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Brister v. Sears Authorized Retail Dealer12/8/1999
APPEAL FROM OFFICE OF WORKERS' COMPENSATION DISTRICT NO. TWO PATRICIA KOCH, WORKERS' COMPENSATION JUDGE
JIMMIE C. PETERS JUDGE
(Court composed of Judge Cooks, Judge Peters, Judge Pickett)
REVERSED IN PART; AFFIRMED IN PART; AND RENDERED
In this workers' compensation case, William Dunn, who operates his business under the trade name of Sears Authorized Retail Dealer, and his workers' compensation insurer, the Louisiana Workers' Compensation Corporation (LWCC), appeal a judgment finding the employee, Jerry Brister, temporarily totally disabled and awarding Brister penalties and attorney fees because of their unilateral reclassification of Brister's indemnity benefits from temporary total benefits to supplemental earnings benefits. Brister has answered the appeal, seeking an increase of the trial attorney fee award and seeking additional attorney fees for work performed in conjunction with the appeal.
DISCUSSION OF THE RECORD
It is not disputed that William Dunn employed Jerry Brister in his Sears store as a manual laborer and salesman and that on November 17, 1995, Brister sustained a work-related injury when he lifted a large screen television. As he lifted the television, Brister felt a burning sensation in his back and later that day reported the incident to his employer.
Brister initially sought treatment with a Dr. Mong of Leesville, Louisiana. Dr. Mong's diagnosis was that of a strained back, and he prescribed muscle relaxants as treatment. Brister did not initially improve and on December 8, 1995, was examined by Dr. David Steiner, a Leesville orthopedic surgeon. After physically examining Brister and reviewing X-rays of the cervical and lumbar spines, Dr. Steiner concluded that Brister suffered from a cervical and lumbar strain. The X-rays revealed minimal arthritic changes and a small anterior osteophyte at L3.
Brister continued seeing Dr. Steiner, who prescribed physical therapy, anti-inflammatory medication, muscle relaxant medication, and mild pain medication. When conservative treatment failed, Dr. Steiner ordered diagnostic tests which revealed "some significant problems." Specifically, an MRI of the cervical spine revealed significant protrusion at the C6-7 level which compromised the nerve root. The doctor later discovered that the protrusion was actually a ruptured disc. Additionally, an EMG suggested carpal tunnel syndrome, and a myelogram of the lumbar spine revealed a protrusion at the L4-5 level which impinged on the thecal sac. Dr. Steiner also noted that Brister had some triangulation of the canal, which would contribute to not only a ruptured disc, but also to some spinal stenosis. Based on Brister's injury history, Dr. Steiner related the cervical, lumbar, and carpal tunnel problems to the accident of November 17, 1995. Because of his physical injuries, Brister ceased working on August 21, 1996, and LWCC began timely paying Brister temporary total disability benefits.
On September 12, 1996, Dr. Steiner performed an anterior cervical discectomy and fusion with bone graft on Brister at the C6-7 level. The doctor testified that, following the surgery, Brister continued to have some small residual problems but that he improved significantly. Brister testified that after the surgery, he still suffered from numbness and often dropped things. Although Dr. Steiner felt that Brister might need to have surgery on his lumbar spine, Brister expressed a fear of the surgery because he did not feel as though the cervical surgery did "that much good."
As a result of the injury and surgery, Brister became depressed, which, according to Dr. Steiner, is a common side effect o
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