Bradley JACKSON v. IBERIA PARISH GOVERNMENT, 813 So. 2d 589

DECUIR, Judge. In this workers’ compensation case, the claimant, Bradley Jackson, appeals the judgment of the workers’ compensation judge denying benefits. For the following reasons, we affirm the judgment rendered below. FACTS Bradley Jackson began working for the Iberia Parish Government in 1984. He was employed as an operator, and in July of 1992, he was injured in the course and scope of employment while climbing a tractor grader. He fell and injured his lower back.

He was paid medical and disability benefits and transportation expenses for a period of time extending from the time of the accident until December 6,1993. Subsequently, in 1994, a hearing was conducted to determine whether benefits should be extended. The workers’ compensation judge ruled that Jackson failed to establish that his work-related injury continued to cause him disability after December 6, 1993, and further compensation was denied. Jackson appealed this decision, and we affirmed in Jackson v. Iberia Parish Gov’t, 94-1395 (La.App. 3 Cir. 4/5/96), 651 So.2d 992.

On September 17, 1997, Jackson filed a disputed claim with the Office of Workers’ Compensation, styled a “Motion to Modify Judgment.” Jackson sought additional compensation benefits, alleging that his medical condition had deteriorated. After a trial on the merits, judgment was rendered in favor of Iberia and against Jackson. The judge found Jackson failed to prove by a preponderance of the evidence that he experienced a change in his lower back condition and denied his motion to modify the 1994 judgment.

As a result, Jackson filed this appeal. 1 rLAW AND ANALYSIS Standard of Review In workers’ compensation cases, the factual findings of the workers’ compensation judge are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161. When applying this standard, we are not to determine whether the fact-finder was right or wrong, but rather, whether the factfinder’s conclusion was a reasonable one. Id.

Thus, if the judge’s findings are reasonable in light of the record reviewed in its entirety, we may not reverse even if we would have weighed the evidence differently. Romero v. Northrop-Grumman, 01-0024 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149. However, if we determine that the trial court committed manifest error in its factual determinations or a reversible error of law, we conduct a de novo review of the record. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Assignment of Error On appeal, Jackson asserts the following assignment of error: When a myelogram/post CT Scan and EMG/NCV test established that there was worsening of the claimant’s condition, clinical correlation confirmed the worsening, and two out of three physicians testified to the worsening of the claimant’s condition, the Office of Workers’ Compensation Judge erred when holding that the claimant failed to prove that his condition had worsened.

In determining whether there is any merit to this assignment, the pivotal issue is whether there has been a change in Jackson’s medical condition making him eligible for further workers’ compensation benefits. At trial, Jackson had the burden of proving that his compensation benefits should be reinstated because of a change in his condition in accordance with La.R.S. 23:1310.8(B).

That statute provides in pertinent part: | ¡¡Upon the application of any party in interest, on the ground of a change in conditions, workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law Under the law, the claimant must prove both a change in his condition resulting in disability and that his present condition was caused by the work-related injury.

In the instant case, the workers’ compensation judge reviewed various test results, medical reports, and the deposition testimony of three physicians, and heard the claimant testify. The court determined that Jackson had not met his burden of proof and denied the reinstatement of benefits. Our review of the record reveals that the lower court’s reliance on the testimony of Drs. Shepherd and Bernard was within its discretion and will not be disturbed in the absence of manifest error. Dr. Louis Blanda was Jackson’s treating physician.

He diagnosed a left lateral disc protrusion at L5-S1 in 1992 and recommended surgery at that time. The surgery was never approved and Dr. Blanda continued seeing Jackson in 1993 and 1994. In 1996, Dr. Blanda found that Jackson’s condition had deteriorated and that he was now suffering from pain and numbness in both legs, walking difficulties, and urinary incontinence. It was also his opinion that a comparison of the diagnostic tests done in 1992 and 1993 with similar tests in 1996 indicated that there had been a development of the left lateral disc protrusion at L5-S1 that now demonstrated a displacement.

The radiologist, Dr. J.J. Laborde, agreed with this finding. Dr. Blanda again recommended surgery and described Jackson’s deteriorating condition as gradual and continuous. Dr. Clifton Shepherd was first hired by the employer to evaluate Jackson in 1993. He saw Jackson again in 1999 and reviewed the diagnostic testing performed |4in 1993 and 1996. Upon review of the medical records, he noted that Jackson’s condition had changed based on a comparison of the 1996 myelogram and the two previous myelograms. In addition, he observed that the 1996 EMG showed a change in his condition in comparison to the 1993 EMG.

Although Dr. Shepherd found changes in both the clinical presentation and test results, he did not believe Jackson’s condition warranted surgical intervention. Dr. Shepherd did not believe Jackson’s condition in 1999 was caused by his 1992 work-related accident. He specifically noted that the disc bulge at L5-S1, which appeared in the 1996 tests, would have also shown up in the 1993 tests had the condition been the result of the work-related accident. Dr. Douglas Bernard was appointed by the court to give an independent evaluation of Jackson’s condition.

He examined Jackson in 1993, 1996, and 1999, pursuant to the court’s order. Based on his three medical examinations, he agreed with Dr. Shepherd that Jackson did not need surgery, and, in fact, was of the opinion that Jackson’s back condition was normal in the past and that no problems have developed. The record also shows since his 1992 work-related injury Jackson has developed a heart condition, has prostate problems, and takes blood pressure and other medications. He was involved in a motor vehicle accident in 1997 and was treated for several months for a cervical strain.

The workers’ compensation judge relied on the testimony of two physicians — one appointed by the court and the other hired by the employer. They both implied that any change on the 1996 MRI, when compared to the 1993 MRI, was minimal and insignificant. The court’s reliance on this testimony, and the rejection of Dr. Blan-da’s opinion, was within its discretion. The conclusion that Jackson failed to | sprove by a preponderance of the evidence that he has experienced a change in condition warranting a reinstatement of benefits is not, in our view, manifestly erroneous.

Generally, an independent court-appointed expert’s opinion is considered as prima facie evidence of the facts stated therein. La.R.S. 23:1123; Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132. As such, the workers’ compensation judge gave much credit to the findings of Dr. Bernard, and based on his opinions, the judge did not find a change in Jackson’s medical condition. For the above reasons, we conclude that a reasonable basis exists for the workers’ compensation judge’s ■ findings and that those findings are not manifestly erroneous.

Based on the evidence, Jackson has not sufficiently proven that there has been a change in condition. DECREE For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to Bradley Jackson. AFFIRMED. SAUNDERS, J., dissents and assigns reasons.