Appealed from the Office of Workers' Compensation,
District 1-W Parish of Caddo, Louisiana Trial Court No.
1801708. Linda Lea Smith Workers' Compensation Judge
LAW OFFICE, LLC By: S.P. Davis, Sr. Counsel for Appellant
PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL,
L.L.P. By: Robert A. Dunkelman Counsel for Appellees, Nu
Verra Environmental Solution and Insurance Company of the
State of Pennsylvania
WILLIAMS, MOORE, and COX, JJ.
a workers' compensation case. The claimant appeals from a
judgment of the Office of Workers' Compensation
("OWC") denying his claim for temporary total
disability ("TTD") benefits, penalties and attorney
fees. For the reasons set forth below, we reverse in part and
render judgment in favor of claimant, Ernest Smith. We affirm
that portion of the judgment which denied claimant's
request for penalties and attorney fees.
AND PROCEDURAL BACKGROUND
claimant, Ernest Smith, worked full-time for Nu Verra
Environmental Solutions ("Nu Verra") driving an
18-wheeler pump truck. On August 28, 2009, while en route to
a well site, the truck claimant was driving was struck when
another 18-wheeler came around a curve at an excessive speed
and crossed into claimant's lane of travel. The other
driver did not survive the accident, and claimant was injured
when his truck ran off the road. Claimant treated with Dr.
Clemens Soeller, an orthopedic specialist, from September 1,
2009, through December 29, 2009, his primary complaints being
severe lacerations to and pain in his left elbow. Claimant
also reported mild neck and shoulder pain, as well as pain
radiating down his left arm.
Soeller lifted all orthopedic restrictions for claimant to
return to work on October 16, 2009, and certified maximum
medical improvement regarding his accident-related injuries
on October 30, 2009. Dr. Soeller's medical assessment of
claimant on November 20, 2009, was left elbow laceration-now
healed; cervical degenerative arthritis with C6 radiculopathy
into forearm; and, possible intermittent carpal tunnel
syndrome. On December 29, 2009, claimant was cleared by Dr.
Soeller to return to his full work duties. Dr. Soeller
stated, "He does not want to return to work due to his
continuing psychological issues . . . but he needs to get
back to work."
did not immediately return to work, but instead assisted his
wife with her barbecue business in 2010. After passing his
CDL medical exam in 2011, claimant returned to his
pre-accident job with Nu Verra. He worked as a truck driver
for Nu Verra until 2016. According to claimant, he later
changed jobs because he felt that he could no longer perform
some of the necessary functions associated with his job, such
as climbing a ladder and handling heavy hoses.
went to Dr. John Ferrell, an orthopedic specialist, for
medical treatment from August 23, 2010, until July 16, 2012,
with complaints of left shoulder and elbow injury, arm
numbness, and neck pain. Based on the results of an MRI, Dr.
Ferrell noted "multi-level disc degeneration/protusion
spondylo C5-6." Dr. Ferrell noted in claimant's
medical records, "[D]iscussed patient seeing a spine
doctor. He is not interested in pursuing this because he
would not want to have any surgery. Patient is doing well
getting by at this point."
March 14, 2012, claimant was referred by defendants to Dr.
Karl Bilderback for an independent medical examination
("IME") in connection with a June 2011 work-related
injury, a broken right wrist. In the "History"
section of his IME report, after noting that the numbness and
tingling in claimant's right extremity were not related
to the June 3, 2011, work injury, Dr. Bilderback noted,
"[I]t is perfectly within reason to expect that Mr.
Smith could have developed a right-sided cervical
radiculopathy [as a result of the August 2009 accident]
even though his vehicle was impacted on the left. Due to the
significant forces imparted on the vehicle and subsequently
onto the occupant, Mr. Smith could develop a radiculopathy on
either side, and would not be restricted to only left-sided
radiculopathy simply because the vehicle was impacted on the
left." In the "Assessment" section of his IME
report, Dr. Bilderback opined, "Mr. Smith appears to
have some evidence of cervical radiculopathy on the right. .
. . I do not believe that this is related to his most recent
work accident, and by his history and review of the records,
would appear to be related to his original motor vehicle
accident on August 29, 2009. . . . He is showing evidence of
a clinical radiculopathy, however I do not believe that this
is related to his most recent accident, and believe that it
is related to his previous accident. As indicated above, I
believe that he would be best suited by having an EMB/NCS of
his right upper extremity from his August 29, 2009,
October 17, 2012, claimant sought treatment from Dr. Milan
Mody, an orthopedist. Claimant related that he had been
experiencing neck pain since his accident in August 2009. Dr.
Mody's written assessment was "[degenerative disc
disease] with collapse, C5-6 with collapse and osteophytes,
mild retro spondy C5-6." Dr. Mody also noted that
claimant was a candidate for surgery, although he has chosen
not to have surgery at this time.
18, 2015, claimant was treated by Chris Howard, a nurse
practitioner with Dr. Pierce Nunley. Claimant complained of
neck pain, left upper extremity pain, and back pain with
bilateral lower extremity pain. Howard noted that
claimant's neck pain had progressively worsened, and that
in 2012 he had not been interested in surgery. According to