Ammons v. St. Paul Fire & Marine Ins. Co.

525 So. 2d 60, 1988 La. App. LEXIS 135, 1988 WL 6753
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1988
Docket86-1274
StatusPublished
Cited by25 cases

This text of 525 So. 2d 60 (Ammons v. St. Paul Fire & Marine Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ammons v. St. Paul Fire & Marine Ins. Co., 525 So. 2d 60, 1988 La. App. LEXIS 135, 1988 WL 6753 (La. Ct. App. 1988).

Opinion

525 So.2d 60 (1988)

Barry G. AMMONS, Jr., et ux., Plaintiff-Appellant,
v.
ST. PAUL FIRE & MARINE INSURANCE CO., Defendant-Appellee.

No. 86-1274.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1988.
Writ Denied March 25, 1988.

*61 James D. Davis, Alexandria, for plaintiffappellant.

Provosty, Sadler & Delaunay, Albin Provosty, Alexandria, for defendant-appellee.

Before DOMENGEAUX, FORET and DOUCET, JJ.

DOUCET, Judge.

Plaintiff, Barry G. Ammons, Jr., appeals from a judgment awarding him only special damages for medical expenses incurred as the result of injuries sustained in an automobile truck collision.[1] Liability for the accident is not an issue on appeal, only quantum.

On October 15, 1984, as plaintiff, his wife, and infant child were exiting a parking lot, defendant, Joseph McHenry, backed his tractor-trailer truck into the Ammon vehicle. Moments before the impact, plaintiff twisted his torso around, reaching towards the rear seat in an effort to protect his wife and child who were seated there. Shortly after the accident plaintiff began experiencing pain in his back and subsequently in his legs.

Plaintiff was examined by Dr. John T. Weiss, an orthopedic surgeon, who diagnosed plaintiff to be suffering from between a Grade 1 and Grade 2 spondylolisthesis, or slippage of one vertebra on top of another. Grade 1 is the lowest classification of four degrees of spondylolisthesis. He also found that plaintiff suffered from spondylosis, or lack of continuity of the vertebra, which in turn facilitated the spondyloslisthesis. Dr. Weiss felt that both the spondylosis, a common congenital defect, and the spondylolisthesis were present before the accident. The spondylolisthesis, he felt, was asymptomatic before the accident and the accident aggravated the condition, causing it to become symptomatic. This opinion was based upon plaintiff's history that he had not experienced any back pain or similar problems before the accident. Dr. Weiss twice scheduled plaintiff for back surgery and each time plaintiff backed out.

Plaintiff decided to obtain a second opinion, and, in July 1985, was examined by Dr. Kenneth Vogel, a neurosurgeon. Plaintiff complained to him of low back pain and numbness in his legs below the knees. Dr. Vogel diagnosed plaintiff to have spondylosis with a Grade 1 spondylolisthesis. He also found moderate muscle spasm on both sides of plaintiff's lower back. He scheduled surgery for plaintiff and on August 21, 1985, performed a microscopic laminectomy. Dr. Raymond Kitziger, an orthopedic surgeon, performed a spinal fusion at the L-5, S-l level of plaintiff's spine during that same operation. The microscopic laminectomy was necessary to relieve pressure on a nerve caused by the spondylolisthesis which resulted in the nerve being "scissored" between two vertebra.

Dr. Vogel stated that the surgery revealed a Grade-2 spondylolisthesis with compression of the L-5 nerve root. He stated that the spondylosis existed from birth but that spondylolisthesis (slippage) *62 usually occurs at the time that pain symptoms appear. Considering plaintiffs history he opined that the accident was the most likely cause of the appearance of pain symptoms and muscle spasm. Dr. Vogel gave plaintiff a 25% permanent disability rating after the operation. He felt that the plaintiff suffered no disability before the accident and onset of pain symptoms because, he stated, if plaintiff had no pain he had no disability.

Dr. Raymond Kitziger, who performed the spinal fusion on plaintiff, examined him before the operation and found a forty to fifty percent restriction of flexion and extension of plaintiffs lumbar spine. He also noted the presence of muscle spasm in the large paravertebral muscles running along each side of plaintiffs spine which, he explained, was an objective symptom. He stated, "the back was trying to do its own fusion by the muscles going into spasm to hold him still." Dr. Kitziger felt that the spondylolisthesis had occurred or developed before the automobile accident but was asymptomatic. He said he would have given plaintiff a 10% disability rating even before the accident when there was no pain, and, as Dr. Vogel, a 25% permanent disability rating since the accident and operation. Dr. Kitziger agreed that the type of automobile accident plaintiff was involved in could have precipitated the onset of pain symptoms in the plaintiff. This supposition, he stated, was based upon plaintiffs history that he suffered no back pain before the accident.

Plaintiff testified that prior to the accident he had never experienced any back pain or problems with his back. During his junior and senior high school years he had been active in sports including football, basketball, baseball, and track. After high school he continued running, often in organized races. He also enjoyed lifting weights and playing recreational football. Since the accident and his operation he no longer engages in these activities. In February 1985, some four months after the accident but before his back surgery, plaintiff began working as a masonry tender or brick layer's helper. This work involved carrying bricks and concrete blocks, mixing mortar, setting up and dismantling scaffolding, and generally assissting the masons. He continued this work up until his surgery in August 1985 and testified that he returned to work some two and one-half months after the surgery. The plaintiff testified that the work hurt his back but that he needed to support his wife and child and had no alternative but to work. He has a high school general equivalency diploma, no college, and no specific job training or skills. To deal with the pain he would take non-prescription Tylenol as well as muscle relaxers prescribed for him.

Plaintiff's wife, Dina Ammons, testified that she had never heard the plaintiff complain of pain in his back or legs before the accident. After the accident he often complained of pain in his back and took a lot of Tylenol. She would massage his back in the evening and he would soak in a bathtub of hot water. She stated that since the operation plaintiff is doing better but still complains of pain and takes muscle relaxers. She also still massages his back.

A fellow employee of plaintiff's, a bricklayer, testified that he had heard plaintiff complain that his back was hurting him and that he had seen him take pills on occasion. Plaintiff's employer, Richard Spurgeon, also testified that plaintiff had mentioned to him that his back hurt. The employer admitted however, that plaintiff performed all of the job-related tasks required of him. The employer characterized a masonry tender's job as "hard work", noting that the heavy bricks or blocks weigh from 18 to 25 pounds each.

The defense brought out that subsequent to the automobile accident but prior to the operation the plaintiff fell some fifteen to eighteen feet to the ground when a scaffold he was working on collapsed. Plaintiff claimed that the fall did not aggravate his back condition and this is supported by an emergency room report which concludes that the plaintiff only bruised his leg in the fall. Plaintiff was taken to the emergency room as a precaution and returned to work later that same day to perform his regular work duties. A fellow employee confirmed plaintiffs return to work the day of that *63 accident while another testified that plaintiff was grinning when he saw him lying on the ground amidst the collapsed scaffolding equipment, indicating that he was not hurt.

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Bluebook (online)
525 So. 2d 60, 1988 La. App. LEXIS 135, 1988 WL 6753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ammons-v-st-paul-fire-marine-ins-co-lactapp-1988.