FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 9
PARISH OF IBERIA, NO. 15-02175 ELIZABETH CLAIRE LANIER,
WORKERS' COMPENSATION JUDGE
William Stevens Bordelon David John Shea Bordelon & Shea,
LLP P. O., COUNSEL FOR: Defendants/Appellees - Iberia Parish
School Board and Gulf South Risk Services
Christopher Whitmore Blake Jones Law Firm, LLC, COUNSEL FOR:
Plaintiff/Appellant - Laura Carter
composed of Ulysses Gene Thibodeaux, Chief Judge, Billy
Howard Ezell, and John E. Conery, Judges.
ULYSSES GENE THIBODEAUX CHIEF JUDGE.
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.
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.
AND PROCEDURAL HISTORY
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
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
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.
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.
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.
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,
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
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.
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
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