Baker v. Freeman

702 So. 2d 1140, 1997 WL 671895
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
Docket97-604
StatusPublished
Cited by5 cases

This text of 702 So. 2d 1140 (Baker v. Freeman) 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
Baker v. Freeman, 702 So. 2d 1140, 1997 WL 671895 (La. Ct. App. 1997).

Opinion

702 So.2d 1140 (1997)

Richard Charles BAKER, Plaintiff-Appellant,
v.
Linda M. FREEMAN, et al., Defendants-Appellees.

No. 97-604.

Court of Appeal of Louisiana, Third Circuit.

October 29, 1997.
Writ Denied December 10, 1997.

*1141 Randal Lee Menard, Lafayette, for Richard Charles Baker.

Preston D. Cloyd, Lafayette, for Linda M. Freeman, et al.

Before SAUNDERS, PETERS and AMY, JJ.

AMY, Judge.

This appeal involves injuries allegedly received by the plaintiff, Richard Charles Baker, as the result of a rear-end automobile collision. The jury found in favor of the plaintiff and awarded general damages, past and future medical expenses, and future lost wages. The plaintiff now appeals seeking an increase in the amount of the award.

DISCUSSION OF THE RECORD

The record reveals that the May 16, 1994 accident at issue in this case occurred in mid-day traffic on Johnston Street in Lafayette, Louisiana. The plaintiff, Richard Charles Baker, testified that he was traveling that day in a tow truck owned by his business, Rick's Towing Service. He stated that he was stopped at a red light when he was struck from behind.

*1142 The defendant, Linda M. Freeman, testified that, prior to the accident, she had attended a teacher's workshop and was southbound on Johnston Street in order to, first, find something for lunch and then head for a bookstore to purchase material related to the workshop. She stated that it was raining heavily and that when she applied the brakes of her Jeep Cherokee, the vehicle "began to skid like [she] was on a sheet of ice." Despite her attempts to stop the vehicle, she hit the back of the plaintiff's tow truck. She stated that before she applied the brakes she was traveling at approximately thirty to thirty-five miles per hour. Mrs. Freeman testified that, after she applied the brakes, she slowed down to approximately ten to fifteen miles per hour.

When Mr. Baker was asked to describe the impact, he testified that: "It jolted me pretty good in the cab. I had a seat belt on and my head snapped back and hit the back glass, hit the back of the seat, hit the glass. A pretty good impact." He said that following this impact, he sat in the truck for approximately a minute and then got out of the truck to check on the defendant. Although the defendant testified that Mr. Baker informed her that he was not hurt, the plaintiff testified that he informed the reporting police officer that he was experiencing pain in his back, neck, and right shoulder. When asked at trial to describe these sensations, the plaintiff testified to the following: "I had some sharp pains in my lower neck, my lower back. It started burning real bad. That's what scared me the most, I guess. It started burning."

The record indicates that the plaintiff was transported by ambulance to Our Lady of Lourdes Hospital where he was examined. The hospital records indicate that he was given medication, ice packs, and an arm sling. He was also advised to rest in bed at home. Further, he was advised to seek a follow-up examination from his family physician, Dr. Pat Sonnier. However, the plaintiff testified that, although his pain continued, he was unable to get an appointment with Dr. Sonnier.

After seeking advice from his attorney, the plaintiff was referred to Dr. Edwin Moise, a dentist. In a letter to the plaintiff's attorney, Dr. Moise indicates that he initially saw the plaintiff on June 7, 1994 and examined him for a "possible temporomandibular joint dysfunction problem." On that date, Dr. Moise prescribed medication and told the plaintiff to return in two weeks. After missing one scheduled appointment, the plaintiff eventually returned for a reevaluation. Dr. Moise noted that the plaintiff continued to complain of headaches, but that "[a]n evaluation of his temporomandibular joints revealed that he had no problems whatsoever with no capsulitis or retrodiscitis present." Dr. Moise then noted that the plaintiff had an appointment with Dr. John Cobb and that following Dr. Cobb's evaluation and treatment, he would be happy to see him again for treatment of tinnitus.

The record indicates that Mr. Baker did, in fact, see Dr. Cobb, an orthopaedic surgeon. Dr. Cobb testified by deposition and stated that he first saw the plaintiff on July 27, 1994. He stated that Mr. Baker related the accident and then listed severe headaches and ringing in the ears as complaints. Mr. Baker also reported "aching in both shoulder blades all the way down to his lower back. Numbness in his elbows at times and into his forearms; numbness into his buttocks....." Dr. Cobb then stated that the plaintiff told him he had difficulty staying seated, rising from a seated position and, further, that doing paper work aggravated his condition. Mr. Baker also rated "his pain range from five to a nine on a scale of zero to ten, ten being the worst pain he's ever experienced." Upon initial examination, Dr. Cobb found spasm in the right trapezius muscle and levator scapula. He affirmed that his finding was consistent with the pain complained of by Mr. Baker.

Dr. Cobb stated that he took x-rays of the plaintiff and that, upon review, these tests revealed "a condition known as spondylolysis at L-5 bilaterally." With regard to this condition, Dr. Cobb stated the following: "There was no instability or slippage noted on the x-ray. What a spondylolysis is is a defect in the area of the bone called the pars interarticularis. That's the area between the joints. In this case, it's the area where the backbone *1143 connects to the pelvic bone. So, his bone is missing. This is a developmental condition; it was not caused by this accident." Dr. Cobb further affirmed that it is possible for a person to have this condition without pain and then the condition become symptomatic as a result of trauma. He opined that Mr. Baker's condition became symptomatic as a result of the accident of May 16, 1994. With regard to treatment of the condition, Dr. Cobb stated that physical therapy, medication, and activity modification may control the pain but that if the pain becomes unacceptable a fusion of the level of the defects can be performed. Following this examination, Dr. Cobb recommended a cervical and lumbar MRI.

Dr. Cobb testified that he next saw the plaintiff on September 21, 1994 and that the plaintiff's pain continued. He also testified that he reviewed the results of the MRI and that they revealed "significant degeneration" at L-5, spondylolysis as detected by x-rays taken at Mr. Baker's first visit, and spondylosis at the C4-5 level. With regard to the spondylosis, Dr. Cobb testified that it "is a term used to describe degeneration of the spine and all of the adaptive changes noted on the x-rays." He opined that it is "a developmental condition represented by stress fractures usually in the adolescent years." Dr. Cobb further affirmed that it was his understanding that this condition had been asymptomatic before the accident but became symptomatic afterwards. With regard to treatment for these conditions, Dr. Cobb prescribed physical therapy for both the lumbar and cervical problems. He further advised the plaintiff that, if the pain did not reach an acceptable level, the spondylolysis could be treated with surgery, namely lumbar decompression and fusion.

The record indicates that the plaintiff followed Dr. Cobb's recommendation and sought physical therapy. The records of The Center for Functional Excellence indicate that the plaintiff's first visit for therapy was on October 14, 1994.

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Bluebook (online)
702 So. 2d 1140, 1997 WL 671895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-freeman-lactapp-1997.