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McCray v. Delta Industries9/21/2001
3:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Weller v. Brown, 97-2155, p. 12 (La. App. 1st Cir. 11/6/98), 724 So.2d 230, 236.
Plaintiff also argues that the trial judge erred in awarding only $750.00 of non-approved treatment by Dr. Olson. La. R.S. 23:1121(B) provides, in part: The employee shall have the right to select one treating physician in any field or specialty. ... After his initial choice the employee shall obtain prior consent from the employer or his workers' compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
While a claimant has the right to select one treating physician in any field or specialty under La. R.S. 23:1121(B), the treatment must be necessary under La. R.S. 23:1203(A) in order for the employer to be responsible for those expenses. Scott v. Piccadilly Cafeteria, 97-1584, p. 5 (La. App. 3rd Cir. 4/1/98), 708 So.2d 1296, 1299.
Since we find herein that plaintiff suffered a compensable injury to his back and/or neck, the award of only $750.00 for treatment by Dr. Olson is reversed, and defendants are ordered to pay for plaintiff's medical treatment in this regard. We remand the matter to the OWC for a determination of the amount, and a re-determination on the issue of medical maximum improvement and temporary total disability in light of the test results to be reviewed upon completion of the medical testing ordered by Dr. Olson.
We cannot, however, conclude that Delta was arbitrary and capricious in denying compensation for the back and/or neck injuries. Penalties are not to be assessed when the employee's right to such benefits has been reasonably controverted by the employer or insurer. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 16 (La. App. 1st Cir. 1/6/99), 733 So.2d 11, 24. A claim is reasonably controverted if the employer or insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Id. An employee has the burden of proving his entitlement to statutory penalties. Id.
At the time that Delta decided to stop paying benefits, a report had been obtained from Dr. Fambrough stating that no reason existed that prevented plaintiff from working. A separate report drawing a similar conclusion was obtained from Dr. Habig. Although Dr. Olson and Dr. Trahant gave very different opinions as to plaintiff's condition, Dr. Trahant's report reasonably controverted plaintiff's claim of a back and/or neck injury . Therefore, neither Delta nor Travelers were arbitrary or capricious for failing to paying additional compensation.
CONCLUSION
Accordingly, the judgment of the OWC is affirmed, in part, insofar as penalties and attorney fees were denied, and the judgment is reversed, in part, to the extent recovery of medical expenses and continued treatment for plaintiff's back, neck, and head injuries were denied. The case is remanded for determination of the amount of medical expenses to be reimbursed and for further proceedings consistent with the foregoing. All costs of this appeal are to be borne by defendants/appellees, Delta Industries Inc. and Travelers Property Casualty Corporation.
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.
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