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Circle Bowl & Liberty Mutual Insurance Co. v. Corrosion Materials, Inc.

Court of Appeals of Louisiana, First Circuit

May 9, 2019

CIRCLE BOWL AND LIBERTY MUTUAL INSURANCE COMPANY
v.
CORROSION MATERIALS, INC. AND LIBERTY MUTUAL INSURANCE COMPANY

          Appealed from the Office of Workers' Compensation Administration District 5 State of Louisiana Docket Number 17-01057 Honorable Pamela Moses-Laramore, Workers' Compensation Judge Presiding.

          Philip J. Borne Joshua O. Hess New Orleans, LA Counsel for Plaintiffs/Appellants Circle Bowl and Liberty Mutual Insurance Company

          John C. Turnage Marcus E. Edwards Shreveport, LA Counsel for Defendants/ Appellees Corrosion Materials, Inc. and Liberty Mutual Insurance Company

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         This matter is before us on appeal by Circle Bowl and Liberty Mutual Insurance Company (collectively, "Circle Bowl") from the May 1, 2018 judgment of the Office of Workers' Compensation, District 5 ("OWC"), finding Circle Bowl responsible for 60% of all medical expenses incurred by a workers' compensation claimant and finding Corrosion Materials, Inc. and Liberty Mutual Insurance Company (collectively, "Corrosion Materials") responsible for the remaining 40%. The judgment apportioned the costs of the proceeding, including deposition fees and costs, 60% to Circle Bowl and 40% to Corrosion Materials. Also before us is an answer to appeal filed by Corrosion Materials.

         For the following reasons, we amend the judgment of the OWC and affirm, as amended.

         FACTS AND PROCEDURAL HISTORY

         In this matter, two employers and their respective insurers sought resolution from the OWC of the responsibility for medical benefits due to Barry Coon as a result of a February 17, 2015 accident ("the 2015 accident") and resulting injuries while he was working for Circle Bowl. Circle Bowl filed a disputed claim for compensation and a supplemental disputed claim for compensation with the OWC on February 16, 2017, contending that Corrosion Materials was either liable for all medical payments or was proportionately liable with Circle Bowl for the medical payments. According to Circle Bowl, Coon was first injured on August 18, 2009 ("the 2009 accident"), while working for Corrosion Materials, and Corrosion Materials paid and continued to pay for all medical benefits on his behalf. Corrosion Materials answered and filed a reconventional demand against Circle Bowl, alleging that the 2015 accident was not an aggravation of the 2009 injury, but instead, was a new injury. Accordingly, Corrosion Materials sought reimbursement from Circle Bowl of all amounts paid on Mr. Coon's behalf after the 2015 accident and alternatively, sought to be awarded its proportionate share of the responsibility for medical benefits to the extent that the 2015 accident was determined to have exacerbated Mr. Coon's 2009 injury. This matter proceeded to trial on April 18, 2018.

         At trial, the parties stipulated to the following: (1) Mr. Coon was involved in an accident involving his lower back on August 18, 2009, while in the course and scope of his employment with Corrosion Materials; (2) Mr. Coon was involved in an accident involving his lower back on February 17, 2015, while in the course and scope of his employment with Circle Bowl; and (3) after the 2015 accident, Corrosion Materials paid medical benefits in the amount of $20, 475.90, and Circle Bowl paid medical benefits in the amount of $93, 437.16.

         Accordingly, the only issues for the OWC to decide at trial were whether Circle Bowl was entitled to contribution or indemnification from Corrosion Materials to the extent that Mr. Coon's injury from the August 18, 2009 accident was aggravated or exacerbated by the 2015 accident and what percentage share between Corrosion Materials and Circle Bowl should be apportioned if Circle Bowl was entitled to contribution or indemnification from Corrosion Materials. After having reviewed all of the evidence submitted by the parties, the OWC issued its ruling in open court and found that Mr. Coon's medical condition increased enough to attribute more of the responsibility for the medical condition to Circle Bowl, and accordingly, that Corrosion Materials was responsible for 40% of Mr. Coon's medical condition and Circle Bowl was responsible for 60%. The OWC issued a written judgment reflecting its ruling and Circle Bowl timely requested a devolutive appeal, which was granted.

         On appeal, Circle Bowl contends that the OWC committed manifest error in failing to find the parties solidarity liable for all medical benefits paid to or on behalf of Mr. Coon following the 2015 accident. Additionally, Circle Bowl contends that the OWC was manifestly erroneous in failing to find Corrosion Materials liable for 50% of all medical expenses incurred by Mr. Coon since the date of the 2015 accident.

         In the answer to appeal, Corrosion Materials contends that the OWC manifestly erred in finding Corrosion Materials liable for 40% of all medical expenses incurred by Mr. Coon since the date of the 2015 accident, when it should not have been apportioned any responsibility whatsoever for the post-2015 accident medicals or, at the most, 10%.

         The 2009 Accident

         In August of 2009, Mr. Coon was working full-time for both Corrosion Materials and Circle Bowl. He began working at Circle Bowl as a lane attendant and later became a pinsetter mechanic. At Corrosion Materials, Mr. Coon was a plate saw, forklift, and overhead crane operator. In connection with the 2009 accident, Mr. Coon was cutting a large amount of two-and-a-quarter-inch thick metal plates for scrap over the course of two days, requiring him to repeatedly put pieces of scrap into a tall scrap box. Eventually, Mr. Coon experienced "unbearable" back pain and reported this to his supervisor at Corrosion Materials. As described by Mr. Coon, he had a lot of pain in his lower back after the 2009 accident. At first, the pain was sharp and made walking difficult. After missing work for less than two weeks, Mr. Coon returned to work at Corrosion Materials, but asked for lighter work due to his injury. Six months after the 2009 accident, Corrosion Materials terminated Mr. Coon's employment; however, Mr. Coon continued to work for Circle Bowl, where he was promoted to head mechanic.

         As a result of the 2009 accident, Mr. Coon was never pain free. Instead, the severity of the pain would fluctuate over time, and he later experienced intermittent pain in his legs. Eventually, Mr. Coon was evaluated and treated by Dr. Kyle Girod, an orthopedic surgeon. Upon physical examination, Dr. Girod noted that all of Mr. Coon's pain was focused on his back and upper portion of his right buttock and he had limited range of motion, but, neurologically, he maintained his motor function and sensation. Dr. Girod reviewed the images from Mr. Coon's 2009 MRI scan, which showed that he had right paracentral disc bulges at LI-2 and L2-3 and did not have significant stenosis. Dr. Girod treated Mr. Coon conservatively, prescribing anti-inflammatory, muscle relaxers and mild pain medications as well as physical therapy and chiropractic treatments.

         After treating with Dr. Girod for a little over a year, Mr. Coon was referred to Comprehensive Pain Management in early 2011 where he began treatment with Dr. Sandra Weitz. Dr. Weitz first saw Mr. Coon on February 16, 2011, and diagnosed him with lumbar spondylosis, noting that he had facet tenderness at L4-5 and L5-Sl and was neurologically intact. Dr. Weitz also reviewed Mr. Coon's 2009 MRI scan, which she noted as showing some bulging discs, primarily on the right side at LI-2 with mild foraminal narrowing and also a right paracentral disc bulge at L2-3 contacting the right L-3 nerve root with mild right foraminal narrowing. She also noted that Mr. Coon had facet arthropathy at L3-4, L4-5, and L5-Sl.

         Dr. Weitz's treatment for Mr. Coon included a medial branch block, which did not provide significant relief, various daily medications, and periodic epidural steroid injections ("ESI"). Mr. Coon received, and continues to receive, treatment from Comprehensive Pain Management on a monthly basis. Dr. Weitz continued to treat Mr. Coon through pain management so that he could remain functional and gainfully employed. Overall, Mr. Coon's pain and symptoms from the 2009 accident would wax and wane, but at times, he experienced intermittent episodes of severe right leg pain.

         According to Mr. Coon, he had intermittent pain in his legs, which became bad enough at one point in 2012 that he went to the hospital. While it was not clear from Mr. Coon's testimony when exactly this increase in pain occurred, his medical records reflect that in May of 2012, he was removing ceiling tiles for his boss at Circle Bowl and developed new back pain. Thereafter, in 2013, a new MRI scan was done and the worker's compensation insurer for Corrosion Materials requested an independent medical examination or second medical opinion, investigating whether a new injury or accident had occurred since the 2009 injury. Dr. Weitz opined that the intermittent severe right leg pain and episodes of increased pain were a natural progression of the original 2009 injury. Dr. Weitz's impression of the 2013 MRI scan was that Mr. Coon had a new disc herniation at L4-5, but that the rest of his MRI was, essentially, unchanged. Through January 22, 2015, Dr. Weitz's treatment of Mr. Coon was fairly consistent, and Mr. Coon's pain complaints were fairly stable.

         The 2015 Accident

         On February 17, 2015, while preparing bowling lanes, Mr. Coon was shifting a heavy Kegel Ion lane machine[1] into an upright position when he felt a powerful and severe sharp pain in his lower back and heard a crunch. He stated that he felt a pop, his knees buckled, and he cried due to the pain. He reported the accident and completed an injury report, but did not seek medical attention immediately. However, in lieu of going to the hospital, Mr. Coon went to his regularly scheduled monthly appointment with Dr. Weitz's office two days later. At his appointment on February 19, 2015, Mr. Coon was observed to have continued back pain, which had increased from a six-out-of-ten degree of pain from his last two visits to a nine-out-of-ten degree of pain as a result of the 2015 accident. Dr. Weitz noted on this visit that he was markedly tender on his left side and had a positive straight leg raise. Dr. Weitz specifically testified that on this visit in particular, Mr. Coon's pain was very different from his prior visits over the previous four years in that he had a clear and demonstrable change in his presentation of symptoms.

         At the February 19, 2015 appointment, Dr. Weitz prescribed a Medrol Dosepak in hopes that Mr. Coon's pain was just a flare-up that could be calmed with steroids. Two weeks later, Mr. Coon returned and remained in pain. While Mr. Coon had experienced similar pain over the course of his treatment, the pain on this visit was markedly worse, so Dr. Weitz ordered an MRI scan of his back. A comparison of the last MRI performed in 2013 and the new MRI performed in 2015 showed that Mr. Coon had multi-level disc degeneration changes with foraminal narrowing, facet arthropathy, and disc herniations. According to Dr. Weitz, Mr. Coon's disc herniations at LI-2 and L2-3 had increased in size. However, the bulging disc at L3-4 and the impingement on the nerve root at L4-5 due to herniation was unchanged. At a minimum, Dr. Weitz's opinion was that the 2015 accident exacerbated Mr. Coon's underlying condition, which resulted from the 2009 accident.

         After the 2015 accident, Dr. Weitz's treatment plan began with an ESI in an attempt to get Mr. Coon back to his pre-2015 accident condition. While the ESI did relieve Mr. Coon's leg pain, his back pain remained unbearable. Dr. Weitz referred Mr. Coon back to Dr. Girod in an effort to determine whether the progression of his degenerative disc disease had reached a level where surgical intervention was necessary. Additionally, Dr. Weitz informed Mr. Coon that she did not believe that he could continue doing his physical job at Circle Bowl and signed a physical capacities form to that effect. According to Dr. Weitz, Mr. Coon had experienced flare-ups or exacerbations in the past, but they had been able to return Mr. Coon back to his normal functionality with pain management. However, Dr. Weitz noted that even seven months after the 2015 accident, they were not even close to getting Mr. Coon back to his normal functionality and that Mr. Coon could barely walk down the hall without experiencing extreme pain. Mr. Coon testified that the intensity of the pain in his back after the 2015 accident was more severe than it was after the 2009 accident. Mr. Coon stated that after the 2009 accident, he could do just about anything he wanted notwithstanding being uncomfortable due to the pain. However, his endurance for how long he could perform an activity, such as going to the store, was tremendously lowered after the 2015 accident.

         In September of 2015, Mr. Coon was again seen by Dr. Girod, who noted that Mr. Coon appeared to be in more pain, was walking with a cane, moved slower than before, and had more diffuse back pain, even though Dr. Girod did not find any neurological changes. Mr. Coon next was seen by Dr. Girod on May 25, 2016. At that time, Dr. Girod noted that there was little change in Mr. Coon's physical exam compared to the prior visit: Mr. Coon still had chronic dorsal back pain, intermittent lower extremity radiculopathy and continued pain across his lower back, which alternated from side to side. Dr. Girod noted that Mr. Coon was still seeing Dr. Weitz and had received ESIs, which had helped, but he was still having trouble walking for long distances. However, Dr. Girod's opinion was that Mr. Coon was not a good surgical candidate and that Mr. Coon should continue his treatment with Dr. Weitz, which could include a spinal cord stimulator. He also prescribed additional physical ...


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