Blanchard v. A-1 Bit and Tool Co., Inc.

406 So. 2d 773, 1981 La. App. LEXIS 5489
CourtLouisiana Court of Appeal
DecidedNovember 12, 1981
Docket12129
StatusPublished
Cited by4 cases

This text of 406 So. 2d 773 (Blanchard v. A-1 Bit and Tool Co., Inc.) 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
Blanchard v. A-1 Bit and Tool Co., Inc., 406 So. 2d 773, 1981 La. App. LEXIS 5489 (La. Ct. App. 1981).

Opinion

406 So.2d 773 (1981)

Lois C. BLANCHARD, et al.
v.
A-1 BIT AND TOOL COMPANY, INC., et al.

No. 12129.

Court of Appeal of Louisiana, Fourth Circuit.

November 12, 1981.

Wayne C. Giordano, Belle Chasse, for plaintiffs-appellees.

Rutledge & Associates, Edmond J. Harris, Metairie, for defendants-appellants.

Before BOUTALL, CHEHARDY and KLIEBERT, JJ.

CHEHARDY, Judge.

Defendants, A-1 Bit and Tool Company, Inc. (A-1) and Hartford Accident and Indemnity Company (Hartford), appeal only that part of a judgment in favor of plaintiffs, Lois C. and Ivy Blanchard, and against the defendants, awarding Mrs. Blanchard $25,000 for her past pain and suffering and $35,000 for future pain and suffering; awarding Mr. Blanchard $23,633, less a credit of $2,500 stipulated by the parties as having already been paid by the defendants, or the net sum of $21,133, for past loss of Mrs. Blanchard's wages; and awarding Mrs. Blanchard $65,000 for future loss of wages.

Although plaintiffs, by brief, argue conversely that these amounts should be increased, plaintiffs have not filed an answer to the defendants' appeal and, therefore, such increases cannot be considered by this court.

It was stipulated by the parties at the district court level that the defendants were liable to Mrs. Blanchard in this matter in that the driver of a vehicle belonging to A-1, and the assured of Hartford, was the sole cause of the accident under the following stipulated facts: Mrs. Blanchard was driving a 1972 Oldsmobile which was stopped at the highway intersection of Lapalco Boulevard, as it connects with Behrman Highway and the Belle Chasse Highway. The vehicle was rear-ended by the driver of a 1-ton truck belonging to A-1, and the Blanchard car was knocked 15 feet forward from the point of impact into the intersection to the point of collision.

The remaining issues of this case were tried in the district court on May 6, 1980. Dr. Robert A. Fleming, Mrs. Blanchard's treating physician who was accepted by the court as an expert in orthopedic surgery, testified that he first saw her relative to the accident on May 1, 1976, the date she incurred the injury, and again on May 7, 1976. He intermittently saw her up until the date of trial, and he stated that on July 9, 1978 he evaluated her disability as a *774 result of the accident at 15 percent; 7½ percent as a result of neck problems and 7½ percent resulting from low back involvement. He added that in his opinion she was having scarring within the substance of her muscles that was causing her difficulties. The physician stated when he last saw the plaintiff in April of 1980 she complained of discomfort in the back of her neck and she did have limitation of motion both in her neck and low back. He did not feel she could return to work as a janitor, the job she had held for four years prior to and up until the time of the accident.

Dr. Fleming also said he had given Mrs. Blanchard what he termed the "straight leg raising test" many times and that she always complained of pain in her lower back. He added this indicates either scarring within the substance of the muscle or symptomatic degenerative discs. Dr. Fleming noted that although Mrs. Blanchard might recover from her soft tissue injuries, it was improbable because patients with muscular injuries, if they are going to improve, usually do so within a year and a half or two years after the injury.

Dr. Fleming testified that Mrs. Blanchard is able to do some types of work although she can no longer perform the duties of a janitor. He also stated his findings of muscle spasm in this plaintiff were equivocal, meaning she may or may not have had them. Regarding other possible reasons for Mrs. Blanchard's limitation of motion, Dr. Fleming said he had seen her a number of years before the accident for a degenerative disc; however, he added if she were performing her duties as a janitor without difficulty prior to the accident, he would have to say the accident was the cause of her current difficulties.

Mrs. Blanchard testified she was 43 years old at the time of the accident and 47 at the time of the trial. She stated she had a tenth grade education. For four years prior to the accident the plaintiff said she worked as a school janitor and she had missed no work at all as a result of her back. She also said that after the accident she did not attempt to return to work as a janitor, but she did work from April through November of 1979 in a sandwich shop for three hours a day, five days a week. She said, however, she stopped working there because she was experiencing back and neck pain, and she added that at the time of trial she was taking pain medication.

Dr. Phillip H. Meyers, an expert in thermography and radiology, testified that "thermography is and can be a graphic representation of pain objectively" and that on April 26, 1978 Mrs. Blanchard had thermograms of the lumbar cervical and spine regions and lower extremities, which were personally reviewed by him. He further testified that the findings were consistent with irritability in the neck region and the findings in the lumbar region were consistent with nerve root irritation. Also he said that exactly where the patient complained of pain there were abnormal thermographic patterns.

Dr. Carl F. Culicchia, a neurosurgeon, said upon taking a history and examining the plaintiff he concluded there was no neurologic injury, disease or primary neurologic disorder accounting for the patient's symptoms. He added there were no objective, mechanical findings and the subjective findings were inconsistent. Although he stated the patient was able to sit up on the examining table with her legs outstretched before her so as to form a 90-degree angle between her body and legs (without her reporting pain), this was denied by Mrs. Blanchard at the trial.

Reports from Dr. R. C. Llewellyn stated he was convinced Mrs. Blanchard's problems were orthopedic but that she did not have a neurosurgical disability, seemingly confirming the findings of Dr. Fleming. Dr. Irving Redler also stated in his report the plaintiff complained of pain in the lower back during the straight leg raising test.

Dr. Melvin Wolfson, accepted by the court as an expert in the field of economics, and particularly in evaluation of loss and earning capacity in relation to age, calculated wages lost by Mrs. Blanchard from the date of the accident to the trial date totaled *775 $25,133. Subtracting the $1,500 she earned in 1979, he concluded the net amount was $23,633. Dr. Wolfson explained his calculations were based on her gross income because he did not add in fringe benefits which he said would offset taxes withheld from her gross pay.

Based on the U. S. Department of Labor, Labor Force Report Number 187, Dr. Wolfson also said the expected work life from date of trial for a lady of Mrs. Blanchard's age is approximately 14 years, although her life expectancy would be approximately 33 years. He said he multiplied her gross pay by 12 to get an amount of $8,220 per year. He discounted this at 5 percent and the total future losses were concluded by him to be $81,366. Discounted by an interest rate of 7½ percent, he valued future lost wages to be $69,780. All of the above calculations, however, were predicated on allowing for no raises in pay whatsoever. Dr. Wolfson also said assuming a 3 percent yearly increase in wages over the work life, discounting it at 5 percent the present day value would be $97,011, and at 7½ percent, the value would be $82,200.

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