Whittington v. Rimcor, Inc.

601 So. 2d 324, 1992 WL 103494
CourtLouisiana Court of Appeal
DecidedMay 13, 1992
Docket23488-CA
StatusPublished
Cited by16 cases

This text of 601 So. 2d 324 (Whittington v. Rimcor, Inc.) 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
Whittington v. Rimcor, Inc., 601 So. 2d 324, 1992 WL 103494 (La. Ct. App. 1992).

Opinion

601 So.2d 324 (1992)

Charles I. WHITTINGTON, Plaintiff-Appellant,
v.
RIMCOR, INC. and the Travelers Insurance Company, Defendants-Appellees.

No. 23488-CA.

Court of Appeal of Louisiana, Second Circuit.

May 13, 1992.
Rehearing Denied June 18, 1992.

*325 The Allison Law Firm by William T. Allison, Shreveport, for plaintiff-appellant.

Theus, Grisham, Davis & Leigh by C. Wendell Manning, Shreveport, for defendants-appellees.

Before MARVIN, SEXTON and BROWN, JJ.

MARVIN, Chief Judge.

The claimant's appeal in this worker's compensation action concerns the extent of the employer's obligations to provide rehabilitation services (LRS 23:1226) and to pay the cost of an expert evaluation to determine whether the claimant has a medical condition (temporomandibular joint syndrome) that is causally related to the 1987 accident (§ 1203).

The claimant, Charles Whittington, suffered injuries to his head, neck, back and knees in 1987 when he fell from a scaffold while working as a bricklayer for RIMCOR, Inc. He has since been permanently disabled from returning to heavy manual work.

Whittington's son is engaged in a business that repairs and maintains x-ray equipment. Whittington desires to be retrained to qualify for employment by his son or others as a medical equipment servicing technician, by completing courses in basic electronics at a school in Louisiana and by attending a school in Ohio that offers specialized training in servicing medical equipment. Defendants have refused to pay for the specialized training in Ohio, claiming that the in-state training is all that is required for Whittington to meet the entry-level hiring requirements for servicing medical equipment.

Defendants have also refused to pay for a medical evaluation by an oral surgeon or an orthodontist to determine whether Whittington's headaches are caused by temporomandibular joint syndrome (TMJ). This evaluation for TMJ was first recommended some two years after the accident by Whittington's neurologist and psychiatrist, Dr. Ware, who has been treating Whittington's headaches since the accident.

Defendants claimed the cost of the TMJ evaluation was not related to Whittington's accident because Whittington had been treated for headaches before the accident and the medical reports of the several physicians who treated him extensively after the accident did not mention the possibility of TMJ until Dr. Ware made his recommendation two years after the accident.

The trial court dismissed Whittington's demands, finding that adequate job training was available in Louisiana and that Whittington's TMJ problem, if any, was not related to the work accident. The court found that even if Whittington had prevailed on these claims, the w.c. insurer was not arbitrary or capricious in refusing to pay.

Whittington appeals to challenge each finding, as well as the trial court's denial of his motion to exclude the testimony of defendants' rehabilitation expert, who was retained two weeks before trial.

We reverse in part, affirm in part, and remand.

OBJECTION TO EXPERT TESTIMONY

The parties filed separate pre-trial statements in August, about four months before the December 3, 1990, trial. Among potential witnesses defendants listed "an expert in the field of rehabilitation." Defendants reserved the right to amend their witness list by providing written notice to claimant's counsel at least seven days before trial.

On November 13, 1990, Whittington propounded interrogatories to defendants asking them to identify their expert witnesses. On November 16, Whittington moved for and obtained an order shortening the time for answering the interrogatories from 15 to 10 days because trial was set for December 3. Defendants answered the interrogatories on November 23, identifying Dr. Herbst as their rehabilitation expert. Defendants filed an amended witness list on November 26, seven days before trial.

*326 On November 27, 1990, Whittington filed his motion in limine to preclude Dr. Herbst from testifying at trial because she told Whittington's counsel by phone that she was first contacted by defendants on November 19, two weeks before trial, and that she would not have her report ready or be available to be deposed until November 30, the Friday before the trial was to begin on Monday. The motion was heard on the day of trial and denied. In the meantime, Whittington deposed Dr. Herbst on November 29, the Thursday before trial.

When deposed, Dr. Herbst said she had contacted two medical equipment servicing companies about hiring requirements for technicians but had not contacted any hospitals. Dr. Herbst testified that the two companies required only an associate degree in electronics to hire someone, and would thereafter teach an employee the more specialized work either by on-the-job training or by sending him or her to the Radiological Service Training Institute (RSTI) in Ohio, the school that Whittington desires to attend at defendants' cost.

Dr. Herbst made only a general inquiry about the hiring requirements of the two companies and did not mention Whittington's age, which she knew was 50, or other particulars such as the fact that he was unable to perform heavy manual labor. After the deposition and before trial, Whittington's counsel contacted the two companies and was told that they would either not hire, or would not be willing to train on the job, someone who was 50 years old.

At trial, Dr. Herbst testified about the hiring requirements of the two companies she mentioned in her deposition, and about the similar hiring requirements of several hospitals that she had contacted between the deposition and the trial. Whittington's counsel reurged his motion in limine, saying it was "patently unfair for [defendants] to let me take a deposition two days before trial and then have her go do work after that that totally changes her testimony."

The court again denied the motion, reasoning that Whittington's argument would go to the weight of Dr. Herbst's testimony. Whittington's counsel testified on rebuttal about his conversations with the two companies he contacted.

Whittington argues that his motion in limine should have been granted because "it just simply was not fair" to allow Dr. Herbst to testify when she was hired two weeks before trial, deposed two business days before trial, and continued working on the case after she was deposed. Defendants claim the motion was properly denied because they timely answered Whittington's interrogatories and amended their pre-trial statement, and "opposing counsel was afforded adequate opportunity to depose Dr. Herbst." Defendants note that Whittington did not depose his medical expert, Dr. Ware, to perpetuate his testimony for trial until November 27, 1990, two days before Whittington deposed Dr. Herbst.

On this record, we cannot say that the trial court abused its discretion in allowing Dr. Herbst to testify. Whittington did not ask for the name of defendants' expert until about 2-1/2 weeks before trial. Defendants timely answered Whittington's interrogatories and amended their pre-trial statement to name Dr. Herbst as their expert. Whittington's attorney was allowed to rebut Dr. Herbst's testimony about the hiring requirements of the two companies she mentioned in her deposition.

While defendants perhaps were tardy in retaining Dr. Herbst and notifying Whittington of her identity, the circumstances of this record, taken as a whole, do not allow the conclusion that Whittington was "ambushed" or prejudiced by Dr. Herbst's testimony. See and compare Ulmer v. Baton Rouge Gen. Hospital,

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Bluebook (online)
601 So. 2d 324, 1992 WL 103494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittington-v-rimcor-inc-lactapp-1992.