Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stupp Bros., Inc. v. Alexander

Court of Appeals of Louisiana, First Circuit

February 20, 2018


         On Appeal from the Office of Workers' Compensation Administration, District 5, Louisiana Docket No. 16-02731 Honorable Pamela A. Moses-Laramore, Judge Presiding




          PETTIGREW, J.

         In this workers' compensation dispute, the employer, Stupp Bros., Inc. d/b/a Stupp Corporation ("Stupp"), appeals from a March 29, 2017 judgment of the Office of Workers' Compensation ("OWC") in favor of the claimant, Alma Alexander. For the reasons that follow, we affirm.


         At all times pertinent hereto, Mrs. Alexander was employed as an administrative assistant at Stupp. Mrs. Alexander alleged that she was injured in the course and scope of her employment with Stupp on February 12, 2015, when she was moving an office printer. According to the record, Mrs. Alexander was preparing to leave work on the day of the incident, when a co-worker asked if she would order toner for the printer. As she attempted to move the machine to get the serial number from the back of it, Mrs. Alexander was unable to pull it forward because her arms would not "fit behind it to grasp it to pull it forward." Mrs. Alexander continued, describing what transpired next as follows:

I go kneel down like a frog, hold my hand up here and grab the bottom right corner of the printer to move it just enough to peep around and get the serial number without pulling it out. No, it's not heavy. No, of course it's not... heavy. I just needed to peer around it to get the serial number. And when I'm pulling it from the wall, I feel a tear in my back. And at the same time, my boots are like ... because I'm stooped down, they're like here on my legs, right, here is what I'm saying. And they rub .... They rub the back [of] my leg at the same time I felt a tear in my back, so that's two hard pains together at the same time. So I let go of the printer and fall back against the wall like this, right. And I'm trying to get up. The more I'm trying to get up, the more I'm hurting. So I lean back or fall back, whatever words, they want to use on the floor, because I'm down here already. ...
By that time ... the janitor is coming around, and he said, ["]What you doing down there, you all right, you need something?["]
I said, ["]No, no, I'm fine, ["] because I'm embarrassed also. And I maneuver and get myself up[.]

Mrs. Alexander immediately reported the incident to her supervisor, Eric Williams, and asked if she could sign a waiver so she could go to her own doctor; she did not want to pursue a claim with the company. Mr. Williams refused her request and ordered that she be seen by a doctor that day. Another co-worker drove Mrs. Alexander to Prime Medical, where she complained of tightness in her lower back radiating down into her thighs. She was diagnosed with a low back sprain/strain, given over-the-counter medication, and released to return to work. Mr. Williams completed an incident investigation form the same day, documenting the incident and Mrs. Alexander's complaints of pain in her back and the back of her thighs. According to Mrs. Alexander, her biggest concern following this incident was her back, as she had two prior back surgeries. Mrs. Alexander never returned to work following the February 12, 2015 incident.

         She returned to Prime Medical the following day with similar complaints. Mrs. Alexander cancelled her previously scheduled trip to visit her terminally ill father in Texas because of her pain and her inability to tolerate the ride. She went to the emergency room at Lane Regional Medical Center on February 16, 2015, with complaints of pain in her back and bilateral posterior legs. Her pain was reported as a 9/10 on the pain scale. An MRI was performed, which revealed a L5-S1 disc extrusion measuring 5 mm with a 3 mm inferior migration impinging on the right S1 nerve root; a L4-L5 broad base disc bulge with a left lateral annular tear measuring 6 mm, approximating the left sided L4 nerve; and a L3-L4 mild annular disc bulge and facet arthropathy with left lateral disc bulge approximating the exiting left sided L3 nerve. The emergency room physician took her off work effective February 16, 2015 through February 19, 2015.

         Thereafter, Mrs. Alexander made the first available appointment she could with Dr. Eric Oberlander, a neurosurgeon at The NeuroMedical Center Clinic ("NMC"), who became her treating physician. Dr. Oberlander first evaluated Mrs. Alexander on March 3, 2015. She complained of constant pain in her lower back with pain into her legs bilaterally, ranging from a numbness to pins and needles. She also reported neck pain and bilateral shoulder pain, with numbness into her hands bilaterally. According to Mrs. Alexander, she had the back pain immediately following the incident, and her pain had progressed since that time. She did not start experiencing neck symptoms until a few days later. A subsequent MRI of the cervical spine was completed on April 15, 2015, and Mrs. Alexander saw Dr. Oberlander again on June 8, 2015, to review the results. At that time, she complained of bilateral shoulder, arm, and leg pain, as well as mid and low back pain. Dr. Oberlander noted that the MRI revealed a central disc herniation at C3-4, causing severe spinal cord compression. He further noted that she was not overtly myelopathic, however, the severe stenosis at C3-4 could account for the symptoms she was having bilaterally in her shoulders, arms, and legs. Dr. Oberlander indicated that she was a candidate for a C3-5 ACDF (anterior cervical discectomy and fusion), but that she could try physical therapy and injections.[1] He added, although, that conservative therapy would not ultimately fix her severe stenosis.

         Dr. Oberlander submitted a request for surgery on June 18, 2015, which was denied on the basis that a second opinion was required and had been scheduled with Dr. Justin Owen for July 1, 2015. The denial also referenced the failure of Mrs. Alexander to initiate any active therapy as advised by the treatment guidelines.

         During her visit with Dr. Owen, Mrs. Alexander relayed the events of February 12, 2015, indicating that while she did not notice any severe exacerbation of pain at that time, it was only shortly thereafter that she began developing worsening back, leg, neck, arm, shoulder, and paraspinal muscle pain that had persisted since the incident. Dr. Owen found her neurological exam to be normal. With regard to his review of her MRI studies, Dr. Owen stated that they were "largely chronic imaging findings, nonspecific symptomology, complaints that are most consistent with musculoskeletal pain." He noted further that Mrs. Alexander had a significant component of depression and anxiety and had not exhausted appropriate conservative measures, such as physical therapy or pain management. Dr. Owen opined that any type of surgery at this time would be "wholly premature."

         Because of the differing opinions of Dr. Oberlander and Dr. Owen, Stupp requested an independent medical examination (IME). The OWC Medical Services Department appointed Dr. Anthony Ioppolo as the IME.

         Mrs. Alexander followed up with Dr. Oberlander on August 31, 2015. Dr. Oberlander's notes from that visit reflect as follows:

She continues with neck and bilateral arm symptoms/radiculopathy/ myelopathy consistent with a C3-4 disc herniation. ... I disagree with Dr. Owen's interpretation of the imaging. The radiologist and I both agree that she has severe stenosis at C3-4 deforming and flattening the cervical cord. She is brisk on exam and appears to have developed myelopathy in the interim. She has another opinion with Dr. [Ioppolo] soon and I'm sure that when he sees the amount of cord compression on the axial images he will agree with my surgical plan. ... I don't understand why her surgery continues to be denied. Her exam is starting to reflect the amount of cord compression that she has I just hope that it isn't too late for her. She has tried physical therapy but couldn't tolerate it. I continue to recommend a necessary C3-5 ACDF to [decompress] her cord and prevent further worsening.

         At her next visit with Dr. Oberlander on October 15, 2015, he noted that she had deteriorated and was starting to have burning in her legs and heaviness of her extremities. Mrs. Alexander continued with neck pain. Dr. Oberlander's recommendation for surgery remained unchanged.

         Dr. Ioppolo issued his report on November 10, 2015, opining that while Mrs. Alexander could be considered a surgical candidate, she should consider further conservative care before deciding on surgical intervention:

I have reviewed the patient's cervical and lumbar MRI scans. I agree with the radiologist's report. In the cervical spine I think that the patient has multilevel spondylosis with posterior longitudinal ligament thickening at multiple levels. She has a disc extrusion centrally at C3 with cephalad migration and some flattening of the spinal cord at that level. She has disc osteophyte complexes at other levels. I would agree with Dr. Owens that her radiographic changes are most likely chronic and preceded the accident. By history however the patient had no evidence of cervical symptoms prior to this accident. I believe that the accident caused these spondylitic changes to become symptomatic. I also believe that the patient could have furthest [sic] conservative care before deciding on surgical intervention. In that regard I do not see where she has ever had epidural steroid injections. If those do not benefit her, then she certainly can be considered a candidate for surgical intervention as proposed by Dr. Oberlander. Alternately, the patient can control her pain with medication. I note that she is only taking Norco 5 mg twice a day. She has no evidence of myelopathy that would mandate surgical intervention.
In the lumbar spine the patient has a disc protrusion at L5 with inferior migration and compression on the right S1 nerve root. At L4 there is also a disc protrusion with an annular tear. The patient of course has had previous lumbar surgery at the L5 level on the right. Once again, the patient appeared to be doing well since her previous surgery in 1999 until the incident with the office machine. In my opinion, more probably than not, this incident caused her to re-herniate a disc at L5 that is now pressing on the right S1 nerve root. I believe she is a candidate for lumbar epidural steroid injections.

         Mrs. Alexander returned to Dr. Oberlander on December 7, 2015, at which time she continued with worsening neck and bilateral arm pain. Dr. Oberlander again noted that her condition had "deteriorated, " and made the following observations regarding Dr. Ioppolo's opinion:

She saw Dr. [Ioppolo] who agreed that the accident exacerbated her underlying disease and that she is a candidate for an anterior cervical discectomy and fusion. He discussed the possibility of injections, but she had a terrible experience with lumbar injections in the past suffering a spinal fluid leak, so she is obviously hesitant to consider injections. I discussed the risks and benefits of an anterior cervical discectomy and fusion C3-5.

         Mrs. Alexander continued to treat with Dr. Oberlander throughout 2016. On February 15, 2016, he noted that Mrs. Alexander's symptoms had gotten worse, but that she had been advised she needed a neuropsych evaluation before proceeding with surgery. Dr. Oberlander ordered a consult for same, [2] as well as a consult with a pain management doctor.[3]

         On February 29, 2016, Dr. Oberlander held a rehab conference with Stupp's medical case manager. According to Dr. Oberlander's notes, she had a "worsened cervical disc herniation at C6-7 with the central canal down to 5.3 mm which is severe." He opined that "[h]er spinal cord diameter is almost 1/3 of what it is supposed to be" and that the "work related injury likely exacerbated the underlying condition of cervical spondylosis." Dr. Oberlander added that "[c]ervical injections are not recommended at this point due to the severe stenosis, which puts her at increased risk for spinal cord damage with injections." Moreover, he believed that physical therapy "may exacerbate" the problem. He concluded "MRI findings trump need for psychological clearance in this case as well due to severity of MRI findings and clinical correlation of deteriorating symptoms."

         In his deposition, Dr. Oberlander elaborated further on the seriousness of Mrs. Alexander's cervical condition. He described her disc herniation as a "dagger cleaving the spinal cord." He noted that Mrs. Alexander's spinal cord is heart shaped when it is supposed to be round. Dr. Oberlander continued stating, "[Y]ou've got this disc herniation digging into the cord making it this funny shape of a heart. And you're going to say that that's not going to cause some symptoms? I mean, that's a [ridiculous] notion. This lady is being affected by this."

         On March 29, 2016, Dr. Owen issued an addendum to his original opinion rendered in July 2015. After reviewing Mrs. Alexander's February 25, 2016 MRI, Dr. Owen agreed that there had been "slight apparent worsening of findings at the C6/7 level." He did not agree, however, that the findings were the cause of her pain and symptomatology because the pain relayed to him by Mrs. Alexander was "nonspecific." Dr. Owen noted:

If Mrs. Alexander is beginning to deal with objective signs of myelopathy or change in neurological examination, then I would absolutely agree that cervical surgery is necessary. ...
If Mrs. Alexander is progressing with objective signs or symptoms of myelopathy, then I agree with pursuing surgical intervention without significant delay. ... If she has tried and failed physical therapy and does not wish to pursue injections, I think surgery could be considered a reasonable option. However, in my practice I try to make sure that all of my patients are very well-informed regarding all available options and the pros and cons regarding any decisions that are made. Unfortunately in medicine, we cannot predict the future, and Mrs. Alexander's future course is not predictable with certainty. It was not predictable that she would develop a worsening disc herniation at the C6/7 level just as it was not predictable that the work-related accident that she experienced would lead to the onset of these symptoms that she has experienced. In my practice, when individuals are neurologically intact, I generally recommend avoiding surgery if possible, and instead try to find satisfactory ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.