Tompkins v. Savoie

10 So. 3d 294, 8 La.App. 5 Cir. 808, 2009 La. App. LEXIS 416, 2009 WL 765381
CourtLouisiana Court of Appeal
DecidedMarch 24, 2009
Docket2008-CA-808
StatusPublished
Cited by7 cases

This text of 10 So. 3d 294 (Tompkins v. Savoie) 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
Tompkins v. Savoie, 10 So. 3d 294, 8 La.App. 5 Cir. 808, 2009 La. App. LEXIS 416, 2009 WL 765381 (La. Ct. App. 2009).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

|2In this personal injury action involving a motor vehicle accident, the plaintiffs/appellants Daren Tompkins and Marvel Bates appeal the judgment in their favor against defendant’s/appellees Mary Savoie and Hartford Insurance Company awarding the plaintiffs damages and medical expenses. 1 Following a bench trial, the trial judge awarded Mr. Tompkins and Ms. Bates each $1,500 plus medically related damages in the amount of $1,110.00. 2 The appellants argue that the award is abusively low and the trial judge erred in assessing the duration of their injuries. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 2, 2004, Mr. Tompkins and his mother, Ms. Bates, were in a vehicle that was stopped at a red light when Ms. Savoie’s vehicle rear-ended their vehicle.

| ¡¡Mr. Tompkins

The medical evidence introduced at trial revealed that Mr. Tompkins had two lumbar surgeries, a shoulder scope, and three motor vehicle accidents predating the present accident.

Dr. Robert Dale, an expert in chiropractic treatment, testified that he treated Mr. Tompkins for injuries that he sustained in four motor vehicle accidents occurring in 1999 through 2004; namely, September 28, 1999, June 8, 2001, May 7, 2004, and, September 2, 2004. Dr. Dale testified that Mr. Tompkins presented similar complaints for the four accidents. He stated that his bill for the present accident was $4,285.

The present accident in September 2004 occurred a few months after the May 2004 accident. Dr. Dale stated that he was still treating Mr. Tompkins for injuries he suffered from the recent May accident when he began treating him for the September accident. Dr. Dale testified that the diagnoses for the May and September accidents were very similar and shared the following common diagnoses: 3 cervical lumbosacral sprain/strain injuries with at *297 tendant muscle spasm; myalgia; cervical-gia; cervical radicular syndrome; 4 post-traumatic shoulder and hip bursa swelling, sciatic nerve root compression; and, post traumatic sacroiliac joint disorder or pain. 5

Dr. Dale explained that contemporaneously with his examination of Mr. Tompkins, Dr. Dale completed a pain diagram describing Mr. Tompkins’ painful areas. Mr. Tompkins’ pain diagrams following the May and September accidents were identical.

|4Pr. Dale maintained, however, that the injuries from the two most recent accidents differed because of his treatment focus. In this respect, he focused his treatment on Mr. Tompkins’ chief complaints. Additionally, he testified that he tried to treat only the new areas of injury from the September accident rather than those areas that were previously treated following the May accident. His treatment for the May injuries focused on the neck and the left shoulder. Also, he treated the low back to a lesser degree.

In contrast, for the September accident, Dr. Dale explained that he treated the right shoulder, the right hip rotator, the right sacroiliac joint, and the lumbosacral paraspinous muscles. He also treated the right side of the lower back area, the right side joint, and the right hip musculature. Dr. Dale stated that he found objective findings in multiple areas such as spasm on palpation in the lumbosacral paraspi-nous muscles and the hip rotator musculature on both sides. Dr. Dale believed that the September accident exacerbated Mr. Tompkins left-sided neck problems and his left-sided lower back problems.

Mr. Tompkins, who was age 47 at the time of trial, testified similarly. He stated that Dr. Dale treated areas that differed from those associated with the May accident. In addition, Mr. Tompkins stated that he had increased level of pain in the same areas that were previously injured.

Dr. Dale wrote medical reports for the May and September accidents, which were introduced into evidence. The reports revealed the following:

Dr. Dale’s November 2004 report regarding the May accident stated that he released Mr. Tompkins from his care on October 13, 2004. Dr. Dale treated Mr. Tompkins beginning May 11, 2004 for a total of 44 treatments. Mr. Tompkins continued to be symptomatic through the final days of his treatment. He had spasm and pain in the cervical shoulder area as well as in the lumbosacral area. | sDr. Dale noted that “his condition because of the previous surgeries is very fragile and this accident caused substantial problems that he will continue to suffer with for some time.” Furthermore, Dr. Dale noted that the September accident “exacerbated a certain amount of problems that he was experiencing.”

Dr. Dale’s March 2005 report regarding the present accident states that he treated Mr. Tompkins for the September accident from September 3, 2004 until February 17, 2005 for a total of 47 times.

Mr. Tompkins testified that from September 7 to October 13, 2004, he had about 10 office visits twice a day. Once a day, Dr. Dale would treat him for his injuries as a result of the May accident and the other time he would treat Mr. Tompkins as *298 a result of injuries from the present accident. Mr. Tompkins stated that he discontinued the treatments because the treatments only provided temporary relief.

Mr. Tompkins testified that he was experiencing pain before the September accident due to his prior back surgery. His level of pain on a scale of zero to 10 was 10 before the September accident and it remained at this level at the time of trial on May 1, 2007. He attributed his current pain in the left side of his neck, left arm, and both legs to the September accident. He admitted, however, that he did not feel that he had improved from the earlier accident.

Dr. John J. Watermeier testified by deposition. He stated that he first saw Mr. Tompkins on August 31, 2004. Mr. Tompkins reported the motor vehicle accident of May 7, 2004. Dr. Watermeier stated that Mr. Tompkins complained of pain in the neck, the back, the left upper extremity, and the left lower extremity, including the left knee.

Dr. Watermeier testified that he asked Mr. Tompkins to return in three months. The next office visit was November 30, 2004. Mr. Tompkins voiced the |fisame complaints that he made on the prior visit. Dr. Watermeier stated that there was no change on the physical examination. The diagnosis from August to November was lumbar degeneration and cervicalgia of the neck.

Although Mr. Tompkins testified he thought that he told Dr. Watermeier about the present accident, Dr. Watermeier testified differently. Dr. Watermeier testified that Mr. Tompkins never mentioned the September accident. According to Dr. Watermeier, he never offered any treatment to Mr. Tompkins relative to the September accident.

Ms. Bates

Ms. Bates, who was age 70 at the time of trial, testified that she had prior neck and back surgeries.

Dr. Watermeier testified that he treated Ms.

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

Related

King v. Nat'l Gen. Assurance Co.
260 So. 3d 1298 (Louisiana Court of Appeal, 2018)
Richard v. Hawthrone
192 So. 3d 273 (Louisiana Court of Appeal, 2016)
Cormier v. Cushenberry
147 So. 3d 256 (Louisiana Court of Appeal, 2014)
George v. White
101 So. 3d 1036 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
10 So. 3d 294, 8 La.App. 5 Cir. 808, 2009 La. App. LEXIS 416, 2009 WL 765381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tompkins-v-savoie-lactapp-2009.