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Clifford v. OLOL Regional Medical Center

Court of Appeals of Louisiana, First Circuit

May 31, 2019


          Appealed from the Office of Workers' Compensation In and for the Parish of East Baton Rouge State of Louisiana District 5, Docket No. 16-08116 Jason Ourso, Workers' Compensation Judge Presiding

          Phillip E. Foco Scott P. Ledet Melissa J. Shaffer Baton Rouge, Louisiana Counsel for Plaintiff/Appellant OLOL Regional Medical Center

          Henri M. Saunders Scotty E. Chahert, Jr. Cheyenne Moeller Meek Baton Rouge, Louisiana Counsel for Defendant/Appellee Gwendolyn Clifford


          LANIER, J.

         In this workers' compensation dispute, the claimant, Gwendolyn Clifford, was injured in the course and scope of her employment as a certified nursing assistant at Our Lady of the Lake Regional Medical Center ("OLOL") on May 18, 2013. Ms. Clifford alleged injury to her neck, lower back, and right leg as a result of the accident. Following the May 2013 accident, OLOL accepted the low back injury as compensable and paid Ms. Clifford both indemnity and medical benefits, including a July 2014 two-level lumbar fusion recommended by Ms. Clifford's treating physician, Dr. Eric K. Oberlander.

         It is undisputed that Ms. Clifford had been treating with Dr. Oberlander since approximately 2010 for low back pain and neck pain she experienced from performing her job duties at OLOL, including heavy lifting. As part of treatment for her symptoms, Dr. Oberlander referred Ms. Clifford to pain management. Ms. Clifford maintained, however, that she was physically able to continue working during this time, only missing a day or two when she had flare-ups.

         Following the July 2014 surgery, Dr. Oberlander recommended continued pain management as an "important" part of Ms. Clifford's treatment. Ms. Clifford continued treating with her choice of physician, Dr. John Clark, who she had been treating with prior to surgery. OLOL approved treatment by Dr. Clark for a period of time, but subsequently obtained a February 29, 2016 Second Medical Opinion ("SMO") by Dr. Sandra Weitz, who opined that Ms. Clifford's need for ongoing pain management treatment was unrelated to the May 2013 accident. Thus, OLOL issued Ms. Clifford a notice terminating pain management treatment effective March 10, 2016. Thereafter, on December 28, 2016, Ms. Clifford filed a disputed claim for compensation seeking reinstatement of her benefits for pain management treatment, as well as an award of penalties and attorney fees for OLOL's arbitrary and capricious denial of accident related treatment.[1]

         The matter proceeded to trial on December 12, 2017, at which time the parties stipulated that indemnity benefits were being paid to Ms. Clifford for the work-related accident and that the only remaining issue was medical benefits. After listening to the testimony of Ms. Clifford at trial and reviewing the applicable law and evidence in the record, the workers' compensation judge ("WCJ") rendered judgment in favor of Ms. Clifford and against OLOL. In a judgment signed on December 20, 2017, the WCJ ordered that OLOL "reinstate medical benefits for pain management treatment for [Ms. Clifford's] lumbar spine and provide medical benefits for [Ms. Clifford's] cervical spine" in accordance with the law. This appeal by OLOL followed.

         On appeal, OLOL argues that the WCJ erred in finding that Ms. Clifford met her burden of proof regarding her entitlement to further pain management treatment for her lower back based solely on her uncorroborated complaints of pain where she had a pre-existing lower back condition and where expert medial evidence established that further pain management treatment was not warranted. OLOL also contends it was error to award Ms. Clifford medical benefits for further medical treatment in connection with her cervical spine where it was undisputed that she had a pre-existing cervical spine condition and where there was no evidence to suggest that her current cervical symptoms were related to the May 2013 accident.

         Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers' compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. Thus, "[i]f the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 2001-0486 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

         Following an extensive review of the record and exhibits in this matter, we cannot conclude the WCJ was manifestly erroneous in finding that Ms. Clifford was entitled to reinstatement of medical benefits for pain management treatment for her lumbar spine and medical benefits for her cervical spine. The WCJ gave written reasons for judgment, noting that Ms. Clifford was "credible based upon ... the close observation of her while testifying at trial of her mannerisms, tone of voice, composure, facial expressions, sincereness, responses to questions, answers to questions, body language, gestures, and overall demeanor" and giving "weight to the favorable opinion of Dr. Oberlander, [Ms. Clifford's] 'treating physician.'" The WCJ's ruling is reasonable and supported by the record. Thus, we affirm the decision below in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1(B) and assess all appeal costs against Ms. Clifford's employer, OLOL.



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