Mosley v. Pennzoil Quaker State9/8/2005
Before BROWN, WILLIAMS and DREW, JJ.
The claimant, John Mosley, Sr., appeals a judgment in favor of the employer, Pennzoil Quaker State Company, finding that claimant was not entitled to supplemental earnings benefits (SEB) because a job within his physical capabilities was available. For the following reasons, we affirm.
FACTS
In a prior appeal involving these parties, Mosley v. Pennzoil Quaker State, 37,199 (La. App. 2d Cir. 7/23/03), 850 So.2d 1100, this court described the factual and procedural background of this case as follows:
On or about April 10, 1995, the claimant, John Mosley, Sr., injured his lower back while loading and unloading cases of oil during his employment as a forklift operator for Pennzoil. In June 1995, Mosley was examined by Dr. Carl Goodman, an orthopedic surgeon, who concluded that Mosley had a herniated disc at L4-5 and required surgery. In July 1995, Mosley began treatment with Dr. David Cavanaugh, a neurosurgeon. Dr. Cavanaugh attempted conservative treatment of Mosley until February 4, 1998, when he performed lower-back surgery. Mosley's surgery consisted of a micro-surgical bilateral laminotomy and diskectomy at the L4-5 and L5-S1 discs. These procedures involved the complete removal of the disc material at both disc levels . . . .
In October 1998, a post-surgical MRI was conducted. According to Dr. Cavanaugh, Mosley was recovering satisfactorily and there was no evidence of disc herniation or stenosis at L4 or L5. In August 1999, Mosley returned to work, in the position of inspector/packer, with various work restrictions in accordance with Dr. Cavanaugh's orders. Pennzoil accommodated Mosley's physical condition as requested by Dr. Cavanaugh by eliminating certain functions of Mosley's position. Complaining of continuous and persistent pain, Mosley did not perform the required work and subsequently sought treatment from another physician, Dr. Pierce Nunley, an orthopedic surgeon. In December 2000, Dr. Nunley ordered another MRI of Mosley's lower back. Based upon this MRI, Dr. Nunley concluded that Mosley was suffering from a recurrent disc herniation at L4-5 and recommended that Mosley undergo a decompression and spinal-fusion surgery. In response to the recommendation, Pennzoil had Mosley re-examined by Dr. Goodman, who found no evidence of a recurrent herniation, but noted that the MRI showed the existence of scar tissue from the previous surgery.
Because of the conflicting interpretations of the MRIs, Pennzoil filed a formal request for Mosley to submit to an independent medical examination ("IME"), pursuant to LSAR.S. 23:1123 and 1317.1. The workers' compensation judge ("WCJ") appointed Dr. Robert E. Holladay, IV, also an orthopedic surgeon, to perform the IME. In December 2001, Dr. Holladay examined Mosley. He opined that Mosley had not suffered a recurrent disc herniation and refused to recommend surgery.
Subsequently, the WCJ . . . denied the claimant's request for decompression and fusion surgery and dismissed his claim. This court affirmed the WCJ's denial of a second surgery. Mosley, supra.
In September 2002, Pennzoil filed a disputed claim form alleging that claimant was physically capable of performing the inspector/packer job but refused to work, that the job paid more than his average weekly wage at the time of injury and that Pennzoil sought to employ claimant as an inspector/packer or terminate compensation benefits. Claimant filed an answer denying that he was physically capable of performing the job and alleged that he needed additional surgery.
In February 2003, Pennzoil retained Kenneth Brister, a vocational rehabilitation consultant, to pre
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