sudden onset of neck and right arm pain, which became severe necessitating a trip to the emergency room at Dauterive Hospital on May 9, 2012." Dr. Sledge requested a cervical MRI but the request was denied by the IPSB because IPSB believed the cervical injury was not causally connected to the May 4, 2011 work accident. Dr. Sledge wrote a report on January 27, 2014, opining that he believed that Ms. Carter's cervical injury was the result of lifting the heavy food processor. Dr. Sledge noted that although her back and leg were worse at the time of the incident, her cervical injury "escalated over time." The cervical spine MRI performed on May 29, 2014, "showed disc protrusions at C4-5 and C5-6, with a larger right-sided disc extension with annular fissure at C6-7."

         IPSB refused treatment for Ms. Carter's cervical injury. IPSB asserted that it should not have to pay for the cervical injury when Ms. Carter not only failed to complain of the injury for thirteen months after the work incident, but also when Ms. Carter specifically denied a cervical injury or neck pain on numerous doctors' visits and on pain diagram forms during these appointments. Ms. Carter claims she complained of the cervical injury to Dr. Cobb in August of 2011. Dr. Sledge testified that patients with two injuries often "only complain about the most severe of them . . . ." Additionally, Ms. Carter testified that there was no intervening cause for her cervical injury.

         Ms. Carter filed a disputed claim for compensation, LWC Form 1008, on April 9, 2015, alleging there was a dispute regarding her cervical injury and treatment. IPSB filed responsive pleadings and reconventional demand, asserting that Ms. Carter's cervical injuries and complaints were not compensable under the Workers' Compensation Act because the injury was not related to her work accident. After an oral motion by IPSB, the trial court dismissed the reconventional demand. Ms. Carter filed a motion in limine to exclude Dr. Christopher Cenac Sr.'s testimony because IPSB chose Dr. Bernard as the orthopedic specialist. Ms. Carter asserted that if Dr. Cenac was permitted to testify, then Dr. Bernard's testimony should have been excluded. IPSB opposed Ms. Carter's motion in limine, stating that Dr. Bernard "has important and relevant information . . . [and] he observed her inconsistent responses and inappropriate conduct" as her examining doctor. IPSB further contended that Dr. Cenac's report prepared using the medical records that IPSB sent to him for his review should be admitted. IPSB asserts that Ms. Carter provided "no objective evidence to substantiate her subjective complaints."

         At trial, IPSB sought to introduce a report by Dr. Cenac. Ms. Carter made the same objection at trial about the introduction of the testimony and it was overruled. The trial court reasoned that the testimony of both physicians was not cumulative medical testimony because under La.R.S. 23:1124.1, the "introduction of the testimony of more than two physicians would be cumulative, however the worker's comp[ensation] ...

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