Washington v. Bellard

602 So. 2d 223, 1992 La. App. LEXIS 1931, 1992 WL 143508
CourtLouisiana Court of Appeal
DecidedJune 24, 1992
DocketNo. 91-200
StatusPublished
Cited by2 cases

This text of 602 So. 2d 223 (Washington v. Bellard) 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
Washington v. Bellard, 602 So. 2d 223, 1992 La. App. LEXIS 1931, 1992 WL 143508 (La. Ct. App. 1992).

Opinion

JOHN A. PATIN, Judge Pro Tern.

This is a personal injury suit. Plaintiff-Appellant, Rose Belle Washington, seeks an increase in an award for damages assessed against defendant-appellee, Mary Bellard. Liability is not at issue as it was determined by summary judgment and not raised on this appeal. A jury trial was had on damages issues and an award was rendered in favor of appellant, but not to her liking. She appeals asserting the following assignments of error:

(1) the jury erred in awarding only $10,-000.00 in general damages;
[225]*225(2) the jury erred in only awarding six months lost wages totaling $3,000.00; and
(3) the jury erred in awarding only $15,-000.00 in medical expenses.

The suit arose out of a rear-end collision on March 10, 1986, in Lafayette, Louisiana. The damage to the vehicles was minimal. Shortly after the accident appellant complained of dizziness and was taken by ambulance to Our Lady of Lourdes Hospital.

On the following day, appellant visited Dr. Milton Jolivette complaining of severe neck and shoulder pain. Dr. Jolivette found muscle spasms in her neck which he attributed to a soft-tissue “whiplash” type injury, presumably caused by the accident. He gave her a soft cervical collar and prescribed certain medicines to control the pain. Over the next three months she returned to Dr. Jolivette with complaints of pain. She was hospitalized under Dr. Joli-vette’s care on three different occasions for a total of eighteen (18) days. The hospitalizations were necessary to find and alleviate the cause of her pain. Dr. Jolivette could find no neurological damage as tests for such were negative.

In May of 1986 Dr. Jolivette referred appellant to Dr. Norman Anseman, a physical therapy specialist, who began doing extensive therapy to aid the healing process. The therapy brought about a marked improvement in her condition. He released her from her last stay in the hospital on May 8, 1986, describing her in his records as being essentially pain free with a full range of motion in her neck and waist. She was still on medication but a normal recovery was predicted.

Dr. Anseman continued to treat appellant until September of 1986. During that time he treated her with therapy for neck and lower back problems, both of which he considered “whiplash” type strains. He discontinued treating her in September because he could no longer find objective reasons for her pain. She was still complaining of pain but he could find no neurological or physiological origin.

In May of 1987, fourteen months after the accident, appellant visited Dr. Robert Rivet, a neurosurgeon, complaining of neck pain, numbness in her hands, and lower back pain. Both Dr. Rivet and Dr. Robert Martinez, a neurologist who also examined her, decided she should undertake therapy again before resorting to surgery. Both doctors concurred in a diagnosis that her neck pain was the result of a pinched nerve brought on by a congenital birth defect. The defect was a fusion of the bones of several vertebrae and a narrowing of the foramen, or the hole through which the injured nerve passed. Another congenital defect evident was scoliosis of the spine which could also have contributed to the pinched nerve. They concluded the numbness in her hands was due to carpal tunnel syndrome.

When therapy failed to give her relief, surgery was performed. In December of 1987, Dr. Rivet removed bone from the opening where the pinched nerve ran, widening the hole and easing the pressure. At the same time a carpal tunnel release was done to reliev'e the numbness in her right hand. No surgery was performed on her back as it was agreed the neck problem was more serious and less responsive to therapy.

After the surgery appellant showed immediate signs of improvement to her neck and shoulders. She did, however, continue to complain of back problems. Dr. Daniel Hodges, her therapist prior to the surgery, continued to treat her for back pain. He classified the cause as being a degenerative joint problem which is brought about by age and use.

A jury trial was held on the issue of damages only. The trial lasted three days at the end of which the jury made the following award:

(1) $15,000.00 for past and future medical expenses;
(2) $3,000.00 for past and future lost wages;
(3) $10,000.00 for past and future pain and suffering and loss of enjoyment of life;
(4) $3,000.00 for past and future disability; and
[226]*226(5) $10,000.00 for general damages.
The total award was $41,000.00.

Appellant seeks an increase in her award for general damages, medical expenses and lost wages. She asserts the nature and extent of her damages were more extensive and demand greater compensation. While these assignments of error appear on first blush to deal solely with quantum, a closer look reveals they are based on allegations of fact finding errors.

The claim of insufficient awards in the present case is centered on a consideration of appellant’s health problems arising more than a year after the accident. We cannot presuppose those problems were considered when the award was made. Thus, a determination of whether or not those injuries should have been included must precede a review of whether or not compensation was just.

Appellant contends that the accident aggravated pre-existing congenital physical defects, more particularly the fused vertebrae and the scoliosis, and caused the symptoms of carpal tunnel syndrome and her lower back pain. In order to recover for these claims she must have proved the causal relationship between the accident and the subsequent injuries. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991). She must prove the causal connection by showing that the injuries were more probably than not caused by the accident. Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3d Cir.1987).

The jury’s award implies they were not convinced this burden was met, only awarding her for the soft-tissue injury to her neck and for six months lost wages. This is a finding of fact. As such it is incumbent upon us to give the jury great deference, reversing only where we determine their findings to be manifestly erroneous, or clearly wrong. Rosell v. Esco, 549 So.2d 840 (La.1989).

Appellant does not directly raise the issue that the jury was manifestly erroneous in its factual findings. She does imply an error when asserting her reasons for an increase in the amount of damages awarded. In order to properly determine if the general damages award was correct we must examine the facts and circumstances of the case. Reck v. Stevens, 373 So.2d 498 (La.1979). We must also examine the facts and evidence to see if lost wages and medical awards were correct for the period in which compensation was required.

What becomes the focal point is whether or not the jury was manifestly erroneous in limiting recovery to the soft tissue injury to appellant’s neck in its award. Appellant must have proved the damages she claimed in order to recover.

The testimony of the various treating physicians is highly important to the resolution of this matter. Appellant rests the majority of her case on the testimony of Dr. Rivet.

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Cite This Page — Counsel Stack

Bluebook (online)
602 So. 2d 223, 1992 La. App. LEXIS 1931, 1992 WL 143508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-bellard-lactapp-1992.