Worsham v. Hetrick

777 So. 2d 1280, 2001 WL 99600
CourtLouisiana Court of Appeal
DecidedFebruary 7, 2001
Docket34,206-CA
StatusPublished
Cited by4 cases

This text of 777 So. 2d 1280 (Worsham v. Hetrick) 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
Worsham v. Hetrick, 777 So. 2d 1280, 2001 WL 99600 (La. Ct. App. 2001).

Opinion

777 So.2d 1280 (2001)

Aubrey WORSHAM and Ada Worsham, Plaintiffs-Appellants,
v.
Robert W. HETRICK, et al., Defendants-Appellees.

No. 34,206-CA.

Court of Appeal of Louisiana, Second Circuit.

February 7, 2001.

*1281 Brown, Erskine, Burkett & Breithaupt by Donald R. Brown, Monroe, Counsel for Appellants.

Hayes, Harkey, Smith & Cascio by Charles S. Smith, Karen L. Hayes, Monroe, Counsel for Appellees, Robert W. Hetrick, Rogers Trucking, Inc. and Harco National Insurance Co.

Patricia L. Barfield, Baton Rouge, Counsel for Intervenor, Louisiana Workers' Compensation Commission.

Lee & Broussard by Francis C. Broussard, Monroe, Counsel for Intervenor, Francis C. Broussard.

Before WILLIAMS, STEWART and DREW, JJ.

WILLIAMS, Judge.

The plaintiffs, Aubrey and Ada Worsham, appeal a judgment awarding past medical expenses of $26,789.57, lost wages of $25,000 and general damages of $30,000, for injuries sustained by Aubrey Worsham while driving his employer's vehicle. The trial court found that the intervenor, Louisiana Workers' Compensation Corporation, was entitled to reimbursement of $32,294.57 in medical expenses. Plaintiffs contend the jury's awards for medical expenses, lost wages and general damages were insufficient. For the following reasons, we amend and affirm as amended.

FACTS

On January 31, 1995, Aubrey Worsham, while working as a truck driver and mechanic for Jabar Corporation, was driving his employer's vehicle in Lincoln Parish, Louisiana, when he was struck on the passenger's *1282 side by a tractor-trailer truck driven by Robert Hetrick. As a result of the accident, Worsham complained of pain in his back, neck and left shoulder. Worsham was taken to the Lincoln General Hospital emergency room, where he was diagnosed with cervical and lumbar myofascial strain. Some days later, he began feeling pain in his right knee.

Worsham was initially treated by Dr. Loren Boersma, who first saw him on February 2, 1995. Dr. Boersma diagnosed Worsham with cervical and lumbar strain, prescribed pain medication and advised rest. During the February 21, 1995 visit, Worsham first complained of pain in his right knee, in addition to the pain in his neck, back and shoulder. Dr. Boersma ordered a bone scan, which was interpreted as negative for bone injury. Worsham continued to complain of right knee pain in his next two visits and last saw Dr. Boersma in April 1995.

On March 13, 1995, Worsham saw Dr. Baer Rambach, an orthopedic specialist, complaining of a burning sensation in his right knee, limited movement of his left shoulder and pain in his lower back and neck. Dr. Rambach diagnosed Worsham with adhesive capsulitis of the left shoulder and traumatic chondromalacia of his right knee patella. Upon Dr. Rambach's recommendation, Worsham underwent two procedures, forceful manipulation of his left shoulder and arthroscopic surgery on his right knee. After the surgery, Worsham underwent physical therapy from May 1995 to July 1995, but his pain persisted. Dr. Rambach ordered an MRI, which showed an impingement of the left shoulder rotator cuff mechanism. In August 1995, Worsham underwent surgery to release the left shoulder impingement. Following the surgery, Worsham participated in physical therapy three times per week from September 1995 to January 1996.

During this time, Worsham's back pain persisted and he was referred to Dr. James Zum Brunnen, an orthopedic surgeon. Dr. Zum Brunnen saw Worsham in April 1996 and reviewed a lumbar myelogram and CT Scan of the lumbar spine performed in December 1995. Dr. Zum Brunnen determined that the CT Scan showed a soft tissue protrusion in the lower back and ordered a follow-up lumbar MRI. In June 1996, Worsham began working in the auto service department at Wal-Mart. Approximately two months later, on August 12, 1996, Worsham slipped and fell while working. The lumbar MRI was performed on August 15, 1996, and Worsham next saw Dr. Zum Brunnen one week later. Because the MRI results confirmed the findings of the earlier tests, Dr. Zum Brunnen opined that Worsham had not sustained a significant new injury in the Wal-Mart accident.

The plaintiffs, Aubrey and Ada Worsham, filed a petition for damages against the defendants, Hetrick, Rogers Trucking, Inc., the owner of the tractor-trailer, and its insurer, Harco National Insurance Company. Louisiana Workers' Compensation Corporation (LWCC), Jabar's compensation carrier, intervened in the suit seeking to recover the amount of weekly compensation benefits and medical and rehabilitation expenses paid to plaintiff. Prior to trial, the parties stipulated to the defendants' fault in causing the accident. They agreed to submit the issue of damages to the jury and the intervention claim to the trial judge.

After the parties submitted their evidence, the trial court held a hearing on jury charge requests. The court denied plaintiffs' proposed jury instruction, which provided that "a medical condition producing disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health," but shortly after the accident, the disabling condition manifested itself. The court instructed the jury concerning claims for aggravation of pre-existing conditions. The jury awarded plaintiff past medical expenses of $26,789.57, lost wages of $25,000 and general damages of $30,000.

*1283 After a hearing on LWCC's subrogation claim, the trial court rendered judgment incorporating the jury's award and awarding LWCC reimbursement of $32,294.57 in medical expenses and $16,056 in workers' compensation benefits paid to Worsham. The plaintiffs' motion for judgment notwithstanding the verdict, new trial or additur was denied. Plaintiffs appeal the judgment.

DISCUSSION

Jury Instruction

The plaintiffs contend the trial court erred in refusing to give their requested jury instruction relative to the presumption of causation. They argue that Worsham was in good health prior to the accident because he was able to perform his job duties.

After presentation of all the evidence and arguments at trial, the court shall instruct the jurors on the law applicable to the cause submitted to them. LSA-C.C.P. art. 1792. Adequate jury instructions are those which provide the correct principles of law for the jury to apply to those issues reasonably raised by the pleadings and evidence. The trial court is not required to give the precise instruction submitted by a litigant, but need only give instructions which properly reflect the applicable law. Wilson v. National Union Fire Ins. Co., 27,702 (La.App.2d Cir.12/6/95), 665 So.2d 1252. The adequacy of jury instructions must be determined in light of the instruction as a whole. Belle Pass Terminal Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir.3/11/94), 634 So.2d 466, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. Appellate courts exercise great restraint before overturning a jury verdict on the suggestion that the instructions were so erroneous as to be prejudicial. Wilson, supra.

The law recognizes that a medical condition producing disability is presumed to have resulted from an accident if prior to the event, the injured person was in good health, but shortly after the accident the disabling condition appears and continuously manifests itself, provided the medical evidence shows there is a reasonable possibility of a causal connection between the accident and the condition. Housley v. Cerise, 579 So.2d 973 (La.1991); O'Riley v. City of Shreveport,

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Bluebook (online)
777 So. 2d 1280, 2001 WL 99600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worsham-v-hetrick-lactapp-2001.