Mart v. Hill

• Decision Date: 09 October 1986
• Docket Number: No. CA-4700,CA-4700
• Citation: 496 So.2d 1149
• Parties: Raymond J. MART v. James E. HILL, Intracoastal Truck Lines, Inc., and North River Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 1149

496 So.2d 1149

Raymond J. MART v. James E. HILL, Intracoastal Truck Lines, Inc., and North

River Insurance Company.

No. CA-4700.

Court of Appeal of Louisiana,

Fourth Circuit.

Oct. 9, 1986.

Writ Granted Dec. 12, 1986.

Dominic J. Gianna, Deborah D. Cunningham, Hammett, Leake & Hammett, New Orleans, for defendants-appellees.

A. Remy Fransen, Jr., C. Scott Carter, Wiedemann & Fransen, New Orleans, for plaintiff-appellant.

Herman L. Bastian, Jr., Law Office of Milton LeBlanc, New Orleans, for intervenor-appellant.

Before CIACCIO, WILLIAMS, and HUFFT, JJ.

WILLIAMS, Judge.

This is a personal injury action by plaintiff Raymond J. Mart arising out of injuries he sustained in a rear end automobile collision on October 19, 1981. Named as defendants were James E. Hill (the owner and operator of the other vehicle), Intracoastal Truck Lines, Inc. (the lessor of Hill's vehicle and Hill's employer), and North River Insurance Company (the insurer of Intracoastal Truck Lines, Inc.). An Intervention was filed by National Union Fire Insurance Company, the compensation insurer of plantiff's employer, Boson Diesel, Inc., seeking reimbursement of compensation and medical benefits paid to plaintiff in connection with the accident.

This case was tried before a commissioner. The commissioner recommended that judgment be rendered in favor of plaintiff against defendants in the amount of $10,000.00 in general damages plus $8,760.00 in lost wages for a lumbosacral strain sustained by plaintiff, the award subject to a 50% reduction representing the degree of plaintiff's fault in the accident. The trial judge affirmed the commissioner's recommendations.

Plaintiff and Intervenor bring this appeal taking exception to the commissioner's findings assessing plaintiffs degree of fault at 50%, the adequacy of damages awarded plaintiff attributable to the accident and the failure of the commissioner to compensate plaintiff for "traumatic neurosis" he suffered as a result of the accident. After a thorough review of the record, we find no manifest error in the conclusions and recommendations of the commissioner adopted by the trial judge.

We affirm.

FACTS

On October 19, 1981, Mr. Mart, while stopped in his 1980 Toyota truck on the left shoulder (emergency lane) on the westbound lane of I-10 at the Oaklawn overpass, was struck in the rear by a tractor-trailer vehicle owned and operated by defendant James E. Hill and leased to Intracoastal Truck Lines, Inc. The evidence shows that prior to the accident Mart had reached the top of the overpass when he noticed that the traffic had stopped and begun to stack-up because of a previous accident at the bottom of the overpass. Mr. Mart would have been able to stop his vehicle with no difficulty behind a vehicle immediately in front of him in the left hand traffic lane. Because he had noticed a large tractor-trailer behind him and was concerned about its ability to stop Mart drove onto the paved shoulder adjacent to the left hand traffic lane. Once on the paved shoulder, he stopped his vehicle with his front bumper aligned with the rear bumper of another stopped vehicle in the left hand traffic lane. He further testified that he elected to stop, rather than proceed along the shoulder, because he thought it was "illegal" to drive on the paved shoulder.

In the meantime, Hill, who was also travelling in the left lane, reached the top of the overpass and observed the accident at the bottom of the overpass. Sensing that he would be unable to bring his tractor-trailer to a halt before reaching the line of cars backed-up in front of him, Hill drove on to the shoulder when, without warning, Mart simultaneously moved from the left hand traffic lane on to the paved shoulder and stopped his vehicle. This resulted in Hill's colliding with the rear of Mart's vehicle.

Mr. Mart was taken to the emergency room of East Jefferson General Hospital on the night of the accident. He was released the same evening with no positive findings of injury. Mr. Mart was then examined the next day by Dr. Wilmot Ploger, an orthopedic surgeon. Dr. Ploger diagnosed a lumbosacral strain and observed minor muscle spasms. He treated Mart on five occasions and released him with no restrictions on January 18, 1982, indicating Mart was fit to return to his previous employment.

The record shows that after Mart's discharge, he was able to return to and perform his work as a diesel mechanic. According to tax returns, his earnings were consistent with those prior to the accident, which included an average 23 hours per week of overtime based on a 40 hour week.

Between January and July, 1982, while he was still employed, Mart visited his family physician, Dr. Ed Mikal, for treatment of hypertension. There is nothing to indicate that he complained of serious back pain on these visits.

On July 16, 1982, Mart saw another orthopedist, Dr. William Pusateri. Mart described pain radiating into the left hip and buttocks, and at that time, Dr. Pusateri detected a lumbar strain and instructed Mart to commence physical therapy. Because of continuing complaints, Mart was admitted to Mercy Hospital for diagnostic tests in August, 1982. A lumbar myelogram, EMG, and nerve condition studies were negative. Based on this, Dr. Pusateri prescribed anti-inflammatory drugs and analgesics for pain.

Mart continued to complain of pain, but since Dr. Pusateri's tests proved negative and he could not detect objective signs of injury, he was referred to Dr. Bert Bratton, a neurosurgeon. Dr. Bratton performed microsurgery on November 12, 1982, and examined Mart's disc spaces, vertebral column, tested for nerve root damage or impingement and checked for bulging of the discs at either L4-L5 or L5-S1. The only objective finding that he diagnosed was nerve route irritation from hypertrophy of the ligament (a thickening of the ligament.) Dr. Bratton stated that he removed a piece of the ligament and felt that he had cured Mart's problems.

Although Mart's condition did appear to improve in the immediate post-operative period, Mart continued to complain. Because Dr. Bratton was unable to find anything objectively wrong with Mart, he referred him to Dr. Donald Richardson, a neurosurgeon and the physician in charge of the Hotel Dieu Pain Clinic. Dr. Richardson found no objective signs of injury and determined that Mart had a pre-existing emotional problem describing it as a "failed back syndrome with hysterical symptoms." The psychiatrist and the psychotherapist at the Pain Clinic determined that Mart was a "passive-dependent" type of personality and testified that he was using his exaggerated complaints to obtain sympathy. Mart remained at the Pain Clinic for six weeks and demonstrated marked physical and psychological improvement. In fact on April 13, 1983, Dr. Richardson testified that Mart "admitted that he could return to work." Dr. Richardson noted, however, that as the time of Mart's discharge neared, Mart's complaints of pain became elevated.

After his discharge, Mart continued to complain and then consulted Dr. Carlos Pisarello, a neurosurgeon, on October 17, 1983. Dr. Pisarello observed that the patient was suffering mild paraspinal contractions, with complaints of low-back pain. Dr. Pisarello prescribed a back brace to see if stabilization of the spine would remedy Mart's complaints. He then referred Mart to Dr. Truman Kerr, an orthopedic surgeon, for an examination and opinion.

Drs. Pisarello and Kerr determined that surgery was necessary. During surgery, they found that discs L4-5 and L5-S1 were prolapsed and degenerated. A lumbar fusion was performed. Dr. Kerr testified that Mart now has a twenty five percent (25%) functional disability of the body as a whole.

COMPARATIVE NEGLIGENCE

The commissioner determined that Mart was 50 percent at fault. The following is an excerpt from his reasons for judgment:

"The evidence established that both drivers acted identically, that is, they moved from the left hand lane onto the paved shoulder of the highway. The cause of the accident was the combined negligence of both drivers. Plaintiff's movement from the left hand lane onto the shoulder was a factual and legal cause of the accident. Likewise his decision to stop on the shoulder (was a legal cause of the accident). Had the plaintiff stayed in the left hand paved lane, the accident would not have happened. Had the plaintiff continued on the paved shoulder past the accident at the bottom of the overpass, the accident would not have happened. At the scene of the accident, there are four lanes of travel and a paved lefthand shoulder. The plaintiff knew that the tractor-trailer was...