Greer v. Whole Foods Market, Inc.

Citations: 133 So. 3d 80; 2013 La.App. 4 Cir. 0455; 2014 La. App. LEXIS 91; 2014 WL 535740Docket: No. 2013-CA-0455

Court: Louisiana Court of Appeal; January 14, 2014; Louisiana; State Appellate Court

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Mr. Greer sustained neck and shoulder injuries while working at Whole Foods when he attempted to stop a falling meat cart. Following the incident, he filed a workers' compensation claim after Whole Foods denied authorization for his orthopedic surgery and referred him for a second opinion. Mr. Greer moved to exclude the opinions of Dr. Gordon Nutik and Dr. Ralph Katz, which the workers' compensation court granted. The court ruled in favor of Mr. Greer, declaring him entitled to surgery, penalties, and attorney fees, leading Whole Foods to appeal, arguing conflicting medical opinions regarding the necessity of surgery and the awards granted.

The court upheld the ruling, emphasizing reliance on Dr. Alexis Waguespack’s opinion, who was both Mr. Greer’s and Whole Foods' chosen physician. Dr. Waguespack diagnosed Mr. Greer with significant injuries aggravated by the accident and requested surgery, which was contested by Dr. Nutik’s conservative treatment recommendation. Additionally, Whole Foods sought an Independent Medical Examination (IME) by Dr. Katz, but before it occurred, Mr. Greer filed a claim disputing the IME's appropriateness. The workers' compensation court did not address this claim.

The court affirmed the decision, supporting the award of surgery and associated penalties and attorney fees.

Mr. Greer attended an Independent Medical Examination (IME) with Dr. Katz, who disagreed with the surgical recommendation by Dr. Waguespack. After not receiving communication from the Office of Workers’ Compensation (OWC), Mr. Greer filed a supplemental and amended petition in June 2011, challenging the lack of surgery approval, the appropriateness of the second medical opinion and IME, and seeking penalties and attorney fees. He also filed a motion to exclude the reports from Dr. Nutik's second opinion and Dr. Katz’s IME, which the court granted, ruling that Dr. Nutik's exam was inappropriate for disputing Mr. Greer’s condition or treatment. The court determined that Mr. Greer did not waive his right to object to the IME due to the absence of a hearing on his disputed claim.

At trial, the workers' compensation court affirmed Dr. Waguespack as Mr. Greer’s and Whole Foods' chosen physician, allowing Dr. Waguespack’s testimony while excluding references to Dr. Katz’s findings. The court ruled that Mr. Greer’s surgery was necessary and related to his workplace accident, ordering Whole Foods to cover the costs. Additionally, it found Whole Foods had miscalculated Mr. Greer’s indemnity benefits, resulting in penalties and attorney fees being awarded to Mr. Greer, though Whole Foods was entitled to a credit for indemnity benefits paid while Mr. Greer was employed.

Whole Foods appealed the court's findings, arguing (1) Dr. Waguespack was solely Mr. Greer’s physician, justifying their request for a second opinion from Dr. Nutik; (2) the IME by Dr. Katz was appropriate; (3) Dr. Waguespack's deposition should include references to Dr. Katz; (4) cervical surgery was unnecessary; and (5) Mr. Greer should not receive penalties and attorney fees. The standard of review for workers’ compensation cases is the manifest error-clearly wrong standard, meaning appellate courts will not overturn the trial court's findings unless they are clearly erroneous after a complete record review. Whole Foods referenced Louisiana Revised Statute 23:1121, asserting its right to seek a second opinion without directing Mr. Greer to Dr. Waguespack, thus framing him merely as Mr. Greer’s choice of surgeon.

The argument presented is undermined by subsection (B)(3) of La. R.S. 23:1121, which specifies the conditions under which subsection (B)(2)(a) does not apply. According to this law, any physician to whom an employee is referred by an employee-selected physician is regarded as the employer’s choice. After Mr. Greer’s injury, Whole Foods, through its workers’ compensation adjuster, referred him to Dr. Lansing, who subsequently referred him to Dr. Steiner for further evaluation. Mr. Greer declined to see Dr. Steiner due to a prior negative experience. Following this, Dr. Lansing referred Mr. Greer to Dr. Waguespack. Whole Foods contends that Mr. Greer’s refusal to see Dr. Steiner indicates he was involved in selecting his physician, meaning Whole Foods did not directly refer him to Dr. Waguespack as required by La. R.S. 23:1121(B)(2)(a). However, Mr. Greer testified that he had no prior knowledge of Dr. Waguespack and trusted Whole Foods' recommendation. The trial court found Mr. Greer’s refusal reasonable and ruled that Dr. Waguespack became Whole Foods’ choice of physician through Dr. Lansing’s referral. Thus, the trial court correctly determined that Dr. Waguespack served as the physician of choice for both Whole Foods and Mr. Greer.

Additionally, Whole Foods argued that it is entitled to a second medical opinion under the Louisiana Administrative Code, which allows the employer to seek a second opinion when surgery is recommended. However, this provision must be interpreted alongside La. R.S. 23:1121. Whole Foods had already selected its physician by referring Mr. Greer to Dr. Waguespack, and the law restricts the employer from seeking another physician simply because it disagrees with the current physician's recommendations. The precedent set in Iberia Parish Sch. Bd. v. Broussard reinforces that an employer cannot pursue a second opinion from another physician simply due to dissatisfaction with the first physician's diagnosis.

Whole Foods directed Mr. Greer to two orthopedists, Dr. Waguespack and Dr. Nutik. After Dr. Waguespack recommended surgery, Whole Foods sought a second opinion from Dr. Nutik, which is considered "doctor shopping" under La. R.S. 23:1121(A). The law prohibits employers from selecting a physician in the same specialty to obtain a more favorable opinion when they disagree with the initial doctor's recommendation. Section 2711 aims to provide claimants with treatment options for informed decision-making, and there is no evidence that Mr. Greer failed to explore his options or that Dr. Waguespack did not provide adequate information. Mr. Greer testified that conservative treatments were unsuccessful and acknowledged surgery as the next step. The trial court ruled that Whole Foods, by sending Mr. Greer to multiple doctors, violated La. R.S. 23:1121 and that Mr. Greer was an unrepresented injured worker. Additionally, Mr. Greer claimed the second opinion was untimely, as the Louisiana Supreme Court recognizes a failure to authorize treatment as a failure to provide treatment. La. R.S. 23:1201(E) mandates that medical benefits be paid within sixty days, which also applies to treatment authorization. Dr. Waguespack indicated Mr. Greer might need surgery starting May 2010, with recommendations reiterated and formalized in September 2010. Whole Foods delayed scheduling the second opinion until December 2010, after receiving multiple notifications about the surgery recommendation. Consequently, Dr. Nutik's second opinion was deemed untimely. Furthermore, the trial court found Dr. Nutik's report incomplete, failing to establish a genuine dispute regarding Mr. Greer's medical treatment necessary for an independent medical examination. Dr. Waguespack recommended surgery, while Dr. Nutik advised conservative treatment.

Whole Foods argued that an Independent Medical Examination (IME) was necessary due to a dispute over Mr. Greer’s treatment. However, the trial court found Dr. Nutik's examination inappropriate, rendering his opinion invalid for creating a dispute about Mr. Greer’s condition or treatment. The court noted that Dr. Nutik's medical report was incomplete, as he did not review the MRI films and relied on radiologists’ reports, which he admitted were insufficient. Consequently, the court determined there was no legitimate dispute regarding Mr. Greer’s condition or the necessity for surgery.

Moreover, Mr. Greer had timely objected to the IME appointment, having filed a disputed claim in response to his notification for the IME with Dr. Katz. The trial court recognized that Mr. Greer’s cooperation during the IME, prompted by the court's inaction, did not constitute a waiver of his objection. Thus, the court properly granted Mr. Greer's motion to dismiss the findings of Dr. Nutik and Dr. Katz.

Regarding the necessity of surgery and causation, Whole Foods contended that the trial court erred in ruling Mr. Greer was entitled to surgery. The burden of proof lies with the injured employee in establishing a causal link between the accident and the resulting condition. Even if a pre-existing condition exists, a claimant can still prove causation if the accident exacerbated or combined with that condition to produce a compensable disability. If the claimant demonstrates that disabling symptoms began with the accident and provides reasonable evidence of a causal link, a presumption of causation arises, shifting the burden to the opposing party to prove otherwise.

The testimony of a treating physician generally holds more weight than that of a physician who examines a patient infrequently. However, such testimony is not absolute, and the trier of fact must assess all medical witness contributions. In this case, the trial court favored Dr. Waguespack's extensive examinations of Mr. Greer over Dr. Nutik's single examination. Dr. Waguespack, a fellowship-trained spine surgeon, based her surgical recommendation on MRI films that Dr. Nutik had not reviewed. The court noted Mr. Greer’s testimony regarding his pain and reluctance towards surgery, despite recognizing its necessity for pain reduction and functional improvement.

Whole Foods contended that Mr. Greer did not establish causation, arguing that pre-existing conditions unrelated to his workplace accident were present. While Mr. Greer acknowledged these pre-existing issues, he claimed they were aggravated by the incident. Dr. Waguespack's findings supported this claim, noting changes in MRI results post-injury compared to pre-injury films, indicating new medical issues. Dr. Nutik also acknowledged a soft tissue strain on top of existing degenerative changes. The trial court concluded that Mr. Greer’s injuries were causally linked to the accident, finding the surgery warranted.

Regarding indemnity, Whole Foods argued that Mr. Greer’s pre-trial statement lacked stipulations on the calculation of average weekly wage, implying the issue was not properly before the court. However, Louisiana law allows workers’ compensation judges to operate without strict adherence to procedural rules. The court has historically addressed average weekly wage calculations when determining entitlement to indemnity benefits. Both parties had identified indemnity benefits as a disputed issue, and Whole Foods did not provide legal support for its assertion that Mr. Greer needed to specifically plead the average weekly wage calculation. Both parties utilized the same wage records to establish Mr. Greer’s average weekly wage.

Whole Foods issued checks to Mr. Greer for indemnity benefits, and the trial court justifiably ruled that these benefits were properly before it, as Whole Foods was aware of the issue and prepared to address it during the trial. The determination of penalties and attorney fees in workers’ compensation cases is factual and subject to a standard of manifest error review. According to Louisiana law (La. R.S. 23:1201), penalties and attorney fees are applicable for late benefit payments unless the claim is reasonably disputed or nonpayment is due to uncontrollable circumstances. Mr. Greer’s average weekly wage was stipulated at $718.55, resulting in a compensation rate of $479.03, but he was underpaid by $6.16 weekly due to Whole Foods’ miscalculation, justifying a penalty under La. R.S. 23:1201(F).

Whole Foods received Mr. Greer's medical expense claim in May 2011 but did not pay it until May 2012, failing to meet the sixty-day payment requirement of La. R.S. 23:1201(E). The trial court established that Dr. Waguespack was the designated physician for both parties, making a second opinion unnecessary. Whole Foods delayed authorizing surgery recommended by Dr. Waguespack in May 2010, waiting nearly seven months before seeking a second opinion, which exacerbated Mr. Greer’s condition. Consequently, he is entitled to penalties for the delay in authorizing surgery. Additionally, Mr. Greer is awarded attorney fees, as the trial court has discretion in such awards, which will not be overturned unless there is clear error.

Whole Foods contends that Mr. Greer is ineligible for attorney fees due to an alleged improper penalty award. The trial court justified the attorney fee award by highlighting Whole Foods' seven-month delay in authorizing a surgery recommended by Mr. Greer's physician, as well as its decision to refer him to a second physician for a more favorable opinion, which reflects a disregard for Mr. Greer's pain management. The court has broad discretion in awarding attorney fees, and given the reasons provided, the appellate court found no abuse of this discretion. Consequently, the judgment of the workers’ compensation court is upheld. 

Additionally, La. R.S. 23:1121(B) outlines the employee's rights regarding the selection of treating physicians, allowing them to choose one physician in any specialty, and stipulating conditions under which a referred physician by the employer may also be considered the employee's choice, contingent upon proper notification and documentation.