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Whiddon v. Liningston Parish Council9/28/2001
Downing, J. concurs without reasons.
This matter is on appeal following a decision of the workers' compensation judge in which the judge ordered the defendant to pay plaintiff's attorney fees in the amount of $3,000.00. The judge noted that plaintiff was currently receiving weekly benefits; therefore, that portion of the claim relating to benefits was no longer at issue.
Plaintiff appeals, alleging the workers' compensation judge erred in failing to find defendants arbitrary and capricious for denying and ignoring a request for change of physician and treatment; in failing to order defendant to pay for all medical treatments, medicine, and mileage; in ordering that defendant had to pay only $750 to Dr. Louis Provenza; in awarding attorney fees without also awarding statutory penalties; in awarding claimant's prior attorney fees in the amount of $3,000.00; in allowing Dr. John Schuhmacher's report into evidence without having complied with LSA-R.S. 23:1317.1; and in failing to recognize claims for loss of consortium for his spouse and children.
Defendants answered the appeal contesting the award of attorney fees. Otherwise, defendants seek to have the judgment affirmed. For the following reasons, we affirm in part and reverse in part.
FACTS AND PROCEDURAL BACKGROUND
Review of the record indicates Mr. Whiddon was injured in the course and scope of his employment with the Livingston Parish Police Jury on September 3, 1996. He was cutting bushes on a canal bank when he stepped on something causing him to slip and fall. In an attempt to avoid falling into the canal, he twisted his neck and back. He was seen at the emergency room of North Oaks Medical Center in Hammond and released. Two days later Mr. Whiddon experienced severe pain and consulted his family doctor who scheduled an MRI of the cervical spine. He was eventually referred to Dr. Thomas Collum, a neurosurgeon. Mr. Whiddon executed a choice of physician form naming Dr. Collum as his treating physician. He was treated conservatively for a period of time, but when that failed, Dr. Cullom performed a two-level anterior cervical discectomy and fusion on November 1, 1996. He continued treatment with Dr. Collum until he was released to return to his former position on July 2, 1997.
The Livingston Parish Council directed Mr. Whiddon to return to work on July 28, 1997. He reported to work that day but only stayed for a short period of time before he left because of the pain he was experiencing. Mr. Whiddon felt that he could not return to his former duties because of the back pain which had increased over time. He did not agree with Dr. Cullom's assessment that he could return to work and underwent an independent medical examination conducted by Dr. Thomas Flynn. Dr. Flynn concurred with Dr. Collum's opinion that the claimant should be released to his ordinary occupation.
Mr. Whiddon began seeing Dr. Louis Provenza, a neurosurgeon, on July 31, 1997, without defendant's prior approval. Defendant refused to approve treatment by Dr. Provenza because Mr. Whiddon had already chosen Dr. Cullom as his treating physician. It was Dr. Provenza's opinion that Mr. Whiddon was not able to return to his former employment.
On August 8, 1997, Mr. Whiddon filed a disputed claim for compensation alleging he was still unable to work and his compensation benefits had been terminated. The defendants filed an answer stating that all benefits due Mr. Whiddon had been paid and that claimant had been released to return to work by his own treating physician and by another physician who performed an independent medical evaluation. The case was scheduled for trial a number of times and con
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