Canada v. Myers

511 So. 2d 1223
CourtLouisiana Court of Appeal
DecidedAugust 19, 1987
Docket18789-CA
StatusPublished
Cited by9 cases

This text of 511 So. 2d 1223 (Canada v. Myers) 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
Canada v. Myers, 511 So. 2d 1223 (La. Ct. App. 1987).

Opinion

511 So.2d 1223 (1987)

Marilyn G. CANADA, Appellant,
v.
Charles H. MYERS, et al., Appellees.

No. 18789-CA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1987.
Rehearing Denied September 17, 1987.
Writ Denied November 20, 1987.

*1224 Robert A. Jahnke, Shreveport, for appellant.

Bodenheimer, Jones, Klotz & Simmons by F. John Reeks, Jr., Shreveport, for appellees, Charles W. Myers & Casualty Reciprocal Exchange.

Blanchard, Walker, O'Quin & Roberts by L. David Cromwell, Shreveport, for appellees, Travelers Ins. Co. & Rickey Gene Richey.

Nelson & Achee, Ltd. by James S. Denhollem, Shreveport, for Intervenor, Allstate Ins. Co.

Before MARVIN, SEXTON and NORRIS, JJ.

NORRIS, Judge.

This appeal arises from a rear-end collision in which the plaintiff, Marilyn Canada, was found free of fault and the tortfeasor's insurer, Casualty Reciprocal Exchange ("CRE") was condemned to pay her damages. The trial court also ordered a refund to CRE of unused policy limits it had placed in the registry of the court several months after suit was filed. Mrs. Canada now appeals, seeking an increase in her damage award and an order authorizing her to withdraw the entire policy limits on deposit in the registry. Her Med-Pay insurer, Allstate, who had intervened at trial, answers the appeal, asserting its subrogation clause for any increase she might receive. For the reasons expressed, we amend and recast the judgment to award legal interest but in other respects affirm.

FACTS

Before the accident, Mrs. Canada was working the late shift as a machine operator at Boots Pharmaceuticals. She was driving home after work, around 11:45 p.m. on July 20, 1984. She was waiting in stopped traffic on Bert Kouns Road when she was suddenly hit from behind. She was pushed into the car ahead of her and then skidded 98 feet, until her car slid off the road into a ditch. She had actually been the third car in a four-car collision. The driver of the first vehicle, CRE's insured, was found 100% at fault in causing the accident and this aspect of the case has not been appealed.

Mrs. Canada experienced immediate pain in the back of her head and neck. She was hysterical when she climbed out of her wrecked car; she immediately asked a passerby to give her a ride home. After she returned to the scene of the accident and gave her information to the police, she went to the emergency room at South Park Hospital. The doctor there gave her some medicine, advised her to see an orthopedist, and discharged her that night.

The following Tuesday she visited Dr. Ragan Green, her orthopedist. For the neck pain, Dr. Green fitted her with a neck brace. She also complained of pain in her left hand and wrist, along with itching, redness and swelling of the fingers. She related to him that even before the accident, she had experienced problems with the wrist but that these had been limited to occasional numbness. Dr. Green performed a number of physical tests to substantiate the complaint; these were negative except for a possible Tinel's sign of carpal tunnel syndrome, which he considered unrelated to the accident or a slight aggravation of a pre-existing problem. An X-ray of the wrist was negative. Dr. Green placed her in a wrist splint, prescribed *1225 an anti-inflammatory drug and a muscle relaxant, and scheduled her for physical therapy. He thought she should be able to return to work in about two weeks.

About two weeks later she went back to Dr. Green, complaining that the left hand was worse. She had been unable to attend therapy because she had no transportation. Dr. Green sent her to Dr. Kenneth Gaddis, the neurologist, for an EMG and nerve conduction test.

When Mrs. Canada went to Dr. Gaddis, she did not complain about her symptoms so he did not conduct a general examination. He did, however, perform the EMG and the nerve conduction test; both were normal. Mrs. Canada relayed these results to Dr. Green, along with the recommendation of another complicated test, a cervical myelogram. Dr. Gaddis did not recall recommending this myelogram, saying he had merely been called in to perform it, but Dr. Green seemed to think that Dr. Gaddis had advised it. Gaddis's Dep., 9; Green's Dep., 9.

Mrs. Canada underwent the myelogram at Schumpert on September 12. At this time she reported to Dr. Gaddis a prior condition somewhat worse than she had related to Dr. Green. Before the accident, she had suffered not only from numbness but also from tingling (which was now her chief complaint) that usually set in at night and once had woken her up. She also told him that during the impact, she had been gripping the steering wheel very hard and had hit her head against the headrest, details that she specifically did not recall at trial. R.p. 115. Dr. Gaddis followed up with a battery of neurological exams and could find no abnormalities except a slightly decreased sensitivity of the left hand fingertips. He told her to keep her wrist in the brace and to avoid heavy lifting or repetitive motions at work, but Mrs. Canada had not returned to work.

Mrs. Canada's testimony at trial offered additional proof that her condition had been rather severe before the accident. Although on direct examination she emphatically denied pain, numbness, swelling, tingling and itching prior to the accident, her statements by deposition in her related workers comp suit were to the contrary. R.p. 126-127. This deposition was used to impeach her. She also admitted on direct examination that on three or four occasions at work, her left hand had "frozen up" and she was unable to move it. These freezeups were not painful, but were inconvenient as she had to wait a minute or so for sensation to return. She stressed that these incidents had not been severe enough to interfere with her work in a substantial way and she had never missed work on account of them, although she had a serious problem with absenteeism for various other causes.

In November 1984 she was still complaining about her wrist; the neck sprain had by now been long resolved. Additional EMG and nerve conduction tests were run and were negative; even the Tinel's sign was no longer "true" in Dr. Green's estimation. Green's Dep., 15. Dr. Green still recommended therapy and a return to light-duty work. She never went back to work. In January 1985, on the strength of Dr. Green's letter saying there was no evidence of carpal tunnel syndrome, Boots wrote her demanding her return to work within three days; she did not return and was fired.

Mrs. Canada filed the instant suit in March 1985; trial was held in May 1986. The trial court awarded her $1,500 for the neck injury and this is not appealed. The court concluded that she had not proved by a preponderance of evidence that the accident caused the wrist problem or aggravated a pre-existent one. He therefore denied all claims and expenses arising from that injury. She received the emergency room medicals, lost wages for two weeks and the deductible on her collision insurance, bringing her total award to $2,099.20. Her Med-Pay carrier, Allstate, was awarded $341. Mrs. Canada has now appealed; Allstate has answered, requesting an increase in the event that Mrs. Canada receive an increase of medical expenses.

ASSIGNMENTS NOS. 1, 2 & 3

By her first three specifications of error, Mrs. Canada claims the trial court committed *1226 manifest error in not finding that the accident caused or aggravated her wrist problem and in denying her any award for the alleged injury.

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Cite This Page — Counsel Stack

Bluebook (online)
511 So. 2d 1223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canada-v-myers-lactapp-1987.