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Scallon v. Boise Cascade Corp.11/2/2005
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Marc T. Amy, Judges.
AFFIRMED.
In this workers' compensation matter, the employee-claimant contested his employer's denial of his request to change orthopedic surgeons. The employer filed a claim for forfeiture of benefits and restitution, alleging that the employee's deposition testimony that he had never seen a doctor for back problems prior to the date of his alleged accident was falsely made in an attempt to obtain workers' compensation benefits in violation of La.R.S. 23:1208. After a hearing, the workers' compensation judge granted the employee's request to change orthopedic surgeons, denied the employer's claim that the employee committed fraud, and denied the employee penalties and attorney's fees. For the following reasons, we affirm the ruling and reject the employee's request for attorney's fees on appeal.
Factual and Procedural Background
The claimant, Louis Scallon, alleges that he was involved in a work-related accident on July 21, 2003, while working as an instrument technician with Boise Cascade Corporation ("Boise Cascade"). The claimant testified that as he was traversing a catwalk while checking the key way in a lime kiln in the paper mill, he fell and his foot became entrapped between a foot grating and a loose toe plate. He stated that he felt immediate pain and used his hand radio to call his supervisor. Mr. Scallon was taken by ambulance to Beauregard Memorial Hospital, where x-rays were taken.
The day after his alleged fall, Mr. Scallon visited his regular internist, Dr. Steven Farquhar complaining of severe back pain which radiated into his right leg. Dr. Farquhar ordered an MRI, which he stated revealed a bone fragment in the claimant's spinal canal. Dr. Farquhar testified that such a condition was beyond his scope of treatment and suggested that the claimant undergo an orthopedic or neurosurgery evaluation.
Boise Cascade's company nurse also made an appointment for the claimant to visit Dr. Raggio, a neurosurgeon. Although the record does not contain Dr. Raggio's testimony or medical records, the claimant stated in his deposition that Dr. Raggio gave him an epidural, which the claimant said did "nothing" for him. He said that he discussed his concerns with Dr. Raggio's treatment with the company nurse, who he said informed him that he "had the right to go to another doctor."
The claimant met with Dr. Douglas McKay, an orthopedic surgeon who had performed an arthritis surgery on the claimant's elbows in October 2002. Dr. McKay met with the claimant on July 25, 2003, and determined that he had an acute herniation which may require surgery. However, because the University Medical Center where Dr. McKay was practicing could not accommodate the procedures or surgeries potentially necessary for the claimant's injury, he referred the patient to see Dr. David Muldowny, an orthopedic surgeon at the Lafayette Bone and Joint Clinic. However, the claimant had already made an appointment to see Dr. John Cobb, who is Dr. Muldowny's partner at the Lafayette Bone and Joint Clinic. Consequently, Dr. Muldowny deferred to Dr. Cobb to see the claimant. Although the record does not contain medical records or testimony from Dr. Cobb, the claimant stated that he recommended surgery to perform a lumbar discectomy and fusion.
Mr. Scallon alleges in his Petition for Worker's Compensation Benefits that Boise Cascade did not approve his visit with Dr. Cobb and "has refused to authorize the surgery as it is their position that claimant has already had his choice of orthopedic surgeon," namely, Dr. McKay. He filed an LDOL Form 1008 with the Office of Worke
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