Simar v. Nowcam Services

617 So. 2d 164, 1993 WL 105566
CourtLouisiana Court of Appeal
DecidedApril 7, 1993
Docket92-643
StatusPublished
Cited by5 cases

This text of 617 So. 2d 164 (Simar v. Nowcam Services) 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
Simar v. Nowcam Services, 617 So. 2d 164, 1993 WL 105566 (La. Ct. App. 1993).

Opinion

617 So.2d 164 (1993)

Jay W. SIMAR, individually and On Behalf Of his Minor Children, Jaret Simar and Seth Louis Simar, and Dessie Simar, Plaintiffs-Appellees,
v.
NOWCAM SERVICES, Defendant-Appellant.

No. 92-643.

Court of Appeal of Louisiana, Third Circuit.

April 7, 1993.

*165 Denise A. Vinet, Baton Rouge, for Jay W. Simar, etc.

Douglas C. Longman Jr., Ian Alexander Macdonald, Lafayette, for Nowcam Services.

Charles V. Musso Jr., for Lake Charles, CUI.

*166 Before GUIDRY, KNOLL and WOODARD, JJ.

KNOLL, Judge.

This is a personal injury suit which arose from an oil field accident which occurred on July 12, 1989. The single issue on appeal concerns the reasonableness of certain elements of plaintiffs' recovery.

As a result of an accident, plaintiff, Jay W. Simar, an employee of B & L Well Service, suffered injury to his neck and head. Simar and his wife, Dessie, and their two children, Jaret and Seth, sued NOWCAM Services alleging that Simar's injuries were caused by the negligence of a NOWCAM employee. The jury found that NOWCAM was 100% at fault and awarded damages as follows:

  1.) Past Medical Expenses            $19,000.00
  2.) Future Medical Expenses            7,000.00
  3.) Past Lost Earnings                39,000.00
  4.) Future Lost Earnings Capacity     20,000.00
  5.) General Damages                  105,000.00
  6.) Loss of Consortium:
      (a) Dessie Simar                  10,000.00
      (b) Jaret Simar                    5,000.00
      (c) Seth Simar                     5,000.00
                                      -----------
          TOTAL AWARD:                $210,000.00

The trial court granted defendant's motion for judgment notwithstanding the verdict and lowered plaintiffs' total award to $170,102.92 as follows:

  1.) Past Medical Expenses             $ 18,624.67
  2.) Future Medical Expenses             -0-
  3.) Past Lost Earnings                  19,478.25
  4.) Future Lost Earnings Capacity       20,000.00
  5.) General Damages                    105,000.00
  6.) Loss of Consortium:
      (a) Dessie Simar                     5,000.00
      (b) Jaret Simar                      1,000.00
      (c) Seth Simar                       1,000.00
                                        -----------
      TOTAL ADJUSTED AWARD              $170,102.92

NOWCAM appeals from this judgment and assigns five errors. Specifically, NOWCAM asserts that the following damage awards are excessive: past medical expenses, past lost earnings, future lost earnings capacity, general damages, and the children's loss of consortium. Plaintiffs did not answer the appeal nor did they directly appeal the trial court's judgment; therefore, we will not consider their argument in brief that certain awards should be increased. LSA-C.C.P. Art. 2133.

FACTS

Simar was injured while helping NOWCAM employees remove aluminum support legs from the coil tubing unit of a workover oil rig. While handling one of the legs, Simar was struck squarely on the head by another leg which had been placed against a mud tank by a NOWCAM employee. Simar, who was wearing a hard hat, fell to the platform. He initially complained of neck pain, and a burning sensation between his shoulder blades, and was unable to continue working on that day.

Dr. Louis Shirley, a general practitioner and Simar's treating physician, first examined Simar on July 13, 1989, the day after the accident. Simar could not turn his head up or sideways and had lost his ability to bend forward. He initially complained of neck pain and a burning sensation between his shoulder blades. Dr. Shirley found no dislocations or fractures, but believed Simar to have a severe neck sprain. He immediately began physiotherapy and prescribed anti-inflammatory medicine and pain medication. Dr. Shirley continued to treat Simar through the trial date.

During the initial period of treatment, Dr. Shirley referred Simar to Dr. William Foster, a neurosurgeon. Dr. Foster's report showed that Simar possibly had a concussion. After performing a myelogram, he ruled out the possibility of disc abnormalities. Dr. Shirley also referred Simar to an orthopedic specialist, Dr. R. Dale Bernauer, who initially felt that Simar suffered from a cervical and thoracic strain. After performing a myelogram, a CT scan, an EMC nerve conduction test, and a MRI, he concluded that Simar did not suffer from a disc problem. Dr. Bernauer believed that Simar suffered pain, but opined that he exaggerated his complaints. Dr. Shirley opined that any exaggerations were probably due to the severe depression Simar was experiencing. Dr. Bernauer eventually released Simar to return to work.

Although disc problems were ruled out, Simar continued to suffer neck, shoulder, *167 and arm pain, and 6 months after the injury, complained of lower back and leg pain. Dr. Shirley diagnosed Simar with myofibrositis, inflammation of muscular tissue, surrounding the cervical spine. He based his diagnosis on objective findings of muscle spasms, positive results of Kernig's tests for the sciatic nerve, and positive results on leg raises, and on Simar's subjective complaints. Dr. Shirley stated that he has treated patients with this type of injury on numerous occasions, and this injury cannot be detected on any of the diagnostic tests performed by the other physicians. He testified, as did Simar, that Simar suffers from chronic neck and back pain, and severe depression, and cannot return to work in the oil field. Dr. Shirley opined that Simar will have pain problems for the rest of his life, will need to take pain medication regularly, but will not need future surgery.

Dr. James McDaniel, an orthopedic surgeon, performed an independent medical examination on Simar on November 19, 1990. He noted that a myelogram and CT scan revealed no signs of disc injury. He disagreed with Dr. Shirley's diagnosis of myofibrositis, stating that Simar did not have the inflamed muscular nodules associated with this condition. He further testified that Simar had a normal cervical range of motion and no muscle spasms. According to Dr. McDaniel, if Simar was suffering from myofibrositis he should exercise. Dr. McDaniel concluded that the persistent pain complained of was probably caused by some activity or movement in Simar's everyday lifestyle which perpetuated the pain. He opined that the severity of the injury was inconsistent with a two year period of debilitation pain.

Simar testified that the blow to his head initially caused a pinching feeling in his neck. The pain progressed to his shoulders, head, and eventually, along his spine to his waist area. He first complained of lower back and right leg pain to Dr. Bernauer in May of 1990, ten months after his injury. Dr. Bernauer ruled out any connection between this new pain and the accident. He stated that he is still in constant pain, which is aggravated by almost any activity. Simar described his pain medication as ineffective and further stated that he slept with great difficulty. He stated that he could not work because he was unable to stand on a hard surface for more than 30 minutes. Simar stated that he has not sought any light duty work since the accident because he does not think he could handle it. Moreover, he testified that he could not engage in his usual active lifestyle of hunting, fishing, and playing recreational sports. Simar denied that he was exaggerating the severity of his pain, stating that the pain became increasingly worse over time.

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Bluebook (online)
617 So. 2d 164, 1993 WL 105566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simar-v-nowcam-services-lactapp-1993.