Stapleton v. Great Lakes Chemical Corp.

639 So. 2d 300, 1994 La. App. LEXIS 1368, 1994 WL 174833
CourtLouisiana Court of Appeal
DecidedMay 4, 1994
DocketNo. 24386-CA
StatusPublished
Cited by5 cases

This text of 639 So. 2d 300 (Stapleton v. Great Lakes Chemical Corp.) 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
Stapleton v. Great Lakes Chemical Corp., 639 So. 2d 300, 1994 La. App. LEXIS 1368, 1994 WL 174833 (La. Ct. App. 1994).

Opinions

JjSEXTON, Judge.

The Louisiana Supreme Court vacated in part, affirmed in part, and remanded our previous holding in Stapleton v. Great Lakes Chemical Corporation, 616 So.2d 1311 (La.App.2d Cir.1993). In that opinion, we held, in relevant part, that the trial judge erred in finding separate causes of action in both the tort case and the worker’s compensation intervention and thereby finding the plaintiff, Stapleton, and defendant, Henderson, each 50 percent at fault in causing the accident in question, in contradiction to the finding of the jury allocating no fault to either defendant and rejecting the demands of plaintiff. We affirmed the trial court’s determination that defendant, Brown, was not negligent. We further found that the jury was not clearly wrong in its rejection of plaintiffs demands and affirmed the judgment rendered on the jury verdict. The higher court agreed with our -holding finding error in the trial [302]*302court’s belief that the tort action and the intervention represented separate causes of action, 627 So.2d 1358. It further affirmed the findings that defendant, Brown, was not negligent. The court disagreed, however, with our determination that the jury verdict was not clearly wrong in finding Stapleton and Henderson free of fault. Accordingly, the court vacated and set aside both this court’s, and the trial court’s holdings, except insofar as Brown was found not at fault, and rendered judgment assessing Henderson 75 percent at fault and Stapleton 25 percent at fault. This matter was remanded for the calculation and award of damages in accord with the percentages of fault allocated to the two truck drivers and the rendering of a proper verdict as to the intervention. We amend the judgment on the intervention and affirm as amended. We also render judgment for plaintiffs.

WORKER’S COMPENSATION INTERVENTION

The rendering of a proper verdict as to the intervention is not difficult. The trial court originally rendered judgment in favor of intervenor in the amount of $102,713.25, plus legal interest. This amount represents 50 percent of all worker’s compensation benefits paid and corresponds with the original 50 percent fault allocation originally set by the trial judge against Stapleton and Henderson.

|2The rights of an employer to recover compensation benefits paid to an injured employee are identical to the employee’s right to recover from the third party tortfeasor, and where the employee’s recovery is reduced due to comparative negligence, the employer’s recovery is reduced by the same percentage. Chatelain v. Project Square 221, 505 So.2d 177 (La.App. 4th Cir.1987), writs denied, 508 So.2d 71, 74 (La.1987). Because the supreme court has assessed Staple-ton’s fault at 25 percent and Henderson’s fault at 75 percent, intervenor, Travelers Insurance Company, is entitled to judgment against defendants, Max Henderson, Great Lakes Chemical Corporation, and Old Republic Insurance Company in the amount of $154,069.87, together with legal interest thereon.

DAMAGES

A proper calculation of damages is necessary pursuant to the higher court allocation of fault. At the time of trial, Mr. Stapleton was 40 years old; on the date of the accident, he was 36. He is married and has two children from this union. He also has four children and his wife has two children from previous marriages. Mr. Stapleton dropped out of high school, but later earned his GED. He had been in the truck driving profession since 1970 and was employed during that time by several companies.

Following the accident in question, Staple-ton was transported to Lincoln General Hospital in Ruston and then to St. Francis Hospital in Monroe where he remained for one week. Eight days after the accident, on January 17, 1988, Stapleton was transferred to St. Charles General Hospital Emergency Room in New Orleans. From the time of the accident, Stapleton experienced severe pain in his neck area and headaches radiating from the base of the skull at the top of the neck. Upon his admission to St. Charles General, plaintiff remained on various pain medications which were affording him no relief. Dr. S. Henry LaRocca saw plaintiff in the emergency room on January 17, 1988, and has continued to treat plaintiff since that time. On this date, plaintiff experienced severe restriction of motion in all directions, with muscle | sspasms in the back of his neck. Compression of the head down onto the neck produced the neck pain of which plaintiff complained. Because the doctor suspected both a head injury as well as a intervertebral disc injury, an MRI was performed as well as an EEG. The MRI was normal and the EEG revealed that indeed plaintiff has experienced a head injury which caused brain inflammation. An EMG was performed in addition to the other tests and at that time, the results were normal. Plaintiff remain hospitalized for a period of four days.

On February 24, 1988, he returned to Dr. La Rocca’s office for an office visit and continued to do poorly with complaints of pain in the neck and headaches. Because plaintiffs condition was worsening, Dr. LaRocca once again admitted plaintiff to the hospital and [303]*303conducted various X rays and a CAT scan. These were normal. Another EMG was performed and demonstrated that Stapleton had cervical disc disruptions at C5-6 and C4-5. Surgery was performed, removing the disrupted discs. Plaintiff remained in the hospital another five days, without serious complication.

He was once again seen by Dr. LaRocca in the emergency room of St. Charles General on March 15, 1988, complaining of neck spasms. The doctor prescribed pain medication without admission to the hospital. On March 22, 1988, plaintiff returned to the hospital with an increase in neck pain and was admitted. After release, plaintiff made regularly scheduled visits to Dr. LaRocca and experienced a gradual lessening of pain in the neck area.

On April 25, 1988, plaintiff began to complain of lower back pain and was diagnosed as having spondylolisthesis at L5-S1, a condition existing since childhood, but which had remained asymptomatic prior to this time. He visited Elmwood Hospital, Dr. LaRocca’s new situs, for X rays which revealed the spondylolisthesis and a ruptured disc above it at L4-5. In September of 1988, the pain worsened. On November 3, 1988, Stapleton underwent back surgery for removal of the disc herniation and insertion of a bone graft. Mr. Stapleton continued in pain and his body rejected the bone graft. Accordingly, on April 26,1989, an anterior lumbar fusion was Uperformed for correction of the bone graft rejection. He was released from the hospital seven days later and continued to see Dr. LaRocca.

The anterior fusion was successful. Although, in March of 1990, plaintiff continued with some pain in his back and was now experiencing pain in his right leg, both of which were treated with medication. In May of 1990, however, Stapleton returned to Dr. LaRocca’s office with an intense onset of pain in the legs, which Dr. LaRocca diagnosed as an incurable nerve condition called radiculo-pathy which results from nerve damage. At that time, he was given narcotics for control of the problem, which proved unsuccessful. He continued on pain medication through July of 1990. As a preferable alternative to continued use of heavy doses of narcotics, Dr. LaRocca opted for implantation of a dorsal column stimulator, a device used to control the pain. This surgery occurred on August 2,1990. The device is activated by Stapleton as needed to send an electrical impulse to his spine which in turn masks the pain in the lower limbs.

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Bluebook (online)
639 So. 2d 300, 1994 La. App. LEXIS 1368, 1994 WL 174833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stapleton-v-great-lakes-chemical-corp-lactapp-1994.