DiMattia v. Gulf South Beverage, Inc.

459 So. 2d 598, 1984 La. App. LEXIS 9961
CourtLouisiana Court of Appeal
DecidedNovember 13, 1984
DocketNo. 84-CA-75
StatusPublished
Cited by2 cases

This text of 459 So. 2d 598 (DiMattia v. Gulf South Beverage, 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
DiMattia v. Gulf South Beverage, Inc., 459 So. 2d 598, 1984 La. App. LEXIS 9961 (La. Ct. App. 1984).

Opinions

CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “A”, for the Parish of Jefferson, wherein the Honorable Roy L. Price rendered judgment in favor of plaintiff and against defendant in the full sum of Four Hundred Twenty-Four Thousand, Fifty-Six Dollars and Twenty-Five Cents ($424,056.25). We affirm.

On March 5, 1981, Luke DiMattia was a passenger in an automobile that was struck from the rear by a truck owned by Gulf South Beverages, Inc. and driven by their employee, Earl White. Mr. DiMattia, complaining of back and neck pain, was seen that day by Dr. Joseph Rauchwerk who sent DiMattia to East Jefferson Hospital for a battery of X-rays. After conducting his examination, Dr. Rauchwerk concluded that DiMattia’s subjective complaints were consistent with Grade 1 myofascial lumbo-sacral strain superimposed on a preexisting degenerative joint disease and degenerative osteoarthritis of the lower lumbar spine. DiMattia was treated conservatively until March 26,1981, when he did not appear for a scheduled visit. Dr. Rauchwerk considered DiMattia to have obtained full benefit from the treatment and thus recovered.

However, because DiMattia felt he was not responding to treatment as he should, he sought further medical attention from Dr. Florence Jones. Dr. Jones first saw DiMattia on March 30, 1981 and began treating him conservatively. DiMattia had responded to treatment such that on June 1, 1981, Dr. Jones released him to return to T.L. James & Company, Inc. where he was employed as an auto mechanic. However, on June 3, 1981, DiMattia returned to her office complaining of discomfort in the right posterior neck near the skull after lying on his back on a pad while working under cars. Dr. Jones noted that, while there was some tenderness in that area, there were no corresponding muscle spasms or limitation of motion. Dr. Jones advised DiMattia this would probably clear with the passage of time and to return if he had further problems. DiMattia did not return until August 21, 1981, at which time his chief complaint was again the neck soreness described in the June 3 visit. This was DiMattia’s last appointment with Dr. Jones.

DiMattia next sought medical attention from the LaRocca Clinic where he initially saw Dr. Michael E. McCutcheon on September 4, 1981. On physical examination, Dr. McCutcheon found tenderness in and about DiMattia’s neck and lower lumbar spine. X-rays showed right-sided L-5 S-l tropism and segmental instability in the lumbar region between L4-L5 which Dr. McCutcheon believed to be due to degenerative lumbar disc disease. In the neck, Dr. McCutcheon found loss of normal or expected flexion and extension patterns at the C-4-5 motion segment. This, he thought, was indicative of mild cervical spondylosis, an abnormality of the cervical disc.

Dr. McCutcheon saw DiMattia three more times and on the last visit, January 5, 1982, DiMattia had mild complaints of neck [600]*600pain on both sides of his neck. As DiMat-tia had failed to have his prescriptions filled during the course of his treatment, it was Dr. McCutcheon’s impression that DiMattia’s symptoms were minimal, were not disabling, and that nothing in regard to his condition should keep him from working at his, job with no restrictions. Dr. McCut-cheon believed DiMattia’s pain was only intermittent and that continued visits would not be beneficial because DiMattia had not followed his instructions in regard to the medications. Dr. McCutcheon concluded that DiMattia’s symptoms did not warrant surgery at that time.

DiMattia continued to visit the LaRocca clinic where he was seen by Dr. Bruce Razza for three visits. Then, on February 20, 1982, Dr. Henry LaRocca saw DiMattia in Touro’s emergency room where he was complaining of uncontrollable pain in both his neck and back. DiMattia was admitted to the hospital as soon as there was an available room. On March 25, 1982, Drs. McCutcheon and LaRocca performed a lumbar laminectomy with a fusion, and then on April 1, 1982, Dr. McCutcheon performed a cervical fusion.

Prior to these surgeries, on November 18, 1981, DiMattia filed suit for damages against Gulf South Beverages, Inc., their insurer and driver, Allstate Insurance Company, and Earl White respectively. A trial on the matter was conducted August 6 and 7, 1983. At the beginning of that trial, plaintiff DiMattia dismissed his claims against Allstate Insurance Company and Earl White. Judgment was rendered on July 29, 1983 in favor of plaintiff and against defendant, Gulf South Beverages, Inc., in the full sum of Four Hundred Twenty-Four Thousand, Fifty-Six Dollars and Twenty-Five Cents ($424,056.25).

Defendant has appealed, asserting the following specifications of error:

that (1) the trial judge erred in his conclusions that the plaintiff’s disability was caused by the vehicular accident involving defendant; and that

(2) the trial judge erred in awarding an amount of damages which was excessive and unsupported by the evidence.

In his reasons for judgment, the trial judge stated that he had no problem in finding plaintiff permanently and totally disabled from his injuries incurred as a result of the accident. The trial judge based his conclusion upon the testimony of Dr. LaRocca, “Dr. LaRocca, qualified as an expert in orthopedic surgery testified it was his opinion that the accident of March 5, 1981 caused the pain, suffering, resulting surgical operations, and disability to DiMattia.” The appellant contends that Dr. LaRocca’s statement was taken and used out of context and that the record is totally devoid of any evidence whatsoever to support the trial judge’s conclusion. We disagree.

Plaintiff was seen and treated by Drs. Jones and McCutcheon and both were deposed well before plaintiff’s condition necessitated surgical intervention. Each agreed, at the time they were deposed, that plaintiff had problems with the spine that were either congenital or due to his age and were not incurred as a result of his accident. Plaintiff’s right-sided L-5 S-l tropism was congenital and his unstable lumbar region was due to degenerative lumbar disc disease attributable to arthritic changes and age. However, both agreed that the accident was the direct cause of the aggravation of those preexisting but dormant conditions. Dr. McCutcheon went further to state that the X-ray patterns he identified to be consistent with cervical spondylosis was directly caused by the accident.

Dr. LaRocca’s testimony was in complete harmony with the opinions of Drs. Jones and McCutcheon. While he clearly stated that the plaintiff’s dormant, preexisting conditions were not caused by the accident, Dr. LaRocca believed all of plaintiff’s pain and suffering were directly related to the March 5 accident.

Appellant would have this court construct the facts so that plaintiff’s surgeries were not caused by the accident but rather [601]*601were the natural result of the ongoing processes already present in plaintiff. Appellant points out that Drs. Jones and McCut-cheon’s findings relate the plaintiffs symp-tomalogy to developmental rather than traumatic causes and notes that the trial court made no mention of the testimony of any physician other than Dr. LaRocca.

Dr. Jones was deposed January 11, 1982 and Dr. McCutcheon, February 5, 1982. These depositions were taken well before plaintiffs condition necessitated surgical intervention; two months and 1 month, respectively. Dr.

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Related

Franklin v. Oilfield Heavy Haulers
478 So. 2d 549 (Louisiana Court of Appeal, 1985)
Dimattia v. Gulf South Beverage, Inc.
462 So. 2d 209 (Supreme Court of Louisiana, 1985)

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459 So. 2d 598, 1984 La. App. LEXIS 9961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimattia-v-gulf-south-beverage-inc-lactapp-1984.