Jose Mendez Versus Transit Management of Southeast Louisiana, Inc.

JOSE MENDEZ NO. 21-CA-228
VERSUS FIFTH CIRCUIT
TRANSIT MANAGEMENT OF SOUTHEAST COURT OF APPEAL
LOUISIANA, INC.
STATE OF LOUISIANA
ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION
DISTRICT 7
STATE OF LOUISIANA
NO. 20-1836
HONORABLE DIANE R. LUNDEEN, JUDGE PRESIDING
December 22, 2021
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg
AFFIRMED
MEJ
RAC
HJL
COUNSEL FOR PLAINTIFF/APPELLANT,
JOSE MENDEZ
John B. Fox
COUNSEL FOR DEFENDANT/APPELLEE,
TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC.
Denise M. Ledet
JOHNSON, J.
Appellant, Jose Mendez, seeks review of the Office of Workers’
Compensation Court District 7, Jefferson Parish’s March 10, 2021 judgment
finding that he failed to establish that his neck complaints were caused, aggravated,
or accelerated by an October 4, 1993 workplace accident and denying workers’
compensation benefits for his neck injuries. For the reasons that follow, we affirm
the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Mr. Mendez claims that, on October 4, 1993, while working as a sheet metal
technician at appellee’s, Transit Management of Southeast Louisiana, Inc.,
(“TMSEL”), Carrollton Station in New Orleans, he injured his lower back and
neck at work when squatting to lift a large iron die to use on a machine. Mr.
Mendez reported the accident at that time and has received workers’ compensation
benefits as a result of this accident.
On November 19, 2019, Mr. Mendez requested approval of a cervical MRI
in connection with his continued complaints of neck pain. TMSEL denied this
request, contending that Mr. Mendez injured only his lower back as a result of the
accident and his cervical spine complaints are unrelated to the October 4, 1993
work accident and therefore non-compensable. TMSEL further argues that the
appropriate amount of workers’ compensation benefits have already been paid to
and on behalf of Mr. Mendez in accordance with the Louisiana Workers
Compensation Act (“LWCA”).
Mr. Mendez then filed a Disputed Claim for Compensation on March 10,
2020 with the Office of Workers’ Compensation (“OWC”), District 7. Mr.
Mendez alleged that he was entitled to approval of the cervical MRI because the
neck injury was related to his October 4, 1993 accident at work and also asserted a
21-CA-228 1
claim for penalties and attorney’s fees because TMSEL declined to approve the
requested medical treatment.
TMSEL filed an answer on April 29, 2020, alleging that Mr. Mendez’s claim
had prescribed and he had been “afforded all medical and indemnity benefits to
which he is entitled.” TMSEL also averred that any and all disability alleged by
Mr. Mendez was a result of a pre-existing condition which has resolved, and “any
injuries allegedly sustained by the plaintiff were the result of his own willful intent
to injury herself (sic) and/or intoxication and, as such, recovery herein is barred.”
In the alternative, TMSEL alleged that Mr. Mendez did not provide proper notice
of his injury, as required by the LWCA. It also alleged Mr. Mendez’s claim did
not comply with the provisions of La. R.S. 23:1314 of the LWCA and, therefore,
was premature and subject to dismissal. TMSEL asserted that Mr. Mendez’s
claims were not brought upon reasonable grounds and prayed for judgment in its
favor and against Mr. Mendez for the entire cost of the proceedings pursuant to La.
R.S. 23:1310.9 of the LWCA.
At the January 8, 2021 trial, Mr. Mendez’s counsel rested his case after
submitting the following into evidence: neurosurgeon Dr. Cuong Bui’s report dated
May 1, 2018; Dr. Bui’s opinion letter dated May 25, 2018; Dr. Bui’s report dated
November 19, 2019; and the April 6, 2016 conference report of Dr. Troy
Beaucoudray, a neurologist who specializes in pain management. Dr. Bui opined
that the cervical disc herniation at C6-7 revealed by a prior cervical MRI
performed on March 19, 2018 “could be responsible for neck and arm pain.” After
an examination on May 1, 2018, Dr. Bui found that Mr. Mendez may benefit from
surgery.1 On September 25, 2018, Dr. Bui opined that Mr. Mendez’s need for the
cervical surgery was “more likely than not related to the [October 4, 1993] job
accident.” Mr. Mendez returned to Dr. Bui on November 19, 2019 with
1
Mr. Mendez opted not to have the neck surgery because it was not approved.
21-CA-228 2
complaints of worsening neck pain radiating to both shoulders. Dr. Bui wished to
get an updated cervical MRI before proceeding with any possible treatments, as the
disc “could also conceivably gotten better”. TMSEL also denied the request for an
updated cervical MRI, determining that the proposed diagnostics and treatment
were not related to the October 4, 1993 accident. Mr. Mendez stressed in his post-
trial memorandum that he first complained of neck pain to Dr. Richard Meyer, an
orthopedist, on July 22, 1994, seven months after the accident; so, his current
neurosurgeon, Dr. Bui, was “satisfied that the job injury . . . caused plaintiff’s neck
injury.” Mr. Mendez also pointed out that Dr. Beaucoudray, a specialist in
neurology and pain management, found that “Mr. Mendez’s diagnoses as they
relate to his work injury from 1993 include […] cervical and lumbar
radiculopathy.”
TMSEL’s counsel also offered and introduced four exhibits into the record
at trial: the certified medical records of TMSEL’s choice of neurosurgeon, Dr.
Najeeb Thomas; the certified medical records of TMSEL’s choice of pain
management physician, Dr. Joseph Crapazano; the November 13, 2020 Dr. Bui
deposition transcript; and the certified medical records of Dr. Bui. TMSEL’s
choice of neurosurgeon and pain management physician, Doctors Najeeb Thomas
and Joseph Crapanzano, respectively, both determined that Mr. Mendez’s pain
complaints were not related to the work accident where the cervical herniation first
appeared on diagnostic testing on June 25, 2007. Counsel for TMSEL argued that
the matter was purely a medical issue and asked that the court take the matter
under advisement on the medical records and the briefs. In its post-trial
memorandum, TMSEL argued that Mr. Mendez was not entitled to authorization
of the cervical MRI as both Dr. Thomas and Dr. Crapanzano determined that Mr.
Mendez’s neck pain complaints were related to his psoriatic arthritis and not the
October 1993 accident. TMSEL asserted there was a previous judicial
21-CA-228 3
determination that the psoriatic arthritis was not related to the work accident, and
Mr. Mendez’s treating neurosurgeon determined that his neck pain was caused by a
cervical herniation not present on any diagnostic testing until fourteen years after
the work accident occurred.
In its March 10, 2020 judgment, the trial court found that Mr. Mendez
“failed to carry his burden to establish that his neck complaints were caused,
aggravated or accelerated by” the October 4, 1993 accident and his claims for
workers’ compensation medical benefits were denied as non-compensable pursuant
to La. R.S. 23:1031(A)2. The trial court also denied Mr. Mendez’s claim for
penalties and attorney’s fees pursuant to La. R.S. 23:12013, having found TMSEL
reasonably controverted his right to workers’ compensation benefits related to his
neck injury, including the authorization of Dr. Bui’s request to perform a cervical
MRI. In her reasons for judgment, the trial judge opined that the opinions of Dr.
Bui and Dr. Beaucoudray were less credible than the physicians who treated Mr.
Mendez within the first fourteen years of his accident and concluded that the
“totality of the evidence demonstrates that any neck issues from which Mr.
Mendez suffers are not related to the 1993 work accident.”
ASSIGNMENT OF ERROR
Mr. Mendez avers that the trial court committed error when it found that his
neck complaints were not related to his October 4, 1993 accident at work.
TMSEL counters that the court placed greater weight on the opinions of Dr.
Thomas in 2015, Dr. Crapanzano in 2019, and also Dr. Paul Hubbell4, a pain
2
La. R.S. 23:1031(A) provides, “if an employee not otherwise eliminated from the benefits of this
Chapter receives personal injury by accident arising out of and in the course of his employment, his
employer shall pay compensation in the amounts, on the conditions, and to the person or persons
hereinafter designated.”
3
Under La. R.S. 23:1201(I), when an employer fails to pay workers' compensation benefits, penalties and
attorney fees shall be assessed if the employer did not reasonably controvert the claim. Redmann v.
Bridgefield Cas. Ins. Co., 11-651 (La. App. 5 Cir. 2/28/12); 88 So.3d 1087, 1096, writ denied, 12-710
(La. 5/18/12); 89 So.3d 1192.
4
Dr. Hubbell’s operative reports and progress notes regarding Mr. Mendez’s treatment are included in the
medical records from Dr. Thomas and Dr. Crapanzano that TMSEL entered into evidence at the January
8, 2021 trial.
21-CA-228 4
management specialist, in 2011. Each of those physicians attributed Mr. Mendez’s
neck complaints to his psoriatic arthritis, instead of the work-related accident.
TMSEL also argued that trial court’s decision was reasonable considering the
objective diagnostic evidence presented, even though Mr. Mendez reported to Dr.
Bui that he began experiencing neck pain immediately after the 1993 accident and
that he first complained of neck injuries to his then treating orthopedist, seven
months after the accident occurred.
LAW AND ANALYSIS
Factual determinations in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. Downs v. Chateau
Living Ctr., 14-672 (La. App. 5 Cir. 1/28/15); 167 So.3d 875, 879. 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 factfinder’s
conclusion was a reasonable one. Seidl v. Zatarain's, Inc., 05-780 (La. App. 5 Cir.
3/28/06); 927 So.2d 557, 558–59. The Louisiana Supreme Court has emphasized
that it is crucial that the reviewing court keep in mind that “if the trial court or
jury’s findings are reasonable in light of the record reviewed in its entirety, the
court of appeal may not reverse, even if convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.” Id. Where there are
two permissible views of the evidence, a factfinder’s choice between them can
never be manifestly erroneous or clearly wrong. Rastegar v. Magnolia Sch., Inc.,
10-176 (La. App. 5 Cir. 10/12/10); 51 So.3d 47.
The plaintiff in a workers compensation suit has the burden of
proving, by a preponderance of the evidence, that there is a work
related disability. The testimony of the worker alone may be sufficient
to discharge this burden of proof, absent other evidence which
discredits or casts doubt on the worker's version of the incident and
the testimony is supported by corroborating circumstances. The
corroborating evidence may be provided by the testimony of spouses,
21-CA-228 5
co-workers, friends or medical evidence. In evaluating this evidence,
the uncontradicted testimony of a witness, even if the witness is a
party, should be accepted as true, in the absence of circumstances
casting suspicion on the reliability of the testimony.
Donahoe v. Jefferson Council On Aging, Inc., 04-178 (La. App. 5 Cir. 10/26/04);
887 So.2d 549, 551–52 (Citations omitted.)
When doctors speak of cause they are essentially speaking of
etiology—the origin of disease; what initially causes a disease. When
courts and lawyers speak of cause they are concerned with the
question of whether the particular incident in question contributed to
the plaintiff's disability by making manifest symptoms previously
unnoticed. Causation is not necessarily and exclusively a medical
conclusion. It is usually the ultimate fact to be found by the court,
based on all the credible evidence.
Nash v. Ewing Timber, Inc., 431 So.2d 893, 898 (La App. 2d. 1983).
Under La. R.S. 23:1201(I), when an employer fails to pay workers’
compensation benefits, penalties and attorney fees shall be assessed if
the employer did not reasonably controvert the claim. Bailey v. Rent A Ctr., 18-
677 (La. App. 5 Cir. 5/29/19); 274 So.3d 797, 806. A claim is reasonably
controverted if the employer has a valid reason or sufficient evidence to base the
denial of benefits. Williams v. Rowe-Treaudo, 11-46 (La. App. 5 Cir. 9/27/11), 75
So. 3d 502, 508. Thus, to determine whether the claimant’s right to benefits has
been reasonably controverted, thereby precluding the imposition of penalties and
attorney fees under La. R.S. 23:1201, a court must ascertain whether
the employer or his insurer engaged in a non-frivolous legal dispute or possessed
factual and/or medical information to reasonably counter the factual and medical
information presented by the claimant throughout the time he refused to pay all or
part of the benefits allegedly owed. Arias v. Certified Coating, Inc., 05-446 (La.
App. 5 Cir. 2/14/06); 924 So.2d 298, 302–03. Although the Workers’
Compensation Act is to be liberally construed in regard to benefits, penal statutes,
21-CA-228 6
such as the statutes awarding penalties and attorney fees, are to be strictly
construed. Id.Upon review of the record, we find that the trial court was not clearly wrong
when it found that Mr. Mendez’s neck injury was not caused by the October 4,
1993 accident. Immediately after the accident, Mr. Mendez initially complained of
pain in his lumbar spine and right buttock. Mr. Mendez’s first documented
complaint regarding neck pain is found in the treatment records of orthopedist Dr.
Richard Meyer, on June 29, 1994. In an MRI performed a month earlier, Dr.
Meyer noted there was “NO MR EVIDENCE OF DISC HERNIATION, SPINAL
CANAL STENOSIS, OR CORD COMPRESSION WITHIN THE CERVICAL
SPINE.” A cervical myelogram and CT scan performed in February 1995 were
normal. An additional cervical MRI was performed in 2000. The doctor’s opinion
was that the “examination of the cervical spine [was] grossly within normal
limits.” From September 2001 through October 2006, Mr. Mendez complained of
neck pain to Dr. Roger Smith, a neurosurgeon he began seeing in 1995. In 2007,
Dr. Justin Lundgren, Mr. Mendez’s former pain management physician, requested
an MRI. That MRI showed mild disc protrusions at C5-6 and C6-7, which Dr.
Lundgren determined were “likely due to degenerative changes.”
Dr. Paul Hubbell, the pain management physician Dr. Lundgren referred Mr.
Mendez to, treated Mr. Mendez for pain management from 2007 to 2011. Another
cervical MRI was performed in 2008 at the request of Dr. Hubbell, which revealed
disc herniations at C3-4, C4-5, C5-6, and C6-7. Dr. Hubbell determined that Mr.
Mendez’s pain complaints were caused by his psoriatic arthritis. Dr. Luis
Espinoza, a rheumatologist, attributed Mr. Mendez’s back injuries and psoriatic
arthritis to the 1993 accident in 2013. No evidence was entered into the record
regarding a specific diagnosis from Dr. Espinoza regarding Mr. Mendez’s neck
21-CA-228 7
injury. However, in response to a December 29, 2010 inquiry from TMSEL’s
counsel, Dr. Espinoza indicated that psoriatic arthritis was Mr. Mendez’s non-work
related diagnosis. Dr. Najeeb Thomas also opined that the psoriatic arthritis was
unrelated to Mr. Mendez’s work injury.
Although Mr. Mendez’s more recent treating physicians, Dr. Bui and Dr.
Beaucoudray, found that his 1993 work injury was the cause of his recent neck
pain, we cannot say that the Office of Workers’ Compensation Court was
manifestly erroneous or clearly wrong when it found that TMSEL reasonably
controverted Mr. Mendez’s claims and his neck injury was not caused by the 1993
accident; therefore, Mr. Mendez was not entitled to further benefits in relation to
his neck complaints. TMSEL had sufficient medical evidence to justify its belief
that Mr. Mendez’s neck complaints were unrelated to the October 4, 1993 work
accident. Further, the medical records and expert opinions entered into evidence
support the trial court’s finding that TMSEL reasonably controverted Mr.
Mendez’s request. Thus, the trial court did not err when it declined to award
penalties and attorney’s fees for TMSEL’s failure to authorize further medical
treatment for Mr. Mendez’s neck pain, including the cervical MRI, and we will not
disturb the trial court’s decision on appeal.
DECREE
For the foregoing reasons, we affirm the March 10, 2021 judgment of the
Office of Workers’ Compensation Court. Costs of this appeal are assessed against
the appellant.
AFFIRMED
21-CA-228 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 22, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-228
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
DENISE M. LEDET (APPELLEE)
MAILED
HON. DIANE R. LUNDEEN JOHN B. FOX (APPELLANT) ALAN J. YACOUBIAN (APPELLEE)
(DISTRICT JUDGE) ATTORNEY AT LAW ATTORNEY AT LAW
OFFICE OF WORKER'S COMPENSATION 4240 CANAL STREET 701 POYDRAS STREET
DISTRICT #7 NEW ORLEANS, LA 70119 SUITE 4700
880 W. COMMERCE ROAD NEW ORLEANS, LA 70139
SUITE 401
HARAHAN, LA 70123