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TRUDY CORTEZ VERSUS EAST JEFFERSON GENERAL HOSPITAL

NO. 08-CA-653 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7, NO. 04-4668 PARISH OF JEFFERSON, STATE OF LOUISIANA HONORABLE JOHN C. GROUT, JR., JUDGE PRESIDING
JANUARY 13, 2009

MADELINE JASMINE
JUDGE PRO TEMPORE
Panel composed of Judges Edward A. Dufresne, Jr., Greg G. Guidry, and Madeline Jasmine

FRANK A. BRUNO Attorney at Law 807 Howard Avenue New Orleans, Louisiana 70113 COUNSEL FOR PLAINTIFF/APPELLEE JACQUELINE G. GRIFFITH CARL L. ASPELUND CHEHARDY, SHERMAN, ELLIS, MURRAY, RECILE, GRIFFITH, STAKELUM & HAYES, LLC One Galleria Boulevard Suite 1100 Metairie, Louisiana 70001 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED IN PART; REVERSED IN PART; AMENDED

The appellant/employer, East Jefferson General Hospital, has appealed the trial court judgment in favor of claimant, Trudy Cortez. For the reasons that

follow, we affirm the award of medical payments and compensation benefits and reverse the award of penalties and attorneys fees.

FACTS
On September 25, 1998, the claimant was working as a medical technologist at East Jefferson General Hospital, when she injured her back while in the course
and scope of her employment. She sought medical treatment from Dr. Ralph

Gessner, who performed lumbar surgery on her in July 1999. Ms. Cortez testified

that following this procedure her back pain improved for a short time, and she returned to work at regular duty on a full time basis. She explained that in

November 1999, her pain increased and a few months later she was put on light duty work. She continued on light duty work until 2002. She received

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compensation payments until December 20, 2002. Those payments and medical

treatment are not at issue in this appeal.
In 2002, Ms. Cortez moved to north Louisiana and sought treatment from Dr. Pierce Nunley, an orthopedist in Shreveport. In February 2003, Ms. Cortez

went to work as a medical technologist at a hospital in northern Louisiana. Her back pain continued and she experienced pain in both of her legs making it
difficult to walk or stand. She testified that in December 2003, she began walking

with a cane for support because her leg gave out at times. Ms. Cortez testified that she visited Dr. Nunley regularly and underwent numerous injections, nerve blocks and physical therapy. Her back pain and leg pain continued. Ms. Cortez testified that in July 2005 while walking down a flight of stairs,
her leg gave out and she "kind of bounced downstairs." In August 2005, Dr.

Nunley performed a discogram, which reproduced the pain she was experiencing. On October 25, 2005, Dr. Nunley performed an anterior lumbar interbody fusion at
the L4-5 and L5-S1 disc spaces. Ms. Cortez testified that this procedure

significantly reduced her pain allowing her to work full time including 15 hours

per week overtime. She no longer has to take medication. On July 2, 2004, Ms. Cortez filed a second disputed claim for compensation seeking additional workers' compensation benefits for the September 1998
accident. It is these benefits and medical treatment that are the subject of this

appeal. East Jefferson answered claiming that benefits for this accident had been paid and denied that further benefits were due. The defendant paid for the initial
medical treatment from Dr. Nunley. However, when Dr. Nunley recommended a discography in anticipation of surgery, the defendant refused payment. Ms. Cortez underwent the discography and surgery, which were paid for by her private health

insurer, Health Plus.

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Lori Francis testified that she was a claims adjuster for the defendant and was assigned to Ms. Cortez' claim. Ms. Francis testified that she denied payment of the discogram because this procedure was not recommended by Dr. Gordon
Mead, who examined the claimant at the request of the defendant, or Dr.

Bilderback who examined the claimant after being appointed by the Office of Workers' Compensation Administration pursuant to defendant's request. Ms.

Francis admitted that Dr. Nunley's office contacted her to request authorization for the discogram, but denied that her office was contacted for authorization for the surgery. She testified that she was notified of the surgery after the procedure took place. Ms. Francis acknowledged that authorization for a myelogram and CT scan were denied because there was a pending IME. She denied receiving further

requests for these procedures until after they were performed. On cross-examination, Ms. Francis admitted that she no longer has access to her file in this matter, but had reviewed her notes prior to trial. She was presented with the motion for IME filed by the defendant, which states there had been a request for discography before proceeding with surgery. Ms. Francis denied that
anyone in Dr. Nunley's office had called requesting authorization for surgery.

The deposition of Dr. Nunley was admitted into evidence. Ms. Cortez' medical records were attached to the deposition. Dr. Nunley testified that he is board certified in orthopedic surgery with a specialty in spinal medicine and spinal
surgery. Dr. Nunley testified that he first saw Ms. Cortez on January 31, 2003 at

which time she was complaining of back and leg pain. He recommended an MRI and EMG. The MRI performed on February 14, 2003 showed significant disc
disease at the L4-5 and L5-S1 levels. The EMG results were negative. Dr. Nunley explained that the initial injury caused pain from the disc and the nerve root. The first surgery performed in 1999 decompressed the nerve root, but did not address

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the discogenic low back pain. He recommended conservative treatment including

physical therapy, non-narcotic pain medication, and nerve blocks. Ms. Cortez' pain continued to increase and in April 2004, he recommended discography in anticipation of a spinal fusion. Authorization was refused by Ms. Cortez' former employer. Eventually the procedure was authorized by Ms. Cortez' private health insurer and the discogram was carried out on August 16, 2005. Dr. Nunley

explained that this procedure reproduced the concordant pain that Ms. Cortez experienced on a daily basis. The spinal fusion was performed on October 25, 2005. Ms. Cortez was unable to work from this surgery until January 26, 2006 at
which time she was released to light duty work. She returned to full duty work on
I

April 19, 2006. Dr. Nunley further testified that he recommended a myelogram
and CT scan be performed prior to surgery and these tests were denied by the

defendant as well. He explained that these tests showed blunting of the S1 nerve
root.

Dr. Nunley testified that the July 2005 fall did not aggravate or accelerate
Ms. Cortez's condition. Dr. Nunley compared his experience to that of Drs. Mead and Bilderback.

Dr. Bilderback is a fellowship trained spine surgeon who performed spine surgery for three years then did a fellowship in hand surgery. He no longer does spinal surgery. Dr. Mead is not a spine surgeon and does not perform spinal surgery. The deposition of Dr. Mead was admitted into evidence. Dr. Mead testified
that he is an orthopedic surgeon and performed spine surgery from the time of his

residency until the early 1990s. He sees 10 to 15 patients per week who complain of back pain some of which are candidates for back surgery. Dr. Mead first
examined Ms. Cortez on October 1, 2003 at the request of her former employer. Dr. Mead testified that while Ms. Cortez had marked limited motion in her low

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back, the physical exam showed her reflexes to be intact, she had good strength
and sensation, and her neurological exam showed no evidence of nerve root

impingement. He testified that he reviewed the MRI reports of February 14, 2001 and the EMG/ nerve conduction studies of February 19, 2003. Dr. Mead

concluded there was no objective evidence to support the severity of her
complaints. He opined that Ms. Cortez had degenerative disc disease and scarring

around her nerve roots. He did not feel that an IDET (Intradiscal Electrothermal Therapy) procedure or discogram would benefit Ms. Cortez.
On May 24, 2004, Dr. Mead examined Ms. Cortez a second time at the

request of defendant. Ms. Cortez reported that her pain had increased in the last year and she had sought treatment from two pain specialists. Dr. Mead reviewed the report of the February 14, 2003 MRI and found it showed mild degenerative disease and no neural impingement or epidural scar formation. He reviewed

reports from a CT scan dated October 17, 2003 and a myelogram dated December 8, 2003, both of which were negative. He noted that Ms. Cortez walked with a slight limp but had no difficulty getting on the exam table, which he found inconsistent. Her physical exam showed no decreased sensation or weakness and
no nerve root impingement. While he did note the circumference of her right leg

measured

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