Marie v. Allstate Insurance Co.

742 So. 2d 969, 99 La.App. 5 Cir. 225, 1999 La. App. LEXIS 2400, 1999 WL 674546
CourtLouisiana Court of Appeal
DecidedAugust 31, 1999
DocketNo. 99-CA-225
StatusPublished
Cited by1 cases

This text of 742 So. 2d 969 (Marie v. Allstate Insurance Co.) 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
Marie v. Allstate Insurance Co., 742 So. 2d 969, 99 La.App. 5 Cir. 225, 1999 La. App. LEXIS 2400, 1999 WL 674546 (La. Ct. App. 1999).

Opinion

1,CANNELLA, Judge.

Plaintiffs, Corina and Lenias Marie, appeal from a judgment arising from an automobile accident case filed against defendants, Carla Toledo, her insurer, Allstate Insurance Company, and plaintiffs’ uninsured/underinsured (UM) insurance provider, State Farm Mutual Automobile Association. We affirm.

Corina Marie was leaving work at Ochs-ner Clinic on February 1, 1995 when her car was rear-ended by another vehicle driven by Yvette Fouchi. The Fouchi car had also been rear-ended. The car that struck the Fouchi vehicle was driven by defendant, Carla Toledo. The accident happened when Corina Marie was stopped for a traffic light, waiting to enter Jefferson Highway in Jefferson, Louisiana. She was hit twice, with the Fouchi vehicle ending up under Corina Marie’s back bumper and damaging plaintiffs gas tank.

As a result of the accident, on January 16, 1996, plaintiffs filed suit against defendants for injuries to Corina Marie’s, neck and back and for loss of ^consortium of her husband, Lenias Marie. A judge trial was held on October 9, 1998. Prior to trial, the parties stipulated that the claim was less than the limits of the two insured policies and that plaintiffs would not seek a judgment against Toledo.1 After the trial, [971]*971judgment was rendered in favor of plaintiffs in the total amount of $7,352.03, $6,000.00 for Corina Marie’s, pain and suffering, $352.03 for her special damages and $1,000.00 for Lenias Marie’s loss of consortium.

On appeal, plaintiffs assert that the award of damages is inadequate. Plaintiffs contend that the trial judge was manifestly erroneous in finding that Corina Marie suffered only a 6 month whiplash injury and that her back condition predated the accident.2

Plaintiff testified that the day following the accident, her back from her neck to her tailbone began hurting. She stated that she treated the pain with heat, but it became so bad that she had to use her hand to lift her head. Plaintiff claimed that both her back and neck hurt at this time. Although she had 2 prior minor accidents over her 28 years before this one, plaintiff said that she had never felt this type of pain in the past. Plaintiff admitted that she had problems a few years before from an injection in the buttocks that caused pain down her leg. She stated that she went to physical therapy to stretch that scarring. The medical records show that in January of 1995, shortly before the accident, she was treated for “low back pain.” However, plaintiff disagreed that she had these pains on and off for many years. She claimed that this was a hip problem that was related to the buttocks incident, not to a low back condition.

From May 29, 1995 through August 15, 1995, plaintiff stated that she did|4not seek any treatment. She took over-the-counter medications for the next 8 months because the prescription muscle relaxants caused her drowsiness. She went to physical therapy for the first 2 months, then stopped for 4 months.

Prior to the accident, plaintiff also suffered from frequent migraine headaches and temporal mandibular joint (TMJ) syndrome, which she claimed got worse after the accident because the pain caused her to clench her teeth. However, plaintiff admitted that her job as supervisor over Control Visit was stressful and that, after the accident, her job had become more stressful because she had fewer employees. Plaintiff testified that she missed 1 day of work as a result of the pain.

More than 3 years later, in January of 1998, plaintiff began to complain of right shoulder pain that she related to the accident. At the time of trial, plaintiff testified that her neck and back pain had improved, but that she still has low back pain and a “sticking” feeling in her neck.

Plaintiff was seen initially by her primary doctor, Dr. Leslie Blake, an internal medicine doctor. A week later she was referred to an orthopedic surgeon, Dr. Paul Parks. She subsequently was treated by several other doctors at the Ochsner Clinic.3

Dr. Blake examined plaintiff 2 days after the accident. She found spasms in plaintiffs neck and back, particularly in the left side of the neck. X-rays indicated degenerative changes in the neck and back. Dr. Blake diagnosed plaintiff with whiplash, which she related to the accident. After a telephone conference with plaintiff on February 6, 1995, in which plaintiff complained of constant pain, Dr. Blake referred her to Dr. Parks for an orthopedic examination. 15In May of 1995, plaintiff returned to Dr. Blake with complaints of a possible bladder infection, chronic headaches, fatigue, numbness in her feet and low back pain. The low back pain was not the most important complaint at that time. In July, by telephone, the doctor recommended that plaintiff obtain a Tens Unit to alleviate her continued complaints of back pain.

Dr. Blake testified that plaintiff told her in 1993 that she suffered from TMJ prob[972]*972lems, neck pain and teeth grinding. Plaintiff was diagnosed with myofacial pain syndrome, which is chronic pain of muscular origin. In 1994, she told the doctor that she had daily tension headaches, which could be caused by situational stress, neck pain, high blood pressure, sinus problems, depression or any of numerous other causes. In January of 1995, plaintiff had an ear infection and complained of foot problems. In May of 1995 she did not complain of neck pain, but reported back pain. The doctor did not see plaintiff in 1996 and treated her in 1997 for unrelated complaints.

Dr. Blake’s notes showed that plaintiff had a history of back pain and that she had an Magnetic Resonance Imaging (MRI) test in 1992. However, she noted that plaintiff had seen a neurosurgeon at that time for buttock pain and numbness and that there was some concern about the sciatica nerve as a result of an injection. She testified further that plaintiffs foot problems could cause back pain.

Dr. Parks testified that he saw plaintiff on February 21, 1995. During his examination, plaintiff exhibited pain along the spine by the right side of the neck and back. She had decreased cervical motion. X-rays showed degenerative changes with osteophyte formations at the C-2, C-3 and C-4 levels, but were relatively normal. He testified that her back was essentially normal. An MRI |fiwas taken on March 21, 1995, which was also normal. Dr. Parks diagnosed plaintiff with acute sprain/strain syndrome of the neck and back. He testified that normal recovery for a neck sprain is 8-12 weeks.

Dr. Joseph Kaufman, an expert in the field of physical medicine and rehabilitation, testified that plaintiff was referred to him by Dr. Blake. Dr. Kaufman -saw plaintiff on November 1, 1995, complaining of a dull aching back pain when standing or sitting for long periods. She had no neck pain at that time.

Dr. Kaufman treated plaintiff with a program of exercises designed to teach her to stretch at home. The program lasted 4 weeks. In January of 1996, plaintiff had increasing back pain, but found some relief with a liimbar corset. She had some functional improvement on February 8, 1996. She had a bad day on February 13, 1996 and the doctor changed her exercises. In March, plaintiff complained of increasing headaches. Dr. Parks discussed her sleep patterns and the possibility of trigger point injections to break up the soft tissue. This continued until June of 1996, when she complained of constant variable pain,right upper extremity discomfort, low back pain and neck pain.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Entrekin v. Powell
841 So. 2d 845 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
742 So. 2d 969, 99 La.App. 5 Cir. 225, 1999 La. App. LEXIS 2400, 1999 WL 674546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marie-v-allstate-insurance-co-lactapp-1999.