Andrus v. Board

626 So. 2d 1224, 1993 WL 465402
CourtLouisiana Court of Appeal
DecidedNovember 10, 1993
Docket93-253
StatusPublished
Cited by9 cases

This text of 626 So. 2d 1224 (Andrus v. Board) 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
Andrus v. Board, 626 So. 2d 1224, 1993 WL 465402 (La. Ct. App. 1993).

Opinion

626 So.2d 1224 (1993)

Ernestine and Curtis ANDRUS, Plaintiffs-Appellants,
v.
Rodger BOARD and the City of Lake Charles, Defendants-Appellees/Appellants.

No. 93-253.

Court of Appeal of Louisiana, Third Circuit.

November 10, 1993.

*1225 Russell T. Tritico, Lake Charles, for Ernestine Andrus, et ux.

Christopher E. John, Lake Charles and M. Rebecca Pierrotti, Kinder, for Rodger A. Board, et al.

Charles V. Musso Jr., Lake Charles, for Farm Bureau Ins. Co.

Before DOMENGEAUX, C.J., and LABORDE and COOKS, JJ.

DOMENGEAUX, Chief Judge.

Ernestine Andrus filed suit for injuries sustained when her vehicle was rear-ended by Rodger Board while he was in the course and scope of his employment with the City of Lake Charles. Her husband Curtis Andrus also filed a claim for loss of consortium. After a bench trial, the trial court awarded damages as follows: to Mrs. Andrus, $48,452.00 for two years past lost wages and $20,000.00 for general damages and medical expenses; to Mr. Andrus, $1,500.00 for loss of consortium.

The Andruses have appealed, alleging the following assignments of error:

1. The total sum awarded for Mrs. Andrus' pain, suffering and medical expenses was unreasonably low;
2. The trial court should have awarded a sum for future medical care;
3. The trial court should have awarded a sum for future lost wages; and
4. The sum awarded to Curtis Andrus for loss of consortium was unreasonably low.

The City of Lake Charles and Rodger Board have also appealed, arguing that the award for past lost wages far exceeds any amount supported in the record.

Because we find merit to arguments raised by both sides of this controversy, the judgment in favor of plaintiffs is affirmed as amended below.

FACTS

On October 5, 1989, Mrs. Andrus was stopped on the off-ramp of I-210 waiting to merge with traffic on Legion Street in Lake Charles when she was rear-ended by Rodger Board. Defendants have not appealed the trial court's finding that Mr. Board was 100% at fault in this accident.

Mrs. Andrus exhibited signs of injury at the scene of the accident. She testified that she experienced a "gray out" and developed a severe headache, with cramping and pain in her hands and arms. Mrs. Andrus, who was 41 at the time of the accident, was born *1226 without a left leg. She wore a prosthesis for this congenital deformity, and she also suffered from mild scoliosis, or curvature of the spine. Four days after the accident she was treated and released at St. Patrick's Hospital emergency room.

The next day, October 10, 1989, she was seen by Dr. Lynn Foret, an orthopedist, who treated her through February 2, 1990. At the first office visit, Dr. Foret noted that Mrs. Andrus had tenderness along her entire spine with "trigger point" areas in the lower back. To alleviate spasm in her lower back, he gave her an injection and prescribed medication. Throughout her treatment with Dr. Foret, Mrs. Andrus complained of back pain and headaches. A CT scan performed on October 24, 1989 revealed a mild disc protrusion at L5-S1. An EMG was negative. Dr. Foret believed Mrs. Andrus was suffering from a muscular-ligamentous injury with right-sided sciatica, numbness in the foot and headaches. Her complaints were chronic and were treated with trigger point injections, medication and physical therapy. Dr. Foret did not believe Mrs. Andrus was a malingerer. He noted that with her congenital deformity and pre-existing scoliosis, she was predisposed to back problems.

Dr. Foret then referred Mrs. Andrus to another orthopedist, Dr. Dale Bernaur. On the six visits made to Dr. Bernaur, Mrs. Andrus had complaints of headaches, numbness in her arms extending to the little and ring fingers, back pain and right leg pain. Dr. Bernaur noted that her complaints went along a dermatonal pattern, although her testing results were negative. He diagnosed her condition as cervical and lumbar strain, with a possible neurological component. He then referred her to a neurologist.

On May 25, 1990, Mrs. Andrus began treatment with Dr. Stephen Inbody, a neurologist at the Baylor College Department of Neurology. Mrs. Andrus was complaining of headaches, numbness, and involuntary contractions of the hand, also known as dystonia, and lumbosacral pain which radiated down her right leg to her right foot. Dr. Inbody noted a soft tissue trigger point, or a "knot," in her neck. His diagnosis was myofascial syndrome, or tissue scarring, and he did not rule out the possibility of a pinched nerve. Believing her soft tissue injuries to be significant, he referred her to a trigger point specialist, Dr. Paul Loubser, for a series of steroid injections.

Dr. Inbody estimated that Mrs. Andrus would need approximately four or five treatments from Dr. Loubser. At the time of trial, she had had two such injections. Dr. Loubser's notes indicated that Mrs. Andrus derived some benefit from the injections.

In his deposition taken four months before trial, Dr. Inbody stated that Mrs. Andrus' myofascial problems were chronic and that such condition "never really goes away." Rather, patients need to refrain from those activities which aggravate the condition.

At defendants' request, Mrs. Andrus was also examined by Dr. Leon Weisberg, Director of the Department of Neurology at Tulane University. Before examining Mrs. Andrus, Dr. Weisberg reviewed her medical records and history and concluded that he disagreed with any prior diagnosis insofar as it suggested damage to the spinal cord. However, after examining Mrs. Andrus on September 25, 1991, Dr. Weisberg found objective evidence which corroborated Dr. Inbody's diagnosis of myofascial syndrome. Approximately two years post accident and three months prior to trial, Dr. Weisberg observed paraspinal muscle spasm of the lower back with some loss of the lumbar lordosis. In the cervical area, he also observed a "knot" in the back of her neck as well as tenderness and an impaired cervical lordosis. He noted multiple tender points over the cervical, thoracic and lumbar spine that were consistent with the prior diagnosis of myofascial syndrome. He believed her prior treatment had been appropriate, although he did not find any improvement. As of that date, he believed Mrs. Andrus to be incapable of returning to school or to work. He stated that she was in need of aggressive treatment for her disorder.

In written reasons for judgment, the trial court found that Mrs. Andrus had proved that as a result of the accident she suffered a soft tissue injury which also produced symptoms of headaches and involuntary cramping *1227 in her hands. The court found that she was disabled from gainful employment from the date of the accident until the date of trial. The court also found that her symptoms had gradually diminished over time and that she was not entitled to an award for future medical expenses or future lost wages.

SPECIAL DAMAGES

a. Future Medical Expenses

The trial court's failure to award future medical expenses was based on its finding that Mrs. Andrus' medical problems had resolved by the date of trial. After reviewing the medical and lay testimony in the record, we are forced to conclude that this finding is manifestly erroneous.

In reaching this conclusion, we rely upon the striking similarity in the testimony of Dr. Inbody, the plaintiffs' treating physician, and Dr. Weisburg, who examined Mrs. Andrus at defendants' request.

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Cite This Page — Counsel Stack

Bluebook (online)
626 So. 2d 1224, 1993 WL 465402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrus-v-board-lactapp-1993.