MARSHALL v. CITY OF WINNSBORO (2025)

This civil appeal arises from the Office of Workers’ Compensation District 1E, Union Parish. The Honorable Brenza Irving Jones, presiding as the workers’ compensation judge (“WCJ”), denied claimant, Jay Marshall, permanent and total disability benefits under La. R.S. 23:1221(2). For the following reasons, we affirm.

FACTS

Jay Marshall (“Marshall”), while employed as a supervisor for the water department for the Town of Winnsboro (“Winnsboro”), injured his back in November 2012, and filed a 1008 claim for workers’ compensation against Winnsboro, claiming he suffered a work-related injury. Winnsboro initially refused to pay for medical treatment, arguing Marshall's injury was not work-related and he already received retirement benefits through the Deferred Retirement Option Plan (“DROP”), such that he was not entitled to compensation benefits.

The WCJ concluded Marshall's injury was work-related and he was entitled to temporary total disability benefits (“TTD”) beginning September 18, 2013, and after November 1, 2013, those benefits would be converted to supplemental earning benefits (“SEB”). The WCJ also awarded medical and indemnity benefits as well as penalties and attorney fees. On appeal, this Court affirmed the award. See Marshall v. Town of Winnsboro, 50,255 (La. App. 2 Cir. 11/25/15), 184 So. 3d 796 (“Marshall I”). In 2017, Marshall filed a claim for compensation seeking reimbursement for mileage and payments associated with his medical visits. In turn, Winnsboro filed a reconventional demand alleging the award for SEB should be terminated because Marshall voluntarily retired from the workforce.

The WCJ determined Marshall was entitled to reimbursement because the mileage and payments associated with his medical visits were related to his work injury. The WCJ further found that Marshall did not voluntarily retire but had not returned to work because of his disability. On appeal, this Court affirmed the ruling, finding that under La. R.S. 23:1203(D), Marshall was entitled to reimbursement for medical visits and mileage expenses. This Court also concluded that Marshall had not withdrawn from the workforce but rather was unable to work because of his continued back pain based on testimony and medical evidence presented at trial. See Marshall v. Town of Winnsboro, 52,733 (La. App. 2 Cir. 7/10/19), 277 So. 3d 907 (“Marshall II”). Thereafter, Winnsboro has paid, and Marshall has received, 520 weeks of SEB, which terminated on October 8, 2023.

On December 22, 2023, Marshall filed another 1008 claim, alleging his indemnity benefits were wrongfully terminated, and he should receive indemnity benefits for permanent total disability (“PTD”). To support his assertion, Marshall submitted reports from his neurosurgeon, Dr. Bernie McHugh (“Dr. McHugh”), which indicated that Marshall was not suitable for employment due in part to the extensive medication he was prescribed for his back pain. In response, Winnsboro denied Marshall's allegation and argued that Marshall was not totally and permanently disabled and received the maximum 520 weeks of SEB as ordered by the WCJ. Prior to a hearing on the matter, Winnsboro requested a second medical opinion from another neurosurgeon, Dr. Marshall Cain (“Dr. Cain”), to assess Marshall's condition. The report was issued on August 20, 2024, wherein Dr. Cain generally disagreed with Dr. McHugh's report that Marshall could not perform any type of job function.

Thereafter, the parties stipulated that Marshall (1) was injured in the course and scope of his employment, (2) received 520 weeks of indemnity benefits with a corresponding compensation rate of $551.20, and (3) those benefits ceased in October 2023. Therefore, the remaining issues before the WCJ were the nature and extent of Marshall's disability, whether Marshall was permanently and totally disabled, and whether Marshall was entitled to penalties and attorney fees.

A hearing on the matter commenced October 9, 2024, wherein the following evidence and testimony were presented:

First, Marshall provided a brief overview of his medical history in which he testified that since his injury, his primary treating physicians were Dr. McHugh, who performed his three-level surgery in 2014, and Dr. Hardy Gordon (“Dr. Gordon”), whom he sought for pain management. Marshall explained that since his surgery, he received some spinal injections, but his pain had only increased, and Dr. McHugh recommended a second surgery to address the pain. Marshall stated that he declined the procedure because it would make his back “stiff as a board,” whereas now he had some ability to bend. Marshall further stated that he was prescribed several medications for his back, including Norco, Cymbalta, and Celebrex. He explained that the medication was fairly strong and caused drowsiness throughout the day.

Marshall testified that as a result of the ongoing pain in his back and the side effects of his medication, he spends most of his day lying on the couch, and the few activities he can perform were limited to a few hours of lawn care, recreational hunting and fishing, “piddl[ing] around” in his tool shop with metalwork, and some driving in rural areas. Regarding his ability to perform lawn care, Marshall explained that he used a riding lawn mower to cut his and his mother's yards, and he would pick up debris and tree cuttings; however, he has to take several breaks throughout and is “laid up a day or two” after. With respect to hunting and fishing, Marshall explained that he deer hunts about four times a year with assistance from his family, but he can only sit in the deer stand for an hour before his back hurts. Likewise, Marshall stated that while he can fish, his back pain limits how long he can engage in the activity.

Marshall then testified that he had not been employed since indemnity payments ceased because the pain in his back prevents him from performing certain activities, especially those that require him to lift heavy objects or to bend, sit, or stand for long periods of time. Marshall stated that because of his pain, there was no activity he could do on a sustained basis, and he could not be employed at any job where he would have to sit or move around daily.

On cross-examination, Marshall admitted that prior to October 2023, he only saw Dr. McHugh once a year. Marshall further admitted that it was recommended that he receive a spinal stimulator, but that he declined the treatment because of adverse results his family members had after having the procedure. Marshall also admitted that he declined to receive further steroid injections because he did not feel that they alleviated his pain. Marshall also stated he saw Dr. Gordon monthly but could not recall whether he reported on at least three different occasions that the medication kept his pain under control and allowed him to function daily with less pain.

Marshall reiterated that he was not employed and had not applied for any form of work in the last 10 years since his back surgery; however, he could still engage in some physical activity until the pain in his back forced him to stop. Marshall clarified that his yardwork consisted of picking up and tossing small tree limbs into a hand wagon, weeding with a pressurized sprayer, and using a leaf blower. Marshall also clarified that he only fished six times in the past year and could do so because he was able to hook his boat to his truck and launch it into the lake without much effort or strain on his back. Marshall further explained that he was also able to occasionally dove hunt because he would sit and lean against a tree as he did. Marshall stated that he could also perform some light mechanics and metalwork in his tool shop because the mill machine only requires small pieces of metal that he can cut while sitting.

In discussing his past work as a supervisor, Marshall testified that he was required to operate a backhoe, install fire hydrants, and lay pipes. He stated that any paperwork he had to fill out was done by hand because he did not know how to operate a computer. Marshall testified that as a supervisor, he had at least 10 different state certifications that he obtained through in-person classes provided by the city. Marshall stated that while he was not employed, he received Social Security disability, retirement, and earns approximately $3,200 annually from farmland that he rents out.

During an inquiry with the WCJ, Marshall stated that, in reference to the metalwork he does in his tool shop, he has some machines that were given to him that are used to make parts such as gun barrels. Marshall expressed that he would like to use the machine more, but because it requires some bending to use, he does not use it and stated that he just does not “feel like doing it.”

Next, Margaret Dearman (“Dearman”), a workers’ compensation claims specialist and adjuster, testified that she was an employee for Risk Management, Inc., a third-party adjuster for Louisiana Municipal Employers Association. Dearman explained that she was responsible for ensuring Marshall's medical treatments were authorized and paid, and his indemnity benefits were distributed monthly. Dearman explained that payments were primarily made for Marshall's yearly visits with Dr. McHugh and his pain medication and muscle relaxers. Dearman noted that prior to Marshall's indemnity benefits being terminated, recommendations were made for steroid injections and a spinal stimulator, but a request was never submitted. She stated, however, that after indemnity benefits were terminated, there was an increase in requests for pain medication, steroid therapy, and a TENS unit;¹ however, a utilization review determined that those procedures were not medically necessary. Dearman clarified that despite Marshall's indemnity payments being terminated, his medical benefits were still active.

Dearman testified that she received progress notes from Dr. McHugh and Dr. Gordon concerning Marshall's disability. Dearman acknowledged that while Dr. McHugh provided that Marshall was “not suitable for any type of meaningful return to the workplace,” the report did not indicate that Marshall was totally and permanently disabled. Dearman further noted that neither Dr. Gordon nor Dr. McHugh put any restrictions on Marshall's activities, such as operating heavy machinery, driving, or physical activities like hunting, and there was an indication Marshall could function normally on his medication. Dearman stated that Dr. Cain's report indicated that Marshall could return to some light-duty employment, and the request for PTD was denied on that basis.

Next, Samantha Williamson (“Williamson”) was tendered as an expert in vocational rehabilitation. Williamson testified she was assigned to assess Marshall's vocational abilities following his injury. She explained that although she was unable to meet with Marshall in person because his attorney declined the interview, she was nevertheless able to provide an assessment of Marshall's transferable skills based on his experience as a water supervisor, his daily activities and hobbies, his medical records, his depositions, and his functional capacity examination (“FCE”) from 2018.

Williamson opined that, from this information, Marshall was capable of returning to some level of work, noting that no restrictions were placed on his ability to drive or operate heavy machinery despite claims that his pain medications made him drowsy. Williamson then enumerated several part-time positions Marshall could apply for that were classified as light-duty activities; likewise, she noted that several of the activities Marshall already engaged in, such as yard work, were classified as light to medium work, and he could perform those on a part-time basis and operate the business himself to set his own hours to take breaks as needed. Williamson testified that she had previous clients with similar back injuries who successfully returned to some form of employment.

On cross-examination, Williamson admitted Marshall's attorney declined her interview because at that time, no doctor had opined Marshall could return to any form of employment. Williamson stated, however, that there are no restrictions that prevent her from being assigned to a case simply because a doctor has not provided a release to return to work. She also admitted that she sent no follow-up letter to meet with Marshall. Williamson stated that while Dr. McHugh opined that Marshall could not return to any form of meaningful employment, Dr. Cain found that based on Marshall's FCE, he was capable to performing light-duty work, to which she agreed. Williamson acknowledged that Dr. Cain's assessment was based, in part, on a six-year-old FCE report, and there was no recent assessment done on Marshall's vocational abilities. Williamson also acknowledged that Marshall's treating physicians would have to approve any employment she found Mashall would be capable of performing.

In response to whether Marshall would be able to work under the influence of his medication, Williamson testified that Dr. Gordon, who prescribes Marshall his pain medication, is aware that drowsiness is a side effect of his medication, yet placed no restrictions on Marshall's activities despite knowing that Marshall drives in rural areas, hunts, fishes, and even performs yardwork. She also noted that neither Dr. McHugh nor Dr. Gordon provided that Marshall could not work, only that he could not engage in “meaningful employment,” which often has a different meaning for doctors than it would in her profession. Williamson noted that Dr. McHugh made no note of whether Marshall was totally and permanently disabled.

At the close of testimony, the WCJ ordered post-trial briefs. Thereafter, on December 11, 2024, the WCJ rendered its ruling with written reasons, finding that Marshall was not totally and permanently disabled, and dismissed his claim with prejudice. This appeal followed.

STANDARD OF REVIEW

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harris v. City of Bastrop, 49,534 (La. App. 2 Cir. 1/14/15), 161 So. 3d 948, 957; State, DOTD v. Berry, 49,186 (La. App. 2 Cir. 8/13/14), 147 So. 3d 270. Factual findings in workers’ compensation cases are subject to the manifest error standard of review. Id.; Buxton v. Iowa Police Dept., 09-0520 (La. 10/20/09), 23 So. 3d 275. Under this standard, the reviewing court does not decide whether the workers’ compensation judge was right or wrong, but only whether the judge's findings are reasonable. Buxton v. Iowa Police Dept., supra. The manifest error standard applies even when the WCJ's decision is based on written reports, records, or depositions. Harris v. City of Bastrop, supra.

The reviewing court is not permitted to reweigh the evidence or reach its own factual conclusions from the record. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So. 3d 1253. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Harris v. City of Bastrop, supra. Where there exist two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

In Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1979), the Louisiana Supreme Court set forth a two-part test for the appellate review: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. See also Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So. 3d 215.

DISCUSSION

By his first assignment of error, Marshall argues that the WCJ erred in finding he was not entitled to PTD benefits because it erroneously relied on the second medical opinion from Dr. Cain and testimony from Williamson in rendering its decision, rather than reports from his treating physicians and his own testimony that his back pain significantly limited his physical activity.

Marshall first argues that under La. R.S. 23:1317.1, Winnsboro was required to make a request for a second medical opinion “at or prior to the pretrial conference.” In this case, Marshall asserts that Winnsboro did not obtain Dr. Cain's report until shortly before trial; therefore, only the medical opinions from his treating physicians should have been given greater weight in the WCJ's ruling. We disagree.

La. R.S. 23:23:1317.1 provides, in pertinent part:

A. Any party wishing to request an additional medical opinion regarding a medical examination of the claimant pursuant to R.S. 23:1123 and 1124.1 shall be required to make its request at or prior to the pretrial conference. Requests for additional medical opinions regarding medical examinations made after that time shall be denied except for good cause or if it is found to be in the best interest of justice to order such examination.

The record in this case reflects that a scheduling conference was held on May 7, 2024, in which trial was scheduled for July 31, 2024. Thereafter, Winnsboro filed a motion to continue on May 31, 2024, specifying that the parties agreed that another physician, Dr. Cain, would be retained to provide a second medical opinion, following a medical examination and the release of Marshall's medical records. Although a hearing was scheduled to address the motion, the record does not reflect that Marshall opposed the motion, and trial was scheduled for October 9, 2024. Moreover, the record reflects that Dr. Cain examined Marshall on August 8, 2024, and submitted his report on August 24, 2024. On September 6, 2024, Winnsboro filed its supplemental and amended pretrial statement, which provided it would submit Dr. Cain's report at trial.

The record indicates that while no pretrial conference was requested by either party or upon order by the WCJ, Winnsboro, as agreed to by Marshall's attorney, requested that another physician examine Marshall for a second medical opinion. Winnsboro provided that it intended to use this information through several motions, and in its pretrial statement several months before trial occurred. Notably, Marshall neither objected to nor challenged the second medical opinion before the exam or after. La. R.S. 23:23:1317.1(F) provides:

F. Objections to the additional medical opinion regarding a medical examination shall be made on form LDOL-WC-1008, and shall be set for hearing before a workers’ compensation judge within thirty days of receipt. No mediation shall be scheduled on disputes arising under this Section.

Moreover, a WCJ “has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence.” Jones v. Walpole Tire Service, Inc., 38,206 (La. App. 2 Cir. 3/3/04), 867 So. 2d 927. A WCJ is not strictly bound by the technical rules of evidence and has the discretion to determine the admissibility of the evidence in a workers’ compensation proceeding. Id. La. R.S. 23:1317(A).

Given this, we cannot say that Winnsboro obtained the second medical opinion in violation of La. R.S. 23:23:1317.1, or that the WCJ erred in permitting the evidence to be submitted. Likewise, we cannot say that the WCJ erred in considering Dr. Cain's report despite Marshall's assertion that the opinions of his treating physicians should have prevailed over Dr. Cain's opinion, who only examined him once in anticipation of trial.

Generally, our courts have followed the jurisprudential rule that a treating physician's opinion is given more weight than that of a non-treating physician. Longoria v. Brookshire Grocery Co., 37,975, (La. App. 2 Cir. 12/19/03), 862 So. 2d 1172, writ denied, 04-157 (La. 4/23/04), 870 So. 2d 299. However, courts applying that doctrine have held that the treating physician's testimony is not irrebuttable, as the trier-of-fact is required to weigh the testimony of all of the medical witnesses. Id. As this Court noted in Longoria, supra:

There can be competing reasonable views of the medical evidence from which the trier-of-fact may choose, regardless of whether the evidence involves the opinion of a specialist or the treating physician. The deference, therefore, to be afforded by the appellate court must be based upon the manifest error doctrine.

Moreover, this Court in McKinney v. Coleman, 36,958 (La. App. 2 Cir. 3/14/03), 839 So. 2d 1240, acknowledged that while the opinion of an independent medical examination physician is not conclusive:

․ the WCJ must evaluate all of the evidence presented in making a decision as to the claimant's condition. Jennings American Legion Hosp. v. Daigle, 01-621 (La. App. 3 Cir. 11/14/01), 801 So. 2d 550, writ denied, 01-3294 (La. 9/5/03), 852 So. 2d 1038. The significant weight given to the opinion of the IME physician can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors.

Accordingly, the inquiry is whether, based on the totality of the record, the fact finder was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by the claimant. See, Miller v. Clout, 03-91 (La. 10/21/03), 857 So. 2d 458.

In the case sub judice, the WCJ's written reasons for ruling reflect that it reviewed and weighed all of the medical reports submitted in this matter, including Marshall's treating physicians, as well as Dr. Cain's equally. The WCJ was not only in the best position to make credibility determinations, but it was within its purview to evaluate each medical report and afford more or equal weight to either opinion. Importantly, the WCJ provided in its written reasons for ruling that it “gave great consideration to the opinions of Dr. McHugh and Dr. Gordon.” Therefore, we cannot say the WCJ was manifestly erroneous in this regard.

Marshall further argues that he takes strong pain medication that causes drowsiness throughout the day, and the instruction on his medication indicates he should not drive or perform any activity that calls for him to be alert. Marshall notes that he performs limited activities and is only able to do so because of the medication. He argues that the WCJ misunderstood the manner in which he can hunt and fish and perform other physical activities.

Specifically, he argues that his activities are primarily sedentary; he does not have to lift or drag heavy objects, and more importantly, he only hunts approximately four times a year, spending no more than an hour to an hour-and-a-half doing this activity. With respect to fishing, Marshall argues again that the activity does not require any strenuous activity; he limits his driving to country roads and is only able to mow his and his mother's yards on a riding lawn mower, which takes him approximately three hours with breaks.

Marshall submits that these limited activities do not reflect his ability to engage in any meaningful employment and asserts that occasional spurts of activity do not defeat his claim that he is totally and permanently disabled. We disagree.

An injured employee may be entitled to PTD benefits when he sustains a very serious or catastrophic injury that renders him unable to return to work in any capacity. La. R.S. 23:1221(2). Moreover, La. R.S. 23:1221(2)(c) provides, in pertinent part:

Whenever the employee is not engaged in any employment or self-employment, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

The clear and convincing standard in a workers’ compensation case is an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Allen v. Graphic Packaging Int'l, Inc., 51,080 (La. App. 2 Cir. 1/11/17), 211 So. 3d 1219, writ denied, 17-0426 (La. 4/24/17), 221 So. 3d 68. To prove a matter by clear and convincing evidence means to demonstrate that the existence of the disputed fact is highly probable or much more probable than its nonexistence. Id. Absent any evidence to support the notion that a workers’ compensation claimant will be forever disabled or is unable or unwilling to learn a new compensable skill or polish the old one he already has, every procedural precaution must be taken to ensure that claimant is not prematurely declared permanently and totally disabled. Id.; Comeaux v. City of Crowley, 00-928 (La. App. 3 Cir. 12/6/00), 773 So. 2d 899, aff'd on other grounds, 01-0032 (La. 7/3/01), 793 So. 2d 1215.

In Comeaux, the Louisiana Supreme Court held that La. R.S. 23:1221(2)(c) requires consideration of the claimant's physical condition, wage earning ability, and unsuccessful rehabilitative efforts including the claimant's educational level and ability to be educated. Comeaux v. City of Crowley, supra.

Moreover, La. R.S. 23:1226(D) provides that before a claimant is found to be permanently and totally disabled, it shall be determined “whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.” The requirement of La. R.S. 23:1226 must be construed in pari materia with La. R.S. 23:1221(2). Allen, supra. Unsuccessful rehabilitation attempts, including the lack of ability to be educated or retrained, along with physical incapacity, are proper factors to consider in determining whether a claimant proved his permanent and total disability. Id.; Comeaux, supra.

In the present case, there is no dispute Marshall was injured and suffers from lower back pain. Therefore, the only inquiry is whether Marshall's diagnosis is so disabling it renders him permanently and totally disabled and he is unable to engage in any form of meaningful employment. The WCJ found that Marshall was not entitled to PTD benefits based, in part, on Marshall's own testimony. Specifically, the WCJ stated:

While this Court gave great consideration to the opinions of Dr. McHugh and Dr. Gordon, this Court cannot ignore the extensive activities engaged in by Claimant during the period of alleged disability. The performance of activities as described by Claimant, including mowing, driving, doing metal work, fishing, hunting, and loading trailers, persuades this Court that he failed to demonstrate by clear and convincing evidence that he is physically unable to engage in any employment.

This Court finds Claimant has certainly engaged in activities for which he can receive a substantial income. Furthermore, this Court questions the credibility of Claimant when he testified concerning his limitations. This Court is persuaded that Claimant actually engages in much more undertakings than those revealed during his statements to the Court. For example, Claimant testified about his hunting of deer. He alleges he goes into the woods, kills the deer and then calls his son to come and retrieve the deer. The Court finds this testimony to be suspect.

Furthermore, Clamant contends he only drives in the country but not in town. However, inasmuch as he admits to driving from the town of Winnsboro, Louisiana, to the town of Delhi, Louisiana, this Court finds it difficult to believe that there is a limitation on his driving ability. Additionally, there is medical evidence supporting his ability to return to work, and actual positions were found to accommodate any work restrictions imposed.

On review, we find that the record supports the WCJ's finding that Marshall did not satisfy his burden of proof that he cannot engage in some form of gainful employment, either full-time or part-time, in the future.

While we acknowledge that Marshall was injured and underwent major surgery to address the pain, Marshall's testimony and his medical records reflect that he has made significant progress despite his diagnosis and pain and is not only able to engage in various forms of physical activity, but that his pain can be managed through medication so he can perform those activities. Specifically, Marshall stated that he is able to operate a riding lawn mower to care not only for his own lawn, but his mother's lawn as well. Marshall stated he was able to weed both lawns with a pump sprayer and pick up limbs and other debris on the properties and load them onto a wagon that he pulls by hand.

Moreover, Marshall expressed that he still engages in recreational hunting and fishing. By his own admission, Marshall explained that he goes fishing approximately six times a year, and during those trips, he is not only able to load his gear into the boat by himself and attach his boat trailer to his truck, he can also drive to desired fishing locations, which can range from three, 20, or 30 miles from his home. Marshall further explained that he can launch the boat into the water and retrieve it without assistance. He stated that while fishing, he is able to alternate between sitting and standing and that he does a lot of “moving around” during this time.

Marshall further stated that he is able to deer and dove hunt for a few hours, drive to run errands approximately three times a week, perform some light maintenance around his home, perform some light mechanics on his truck, and engage in light metal work in his toolshed, which he is able to do because it required little to no bending or lifting and he is able to sit on a stool so he would not have to stand for long periods of time. Although Marshall stated he needed to either take breaks between the activities or limit how often he could do them, he nevertheless admitted that he was able to perform these activities despite his pain, which is further supported by his medical records.

Although Marshall emphasizes that Dr. McHugh's and Dr. Gordon's opinion that his disability prevented him from returning to any form of meaningful employment should have been given greater weight at trial. However, we note Dr. McHugh was specifically asked whether he believed Marshall was permanently and totally disabled based on his medical history. Dr. McHugh provided a brief statement that:

The patient underwent lumbar interbody fusion at L3 through S1 on back on 04-04-12. He did well with that. He subsequently developed further problems at adjacent levels. We have been following him for that and had recommended surgical treatment; however, the patient declined at that point.

He continues to experience significant difficulty regarding his low back. He continues to take narcotic medication on a daily basis.

With the above information, the patient is not suitable for any type of meaningful returning to the work place.

Dr. Gordon was asked whether he agreed with Dr. McHugh's assessment, to which he also briefly provided, “I have reviewed Dr. McHugh's notes and recommendations. I agree with his conclusion.”

However, emphasis on these opinions alone ignores the entirety of Marshall's medical history in which Dr. Gordon acknowledged Marshall's physical activities such as lawn care and hunting, recommended resuming normal daily activities, and opined that Marshall was able to function and manage his pain because of his medication. Notably, Dr. Gordon's most recent notes provided, in part:

4/18/2022- Medicines do allow him to function on a daily basis with less pain.

8/10/2022- Medication allows him to function on a daily basis with less pain.

3/3/2023- Back pain is present most of the time. Medicine keeps his pain under control and allow him to function.

4/28/2023- ․ Medication is adequate to provide partial relief of pain allowing him to continue his daily activities.

9/19/2023- Continuation of lower back pain. States his medication keep his pain under control.

10/17/2023-․ Patient tells me he is actually doing well with his current medications. He tells his medication allows him to function on a daily basis with less pain.

11/14/2023-․ He tells me his medication allows him to function and continue with his outdoor activities with less pain.

Dr. Gordon's notes reflect that while Marshall continued to experience lower back pain, he was still able to engage in outdoor activities and even drive without issue. Moreover, Dr. Gordon never restricted Marshall's ability to drive or operate machinery despite knowing drowsiness was a side effect of the medicine, and Marshall did not complain that his drowsiness impacted his ability to function on a daily basis. Importantly, neither Dr. McHugh nor Dr. Gordon provided a definitive finding that Marshall was permanently and totally disabled, and Dr. Cain, who examined Marshall and reviewed his medical reports, opined Marshall was not permanently disabled and that his medicine would not preclude him from any type of light duty work.²

Further, regarding Marshall's potential ability to work or to engage in meaningful employment, Williamson, the vocational expert in this case, found that Marshall could return to light duty employment. Williamson explained that she was able to assess and evaluate Marshall without meeting in person, and determined, based on Marshall's medical history, his FCE, and his depositions, that Marshall could return to light duty employment in the open labor market. Williamson stated that because several of the current activities Marshall already engaged in were considered light duty work, he could be self-employed and work at his own pace in lawn care or perform light maintenance from his tool shop. Williamson also identified that because Marshall was not restricted from driving while using his current medication, he could also drive for companies such as Uber, which would allow him to control his own hours, take breaks as needed, and limit where he would want to drive. Moreover, Williamson noted Marshall owns rental properties, highlighting it as a potential form of employment and income.

Although Marshall has argued that he suffers from chronic back pain and must take several breaks in between activities, his medical reports indicate he is able to function on a daily basis because of his medication and engage in recreational activities despite any potential side effects. Given the record before this Court, we cannot say that Marshall has shown that he is permanently disabled, or that he cannot engage in some gainful form of employment in the future.

Accordingly, we find that the WCJ did not err in its ruling concerning Marshall's disability, we find no merit in Marshall's second assignment of error that the WCJ should have awarded him penalties and attorney fees.

CONCLUSION

For the reasons stated herein, WCJ's findings are affirmed. Costs of this appeal are assessed to Marshall.

AFFIRMED.

FOOTNOTES

1.   A TENS (transcutaneous electrical nerve stimulation) unit is a battery-operated device that delivers small electrical currents through electrodes placed on the skin to reduce pain and muscle spasms by blocking pain signals and/or triggering the release of natural painkillers (endorphins).

2.   This Court notes that Marshall was previously cleared by at least two physicians to return to light duty or sedentary work. See Marshall II.

COX, J.