Dillon v. Rice

375 So. 2d 742, 1979 La. App. LEXIS 3022
CourtLouisiana Court of Appeal
DecidedSeptember 11, 1979
DocketNo. 10128
StatusPublished
Cited by5 cases

This text of 375 So. 2d 742 (Dillon v. Rice) 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
Dillon v. Rice, 375 So. 2d 742, 1979 La. App. LEXIS 3022 (La. Ct. App. 1979).

Opinion

GARRISON, Judge.

In this lawsuit arising out of a rear-end collision, defendants Robert Rice, Texaco, Inc., and American Motorists Insurance Company stipulated to liability. The sole issue at trial was the amount of damages to [744]*744be awarded. After a non-jury trial, the district court awarded $30,873.00, comprised of $15,000.00 for personal injuries, $13,-753.00 for lost wages, and $2,120.00 for medical expenses. The judgment also awarded interest from date of judgment until paid, and fees of $100 to each of the expert witnesses. After denial of their motion for remittitur and/or new trial, defendants appealed and plaintiff answered their appeal.

Defendants raise the following issues on appeal: (1) whether the award for lost wages was supported by the law and the evidence; (2) whether plaintiff acted reasonably to fulfill his duty to minimize damages; and (3) whether the amount awarded for personal injuries was an abuse of discretion. Plaintiff, on the other hand, assigns as error the trial judge’s award of lost wages only up to the date of trial rather than for the rest of plaintiff’s life.

FACTS

On July 8, 1976, James Dillon’s automobile was hit from behind by a vehicle owned by Texaco, Inc. and driven by Robert Rice, a Texaco employee. Dillon testified that his back began hurting immediately after the accident with a throbbing pain in the lower section. He was on vacation in the week during which the accident occurred, but went back to work at Avondale shipyards, on the following Monday. He was able to perform his job duties, but with pain. The pain became worse over the next week, so he consulted a chiropractor, Dr. John E. Bryant. Dr. Bryant diagnosed his problem as muscle strain at the fourth, fifth and sixth lumbar vertebrae, treated him for approximately three months, and discharged him on September 15, 1976 as asymptomatic. Plaintiff testified that the only time his pain would diminish was on the day he saw the doctor. The pain would ease for two or three hours after his chiropractic treatment and then would return. He continued to work despite his pain. He informed his foreman of his back problem, and other people were assigned to assist him with heavy lifting.

Dillon sought no further treatment until March 7,1977, when he consulted Dr. Ralph Gessner, an orthopedic surgeon, who treated him thereafter on a regular basis. Dr. Gessner diagnosed his complaint as chronic lumbosacral strain. He prescribed diathermy, analgesics and muscle relaxants and fitted him with a surgical corset. On March 17, 1977, when the First Aid department at Avondale discovered that plaintiff was wearing a surgical corset, Dillon was forced to go on disability leave. This was due solely to Avondale’s policy not to allow employees to work while wearing surgical corsets. Although Dr. Gessner recommended to Avondale that plaintiff be temporarily placed on light duty, plaintiff was told there was no “light duty” available.

Plaintiff continued to complain of lower back pain, including complaints of pain radiating into his hips bilaterally. As a result, Dr. Gessner hospitalized plaintiff in May 1977. He was put in traction during his stay, and he underwent a myelogram to investigate for possible disc problems. The myelogram was negative, and plaintiff was released after one week.

On periodic visits to Dr. Gessner thereafter, plaintiff still complained of back pain; however, Dr. Gessner continued to treat him conservatively because he could find few objective symptoms. In November 1977, Dr. Gessner and his associates carefully reviewed plaintiff’s earlier myelogram and found a “suggestion that there is something there.” Because plaintiff was complaining of left leg pain and the doctors noted some minimal reflex changes, Dr. Gessner recommended exploratory surgery of plaintiff’s lumbosacral spine to check for a possible herniated disc. Plaintiff, however, did not agree to the surgery because he was afraid to undergo an operation unless the doctor said it was necessary.

On November 15, 1977 plaintiff was examined by Dr. Harold Stokes, an orthopedic surgeon. Dr. Stokes’ physical examination and X-rays of plaintiff revealed no objective findings of a herniated disc. Dr. Stokes concluded that there were no diagnostic criteria from which a diagnosis of [745]*745herniated disc could be made; the plaintiff’s subjective complaints were the only indication.

Both Dr. Gessner and Dr. Stokes noted that although plaintiff appeared honest and straightforward in his complaints, they were puzzled by the fact that he had continued to work for some seven or eight months after the accident, apparently without even missing any days. They both found this to be inconsistent with the type of pain that can be expected with a herniated disc. Both doctors noted that there were no objective findings to prevent plaintiff from working at his trade as a welder.

ISSUES

I. Loss of Earnings

Defendants challenge the award of past loss of wages from three approaches. They contend first that because plaintiff’s disability leave was dependent upon his employer’s internal policies rather than upon any actual inability to perform his job, his loss of wages should not be attributed to any fault of defendants. Second, they contend the trial judge erred in awarding lost wages to the time of trial because plaintiff testified he was not wearing the surgical corset at the time of trial, but he failed to show when he had stopped wearing the corset (and, theoretically, he should have been able to return to work when he stopped wearing it). Third, defendants claim that even if plaintiff is entitled to any loss of wages, he had a duty to minimize his damages by seeking other work which he was physically able to do, even if it did not pay as well as his Avondale job.

The law is clear that a defendant is liable for any damages proximately caused by his fault. C.C.Art. 2315. If a defendant injures a plaintiff such that the plaintiff must wear a medical appliance and the plaintiff’s employer refuses to allow plaintiff to work while wearing the appliance, and plaintiff loses wages thereby, then plaintiff’s lost wages result from his wearing the appliance and had it not been for defendant’s fault plaintiff would not have had to wear the appliance. The chain of causation is clear. Thus, defendant here is liable for any wages plaintiff proved he lost as a result of wearing the corset.

The trial judge specifically found as a fact that plaintiff’s doctors felt that he was able to work at his trade of welding. He also found that plaintiff did not quit work because he was physically unable to work, but because as long as plaintiff wore the surgical corset his employer would not allow him to return to work. The evidence shows that Dillon was wearing the corset on March 17, 1977, the last date he worked at Avondale, and that he was not wearing it on March 81,1978, when the case was tried. The trial judge found that lost wages were awardable from March 17, 1977 until the date of trial. However, as defendants-appellants contend in their brief, “all that is known about Mr. Dillon’s wearing the corset is that he was wearing it in March of 1977, and that he was not wearing it on March 31,1978, when this matter was tried. No evidence was offered by Mr.

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Bluebook (online)
375 So. 2d 742, 1979 La. App. LEXIS 3022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillon-v-rice-lactapp-1979.