The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
04-723
DEXTER BENJAMIN
VERSUS
LAFAYETTE PARISH SCHOOL BOARD
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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT # 4
PARISH OF LAFAYETTE, NO. 02-09480
HONORABLE SHARON MORROW, WORKERS’ COMPENSATION JUDGE
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JOHN B. SCOFIELD
JUDGE
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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,
Judges.*
AFFIRMED.
Dexter Benjamin
In Proper Person
213 Morelan Drive
Lafayette, LA 70507
Counsel for Plaintiff/Appellant:
Dexter Benjamin
L. Lane Roy
Dawn L. Morris
Preis, Kraft & Roy
P. O. Drawer 94-C
Lafayette, LA 70509
Counsel for Defendant/Appellee:
Lafayette Parish School Board
*
Honorable John B. Scofield participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.
SCOFIELD, Judge.1
Claimant, Dexter Benjamin, appeals a decision of an Office of Workers’
Compensation Judge (WCJ) in favor of Defendant, the Lafayette Parish School
Board, dismissing Claimant’s petition for additional benefits past December 2002,
when Claimant’s treating physician opined that Claimant had reached maximum
medical improvement. We affirm the decision of the WCJ.
PROCEEDINGS BEFORE THE WORKERS’ COMPENSATION JUDGE
The WCJ, after carefully and thoroughly considering all the evidence and
testimony, issued the following “REASONS FOR JUDGMENT,” with which we
agree and adopt as our own (emphasis ours):
This matter came for trial on the issues of whether the claimant's
current left arm complaints are related to his 1996 work accident and
whether the employer properly terminated workers' compensation
indemnity benefits as of January 28, 2002. For the reasons that follow,
the Workers' Compensation Judge ("WCJ") finds in favor of the
employer on both issues.
In June 1996 Dexter Benjamin ("Benjamin") was employed as a
custodian with the Lafayette Parish School Board ("School Board"). On
or about June 3, 1996, he slipped and fell while working resulting in
injuries to his neck and back. The current claim concerns impingement
tendonitis at the left shoulder. That diagnosis was not made until some
two years after the 1996 accident and after an intervening motor vehicle
accident in January of 1998. Therefore, the development of shoulder
symptoms must be viewed both before and after the January 1998
accident.
Immediately after the 1996 accident, Benjamin treated with Dr. St.
Cyr and Dr. Nickerson. The parties did not provide those initial records
of treatment so the WCJ has no information about Benjamin's
complaints immediately after the work accident. The first available
report is that of Dr. David S. Muldowny, the orthopedic surgeon who
treated Benjamin for the work accident. Dr. Muldowny's December 16,
1996 report begins with the following history: “This is a 37 year old
male, complaining of primarily neck pain, but also low back pain since
1
Honorable John B. Scofield participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.
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June of 1996.” Under “Current Symptoms” Dr. Muldowny notes: “He
is complaining of neck pain, headaches, occasional right arm pain and
shoulder pain with a bilateral shocking sensation in his hands.” Dr.
Muldowny considered surgery as an option.
On March 11, 1997, Benjamin was examined by Dr. Gregory
Gidman, the employer's choice of orthopedic specialist. In his “cervical
spine & upper extremity exam” Dr. Gidman found no muscle atrophy or
muscle fasciculation in the upper extremities. The shoulder range of
motion was full.
Dr. Muldowny had Benjamin seen by Dr. Cobb for a discogram.
The discography report of June 12, 1997 indicated three levels of
cervical disease but noted “the 5-6 level was the level that reproduced
the left arm pain” and “was the worse space in terms of pain with
reproduction of neck pain and left sided radiculitis.” In September 1997
Dr. Muldowny perfomed an anterior cervical fusion at three levels.
After the surgery, Dr. Muldowny saw Benjamin on October 2,
November 6, and December 4, 1997. At the visits in October and
November, Benjamin made no complaints of arm or shoulder pain. (Dr.
Muldowny's deposition, page 23). In his report of December 4, the
doctor noted Benjamin was still having significant pain, with some pain
in the shoulder blade region. Dr. Muldowny testified since he did not
indicate the pain was on either one side of the body or the other and
assumes it was on both sides. (Dr. Muldowny deposition, page 25).
The December 4, 1997 exam was the last physical examination of
Benjamin prior to the January 1998 motor vehicle accident. From the
beginning of Dr. Muldowny's treatment until this time, there are no
complaints of left shoulder pain. There are complaims of right arm pain,
left arm pain, and complaints of shoulder pain, but no complaints
specific to the left shoulder. In fact, Benjamin's pain drawings depicts
[sic] stabbing pain to both shoulders. (See defendant's exhibit #4 and
plaintiff’s exhibit #1, item 6, records from Orthopedic & Sports PT
Clinic of Lafayette).
Benjamin was involved in a motor vehicle accident on January 8,
1998. He was seen by Dr. Muldowny on February 12, but failed to
mention the automobile accident. The doctor noted that “his neck is
improved” and wanted to try to rehabilitate his neck muscles and
shoulders, meaning both shoulders. (Dr. Muldowny deposition, pages
25-26). Benjamin next saw Dr. Muldowny May 11, and the doctor
found him “overall better than before surgery” with “some left trapezius
tenderness” and “his range of motion is quite good” referring probably
to the neck. (Dr. Muldowny deposition, page 27). A functional capacity
evaluation performed by Dr. Hodges on May 26 classified Benjamin at
medium duty capacity.
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The next day, May 27, Benjamin began seeing Dr. Jerald L.
Watts, an orthopedic surgeon, for injuries associated with the January 8
automobile accident. Benjamin testified in his August 3, 2000
deposition that he treated with a different doctor in the same field of
specialty to avoid “confusion.” (Defendant's exhibit 12, page 36). In
his report of May 27, Dr. Watts noted complaints of pain in the neck and
both shoulder blades, radiating into the left upper extremity to the mid
forearm, and numbness and tingling in the left upper extremity to the
fingers. Dr. Watts found no atrophy or weakness in the major muscle
groups of the upper extremities.
Over the next few months Benjamin continued to treat with both
Dr. Muldowny and Dr. Watts, then Dr. Shepherd when Dr. Watts retired.
Significantly, as of his July 30, 1998 exam, Dr. Muldowny began testing
Benjamin for possible rotator cuff and impingement problems. On July
30 those tests were negative. (Dr. Muldowny's deposition, page 33). On
August 25 the rotator cuff test produced pain but no weakness and the
impingement sign was mildly positive. (Dr. Muldowny deposition page
36). In his report of September 28, 1998, Dr. Muldowny noted there
was no pain or weakness on the rotator cuff testing. He recommended
EMG/NCV testing which showed subacute left C5 radicular changes
and carpal tunnel syndrome. In his October 22, 1998 report, Dr.
Muldowny indicates that the rotator cuff and impingement tests are
negative and opines that Benjamin's shoulder symptoms are a residual
from his neck. Dr. Muldowny then released Benjamin to light duty, with
restrictions.
In his report of November 17, 1998, Dr. Shepherd noted mild
deltoid atrophy and a slightly positive impingement test. Dr. Shepherd
reviewed the results of the EMG/NCV testing and stated that the left C5
radicular changes could contribute to the atrophy he found, but believes
the atrophy could also be from a shoulder injury. Dr. Shepherd states
that Benjamin “really seems to be very concerned about his left
shoulder, and he says he cannot abduct the shoulder greater than 90
degrees. He was able to do that before the accident. He thinks the car
accident aggravated it more, and there is more damage.” Yet less than
a month later Benjamin saw Dr. Leo deAlvare for a neurological exam
at the request of the workers' compensation employer and told Dr
deAlvare that he was involved in a motor vehicle accident in January
“but he does not feel that he sustained much in the way of injuries.”
(plaintiff’s exhibit #1, item 7, December 15, 1998). The day [of] the
exam with Dr. deAlvare, Benjamin saw Dr. Shepherd. In his report of
December 16, 1998, Dr. Shepherd found mild deltoid atrophy and
winging of the left shoulder with atrophy of the left interscapular
musculature. Dr. Shepherd thought these conditions could be from the
neck or should[er], but thought it more likely they were coming from a
shoulder condition. Dr. Shepherd then notes:
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“This man tells me that before the
accident of January 8, 1998, he had pain in
his neck and pain in his back, but he had no
problems with his shoulder whatsoever. He
states that as a result of the motor vehicle
accident it increased the intensity of the pain
in his neck and back and increased the
frequency of the pain in his neck and back
and caused the shoulder condition.”
On January 4, 1999 Dr. Muldowny noted that Benjamin
“continues to complain of headaches and left arm pain. He relates his
current condition to an automobile accident in January 1998. This
incident aggravated his neck.” An MRI of the shoulder ordered by Dr.
Shepherd indicated signs of impingement with no evidence of a rotator
cuff tear.
Benjamin continued treating with Dr. Muldowny. The December
16, 1998 visit appears to have been Benjamin's last exam with Dr.
Shepherd. Dr. Muldowny recommended an arthroscopic decompression
of the left shoulder. Dr. Muldowny and the workers' compensation
administrator questioned the relation of the left shoulder symptoms to
the 1996 work accident. However, when Benjamin later told Dr.
Muldowny his complaints are the same complaints he has had since
1996, Dr. Muldowny related the shoulder injury to the 1996 accident.
The WCJ does not relate the shoulder bursitis/impingement
condition to the 1996 work accident. Dr. Muldowny admits in his
deposition that Benjamin's symptoms change at different times, making
it difficult “to really get a feel that on every single visit it's the same
thing” and causing the doctor to question whether the arthroscopic
decompression would really help. (Dr. Muldowny deposition page
94)[.] Therefore, even though Dr. Muldowny ultimately relates the
shoulder condition to the 1996 work injury, his testimony is equivocal
and it appears he relates it primarily because his patient tells him it is the
same pain. On the other hand, Dr. Shepherd relates the impingement to
the automobile accident. Benjamin has told Dr. Shepherd that the
shoulder injury was caused by the automobile accident. Further, and
quite significantly, Dr. Shepherd testified that had the impingement been
present for a long time, it would have caused a tear in the rotator cuff.
(Dr. Shepherd's deposition, page 61).
The evidence available points to the January 1998 motor vehicle
accident as the more likely cause of the shoulder impingement. Dr.
Watts found no atrophy in May 1998. Dr. Shepherd first noted mild
atrophy six months later in November. The EMG of October 15, 1998
showed "subacute" C5 radicular changes, which Dr. Shepherd defined
as six weeks to a year [old]. (Dr. Shepherd deposition page 26). The
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left shoulder MRI of around December 1998 showed a spur on the
rotator cuff “creating early impingement syndrome.” (Dr. Shepherd
deposition, pages 51-52). Dr. Shepherd testified that it takes “months”
for spurs to develop. (Dr. Shepherd deposition, page 51). Logic points
to an event in January 1998 as causing the changes seen later that year
as opposed to an event more than two years earlier. Benjamin[’s]
testimony to the contrary cannot be given any credence due to the
different versions he espoused to different doctors.
The WCJ further finds that indemnity benefits were properly
terminated in December 2002 after Benjamin's treating physical
medicine doctor, Dr. Nickerson, found him to have reached maximum
medical improvement and approved several sedentary jobs.
LAW AND DISCUSSION
It is well settled that a workers' compensation claimant must prove by a
preponderance of the evidence, not only that an employment accident occurred, but
that the accident had a causal relationship to the disability claimed; if the testimony
and documentary evidence leave the probabilities evenly balanced, the claimant has
failed to carry his burden of proof. Harvey v. Bogalusa Concrete, Inc., 97-2945
(La.App. 1 Cir. 9/25/98), 719 So.2d 1130; Wilkerson v. City of New Orleans Fire
Dep’t., 03-1550 (La.App. 4 Cir. 3/3/04), 871 So.2d 375; and Grant v. Assumption
Parish Sch. Bd., 01-0272 (La.App. 1 Cir. 3/28/02), 813 So.2d 622.
The law applicable to the appellate review of workers’ compensation cases is
likewise well settled:
Factual findings in workers' compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. Banks v.
Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696
So.2d 551, 556; Smith v. Louisiana Dep't of Corrections, 93-1305, p.
4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater,
93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the
manifest error-clearly wrong standard, the appellate court must
determine not whether the trier of fact was right or wrong, but whether
the factfinder's conclusion was a reasonable one. Banks, 96-2840 at pp.
7-8, 696 So.2d at 556; Freeman, 93-1530 at p. 5, 630 So.2d at 737-38;
Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two
permissible views of the evidence, a factfinder's choice between them
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can never be manifestly erroneous or clearly wrong. Banks, 96-2840 at
p. 8, 696 So.2d at 556; Stobart, 617 So.2d at 882. “Thus, ‘if the
[factfinder's] findings are reasonable in light of the record reviewed in
its entirety, the court of appeal may not reverse, even if convinced that
had it been sitting as the trier of fact, it would have weighed the
evidence differently.’” Banks, 96-2840 at p. 8, 696 So.2d at 556
(quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112
(La.1990)).
Seal v. Gaylord Container Corp., 97-0688, pp. 4-5 (La. 12/02/97), 704 So.2d 1161,
1164.
In the case sub judice, the WCJ considered all the testimony and documentary
evidence and reached the conclusion that Claimant failed to prove his left shoulder
complaints were connected to his on-the-job injury, but rather resulted from his
vehicular accident of January 8, 1998. Examining the documentary evidence and
testimony, we cannot say that her conclusion was manifestly erroneous. We are
especially persuaded by those portions of her well-written reasons for judgment to
which we have added emphasis. First, Dr. Muldowny’s records show Claimant made
no shoulder complaints on his October, November or December 1997 visits; Dr.
Muldowny’s notes of Claimant’s January 1999 visit revealed that Mr. Benjamin,
himself, related his shoulder complaints to his January 1998 vehicular accident; and
Dr. Muldowny’s deposition testimony stated that Claimant’s symptoms were different
at different times, making it difficult to accurately diagnose Claimant’s problems.
Second, there are the reports and testimony of Dr. Shepherd which point out that
Claimant admitted that his inability to abduct his left shoulder above 90 degrees did
not occur until after the 1998 automobile accident; likewise there is Claimant’s
statement to Dr. Shepherd that before the January 1998, he had no problems
whatsoever with his shoulder. Dr. Shepherd testified that had the shoulder
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impingement been present for a long period of time, it would have caused a tear in the
rotator cuff. Tests confirmed Claimant had no tear in his rotator cuff.
In sum, we agree with the WCJ that Dr. Muldowny’s conclusion, that
Claimant’s present shoulder discomfort could relate to the 1996 on the job accident,
was based upon his patient’s very belated, self-serving complaints. Furthermore, we
find no manifest error in the WCJ’s decision to give more credence to that abundant
portion of the medical evidence, especially that of Dr. Shepherd, which relates
Claimant’s present complaints to the automobile accident of January 8, 1998.
Accordingly, for the reasons stated, we affirm the judgment of the Office of
Workers’ Compensation Judge. All costs of this appeal are assessed against
Claimant, Dexter Benjamin.
AFFIRMED.
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