 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
McCray v. Delta Industries9/21/2001
the only neurologist who examined plaintiff. Dr. Trahant examined plaintiff once at Delta's request. Dr. Trahant's opinion consisting of a mere three-page letter directed to Delta 's insurer, Travelers, was completely contrary to that of Dr. Olson.
Experts' testimony may be given differing weights depending on their qualifications and the facts upon which their opinions are based. Ponthier v. Vulcan Foundry, Inc., 95-1343, p. 3 (La. App. 1st Cir. 1996), 668 So.2d 1315, 1317. The general jurisprudential rule is that a treating physician's opinion is given more weight than a non-treating physician. Orgeron v. Prescott, 93-926, p. 10 (La. App. 5th Cir. 4/14/94), 636 So.2d 1033, 1041, writ denied, 94-1895, (La. 10/28/94), 644 So.2d 654; Wells v. Allstate Insurance Company, 510 So.2d 763, 767 (La. App. 1st Cir.), writ denied, 514 So.2d 463 (La. 1987). The trial court, however, is not bound to accept the testimony of an expert whose testimony is presumptively given more weight if he finds the opinion is less credible than that of other experts. Ponthier v. Vulcan Foundry, Inc., 668 So.2d at 1317.
In this case, Dr. Olson and Dr. Trahant had widely disparate conclusions. Both physicians are neurologists. Both were qualified in education, training, and experience to give an opinion regarding plaintiff's alleged back and/or neck injury and whether he had reached maximum medical improvement. However, more weight should have been given to the testimony of Dr. Olson, over the written statement of Dr. Trahant, absent some indicia of unreliability. The OWC judge placed great emphasis on the absence of complaint by plaintiff of back and/or neck injury. However, the record reveals plaintiff first complained of back pain as far back as August 28, 1998, as evidenced by the physical therapy report signed by Dr. Fambrough prescribing treatment for plaintiff's back. This was only one and a half months after the accident. Plaintiff complained of back pain during a number of these therapy sessions prescribed by Dr. Fambrough, approximately three months into treatment after the accident. There is also evidence that plaintiff complained of back pain in January of 1999, while under Dr. Habig's care, as noted in the report by the functional capacity evaluator.
In light of the severity of the crash and multiple injuries requiring surgical intervention, it is not unreasonable that attention to plaintiff's complaints of back pain may have been overlooked or minimized. Therefore, we find that the OWC judge erred in according more weight to Dr. Trahant's report than to the testimony of Dr. Olson. We also find that the record supports a finding that plaintiff did complain and suffer with back and/or neck injury , contrary to the conclusion of the OWC judge.
Plaintiff contends that Delta and Travelers were arbitrary and capricious in failing to provide plaintiff with MRI scanning and EMG and nerve conduction studies of the lower extremities recommended by Dr. Olson. Louisiana Revised Statutes 23:1203(A) provides, in part:
In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.
Under La. R.S. 23:1203, a worker's medical expenses are compensable only if they are occasioned by the work-related injury. Charles v. Aetna Casualty and Surety Company, 525 So.2d 1272, 1275 (La. App. 3rd Cir.), writ denied, 531 So.2d 480 (La. 1988). To recover medical expenses under La. R.S. 2
Page 1 2 3 4 5 6 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|