STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-699
JAMES JASON III
VERSUS
LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY, ET AL.
************
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2007-0355 HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Michael G. Sullivan, Judges.
Amy, J., concurs in part, dissents in part, and assigns written reasons.
AFFIRMED.
Darrel D. Ryland J. B. Treuting Wesley Elmer Danika A. Benjamin Law Office of Darrel D. Ryland Post Office Drawer 1469 Marksville, Louisiana 71351 (318) 253-5961 Counsel for Plaintiff/Appellee: James Jason III Randall B. Keiser D. Heath Trahan Keiser Law Firm, P.L.C. Post Office Box 12358 Alexandria, Louisiana 71315 (318) 443-6168 Counsel for Defendants/Appellants: Town of Cottonport James Williams SULLIVAN, Judge.
Defendants appeal the trial court’s determination that Plaintiff suffered a
herniated disc at C4-5 in an automobile accident caused by Defendant driver and its
awards for loss of earning capacity and general damages. We affirm.
Facts
On December 1, 2006, James Jason III was traveling west on Zion Road in
Cottonport, Louisiana, when a van owned by the Town of Cottonport and driven by
its employee, James Williams, broadsided the vehicle driven by Mr. Jason. Mr. Jason
filed suit against Mr. Williams and the Town of Cottonport, seeking damages for
injuries he suffered in the accident.
Mr. Jason was twenty-three years old and living with his mother when the
accident occurred. He had graduated from high school, but he was not a good student
and had repeated the tenth grade. Mr. Jason was employed by Kerotest, a valve
manufacturer. He had three wage increases and a promotion after the accident. His
positions with Kerotest were very structured and required him to follow detailed,
simple instructions. Due to his injuries, Mr. Jason was not able perform all his job
duties, and Kerotest had another employee perform tasks that he could not perform.
Before working for Kerotest, Mr. Jason had worked bagging groceries, tagging
lumber at a lumber yard, and valeting cars. He smokes cigarettes and marijuana and
was convicted of possession of cocaine six years before the accident. He has five
children for whom he must pay child support.
Mr. Jason testified regarding the pain he suffered due to his injuries and how
his injuries affected his ability to work, socialize, and interact and play with his
children. After the accident, he worried that his life would not be what it was before
1 the accident and that he would not be able to enjoy the activities he previously
enjoyed like playing with his children and playing sports with his brothers. He also
testified that he was afraid he would re-injure himself.
Mr. Jason explained that approximately one hour after the accident, he began
experiencing pain in his neck and low back. Later that day, he sought treatment at
Bunkie General Hospital’s emergency room where he complained of a headache and
pain in his neck and lower back. He was diagnosed with muscle spasms in his neck
and back. Three days later, he sought treatment from Dr. Bryan McCann, a family
medicine physician. Dr. McCann treated Mr. Jason for thirteen months during which
Mr. Jason regularly complained of pain in his neck, left shoulder, and back. There
were occasions, however, when he complained only of neck pain. In August 2007,
Dr. McCann ordered MRIs of Mr. Jason’s neck and back, which were interpreted as
normal by Dr. J. J. Laborde, a radiologist. About two months later, Dr. McCann
referred Mr. Jason to Dr. George R. Williams, an orthopedic surgeon who limits his
practice to treating the spine, because although the MRIs were interpreted as normal,
his treatment of oral pain relievers and intramuscular steroid injections had provided
Mr. Jason little relief.
Dr. Williams saw Mr. Jason on January 24, 2008. On examination, Mr. Jason
complained of neck pain, left shoulder pain, and lower back pain. Mr. Jason noted
on his patient intake sheet that he also had shooting pain from his neck down into his
arms and legs. After examining Mr. Jason and reviewing his MRIs, Dr. Williams
diagnosed him as having a disc herniation at C4-5 that was central and effacing his
left C5 nerve root, and he recommended surgery. He related the herniation and nerve
root impingement to the accident. Mr. Jason returned to Dr. Williams on two
2 occasions before surgery was performed on April 4, 2008. He complained of neck
pain and back pain that went into his left leg, as well as pain radiating down his left
arm to his hand, during each of those visits.
In light of Dr. Laborde’s interpretation of the MRIs as normal, Defendants had
Dr. Louis J. Blanda, also an orthopedic surgeon, conduct an independent medical
examination of Mr. Jason. After examining Mr. Jason and reviewing the MRIs,
Dr. Blanda agreed with Dr. Laborde’s interpretation that they were normal.
Defendants then sought an opinion from Dr. Curtis Partington, a diagnostic
radiologist with subspecialty training in neuroradiology. Dr. Partington agreed with
Dr. Laborde and Dr. Blanda that the cervical MRIs were normal.
Dr. Williams performed an anterior cervical decompression and fusion at C4-5
on Mr. Jason on April 4, 2008. He testified that when he performed the surgery, he
“totally visualized the disc herniation, saw the compression of the nerve root,
removed it and decompressed the spinal cord, decompressed the nerve root and made
sure it was wide open.” According to Dr. Williams, Mr. Jason tolerated the surgery
well. As of November 2008, he had some lingering intermittent neck pain, but his
left arm and shoulder pain had resolved. A CT scan performed in September 2008
revealed that one-sixth of Mr. Jason’s fusion was consolidated. Dr. Williams testified
that Mr. Jason had not reached maximum medical improvement (MMI), but he
anticipated that Mr. Jason would reach MMI approximately one year after surgery or
April 2009. He assigned Mr. Jason a 7% permanent partial impairment of the whole
body because of the surgery.
Mr. Jason was restricted from work until June 30, 2008, and has been limited
to light-duty work status. Dr. Williams testified that light duty consists of avoiding
3 a lot of bending, twisting, or lifting and not picking up more than twenty pounds.
Kerotest has accommodated Mr. Jason’s inability to perform all the duties of his
current position by having another employee lift anything which exceeds the twenty-
pound weight limitation imposed by Dr. Williams.
Approximately two and one-half months after surgery, Mr. Jason returned to
Dr. McCann complaining of depression and crying spells. Dr. McCann prescribed
Cymbalta and Lexapro. These medications did not relieve Mr. Jason’s symptoms,
and Dr. McCann referred him to Dr. James W. Quillin, a medical psychologist. In Dr.
McCann’s opinion, Mr. Jason is not a malingerer.
Dr. Quillin practices neuropsychology, clinical psychology, and medical
psychology. He first saw Mr. Jason on June 27, 2008. On examination, Mr. Jason
showed some mild depression, anxiety, and blunted affect, but he was not psychotic.
He related to Dr. Quillin that he feared he might reinjure himself and that he wanted
his life to get back to “normal.” Dr. Quillin diagnosed Mr. Jason with mild reactive
depression and anxiety, which he attributed to Mr. Jason’s adjusting to his injury. He
also prescribed Cymbalta but adjusted the dosage. Dr. Quillin thought that Mr. Jason
was below normal intellect.
Mr. Jason’s depression and anxiety improved with Dr. Quillin’s treatment, and
Dr. Quillin expected him to reach MMI shortly after trial. He anticipated that he
would need to see Mr. Jason again in six months, then once a year for two years with
a tapering off of the Cymbalta unless needed for anxiety, depression, or pain.
Dr. Quillin believed that Mr. Jason was a chronic pain patient but that he did not
magnify his degree of distress and was adjusting very well to his situation.
4 Mr. Jason was evaluated by two vocational rehabilitation counselors.
Dr. Richard H. Galloway, Mr. Jason’s expert counselor, administered the Slosson
Intelligence Test R3 and testified that Mr. Jason’s total standard score was 67, which
is low. Because of Mr. Jason’s intellectual abilities and his lack of academic skills,
Dr. Galloway opined that the number of jobs available that Mr. Jason could perform
was very limited. He further opined that Mr. Jason’s cervical surgery had negatively
impacted his limited opportunities in the job market.
Dr. Steven Henry Deist, Defendants’ expert, did not attempt to determine
whether any jobs available to Mr. Jason before the accident had been eliminated
because of his injuries and surgery. Instead, he determined that because Mr. Jason
returned to work after the accident, his potential future employment had not been
affected by his injuries.
The trial court considered the positive, as well as the negative, aspects of
Mr. Jason when awarding him damages. It was impressed with Mr. Jason’s
“veracity” and accepted his experts’ opinions over Defendants’ experts’ opinions.
Prior to trial, the parties stipulated that Mr. Jason’s recovery could not exceed
$500,000.00. The trial court awarded damages totaling $494,684.12, which included
$400,000.00 in general damages and $30,000.00 for loss of earning capacity.
Defendants appeal and assign three errors with the trial court’s judgment.
Issues
Defendants’ appeal presents three issues for our review:
1. Is Dr. Williams’ opinion that the accident caused a herniated disc at C4-5 contradicted by MRIs, rendering the trial court’s acceptance of his opinion error which requires reversal?
5 2. Is the trial court’s award for loss of earning capacity unsubstantiated by the evidence, warranting reversal?
3. Is the trial court’s award for general damages so high that it is an abuse of discretion under the facts of this case?
Discussion
Was the trial court’s acceptance of Mr. Jason’s physician’s opinion error?
Defendants point to Mr. Jason’s MRIs and the three interpretations that no MRI
reveals a herniation at C4-5 and claim that the surgery performed by Dr. Williams is
not causally related to Mr. Jason’s accident. They contend that the trial court’s
acceptance of Dr. Williams’ opinion that an MRI shows a herniation is manifestly
erroneous and argue “if a plainly normal MRI . . . confirmed by two physicians
specializing in radiology, does not suffice to prove otherwise, then there can really
never be any meaningful appellate factual review of palpably erroneous medical
diagnoses.”
In Ryan v. Zurich American Insurance Co., 07-2312, p. 12 (La. 7/1/08), 988
So.2d 214, 222, the supreme court reiterated the standard for appellate review of the
fact finder’s acceptance of one expert’s opinion over that of another, stating:
“The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Systems of Calcasieu, Inc., 99-0201 (La.10/19/99), 748 So.2d 417, 421 (citing Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990)). “A fact finder may accept or reject the opinion expressed by an expert, in whole or in part.” Green [v. K-Mart, 03-2495 (La. 5/25/04), 874 So.2d 838] (citing Lirette, supra ). “The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole.” Id. (Citing Sportsman Store, supra). Upon review, “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Sportsman Store, supra at 421.
6 “But where such factors are not present, and a fact-finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Id.
The trial court afforded greater weight to Dr. Williams’ testimony because he
was Mr. Jason’s treating physician and accepted his opinion that the injuries suffered
by Mr. Jason in the accident included a herniation at C4-5 and resulting nerve root
impingement. This court reviewed the jurisprudential rule which accords greater
weight to a treating physician’s opinion than to a physician who did not treat the party
at issue in Freeland v. Bourgeois, 06-932, p. 31 (La.App. 3 Cir. 1/24/07), 950 So.2d
100, 119-20, writ denied, 07-409 (La. 4/5/07), 954 So.2d 144, explaining:
It has long been held that, in general, the observations and opinions of the treating physician are to be accorded greater weight than those of a physician who has only seen the party for purposes of rendering an expert opinion concerning the party’s condition. “However, the treating physician’s testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all of the medical witnesses.” Freeman v. Rew, 557 So.2d 748, 751 (La.App. 2nd Cir.1990) (citations omitted), writ denied, 563 So.2d 1154 (La.6/01/90). Ultimately, “the weight afforded a treating physician’s testimony is largely dependent upon the physician’s qualifications and the facts upon which his opinion is based.” Id. “Thus, reduced to its essentials, the inquiry is whether, based on the totality of the record, the jury was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff.” Miller v. Clout, 2003-0091, fn. 3 (La.10/21/03), 857 So.2d 458, 463.
Defendants contend that Dr. Williams should not be considered a treating
physician because he diagnosed Mr. Jason’s herniated disc on his first visit.
Mr. Jason was referred to Dr. Williams by Dr. McCann for treatment, Dr. Williams
saw him on three occasions before he performed surgery, and Mr. Jason’s complaints
were consistent with complaints he had made to Dr. McCann. For these reasons, we
find no error with the trial court’s consideration of Dr. Williams as Mr. Jason’s
treating physician.
7 Dr. Blanda testified that he did not see a herniation at C4-5 on the MRIs and
concluded that the MRIs were normal, even after reviewing a segment marked by
Dr. Williams on one MRI which identified the herniation he visualized. Dr. Blanda
further testified that based on his examination of Mr. Jason and the marked MRI, he
would not have operated on Mr. Jason. Instead, he would have ordered additional
tests if he felt Mr. Jason’s subjective complaints warranted them. Dr. Blanda did
admit, however, that “[s]ometimes [a herniation is] there and you miss it.” He also
testified that the reliability of MRIs is 90% to 95%.
Dr. Partington testified that the abnormality at C4-5, which Dr. Williams
believed was a herniation, was not real but an artifact caused by motion of the spinal
fluid. According to Dr. Partington, the artifact appeared only on the axial views (top
to bottom) of Mr. Jason’s spine, and the artifact would have to appear on the axial
views and the sagittal (side profile) views for it to be real. Dr. Partington admitted
that “very rarely” a flow-related artifact can obscure a disc herniation but qualified
that admission, stating, “most of us that see a lot of these are really used to seeing that
artifact[,] so it really doesn’t mask things very much.” Dr. Partington was questioned
about false negatives and false positives on MRIs. He did not know statistics for
either but believed the number for both is “tiny” or “small.”
Dr. Williams testified regarding his opinion that a herniation existed at C4-5
and his findings when he performed surgery. He explained that Mr. Jason’s
symptoms were compatible with a herniation at C4-5 and that he disagreed with the
opinions of Drs. Laborde, Blanda, and Partington. He testified that a herniation may
or may not be seen on MRI depending on whether it is a mechanical disc or a
chemical disc.
8 We have carefully considered the evidence and cannot say that the trial court’s
acceptance of Dr. Williams’ testimony over Dr. Blanda’s and Dr. Partington’s was
manifestly erroneous. Dr. Blanda’s testimony and Dr. Partington’s testimony
established that MRIs are not 100% accurate. While false positive rates for MRIs
may be “small” and even “tiny,” the evidence does not establish that Dr. Williams’
interpretation of Mr. Jason’s MRI was conclusively wrong. Mr. Jason’s complaints
to Drs. McCann and Williams are indicative of a herniation at C4-5, and the surgery
provided him relief from his pain. Furthermore, Mr. Jason is aided in establishing his
claim by a presumption of causation because the evidence establishes that he was in
good health before the accident, but after the accident he began experiencing
symptoms indicative of a disc herniation that “continuously manifest[ed] themselves
afterwards” and “the medical evidence shows there to be a reasonable possibility of
causal connection between the accident and the disabling condition.” Menard v.
Lafayette Ins. Co., 09-29, p. 3 (La.App. 3 Cir. 6/3/09), 13 So.3d 794, 799 (quoting
Lucas v. Ins. Co. of N.A., 342 So.2d 591, 596 (La.1977) (citations omitted)).
Dr. Williams testified that he visualized the herniation and nerve root
impingement he diagnosed after reviewing Mr. Jason’s MRIs when he performed
surgery on Mr. Jason. Defendants contend that the herniation and nerve root
impingement he visualized must have occurred between the August 2007 MRIs and
the April 2008 surgery. After Mr. Jason established that the presumption of causation
was applicable to him, Defendants had the burden of proving that another specific
incident caused his cervical injury. Viviano v. Progressive Sec. Ins. Co., 05-125
(La.App. 3 Cir. 1/11/06), 920 So.2d 313, writ denied, 06-359 (La. 4/28/09), 927
So.2d 290. Defendants did not present any such evidence.
9 Defendants cite seven cases as support for their contention that Dr. Williams’
opinion should be rejected. We have reviewed these cases and find they do not
support Defendants’ position. In the cases cited, the courts were reviewing
administrative body determinations that a treating physician’s opinion was
insufficient to establish disability or causation because MRIs, and in some cases
additional medical evidence, did not substantiate the treating physicians’ opinions.
The standard of review was similar to the standard of review we must apply, but in
reverse. That is, the standard of review was whether there was sufficient evidence to
support the agency’s decision to give less weight to the treating physician’s opinion,
even if the reviewing court “might have decided the case differently based on
substantial evidence to the contrary.” Sanders v. Comm’r of Soc. Sec., 66 Fed.Appx.
551, 553 (6th Cir. 2003). However, the standard of review herein is whether the trial
court’s decision to give more weight to Dr. Williams’ opinion was “reasonable.”
Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993).
Defendants also cite Cole v. State, Department of Public Safety and
Corrections, 01-2123 (La. 9/4/02), 825 So.2d 1134, where several doctors diagnosed
the plaintiff with a traumatic brain injury, but neither the facts, as related by the
plaintiff to his treating physicians, nor the objective medical evidence supported that
diagnosis. The plaintiff did not relate to his treating physicians that he suffered a
blow to his head or complain of headaches until six months after the incident at issue.
The supreme court reversed the lower courts’ conclusions that the plaintiff suffered
a serious closed-head trauma. The reversal was determined to be warranted because
the diagnosis was based solely on the plaintiff’s history of the incident and his
10 complaints, which changed during the course of his treatment and were found to be
exaggerated by his treating physicians. That is not the situation here.
These cases do not change our determination that the trial court’s acceptance
of Dr. Williams’ opinion was reasonable under the facts presented herein and,
therefore, not manifestly erroneous.
Are the trial court’s damage awards manifestly erroneous?
Damage awards are findings of fact which can be disturbed on review only if
the fact finder abused its discretion in making the awards. Guillory v. Lee, 09-75 (La.
6/26/09), 16 So.3d 1104. The trial court was vested with “great . . . even vast”
discretion in awarding damages to Mr. Jason. Id. at 1117. Therefore, its awards are
entitled to great weight and should only rarely be reversed. Id. In determining
whether an abuse of discretion has been shown, the relevant evidence must be viewed
in the light which offers the most support to the trial court’s judgment, and if a
reasonable factual basis exists for the trial court’s damage awards, we cannot reverse
the awards. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert.
denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).
Is the trial court’s award for loss of earning capacity substantiated by the evidence?
Defendants assign error with the trial court’s award of $30,000.00 for loss of
earning capacity because Mr. Jason received two promotions and three wage
increases after the accident. They also assert that the evidence does not establish that
his earning capacity was reduced as a result of the accident and that the award
“appears to have been arbitrarily arrived at.”
11 The supreme court reviewed the law on loss of earning capacity in Ryan, 988
at 219, quoting its earlier explanation of this element of damages in Folse v. Fakouri,
371 So.2d 1120, 1124 (La.1979):
Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
The trial court determined that while Mr. Jason had done well with Kerotest
since his accident, his injuries and subsequent fusion have negatively impacted his
ability to obtain other employment. In reaching this determination, the trial court
considered Mr. Jason’s education, academic abilities, prior criminal history, and
employment with Kerotest. This conclusion is supported by the testimonies of
Mr. Jason’s treating physicians and Dr. Galloway. We cannot reverse the trial court’s
award for loss of earning capacity unless it is manifestly erroneous. The record does
not establish that it is.
Defendants also argue that because no expert testified Mr. Jason’s loss of
future earning capacity is equal to the sum of $30,000.00, the trial court’s award of
that amount was arbitrary and error. This argument does not recognize that loss of
earning capacity is speculative in nature, Callihan v. Town of Vinton, 95-665,
(La.App. 3 Cir. 12/6/95), 668 So.2d 735, and that the trial court’s award is lower than
what Mr. Jason’s economist calculated because of the $500,000.00 stipulated
limitation on Mr. Jason’s recovery.
Is the trial court’s general damage award excessive?
Defendants contend the trial court’s award of $400,000.00 in general damages
is excessive in light of Mr. Jason’s ability to tolerate work until Dr. Williams
12 performed surgery in April 2008, his return to work only three months after his
surgery, his ability to perform essentially the same duties on returning to work, and
the possibility of his being able to return to heavy-duty work status one year after his
surgery. Defendants’ arguments do not acknowledge that Mr. Jason also suffered
depression and anxiety because of the accident and his injuries, that Kerotest
accommodated his limitations when he returned to work, and that the full impact of
his surgery is not yet known.
The trial court refused to penalize Mr. Jason for working and was impressed
by his work ethic. It found him credible and accepted his testimony regarding the
pain he experienced after the accident. The trial court also believed his testimony that
he continues to have pain in his neck, which limits his ability to do his work at
Kerotest, and that he is concerned about his job security, re-injuring himself, and
whether his life will return to normal. While this award may be more than this court
would award, we cannot say that it is an abuse of the trial court’s vast discretion in
awarding damages.
Disposition
The judgment of the trial court is affirmed. Costs are assessed to Defendants.
13 NUMBER 09-699
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
JAMES JASON, III
AMY, J., concurring in part, dissenting in part.
I respectfully dissent from that portion of the majority opinion affirming the
quantum of general damages. In my opinion, the underlying factual basis does not
support the trial court’s award of $400,000 and is, therefore, an abuse of discretion.
I would lower the quantum to the highest point at which damages are reasonable in
accordance with Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).
I concur in the remainder of the majority opinion.