Bordelon v. Thyssen Dover Elevators11/7/2003
Thyssen Dover Elevator (Thyssen) appeals a workers' compensation court judgment awarding David Bordelon (Bordelon) workers' compensation benefits. Following review of the record and applicable law, this court affirms.
BACKGROUND
Bordelon, an elevator installer, began working for Thyssen in May 1983. He possessed a history of back "flare-ups," which he described as arthritis and for which, as early as January 2000, a family practitioner, Dr. Wayne Gravois, had prescribed an anti-inflammatory. In April 2000, Bordelon went to Gidden Medical Clinic for "slight to moderate" back problems. He was, thereafter, treated by Dr. Gravois on two occasions for low back, hip, and thigh symptoms. Additionally, in the beginning of January 2001, Bordelon requested a refill of the anti-inflammatory prescription.
In his workers' compensation claim, Bordelon alleges that he suffered two injuries while at work. He testified that on January 18, 2001, he experienced a sharp pain and injury while pulling a "gang box" at work. He did not report the incident to his supervisor, and he returned to work. Bordelon privately received some physical therapy between January and May 2001. In March 2001, Dr. Charles Kaufman, a neurologist, evaluated Bordelon for "severe pain in his back, right hip, and right thigh radiating to his knee for the past 10-11 months." Dr. Kaufman interpreted an MRI, dated February 2, 2001, to indicate a herniated disc compressing the right L4 nerve root. Following two steroid injections by Dr. Alan J. Ostrowe, Bordelon felt almost pain-free, and he elected not to take the planned third injection.
Bordelon did not tell Dr. Gravois or Dr. Kaufman that he had hurt himself on the job. He admitted at trial that he was aware of Thyssen's policy directing an employee to report to his supervisor if hurt on the job. Bordelon testified that he had not reported the incident because he thought his back would heal, as had other flare-ups in the past. He never missed work as a result of his symptoms.
On May 16, 2001, Bordelon experienced an acute pain on the job while installing a car header that weighed between 100 and 200 pounds. He described the pain as worse than he had previously experienced. He was unable to continue his duties at work as he had done in the past. Dr. Ostrowe performed an epidural steroid injection at the L5/S1 interspace. For the first time, Bordelon's symptoms did not improve. Instead, the intensity of the pain worsened, especially in his leg. The pain radiated anteriorly, and to some degree medially, along the thigh. Bordelon related that he was not able to "walk, stand or sit for any extended periods of time."
Dr. Kaufman referred Bordelon to Dr. Horace Mitchell, a neurosurgeon. On June 5, 2001, Dr. Mitchell diagnosed "severe radiculopathy secondary to the disc herniation ...." A follow-up MRI demonstrated "continued L4-L5 foraminal disc rupture." On June 7, 2001, Dr. Horace Mitchell performed a lumbar discectomy. Bordelon returned to work at Thyssen in October 2001, and he was employed there at the time of the trial on May 30, 2002.
THE LAW
The workers' compensation court found that Bordelon sustained two work related accidents that resulted in temporary total disability. Where an employee seeks workers' compensation benefits on the basis of temporary total disability, the employee bears the burden of proving such disability by clear and convincing evidence. La. R.S. 23:1221(1)(c). The question of disability ultimately presents a factual determination. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La. App. 1 Cir. 4/7/95), 654 So.2d 800, 807, writs denied, 95-1706 (La. 10/27/95), 661 So.2d 1349 and 95-1
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