McGrew v. Jordan

516 So. 2d 1246, 1987 WL 2081
CourtLouisiana Court of Appeal
DecidedDecember 2, 1987
Docket19153-CA
StatusPublished
Cited by5 cases

This text of 516 So. 2d 1246 (McGrew v. Jordan) 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
McGrew v. Jordan, 516 So. 2d 1246, 1987 WL 2081 (La. Ct. App. 1987).

Opinion

516 So.2d 1246 (1987)

Mary Jeanette McGREW, Appellant,
v.
James E. JORDAN, Jr., John R. McGrew, & Bituminous Fire and Marine Ins. Co., Appellees.

No. 19153-CA.

Court of Appeal of Louisiana, Second Circuit.

December 2, 1987.

Gordon & Bailey, by Jack M. Bailey, Jr., Shreveport, for appellant.

*1247 Bodenheimer, Jones, Klotz & Simmons, by G.M. Bodenheimer, Hicks & Bookter, by S. Maurice Hicks, Jr., Shreveport, for appellees.

Before HALL, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

This is a suit for personal injuries resulting from an auto accident. The plaintiff, Mrs. McGrew, was injured when the truck in which she was a passenger ran off the road and hit a telephone pole. After a bench trial, she was awarded medical damages of $650 and general damages of $5,000. Mrs. McGrew now appeals, claiming this award is inadequate. For the reasons expressed, we amend and affirm.

The accident occurred on June 7, 1983. The plaintiff's husband, Mr. McGrew, was driving his Chevy S-10 pickup north on Hearne Rd. in the right (curb) lane. Mrs. McGrew was riding on the passenger side. James Jordan, a defendant, was driving a larger Chevy pickup north on Hearne in the left lane and was running almost side-by-side with Mr. McGrew. As they approached the intersection with Malcolm Dr., someone in Jordan's lane slowed or stopped to make a left turn. Jordan veered to the right and may have made contact with the front of Mr. McGrew's truck. Without slowing down, Mr. McGrew veered to his right, struck the curb, lost control and skidded into a telephone pole, allegedly causing the injuries of which Mrs. McGrew now complains. He estimated his speed at 45 m.p.h. before he lost control.

The trial court assessed fault of 65% to Jordan, his employer and their insurer, and 35% to Mr. McGrew and his insurer. The precise facts of the accident and the allocation of fault have not been appealed. Rather, the only issue is causation: whether Mrs. McGrew's substantial difficulties resulted from this accident or were merely the extension of her debilitated pre-accident condition. The trial court gave neither oral nor written reasons for judgment but apparently concluded that the accident did not appreciably aggravate the plaintiff's condition and was not responsible for any of the numerous surgeries she underwent after the accident. As noted, the court awarded only $5,650 in total damages. We conclude that the trial court was not clearly wrong in its implicit finding that the accident did not cause the long-term health problems from which Mrs. McGrew now suffers. However, we also conclude that the overwhelming evidence of her frailty and susceptibility to pain proves the award inadequate for the acute stage of the injury. We will amend the judgment accordingly.

Mrs. McGrew's prior medical history

Mrs. McGrew, who was 47 years old at the time of trial, was raised on a farm and spent most her early life engaged in heavy farm labor. With the exception of a childhood sprain that resolved itself, she experienced no back problems through the early years of raising small children and working on the farm and at odd jobs until she hurt herself checking groceries at a Piggly Wiggly in November 1968. What started then as low back pain increased into numbness running down her legs. A myelogram showed nerve root problems at L-4, 5 on the left side; she eventually underwent her first surgery, a partial hemilaminectomy at L-4 and L-5 in February 1969. This operation gave her considerable relief for a few months, but in May 1969 the back pain recurred at the same lumbar level. She spent some time wearing a back brace and taking medications, notably Indocin, and the condition seemed to improve. Then in August 1969 the symptoms recurred with such severity that Mrs. McGrew could not work. She was once again fitted in a brace. By October 1969, Dr. William Fox discharged her with a 15-20% partial permanent disability. Mrs. McGrew testified that after she recovered, she went back to work at Piggly Wiggly for about a year; Dr. Fox testified he did not know about this, although he thought she "should" be able to return to work as a grocery store checker.

Mrs. McGrew's next complications arose in August 1971 when the car in which she was riding was hit by a furniture truck, causing a sprain of the lumbar spine. After conservative treatment and drugs such *1248 as Darvon and Parafon Forte failed, she was hospitalized for a myelogram which showed a large defect at L-4 on the left side. She therefore underwent a second surgery to remove the L-4 disc. In November 1971 she reported no pain but a tingling sensation in her feet; by January 1972, the symptoms had recurred. A regimen of drugs, including Phenaphen # 3 (acetaminophen with codeine) produced moderate improvement, but left her with a limp in the left leg. Dr. Fox diagnosed irritation and damage to the L-5 nerve root and L-4 disc and prescribed Indocin and Talwin for pain. His last notation, in May 1971, reported her doing "a little better." Mrs. McGrew subsequently went to Dr. Young for surgery to relieve a pinched nerve that occurred in the course of healing from one of the disc surgeries. Around this time, Mr. McGrew went into business for himself, starting John McGrew Construction Co. and renting spaces in a trailer park. Mrs. McGrew testified that despite her pain and partial disability, she was able to assist him with office work and still keep up with household chores.

For the next few years, Mrs. McGrew did not experience any problems with her back; she testified that she settled with the driver of the furniture truck for her medical expenses plus "a bit." She underwent unrelated surgeries in 1976 and 1979. She went to Commercial College, graduated in 1978, and went to work for Shreveport Refrigeration in accounts receivable. She then transferred to SR's sister company, Five Star Distributing Co., as a receiving clerk. In this capacity she sometimes moved equipment. On one occasion she was moving a box and experienced sudden, severe pain in the back. She went to Dr. Fox's associate, Dr. Albert E. Dean.

When Dr. Dean saw her in June 1980, he suspected a spinal stenosis (crowding of the spinal cord) or a recurrent lumbar disc. He admitted her to Schumpert in August, where she had a myelogram and underwent a laminectomy of the L-4 to the sacral area, with excision of the L-5/S-1 disc on the right. Despite satisfactory healing, she continued to experience burning pain. In October, Dr. Dean noted degenerative changes in the cervical spine. In December, she turned and twisted her back again. She complained that she could not do housework then.

Because this pain would not abate, Dr. Dean hospitalized her in March 1981 for another myelogram and CT scan. On March 26 she underwent surgery of the L-3 disc and an expiration of the L-2 area. After the surgery, Mrs. McGrew improved and Dr. Dean thought she might return to work, but she was still bothered by persistent pain. When these problems had not abated by September 1981, Dr. Dean concluded that her lumbar pain was due to degenerative changes, secondary to her previous back problems; he thought she had reached a maximum cure, was at the chronic stage and would not be able to work again. Despite having "good days," Mrs. McGrew had to rest two hours every day and could not ride long distances in a car without pain. She continued to see Dr. Dean regularly into 1982, always complaining of pain. In April 1982 he reiterated that she had "definite further disability" of her back, there would be no further improvement, and that she would not be able to work again.

In July 1982, Mrs.

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Bluebook (online)
516 So. 2d 1246, 1987 WL 2081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrew-v-jordan-lactapp-1987.