Opinion
NUMBER 2018 CA 1355
05-09-2019
Circle BOWL and Liberty Mutual Insurance Company v. CORROSION MATERIALS, INC. and Liberty Mutual Insurance Company
Philip J. Borne, Joshua O. Hess, New Orleans, LA, Counsel for Plaintiffs/Appellants, Circle Bowl and Liberty Mutual, Insurance Company John C. Turnage, Marcus E. Edwards, Shreveport, LA, Counsel for Defendants/Appellees, Corrosion Materials, Inc. and, Liberty Mutual Insurance, Company
Philip J. Borne, Joshua O. Hess, New Orleans, LA, Counsel for Plaintiffs/Appellants, Circle Bowl and Liberty Mutual, Insurance Company
John C. Turnage, Marcus E. Edwards, Shreveport, LA, Counsel for Defendants/Appellees, Corrosion Materials, Inc. and, Liberty Mutual Insurance, Company
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by Circle Bowl and Liberty Mutual Insurance Company (collectively, "Circle Bowl") from the May 1, 2018 judgment of the Office of Workers' Compensation, District 5 ("OWC"), finding Circle Bowl responsible for 60% of all medical expenses incurred by a workers' compensation claimant and finding Corrosion Materials, Inc. and Liberty Mutual Insurance Company (collectively, "Corrosion Materials") responsible for the remaining 40%. The judgment apportioned the costs of the proceeding, including deposition fees and costs, 60% to Circle Bowl and 40% to Corrosion Materials. Also before us is an answer to appeal filed by Corrosion Materials.
For the following reasons, we amend the judgment of the OWC and affirm, as amended.
FACTS AND PROCEDURAL HISTORY
In this matter, two employers and their respective insurers sought resolution from the OWC of the responsibility for medical benefits due to Barry Coon as a result of a February 17, 2015 accident ("the 2015 accident") and resulting injuries while he was working for Circle Bowl. Circle Bowl filed a disputed claim for compensation and a supplemental disputed claim for compensation with the OWC on February 16, 2017, contending that Corrosion Materials was either liable for all medical payments or was proportionately liable with Circle Bowl for the medical payments. According to Circle Bowl, Coon was first injured on August 18, 2009 ("the 2009 accident"), while working for Corrosion Materials, and Corrosion Materials paid and continued to pay for all medical benefits on his behalf. Corrosion Materials answered and filed a reconventional demand against Circle Bowl, alleging that the 2015 accident was not an aggravation of the 2009 injury, but instead, was a new injury. Accordingly, Corrosion Materials sought reimbursement from Circle Bowl of all amounts paid on Mr. Coon's behalf after the 2015 accident and alternatively, sought to be awarded its proportionate share of the responsibility for medical benefits to the extent that the 2015 accident was determined to have exacerbated Mr. Coon's 2009 injury. This matter proceeded to trial on April 18, 2018.
At trial, the parties stipulated to the following: (1) Mr. Coon was involved in an accident involving his lower back on August 18, 2009, while in the course and scope of his employment with Corrosion Materials; (2) Mr. Coon was involved in an accident involving his lower back on February 17, 2015, while in the course and scope of his employment with Circle Bowl; and (3) after the 2015 accident, Corrosion Materials paid medical benefits in the amount of $ 20,475.90, and Circle Bowl paid medical benefits in the amount of $ 93,437.16.
Accordingly, the only issues for the OWC to decide at trial were whether Circle Bowl was entitled to contribution or indemnification from Corrosion Materials to the extent that Mr. Coon's injury from the August 18, 2009 accident was aggravated or exacerbated by the 2015 accident and what percentage share between Corrosion Materials and Circle Bowl should be apportioned if Circle Bowl was entitled to contribution or indemnification from Corrosion Materials. After having reviewed all of the evidence submitted by the parties, the OWC issued its ruling in open court and found that Mr. Coon's medical condition increased enough to attribute more of the responsibility for the medical condition to Circle Bowl, and accordingly, that Corrosion Materials was responsible for 40% of Mr. Coon's medical condition and Circle Bowl was responsible for 60%. The OWC issued a written judgment reflecting its ruling and Circle Bowl timely requested a devolutive appeal, which was granted.
On appeal, Circle Bowl contends that the OWC committed manifest error in failing to find the parties solidarily liable for all medical benefits paid to or on behalf of Mr. Coon following the 2015 accident. Additionally, Circle Bowl contends that the OWC was manifestly erroneous in failing to find Corrosion Materials liable for 50% of all medical expenses incurred by Mr. Coon since the date of the 2015 accident.
In the answer to appeal, Corrosion Materials contends that the OWC manifestly erred in finding Corrosion Materials liable for 40% of all medical expenses incurred by Mr. Coon since the date of the 2015 accident, when it should not have been apportioned any responsibility whatsoever for the post-2015 accident medicals or, at the most, 10%.
The 2009 Accident
In August of 2009, Mr. Coon was working full-time for both Corrosion Materials and Circle Bowl. He began working at Circle Bowl as a lane attendant and later became a pinsetter mechanic. At Corrosion Materials, Mr. Coon was a plate saw, forklift, and overhead crane operator. In connection with the 2009 accident, Mr. Coon was cutting a large amount of two-and-a-quarter-inch thick metal plates for scrap over the course of two days, requiring him to repeatedly put pieces of scrap into a tall scrap box. Eventually, Mr. Coon experienced "unbearable" back pain and reported this to his supervisor at Corrosion Materials. As described by Mr. Coon, he had a lot of pain in his lower back after the 2009 accident. At first, the pain was sharp and made walking difficult. After missing work for less than two weeks, Mr. Coon returned to work at Corrosion Materials, but asked for lighter work due to his injury. Six months after the 2009 accident, Corrosion Materials terminated Mr. Coon's employment; however, Mr. Coon continued to work for Circle Bowl, where he was promoted to head mechanic. As a result of the 2009 accident, Mr. Coon was never pain free. Instead, the severity of the pain would fluctuate over time, and he later experienced intermittent pain in his legs. Eventually, Mr. Coon was evaluated and treated by Dr. Kyle Girod, an orthopedic surgeon. Upon physical examination, Dr. Girod noted that all of Mr. Coon's pain was focused on his back and upper portion of his right buttock and he had limited range of motion, but, neurologically, he maintained his motor function and sensation. Dr. Girod reviewed the images from Mr. Coon's 2009 MRI scan, which showed that he had right paracentral disc bulges at L1-2 and L2-3 and did not have significant stenosis. Dr. Girod treated Mr. Coon conservatively, prescribing anti-inflammatory, muscle relaxers and mild pain medications as well as physical therapy and chiropractic treatments.
After treating with Dr. Girod for a little over a year, Mr. Coon was referred to Comprehensive Pain Management in early 2011 where he began treatment with Dr. Sandra Weitz. Dr. Weitz first saw Mr. Coon on February 16, 2011, and diagnosed him with lumbar spondylosis, noting that he had facet tenderness at L4-5 and L5-S1 and was neurologically intact. Dr. Weitz also reviewed Mr. Coon's 2009 MRI scan, which she noted as showing some bulging discs, primarily on the right side at L1-2 with mild foraminal narrowing and also a right paracentral disc bulge at L2-3 contacting the right L-3 nerve root with mild right foraminal narrowing. She also noted that Mr. Coon had facet arthropathy at L3-4, L4-5, and L5-S1.
Dr. Weitz's treatment for Mr. Coon included a medial branch block, which did not provide significant relief, various daily medications, and periodic epidural steroid injections ("ESI"). Mr. Coon received, and continues to receive, treatment from Comprehensive Pain Management on a monthly basis. Dr. Weitz continued to treat Mr. Coon through pain management so that he could remain functional and gainfully employed. Overall, Mr. Coon's pain and symptoms from the 2009 accident would wax and wane, but at times, he experienced intermittent episodes of severe right leg pain.
According to Mr. Coon, he had intermittent pain in his legs, which became bad enough at one point in 2012 that he went to the hospital. While it was not clear from Mr. Coon's testimony when exactly this increase in pain occurred, his medical records reflect that in May of 2012, he was removing ceiling tiles for his boss at Circle Bowl and developed new back pain. Thereafter, in 2013, a new MRI scan was done and the worker's compensation insurer for Corrosion Materials requested an independent medical examination or second medical opinion, investigating whether a new injury or accident had occurred since the 2009 injury. Dr. Weitz opined that the intermittent severe right leg pain and episodes of increased pain were a natural progression of the original 2009 injury. Dr. Weitz's impression of the 2013 MRI scan was that Mr. Coon had a new disc herniation at L4-5, but that the rest of his MRI was, essentially, unchanged. Through January 22, 2015, Dr. Weitz's treatment of Mr. Coon was fairly consistent, and Mr. Coon's pain complaints were fairly stable.
The 2015 Accident
On February 17, 2015, while preparing bowling lanes, Mr. Coon was shifting a heavy Kegel Ion lane machine into an upright position when he felt a powerful and severe sharp pain in his lower back and heard a crunch. He stated that he felt a pop, his knees buckled, and he cried due to the pain. He reported the accident and completed an injury report, but did not seek medical attention immediately. However, in lieu of going to the hospital, Mr. Coon went to his regularly scheduled monthly appointment with Dr. Weitz's office two days later. At his appointment on February 19, 2015, Mr. Coon was observed to have continued back pain, which had increased from a six-out-of-ten degree of pain from his last two visits to a nine-out-of-ten degree of pain as a result of the 2015 accident. Dr. Weitz noted on this visit that he was markedly tender on his left side and had a positive straight leg raise. Dr. Weitz specifically testified that on this visit in particular, Mr. Coon's pain was very different from his prior visits over the previous four years in that he had a clear and demonstrable change in his presentation of symptoms.
While Mr. Coon testified that the machine weighed approximately 350 pounds, he also testified that he was not actually lifting the full weight of it, since the machine is designed so that the bulk of the weight is on a pivot point when being stood up.
At the February 19, 2015 appointment, Dr. Weitz prescribed a Medrol Dosepak in hopes that Mr. Coon's pain was just a flare-up that could be calmed with steroids. Two weeks later, Mr. Coon returned and remained in pain. While Mr. Coon had experienced similar pain over the course of his treatment, the pain on this visit was markedly worse, so Dr. Weitz ordered an MRI scan of his back. A comparison of the last MRI performed in 2013 and the new MRI performed in 2015 showed that Mr. Coon had multi-level disc degeneration changes with foraminal narrowing, facet arthropathy, and disc herniations. According to Dr. Weitz, Mr. Coon's disc herniations at L1-2 and L2-3 had increased in size. However, the bulging disc at L3-4 and the impingement on the nerve root at L4-5 due to herniation was unchanged. At a minimum, Dr. Weitz's opinion was that the 2015 accident exacerbated Mr. Coon's underlying condition, which resulted from the 2009 accident.
After the 2015 accident, Dr. Weitz's treatment plan began with an ESI in an attempt to get Mr. Coon back to his pre-2015 accident condition. While the ESI did relieve Mr. Coon's leg pain, his back pain remained unbearable. Dr. Weitz referred Mr. Coon back to Dr. Girod in an effort to determine whether the progression of his degenerative disc disease had reached a level where surgical intervention was necessary. Additionally, Dr. Weitz informed Mr. Coon that she did not believe that he could continue doing his physical job at Circle Bowl and signed a physical capacities form to that effect. According to Dr. Weitz, Mr. Coon had experienced flare-ups or exacerbations in the past, but they had been able to return Mr. Coon back to his normal functionality with pain management. However, Dr. Weitz noted that even seven months after the 2015 accident, they were not even close to getting Mr. Coon back to his normal functionality and that Mr. Coon could barely walk down the hall without experiencing extreme pain. Mr. Coon testified that the intensity of the pain in his back after the 2015 accident was more severe than it was after the 2009 accident. Mr. Coon stated that after the 2009 accident, he could do just about anything he wanted notwithstanding being uncomfortable due to the pain. However, his endurance for how long he could perform an activity, such as going to the store, was tremendously lowered after the 2015 accident.
In September of 2015, Mr. Coon was again seen by Dr. Girod, who noted that Mr. Coon appeared to be in more pain, was walking with a cane, moved slower than before, and had more diffuse back pain, even though Dr. Girod did not find any neurological changes. Mr. Coon next was seen by Dr. Girod on May 25, 2016. At that time, Dr. Girod noted that there was little change in Mr. Coon's physical exam compared to the prior visit: Mr. Coon still had chronic dorsal back pain, intermittent lower extremity radiculopathy and continued pain across his lower back, which alternated from side to side. Dr. Girod noted that Mr. Coon was still seeing Dr. Weitz and had received ESIs, which had helped, but he was still having trouble walking for long distances. However, Dr. Girod's opinion was that Mr. Coon was not a good surgical candidate and that Mr. Coon should continue his treatment with Dr. Weitz, which could include a spinal cord stimulator. He also prescribed additional physical therapy, including dry needling. Dr. Girod further opined that the injury from the 2015 accident was an aggravation of the 2009 injury and that his medical condition as of his last visit with Dr. Girod was a result of both the 2009 accident and the 2015 accident.
DISCUSSION
Standard of Review
In compensation actions, appellate review of the determinations of the OWC is performed utilizing the manifest error/clearly wrong standard. Fite v. Louisiana Title Co., 2002-2607 (La. 6/27/03), 852 So. 2d 983, 985 (per curiam) (citing Bruno v. Harbert Int'l Inc., 593 So. 2d 357, 361 (La. 1992) and Virgil v. Am. Guarantee & Liab. Ins. Co., 507 So. 2d 825, 826 (La. 1987) ). As in the instant case, the manifest error standard remains applicable even when the OWC's decision is based solely upon written reports, records or depositions. Id.
Solidary Liability
In the case of a worker who is injured in two different work-related accidents with different employers, with the second accident aggravating the injury from the first accident and causing disability, both the subsequent employer and the employer at the time of the first work-related accident are solidarily liable for compensation benefits and medical expenses due to or on behalf of the worker. DeGruy v. Pala, Inc., 525 So. 2d 1124, 1133 (La. App. 1st Cir.), writ denied, 530 So. 2d 568 (La. 1988) (citing Daigle v. Lajet, Inc., 504 So. 2d 1126, 1128 (La. App. 5th Cir. 1987) ; Gales v. Gold Bond Bldg. Prod., Div. of Nat. Gypsum Co., 493 So. 2d 611, 614 (La. 1986) ; and Wheat v. Ford, Bacon & Davis Const. Corp., 424 So. 2d 293, 298-99 (La. App. 1st Cir. 1982), writs denied, 429 So. 2d 155, 158 (La. 1983)
Circle Bowl assigns as error the OWC's failure to find Circle Bowl and Corrosion Materials solidarily liable for the payment of medical benefits to or on behalf of Mr. Coon. Circle Bowl maintains that the OWC's reasons for judgment and the May 1, 2018 judgment itself reflect that the OWC determined that the injuries Mr. Coon received from 2009 accident at Corrosion Materials were aggravated by the 2015 accident at Circle Bowl. We agree.
Despite Corrosion Materials' arguments to the contrary, the OWC did not find that the 2015 accident was a wholly unrelated and intervening incident, but instead found similarities between Mr. Coon's pre- and post-2015 accident injuries and treatments.
As reflected in the oral reasons for judgment, the OWC observed that Mr. Coon had a preexisting medical condition from the 2009 accident, which required constant medical management. However, the OWC also noted that he was at maximum medical improvement ("MMI") and was able to continue performing his job duties for almost five years until after the 2015 accident. After the 2015 accident, however, he was not able to return to work, was on a slightly higher prescription drug regimen, and was scheduled to get a spinal cord stimulator, which the OWC noted was still pharmacology, albeit a different delivery system. Also, the OWC observed that Mr. Coon had pain that waxed and waned and would occasionally have positive straight leg raise findings after the 2009 accident, but now has constant positive straight leg raise findings and increased pain levels. The OWC noted that Mr. Coon's diagnosis of lumbar spondylosis with radiculopathy, facet arthropathy, and degenerative disc disease never changed throughout his treatment after the 2009 accident and before the 2015 accident. Moreover, the only difference in Mr. Coon's MRIs before and after the 2015 accident was that the herniations from L1 to L3 had increased in size. As observed by the OWC, Mr. Coon's treatment before and after the 2015 accident essentially remained the same.
In concluding that the worsening of Mr. Coon's medical condition increased enough after the 2015 accident to shift more of the responsibility to Circle Bowl, the OWC implicitly ruled that the 2015 accident aggravated Mr. Coon's preexisting injury from the 2009 accident, which ruling is reasonably supported by the record herein.
In light of the OWC's findings and its conclusion that the injuries Mr. Coon received from 2009 accident at Corrosion Materials were aggravated by the 2015 accident, both Corrosion Materials, Mr. Coon's employer at the time of the 2009 accident, and Circle Bowl, his employer at the time of the 2015 accident, are solidarily liable for compensation benefits and medical expenses due to him or on his behalf following the 2015 accident. DeGruy, 525 So. 2d at 1133. Thus, the OWC erred in failing to render judgment finding Circle Bowl and Corrosion Materials solidarily liable for the obligation owed to Mr. Coon in light of its finding that the 2015 accident aggravated the injury sustained from the 2009 accident causing him to be unable to work.
It is well settled that causation is not necessarily and exclusively a medical conclusion; rather, it is typically the ultimate fact to be found by the fact finder based on all credible evidence. Buxton v. Iowa Police Dep't, 2009-0520 (La. 10/20/09), 23 So. 3d 275, 287 ; Bowman v. Terrebonne Par. Consol. Gov't, 2014-0978 (La. App. 1st Cir. 12/23/14), 168 So. 3d 608, 611 (citing Carmena v. St. Anthony's Home, 2011-1181 (La. App. 1st Cir. 5/2/12), 92 So. 3d 539, 541 ).
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Accordingly, we find merit to Circle Bowl's first assignment of error.
Contribution/Apportionment of Responsibility
Both Circle Bowl and Corrosion Materials maintain that the OWC manifestly erred in its apportionment of responsibility as between the employers, for medical benefits owed to Mr. Coon after the 2015 accident. The OWC found Circle Bowl responsible for 60% of all medical expenses incurred by Mr. Coon and Corrosion Materials responsible for the remaining 40%. Circle Bowl argues that the OWC should have found both it and Corrosion Materials responsible for 50% of the medical benefits owed to Mr. Coon after the 2015 accident. However, Corrosion Materials contends that if it is responsible for any of the medical benefits owed after the 2015 accident, it should be liable, at most, for 10% and Circle Bowl should bear at least 90%.
After careful consideration of the entire record, we find no manifest error in the OWC's particular apportionment of the responsibility for the medical benefits owed to Mr. Coon. The OWC provided a thorough analysis of the applicable facts in this case, and the conclusions reached therein are adequately supported by the record. Specifically, the OWC stated, in part, as follows:
Mr. Coon was a very hard-working man. He worked for Corrosion [M]aterials in a heavy-manual-labor job when he injured himself on the job on August 18, 2009, by my recollection, lifting plates. He had cut the plates, grabbed another one of the pieces, and he was lifting these pieces.
* * *
Dr. Weitz [...] manage[d] his pain with medication, strong medication. But that is what it took as the years progressed to keep him going; and he did keep going.
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Dr. Weitz's treatment kept him going, kept him working, able to work at Circle Bowl.
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The gentleman, even while he was with — far before the 2015 accident, he had back pain. I mean, the pain drawings, sometimes it would be on the left; sometimes it would be on the right; sometimes it was just back pain. What he did not have with regularity was leg pain. He would have flare-ups. His pain would wax and wane, and sometimes it would wax pretty bad. He would have days, prior to the second accident — or visits with Dr. Weitz where he would have 9 out of 10 pain. And then he would have days where he would have 4 out of 10 pain. I think the lowest I ever saw was a 3, but he always had back pain.
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In 2012, he is at MMI for this accident. He is as good as he is going to get, and basically he is being treated with Ambien, Percocet, and Oxycontin. Now, there were some other medications. When he started, he was treating -- she had him on some other things, but basically that was to settle his stomach, get a hold of pain up front. At first, it was like eight medications. But the only thing being steadily refilled, toward the middle to the end of his treatment, was Ambien, Percocet, Oxycontin. And those three prescriptions kept him at work, and he was working.
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Then on May 8 of 2012, while he [was] working for Circle Bowl, he is pulling tiles for his boss and he hurts his neck. That resolved with basically the continuance of the same drugs. But the MRI that was run after that neck injury now shows a new herniation at L4-5, but the treatment is the same.
He's still plugging along. The neck resolved. His back didn't -- it was exacerbated at that point, but then it went right back down again. It would go -- it was at a 9-10, and then it went down to a 7-10. It went down later to -- let's see. Here we are 2014, 10/27/2014, it's a 6 out of 10. He would have positive straight leg raising exams off and on in this period of time from 2009 until 2014, but it was off and on. He would have antalgic gait and normal gait off and on.
I am here to tell you, I kept looking for something that I could really hang my hat on; and it was very hard. Right up and including two months before the second accident on December 15, 2015, he's complaining of low back pain; it's a 9 out of a 10. He's got an antalgic gait; he is walking with a cane. He is tender up and down his lumbar spine at the L4-5, but he doesn't have any — straight leg raising is negative.
The diagnosis for him has been the same all this time, lumbar spondylosis with radiculopathy and facet arthropathy, degenerative -- he's got degenerative disc disease. That diagnosis has been the same all the way through....
The diagnosis does not change throughout. And on that visit, his prescriptions are Ambien, Oxycontin and Percocet.
On January 22, 2015, approximately one month before the second accident, he complained of low back pain down through his left leg, a six to a ten; so now it's reduced. So you see how it waxes and wanes even right just a few months before the second accident. And he is tender along his lumbar spine on the right bilaterally but more on the right. Everything else is normal. There are prior ones where he would be tender bilateral, more on the left, but this time it was more on the right. Diagnosis is exactly the same. Continue the prescriptions, but still just keep going along.
Then we have the second accident February [17], 2015. Mr. Coon is lifting an oil can and he felt a pop in his back. It was -- by his definition to Dr. Weitz, it was excruciating. To Dr. Girod, he said he fell to his knees it was so bad; it was very bad. He complains of low back pain and leg pain, left greater than right. He is wearing a brace, but he is still working. He's trying to supervise without performing any physical work. He's a 9 out of a 10 on the pain scale.
Now he has got tenderness in his spine bilaterally but more on the left. This time he's got a positive left straight leg raise; he's got a stiff gait. But her treatment is the same, stay on the same three prescriptions.
March 2, 2015, he returns to her, no change. She recommends an MRI.
March 9, when he returns, really no change. He is down from a 9-10 to an 8-10. He's walking with a cane. Of course, he was walking with a cane two months before -- this time she gives him a no-return-to-work slip and sends him back to see Dr. Girod to see if perhaps surgery is what should be done.
On the 26th of March, ... [s]he's recommending the MRI again. He's back up to a 9 out of 10, still working. He's using his cane. The straight leg raise is, by my accounts, since the second accident is always there. I don't believe I ever saw a visit post second accident where there was not a positive straight leg raise, which is different from before when it was intermittent, very intermittent. The whole first several years, there was no straight leg positive finding at all.
He finally gets the MRI. What it shows -- and she discussed it in her April 23, 2015 report, where he's still 9 out of a 10, is that the L3 -- L1 to L3 herniations have now increased in size, but that is really the only difference in the MRIs before and after the second accident.
[Dr. Weitz is] referring him for ESIs, which he had had even before the accident, no return to work and still wants Dr. Girod to see him for a surgical consult. He finally does see Dr. Girod, but when Dr. Girod saw him, he was still not a surgical candidate. Dr. Girod looked at everything, said, yes it's worse, but it's still -- there is no real nerve root impingement; there is no real surgical issue, and basically sends him right back to pain management to be continued with Dr. Weitz's group.
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By the last visit that I saw, he was being prepared. He had done a trial for a spinal cord [stimulator]. And he had had ESIs, but he is being worked up for a spinal cord stimulator.
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But 11/9/17.... By this time, the only difference in his medication before the second accident and after is that now Percocet is not doing it. Now he is on Dilaudid. So now he is doing Ambien
and Dilaudid and Oxycontin, complaining of back pain, leg pain down to his feet, 8 out of 10. He is at MMI. He cannot return to work. And now they are ready to implant the spinal cord [stimulator], ... the doctor said that 20 percent of his back condition, his body condition, his back pain, 80 percent of it is radicular pain; and that is what the spinal cord stimulator will take care of.
* * *
So they are going to do the spinal cord stimulator, which Dr. Weitz had discussed even back in 2012, 2011, or something. But he was doing okay with the medication, and it kind of waned again, and so that was kind of dropped. So all of these treatments had been considered or had been done.
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He is worse now in that he went from being able to work to not being able to work. He should not have been attempting to do some of the work that he was doing at Circle Bowl, but that is what it is. He had a preexisting medical condition, back condition, back and leg condition that required constant medical management, but he was at MMI and able to do his job and had been doing it for almost five years, until now not being able to work at all but being back on prescription drugs. He is now back on a slightly higher prescription drug and going to get a spinal cord stimulator, but that is still pharmacology. That is just a different delivery system.
He went from intermittent positive straight leg raise findings to constant positive straight leg raise findings. He went from waxing and waning in pain to high-end mainly pain. I don't think I ever saw it get below a 7. He went from Percocet to Dilaudid, which is an increase in the type of medication.
The Court finds that Corrosive Materials owns 40 percent of the medical condition and that Circle Bowl owns 60 percent of the medical condition. I think his present medical condition has increased enough to give an edge to Circle Bowl. They are the winner today.
On review, we find no error in the OWC's findings, which are amply supported by the evidence. Accordingly, we affirm the judgment of the OWC ordering that, as between the solidary obligors, Circle Bowl is responsible for 60% of all medical incurred by Mr. Coon after the 2015 accident and Corrosion Materials is responsible for the remaining 40%.
Thus, Circle Bowl's second assignment of error and Corrosion Materials' sole assignment of error lack merit.
CONCLUSION
For the above reasons, the May 1, 2018 judgment of the OWC is hereby amended to provide that Circle Bowl and its insurer, Liberty Mutual Insurance Company, and Corrosion Materials, Inc. and its insurer, Liberty Mutual Insurance Company, are solidarily liable for the obligation owed to Barry Coon, i.e., all medical expenses incurred by or due Mr. Coon after February 17, 2015. Finding no error in the apportionment of liability amongst these employers as solidary obligors, the remaining portions of the judgment are affirmed.
Costs of this appeal are assessed 60% to Circle Bowl and its insurer, Liberty Mutual Insurance Company, and 40% to Corrosion Materials, Inc. and its insurer, Liberty Mutual Insurance Company.
AMENDED IN PART; AND AFFIRMED, AS AMENDED.
McClendon, J. concurs in the result reached by the majority.