Mitchell v. Fire and Cas. Ins. Co. of Connecticut

540 So. 2d 352, 1989 La. App. LEXIS 373, 1989 WL 20589
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
DocketCA 87 1261
StatusPublished
Cited by10 cases

This text of 540 So. 2d 352 (Mitchell v. Fire and Cas. Ins. Co. of Connecticut) 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
Mitchell v. Fire and Cas. Ins. Co. of Connecticut, 540 So. 2d 352, 1989 La. App. LEXIS 373, 1989 WL 20589 (La. Ct. App. 1989).

Opinion

540 So.2d 352 (1989)

Charles MITCHELL, III
v.
The FIRE AND CASUALTY INSURANCE COMPANY OF CONNECTICUT, Orion Group Inc.

No. CA 87 1261.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.

*353 Richard Broussard, Lafayette, for plaintiff-appellant Charles Mitchell, III.

Leah Barron, Glen Scott Love, Baton Rouge, for intervenor-appellant United States Fidelity & Guar. Co.

Albert Dale Clary, Baton Rouge, for defendant-appellee The Fire and Cas. Ins. Co. of Connecticut.

Before LOTTINGER, EDWARDS, WATKINS, SHORTESS and SAVOIE, JJ.

EDWARDS, Judge.

Plaintiff, who was injured in an automobile accident, appeals from a trial court decision in his favor, alleging three assignments of error. For the following reasons we affirm, but amend to increase the award of damages.

On December 6, 1983, Charles Mitchell was employed as a delivery person for an office supply company in Lake Charles, Louisiana. While in the process of making deliveries in Beaumont, Texas, Mitchell's delivery van was violently struck in the rear by another vehicle. The collision was so violent that the bolts securing the van's driver seat were sheared in half, allowing Mitchell to be thrown forward into the steering wheel and dashboard area.

Mitchell was rushed by ambulance to St. Elizabeth's Hospital in Beaumont where he complained of severe back, neck and knee pains. After being released from St. Elizabeth's, a co-employee drove Mitchell back to Lake Charles. Two days later, on December 8, 1983, when Mitchell's pain worsened, he saw Dr. Don Ray England, a Lake Charles Chiropractor. Mitchell complained of pain in his neck, back and knee areas. Upon examination, Dr. England felt that Mitchell needed an orthopedic evaluation, and suggested that he see Dr. Dale Bernauer, M.D.

Dr. Bernauer's first examination of Mitchell was on December 9, 1983. At that *354 time Mitchell's chief complaint was pain in the neck and back areas, as well as the right knee. Dr. Bernauer found that Mitchell was suffering from muscle spasms and "pain with extension of the back and pain with flexion fully." Additionally a squeeze test of the perineal and sciatic nerves indicated irritation of the sciatic nerve. Dr. Bernauer saw Mitchell again on December 12 and December 21. Mitchell repeated the same complaints on each visit. During this period of treatment, Dr. Bernauer conservatively treated Mr. Mitchell by prescribing pain and anti-inflammatory medications.

Mitchell's next visit to Dr. Bernauer was on January 4, 1984. Mitchell's pain had become worse after a fall at his apartment on December 22. Mitchell was admitted to Lake Charles Memorial Hospital on January 4, 1984, where a myelogram test showed two herniated discs.

Although Mitchell was already receiving worker's compensation and medical payment benefits, upon the discovery of the disc injuries, he filed suit against his employer's uninsured motorists insurer, defendant herein, the Fire & Casualty Insurance Company of Connecticut, Orion Group Inc.

The negligent driver's insurer immediately settled for policy limits of $15,000.00, with Mitchell receiving half and the worker's compensation insurer receiving the other half.

While it was not stipulated at trial, it is undisputed that the myelogram performed on January 4, 1984 revealed the existence of two herniated discs at C5-C6. The chief defense of the defendant was that the fall in Mitchell's apartment actually caused the herniation of his discs and that they did not occur as a result of the automobile collision. A jury trial was held on March 23 and 24, 1987, in the Nineteenth Judicial District Court, with the Honorable Frank Foil presiding. Dr. Bernauer testified that it was more likely than not that the herniated discs were the result of the automobile collision and not of the subsequent fall. Dr. Norman Morin, M.D., an orthopedic expert called by the defendant, testified that in his opinion Mitchell's herniated discs were the result of the fall sustained by Mitchell.

Before the jury retired to deliberate, counsel for Mitchell requested a specific jury instruction pertaining to the proper weight to be given to the opinion of a treating physician, such as Dr. Bernauer, versus a physician who makes a one-time evaluation for purposes of trial, such as Dr. Morin. This requested instruction was denied by the trial judge.

The jury returned with a verdict in favor of Mitchell, but awarded him only $5,000.00 for past medical expenses and $20,000.00 for all other damages, for a total of $25,000.00. From the total jury award of $25,000.00, the trial judge deducted the $15,000.00 already received by the plaintiff which he had split with the worker's compensation insurer. Further, from the $10,000.00 that remained, the trial judge allowed the worker's compensation intervenor an additional $5,928.80 for reimbursement of medical and compensation payments to Mitchell. The end result was that Mitchell received the small sum of $4,071.20.

Mitchell appeals from this judgment alleging the following assignments of error:

I.

The trial court erred in permitting the testimony of Dr. Morin concerning his opinion of the cause of Mr. Mitchell's injuries and disability in view of his ignorance of Mr. Mitchell's earlier medical history as recorded by Dr. England, which Dr. Morin himself considered to be an important factor.

II.

The trial court erred in refusing to instruct the jury on the proper weight to give to the opinions of a treating physician versus a physician who makes a one-time evaluation for purposes of trial.

*355 III.

The jury erred in assessing damages suffered by the plaintiff.

ASSIGNMENT OF ERROR NUMBER ONE

Plaintiff asserts the trial court erred in overruling his objection to an opinion given by defendant's medical expert, Dr. Norman Morin. When Dr. Morin was asked if he had an opinion as to the cause of the plaintiff's neck and back disc problems, he replied:

A Yes: I have. I think you have to go pretty much by the doctor's findings and what the patient tells you to some degree, certainly as it relates to the findings. If the patient exaggerates findings— I mean complaints, and you can't correlate the findings to his complaints; then it leaves a question mark. But, let me read you something here from Dr. Bernauer's report.
Dr. Bernauer sent a report on May 22nd, '84 to this patient's counsel, Mr. Broussard, and he says here, on this— Mr. Broussard: Objection. The court will rule on my objection at the time of trial.
Q (Mr. Clary) Go ahead.
A In the second paragraph of that report, he—Dr. Bernauer says, "Exam shows—I originally saw Mr. Mitchell on 12/9/83. He said he was in a moving vehicle accident in Beaumont on 12/3/83. He was hit from the rear." It said, "He was taken to St. Elizabeth's Hospital, where he was in the emergency room for five hours. X-rays were negative by report there."
Then, he goes on to say something which is very important. He says, "Exam showed decreased range of motion of neck. Neurological examination was normal. Range of motion was full to the back, with pain with extension. Straight leg raising test was negative. Dorsiflexors were strong." Then, he goes on there for another paragraph or so. "He was seen again on 1/4/84. At that time, he said he had fallen; that his pain had gotten worse. He was admitted for physical therapy. He improved some, but continued to have right arm and neck pain.

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Bluebook (online)
540 So. 2d 352, 1989 La. App. LEXIS 373, 1989 WL 20589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-fire-and-cas-ins-co-of-connecticut-lactapp-1989.