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Fabre v. ICF Kaiser International11/8/2002
Kuhn, J., Concurs
An employer and its insurer appeal a judgment from a workers' compensation tribunal awarding the reinstatement of benefits for a former employee allowing additional back surgery and psychiatric counseling and awarding attorney fees. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Allen Fabre filed for workers' compensation benefits against his employer ICF Kaiser International (ICF). Fabre claims he suffered an on the job injury to his back on March 28, 1995, when he fell from a pipe rack while working at the Shell plant in Norco. He alleged that he was injured when jerked to a sudden stop by his safety harness after losing his balance and falling. He first declined medical treatment, assuming that the pain was nothing more than a pulled muscle. Fabre continued working in spite of the pain, but three months later, he finally went to see his family physician, Dr. Montegut, about pains in his groin area. He did not tell the doctor about the accident at that time. A few months later, he returned to Dr. Montegut because the groin pain had spread to his lower back, and at this time he mentioned the fall. Dr. Montegut sent him to an orthopedic surgeon who in turn referred him to physical therapy. When therapy became too painful, he was referred to an orthopedic surgeon.
Eventually, on March 6, 1996, after seeing two neurosurgeons, Dr. Dzung Dinh of the Tulane Medical Center performed an anterior laparoscopic interbody fusion on his back. Dr. Dinh recommended that Fabre consult with a pain management specialist and a psychiatrist.
The pain was better immediately following the surgery, but not so much better that he could return to work. Fabre began to wear a support brace and saw Dr. Edna Doyle for physical therapy. On February 26, 1997, Dr. Doyle noted that Fabre said that a couple of days before Mardi Gras he was standing on an ice chest that wobbled, and he slipped off. Later the pain returned full force and he had to cease the physical therapy.. ICF requested he see Dr. John Schuhmacher, another neurosurgeon. On June 2, 1999, Dr. Schuhmacher recommended a package of discography, facet blocks, a psychological pain evaluation, and external bracing. On November 9, 1999, Fabre went back to Tulane and was seen by Dr. Donald Dietz. Dr. Dietz requested a "thin-cut CT scan" and noted that the pain was consistent with pseudoarthrosis at the level of the fusion previously performed. Fabre returned to Dr. Schuhmacher on April 3, 2000 to see if he agreed with Dr. Dietz. Dr. Schuhmacher felt that if Fabre did not have the surgery, he should be able to return to sedentary light occupations and recommended a neuropsychological pain evaluation before surgical intervention.
Due to the conflict of opinion, ICF requested an IME, which was performed on June 22, 2000, by another neurosurgeon, Dr. Anthony Ioppolo. Dr. Ioppolo agreed with Dr. Schuhmacher's opinion on the use of external bracing instead of surgery.
Previously, on May 8-9, 2000, a surveillance tape was filmed of Fabre's activities and the adjuster dispersed them to Fabre's treating physicians, including the IME doctor. On August 11, 2000, Dr. Ioppolo said that after viewing the tape, Fabre appeared to have unrestricted movement, indicative of the fact that he was not having a great deal of pain or activity restriction. Thus, he would not consider Fabre to be a surgical candidate.
Fabre's benefits were terminated. On July 31, 2000, Fabre filed a Disputed Claim for Compensation, alleging that giving the surveillance tape to the IME constituted an unethical contact with his physician.
The matter was heard May 9, 2001, and
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