DeYoung v. Simons

743 So. 2d 851, 1999 WL 974369
CourtLouisiana Court of Appeal
DecidedOctober 27, 1999
Docket32,378-CA
StatusPublished
Cited by11 cases

This text of 743 So. 2d 851 (DeYoung v. Simons) 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
DeYoung v. Simons, 743 So. 2d 851, 1999 WL 974369 (La. Ct. App. 1999).

Opinion

743 So.2d 851 (1999)

Dennis Ray DeYOUNG, Plaintiff-Appellant,
v.
Gary Dean SIMONS, United Parcel Service, Inc. and Liberty Mutual Insurance Company, Defendants-Appellees.

No. 32,378-CA.

Court of Appeal of Louisiana, Second Circuit.

October 27, 1999.

*852 Johnson & Placke by Don H. Johnson, West Monroe, Counsel for Appellant.

Mayer, Smith & Roberts, L.L.P. by Dalton Roberts Ross, Shreveport, Counsel for Appellees.

Before STEWART, PEATROSS & KOSTELKA, JJ.

PEATROSS, J.

Plaintiff, Dennis Ray DeYoung, filed suit against Defendants, United Parcel Service, Inc. ("UPS"), Gary Simons, a UPS driver, and Liberty Mutual Insurance Company ("Liberty Mutual"), alleging damages resulting from an automobile accident with Mr. Simons. Plaintiff was awarded $39,886 for personal injuries and medical expenses, which award he appeals as insufficient. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 6, 1994, Plaintiff was stopped at a traffic light in the southbound right turn lane of Youree Drive at its intersection with Bert Koons Industrial Loop in Shreveport, Louisiana. As Plaintiff waited for the light to change, a UPS truck driven by Mr. Simons struck the rear of Plaintiff's car. Mr. Simons had depressed the clutch to move forward and was traveling approximately five to ten miles an hour when he struck Plaintiffs car. Plaintiff sought medical treatment for injuries he allegedly sustained in the accident.

On November 28, 1995, Plaintiff filed this suit. On February 28, 1997, the court granted a motion for summary judgment in favor of Plaintiff, finding UPS entirely at fault in the accident; and, on March 3, 1997, UPS and its insurer, Liberty Mutual, stipulated their responsibility for the accident. Plaintiff dismissed his suit against Mr. Simons and quantum was the only remaining issue to be decided at trial. After a bench trial, the trial court awarded Plaintiff the sum of $39,886 against UPS and Liberty Mutual. The trial court's reasons for judgment indicate that this amount consists of $20,000 in general damages and $19,886 in special damages for past medical expenses. Future medical expenses and lost wages were not awarded.

MEDICAL EVIDENCE

Following the accident, Plaintiff allegedly suffered immediate neck pain.[1] Later *853 that day he went to the emergency room at Willis-Knighton Hospital where neck x-rays showed no fractures. The next day, Plaintiff saw Dr. Don Joffrion, an orthopedic specialist. Dr. Joffrion had previously treated Plaintiff for injuries sustained in a car accident in 1992, from which Plaintiff had apparently recovered completely. On December 7, 1994, Dr. Joffrion diagnosed Plaintiff with cervical and lumbar strain. Plaintiff was prescribed a muscle relaxant, codeine and prednisone and directed into a physical therapy program. Plaintiff began physical therapy and continued for about two weeks. He saw Dr. Joffrion again on January 4, 1995, at which time Dr. Joffrion found stiffness and soreness in Plaintiffs back, but found no evidence of sciatica. Dr. Joffrion treated Plaintiff again with prednisone and pain medicine and suggested further physical therapy. During this visit, Plaintiff told Dr. Joffrion's nurse that he had suffered some numbness on the right side of his face since the accident. On the next visit, February 22, Plaintiff complained of back and rib cage pain. Physical therapy was again recommended and Plaintiff was placed in an industrial back brace.

Plaintiffs last visit to Dr. Joffrion was on March 29, 1995. Plaintiff said that his neck was fine, but that he was unable to sit for long periods due to back pain. Dr. Joffrion instructed Plaintiff to take ibuprofen and to continue wearing his back brace. Dr. Joffrion stated he thought that Plaintiff had reached maximum medical improvement and that there was no further need for Plaintiff to see him on a regular basis.

On April 10, 1995, Plaintiff saw Dr. Gurleen Sikand, a neurologist, for treatment of facial numbness, which Plaintiff alleged to have resulted from the car accident. He reported that the numbness extended from his chin to the top of his skull, all on the right side of his face. Dr. Sikand first performed a standard pinprick test to determine the extent and area of Plaintiffs numbness. Dr. Sikand found that, according Plaintiffs responses, there was a clear line of demarcation down the center of Plaintiffs face, which, although not completely anatomically impossible, was very unusual. Dr. Sikand then performed a vibration test on Plaintiffs face with a tuning fork. The tuning fork is struck lightly to produce a vibration, then placed against the skin in the center of the forehead. Since the vibration is actually carried by the bones of the skull to the auditory bones of the ear and not transmitted by nerves, the sound heard in either ear should not change significantly when the tuning fork is moved either left or right from the center of the forehead. In fact, according to Dr. Sikand's testimony, if the sound changes at all, it should increase in the ear which is closer to the tuning fork. Dr. Sikand stated that when he moved the tuning fork to the right of Plaintiffs forehead, Plaintiff complained that he actually experienced a decrease in the sound in his right ear. Dr. Sikand opined that a person may experience a decrease of sound under those circumstances only if there was a bone abnormality in the skull, such as an actual hole, which interrupted the transmission of the vibrations. Since Dr. Sikand found these results to be unusual and found it difficult, if not impossible, to anatomically explain the symptoms of which Plaintiff complained, he ordered an MRI of Plaintiffs brain to rule out any unknown anomalies.[2] The MRI revealed no irregularities.

*854 Dr. Sikand found no anatomical explanation for Plaintiffs complaints and indicated that certain of Plaintiffs answers to questions during the examination "made me feel at least the problem may not be as clear cut and dramatic on the whole face as Dennis was telling me." Dr. Sikand prescribed Elavil for Plaintiff, but Plaintiff did not tolerate the medicine well, reporting that it made him forgetful, so that medication was discontinued. Plaintiff did not see Dr. Sikand again; and, on May 16, 1995, Dr. Sikand referred Plaintiff to Dr. Kevin Balter, a pain management specialist.

On March 28, 1996, Plaintiff saw Dr. Balter, complaining of pain in his chest and lower back and of numbness in the right side of his face and in all fingertips of his right hand. Plaintiff told Dr. Balter that he had been seeing a podiatrist for some time for a bone spur in his foot and for that problem he had been taking Naprosyn (naproxen), an anti-inflammatory drug which, as a positive side effect, reduced Plaintiffs other pain and numbness. Dr. Balter found that Plaintiffs back pain originated between the L-5 and S-1 vertebrae and that it might be caused by an inflamed, irritated or damaged ligament in that area and not damage to the spine itself. Dr. Balter testified that he felt this to be the case because he was able to reproduce Plaintiffs pain by applying pressure to that point on Plaintiffs back. Dr. Balter explained that pain from an injury to a disc could not be reproduced by mere palpitation of the area because a disc is much deeper and cannot be reached in that manner. Dr. Baiter recommended that Plaintiff continue to take Naprosyn.

On March 28, 29 and April 1, 1996, Dr. Balter performed "pulse radio wave therapy"on Plaintiff, a new therapy which Plaintiff professed gave him partial relief from the numbness in his face.

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Cite This Page — Counsel Stack

Bluebook (online)
743 So. 2d 851, 1999 WL 974369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deyoung-v-simons-lactapp-1999.