Wactor v. Pickens Lumber Co.

505 So. 2d 815
CourtLouisiana Court of Appeal
DecidedApril 1, 1987
Docket18 505-CA
StatusPublished
Cited by29 cases

This text of 505 So. 2d 815 (Wactor v. Pickens Lumber Co.) 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
Wactor v. Pickens Lumber Co., 505 So. 2d 815 (La. Ct. App. 1987).

Opinion

505 So.2d 815 (1987)

Russell WACTOR, Plaintiff-Appellant,
v.
PICKENS LUMBER COMPANY and its insurer, Wausau Insurance Companies, and James H. Foreman, Defendants-Appellees.

No. 18 505-CA.

Court of Appeal of Louisiana, Second Circuit.

April 1, 1987.
Rehearing Denied April 30, 1987.
Writ Denied July 1, 1987.

*816 Williams & Williams by Moses Junior Williams, Tallulah, for plaintiff-appellant.

Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellees.

Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.

*817 MARVIN, Judge.

In this appeal, the plaintiff who suffered disabling injuries in a motor vehicle accident in 1983 seeks to increase a judgment that awarded him $150,000 general damages and approximately $17,000 for past medical expenses. The defendant contends that the trial court did not abuse its great discretion and argues that the judgment should be affirmed.

We amend to increase the award to allow for future medication expense. As amended, we affirm.

FACTS

Plaintiff, Russell Wactor, a 46 year-old bricklayer, suffered broken ribs and other injuries when defendant's large Mack truck and trailer that entered the favored highway from an inferior and intersecting roadway collided with the right side of the automobile on the favored highway in which Wactor was a passenger.

INJURIES AND TREATMENT

Three days after the accident Wactor saw a general practitioner, Dr. Chenier, complaining of severe pain in the low back area, right leg, arm, rib and hip areas, and difficulty in deep breathing. Dr. Chenier did not hospitalize Wactor but prescribed pain medication and referred him to Dr. Rowlett, an orthopedic specialist. Dr. Rowlett diagnosed fractured ribs and prescribed heat treatments, muscle relaxants, and pain medication. Dr. Rowlett advised Wactor to exercise and work within the limits of his pain.

After some three months of treatment pain began radiating down Wactor's left leg. A CAT scan revealed nerve root encroachment in the lumbosacral area. Wactor was referred to Dr. Stringer, a neurosurgeon, in March 1984. A myelogram revealed possible complications and indicated surgery. Dr. Rowlett and Dr. Stewart, an orthopedic specialist, performed the surgery and found an arachnoid cyst on the spine in the low back area which they determined was causing nerve root pressure. Dr. Rowlett performed a lumbar laminectomy to enlarge the bony area around the cyst and relieve compression of the nerve. Dr. Stewart fused the L-4 and L-5 lumbar vertebrae and the sacrum with bone taken from Wactor's hip and inserted metal rods to further stabilize the lower spine.

Wactor had a pre-existing back condition that arose, in part, from injuries he sustained in a 1957 automobile accident. An "old" compression fracture of the L-4 vertebra was found that was "likely caused" by the 1957 accident, as well as spondylolisthesis, an instability of the lumbosacral junction, which Dr. Stringer said was probably of congenital origin. Dr. Stringer unequivocally stated that the 1983 accident aggravated Wactor's pre-existing conditions and may have caused the arachnoid cyst.

Wactor will not be able to return to brick mason work, and he will continue to have pain and experience a great deal of difficulty flexing his back. Dr. Stringer explained that it was unlikely that future surgery would benefit Wactor and that Wactor had a 25 percent permanent partial disability. Dr. Stringer thought that although it is possible that his condition will improve with time, Wactor will likely be unable to return to performing basic manual labor and will have to live with some pain for the remainder of his life, for which he would have to take mild pain medication. At this juncture, we note that the trial court, in its reasons for judgment, did not discuss or award any amount for future medical.

We also note that a tortfeasor takes his victim as he finds him and is obligated to compensate his victim to the full extent of the injuries and disabilities he causes, even though the victim may have been predisposed to such injury and disability. Dupree v. Louisiana Transit Management, 441 So.2d 436 (La.App. 2d Cir.1983).

Wactor was hospitalized two times for a total of 11 days and was confined at home for several weeks thereafter. He underwent several diagnostic procedures, including a CAT scan and myelogram and saw his treating physicians approximately 15 times for more than a year before trial. Wactor's medical expenses are itemized:

*818
1. Dr. Chenier                 $   381.25
2. Dr. Rowlett                     423.00
3. Mercy Regional Medical Center    35.00
4. River Oaks Hospital           9,252.15
5. Dr. Dunn                        530.00
6. Dr. Barlow                      314.00
7. Dr. Stewart                   3,978.50
8. Dr. Stringer                  1,815.00
                               __________
TOTAL                          $16,828.90

WORK HISTORY

The record shows that Wactor worked for many years as a brick mason at an hourly rate ranging from $8—$12 per hour. His work as a brick mason, however, was shown to have been very sporadic. Wactor did not produce income tax returns in response to a subpoena and admitted that he had not filed tax returns for the four years prior to trial. Wactor explained that during those years he had not worked enough or made enough money to file an income tax return.

Economic experts who testified about Wactor's lost earning power agreed that he had a remaining work-life expectancy of 14.5 years. His life expectancy was stated to be 27 years. Plaintiff's expert, Dr. Bettinger, calculated lost-earning capacity based on the earnings of a typical brick layer, $10 per hour, 40 hours a week, for 50 weeks each year. Dr. Bettinger estimated Wactor's loss of earning capacity at $324,530 and opined that Wactor had lost some $28,000 in potential earnings between the accident and the trial.

Defendants' expert, Dr. Hood, testified that he could not calculate any lost earning capacity or loss of future earnings because plaintiff had no demonstrated earning history on which projections could be based.

In reasons for judgment the trial court said in part:

Although there was conflicting testimony, the owner of the store on which plaintiff did brick work and a co-employee of plaintiff both testified that, prior to the 1983 automobile accident at issue, plaintiff complained of his back and avoided heavy lifting or stooping in his brick mason work. They also testified that plaintiff came back to work after the 1983 accident, and that there was no change in the way plaintiff worked before and after the accident. * * *
... judgment will therefore be granted in favor of plaintiff in the amount of $150,000.00 together with all medical costs. The problem for the court, as previously noted, is to adequately compensate the insured person for his injury under the existing facts. In Sepulvado v. Willis-Knighton Medical Center, Inc., 459 So.2d 152 (La.App. 2d Cir.1984), the Second Circuit Court of Appeal affirmed a lump sum award of $175,000.00 to a back patient who was reinjured leaving the hospital. While not exactly on point concerning the nature of the injury, the reasoning of the court in affirming the damage award is here applicable.

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505 So. 2d 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wactor-v-pickens-lumber-co-lactapp-1987.