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Weems v. Dixie Lion Warehouse & Cartige Co.9/28/2001
This is a workers' compensation case. On August 14, 1997, Mr. Carl Weems was injured on the job at Dixie Lion Warehouse and Cartige Company (Dixie Lion) when he was struck in the head with a hammer by a co-employee. He was taken to North Oaks Medical Center in Hammond, where he was diagnosed with a concussion and lacerations to the scalp and forehead. He was released the same day.
The record shows that several years prior to being injured on the job, Mr. Weems was hit on the head with a beer bottle and underwent treatment by a neurologist. Mr. Weems had suffered from vertigo as a result of that incident. Also, Mr. Weems was treated for high blood pressure and diabetes prior to being injured on the job.
Mr. Weems returned to work at Dixie Lion on August 19, 1997, and continued to work until October 17, 1997, when he voluntarily resigned. He filed a disputed claim for compensation on May 12, 1999, asserting that his workers' compensation rate was incorrect and that medical treatment, including an EEG and MRI recommended by Dr. Richard Gold, which should have been authorized by Dixie Lion, had not been authorized. He asserted that vocational rehabilitation was not performed, and he requested interest, penalties, attorney fees, expert fees, costs, and all damages and benefits allowed by law. Mr. Weems asserted that Dixie Lion failed to pay and/or failed to timely pay his medical bills, prescriptions, mileage, temporary total disability, and supplemental earnings benefits.
Dixie Lion answered the claim, asserting that Mr. Weems had been paid all the benefits to which he was entitled and that he was not entitled to any further benefits under the Louisiana Workers' Compensation Act.
The case went to trial, at which time the parties entered into a number of stipulations. The parties stipulated that Mr. Weems was in the course and scope of his employment at the time of the initial accident and that he suffered injuries after the accident. The parties stipulated that Dixie Lion was his employer and stipulated to the introduction of certain evidence.
After a trial on the merits, the workers' compensation judge ruled in favor of Dixie Lion, denying the claims of Mr. Weems with prejudice. Mr. Weems is appealing that OWC order and makes the following assignments of error:
1. La. R.S. 23:1121 provides that the employee SHALL have his choice of treating physician in any field or specialty. Should Carl Weems be denied his choice of neurologist because he previously was treated by a neurosurgeon. In other words are these two specialties the same?
2. Should the claimant be awarded an attorney fee for the denial of the claimant's choice of neurologist?
3. Claimant had to pay for his visit to Dr. Richard Gold, neurologist, out of his own pocket. Should claimant be able to recover this expense?
4. Is claimant entitled to an attorney fee and penalty for the failure of the employer/insurer to pay for the treatment by Dr. Richard Gold?
5. Should the employer/insurer pay for the treatment at Our ady of the Lake Hospital? If yes should a penalty and attorney fee be assessed against the employer/insurer for failing to pay the hospital visit?
6. Claimant testified that he returned to work for this employer after the accident. Since claimant returned to work he is not a candidate for TTD benefits. However, claimant returned to work at reduced hours and pay. Is claimant entitled to SEB benefits for the period of time while employed with Dixie Lion?
7. The second part of the SEB benefit concerns the period of time after Carl Weems left the employ of Dixie Lion. Was Claimant releas
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