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Smith v. Nu Verra Environmental Solution

Court of Appeals of Louisiana, Second Circuit

October 30, 2019

ERNEST SMITH Plaintiff-Appellant
v.
NU VERRA ENVIRONMENTAL SOLUTION Defendant-Appellee

          Appealed from the Office of Workers' Compensation, District 1-W Parish of Caddo, Louisiana Trial Court No. 1801708. Linda Lea Smith Workers' Compensation Judge

          DAVIS 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

          Before WILLIAMS, MOORE, and COX, JJ.

          WILLIAMS, C.J.

         This is 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.

         FACTS AND PROCEDURAL BACKGROUND

         The 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.[1] 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.

         Dr. 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."

         Claimant 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.

         Claimant 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."

         On 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[2] [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, injury."

         On 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.

         On June 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 Howard, ...


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