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Thornton v. Louisiana Plastic Industries12/15/2004
the medical evidence, but at Mr. Thornton's testimony that he had made honest attempts at rehabilitation, including physical therapy, and had found no relief from his back pain. He urges that the WCJ was not clearly wrong in her conclusion to allow the surgery. We agree.
A review of the WCJ's remarks when ruling indicates that she made credibility findings favorable to Mr. Thornton, whom she believed was sincerely interested in returning to the work force. The WCJ made a particular finding in her oral reasons that she was basing her decision to allow the surgery on the recommendation of his treating physician, Dr. Bailey, and the fact that Dr. Doug Brown, whom the employer initially selected for a second opinion, did not say that surgery would not be necessary or that it would not assist him. Finally, the WCJ concluded that she looked at the totality of the evidence, including the lay testimony of the claimant and not just the medical evidence.
In McKinney v. Coleman, 36,958 (La. App. 2d Cir. 3/14/03), 839 So. 2d 1240, this court noted that the general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. La. R.S. 23:1123, however, provides as follows:
If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.
In McKinney, supra, we explained the treatment by the hearing officer of the various examining and testifying physicians as follows:
Nevertheless, the opinion of the IME physician is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as to the claimant's condition. Jennings American Legion Hosp. v. Daigle, 01-621 (La. App. 3rd Cir. 11/14/01), 801 So. 2d 550, [writ denied, 01-3294 (La. 9/5/03), 852 So. 2d 1038]. The significant weight given to the opinion of the IME physician can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians' examinations and tests, and any other relevant factors. Green v. Louisiana Coca Cola Bottling Co., Ltd., 477 So. 2d 904 (La. App. 4th Cir. 1985), writ denied, 478 So. 2d 910 (La. 1985).
Further, in Longoria v. Brookshire Grocery Company, 37,975 (La. App. 2d Cir. 12/19/03), 862 So. 2d 1172, writ denied, 04-0157 (La. 4/23/04) 870 So. 2d 299, we stated that, while this court has generally followed the jurisprudential rule that a treating physician's opinion is given more weight than a non-treating physician's, courts applying that doctrine have held that the treating physician's testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all of the medical witnesses. The inquiry is whether, based on the totality of the record, the fact finder was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by the claimant. See Miller v. Clout, 03-91 (La. 10/21/03), 857 So. 2d 458, fn 3; and Aaron v. City of Shreveport, 38,172 (La. App. 2d Cir. 3/3/04), 867 So. 2d 915.
The record in the case sub judice reveals that the WCJ followed Mr. Thornton's case very closely and believed that the claimant had expended great effort at physical therapy to try to get better without s
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