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White v. Fresenius Medical Care12/12/2001
xpenses were provided by medical insurance, the employer did not have an opportunity to approve/disapprove of any treatment until the time of the filing of the workers' compensation claim. Only at that point, which was in October 2000, was the employer in a position to deny/approve the claimed expenses as assumed by La.R.S. 23:1142. By its answer to the disputed claim form, FMC denied the claim after the medical expenses sought were incurred. Having made this observation, we again point out that this argument is raised for the first time on appeal. This assignment lacks merit.
Date of Indemnity Benefits
FMC next argues that the workers' compensation judge's ruling regarding the claimant's entitlement to indemnity benefits is flawed insofar as it may be interpreted to provide for benefits from the date Ms. White ceased working due to the hernia surgery in October 1999. Rather, because no physician related the hernia or the necessity of the hernia surgery to the fall, FMC contends that Ms. White's date of disability must be considered to be in December 1999 when Dr. Leoni attempted to treat the back complaints with a period of bed rest.
As explained above, the record indicates that Ms. White began to experience back and leg pains after the fall. This pain led to the hernia diagnosis. The condition was repaired by the October 1999 surgery. The day prior to the surgery, she ceased working and did not return, as the surgery did not resolve the pain. The continued complaints of pain eventually led Ms. White to Dr. Leoni who detected the herniated disc. While never put into terms of date of disability due to the herniated disc, Dr. Leoni's deposition is revealing as to the claimant's inability to work at her position at FMC during the period now complained of by the employer. The deposition reveals the following:
Q: It was not in your report, you never addressed the issue, but when you first saw her in October/November 1999, did you have an opinion as to whether she could work at that point in time or would you have placed any restrictions on her? Could you give us an opinion in retrospect since you didn't address it at that time?
A: I saw her on November 16th of `99 and operated on her at the end of January, so that's two and a half months later. And when I put her on bed rest - -
Q: That was December.
A: - - that's when I would have told her not to work.
Q: She was not working at the time because of her hernia surgery so it was never addressed, but if it was asked to you at that point in time, what would your opinion have been concerning her ability to work in regards to her back?
A: Well, when I saw her, I would have told her that she could work initially and if the pain got worse, to stop, is what I would have told her to do.
Q: Considering the nature of her complaints, would you have placed any lifting type restrictions on her at that point in time?
A: When I first saw her?
Q: Yes.
A: Yes, I would have told her not to lift more than 25 or 30 pounds.
Q: If her job required her to lift patients as a dialysis technician, you would have told her you cannot do that type of activity?
A: That's what I would have told her, correct?
Q: And then you would recommend that she not work at all from the time you put her on bed rest until she had recuperated from her surgery - -
A: Correct.
Thus, it is clear from this record that, due to her condition, Dr. Leoni would have assigned at least modifications due to the claimant's condition. Whether these modifications would have been met
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