Bize v. Boyer

• Decision Date: 25 January 1982
• Docket Number: No. 81-C-1746,81-C-1746
• Citation: Bize v. Boyer, 408 So.2d 1309 (La. 1982)
• Parties: Ralph BIZE, et al. v. Syble BOYER, et al.
• Court: Louisiana Supreme Court

Page 1309

408 So.2d 1309

Ralph BIZE, et al. v.Syble BOYER, et al.

No. 81-C-1746.

Supreme Court of Louisiana.

Jan. 25, 1982.

Chris J. Roy, Alexandria, for plaintiff-applicant.

Joseph T. Dalrymple, of Antoon, Dalrymple & Beck, John G. McLure, of McLure & McLure, David P. Spence, of Provosty, Sadler & Delaunay, Alexandria, Kathrine S. Williamson, for defendant-respondents.

LEMMON, Justice.

The issue in this personal injury action is whether the court of appeal properly deleted awards for future loss of wages and future medical expenses from the trial court judgment.

After the October 21, 1976 automobile accident plaintiff, a 49-year old female canning factory worker, was treated as a hospital outpatient for foot and neck complaints.Cervical osteoarthritis was diagnosed, and a soft cervical collar was prescribed.A belatedly diagnosed fracture of the fifth metatarsal prevented her from returning to work through March 30, 1977, when an x-ray of the foot on her last visit was reported as normal.

Plaintiff did not return to work nor did she seek further medical attention until September 21, 1977, when she consulted Dr. Weiss, an orthopedic surgeon, complaining of pain in the mid-cervical region and the foot.¹For the first time shown in the medical records plaintiff also complained of back pain.The doctor found no objective evidence of cervical or lumbar injury, noting her subjective complaints might indicate some mild soft tissue strain secondary to the injury.He opined plaintiff could return to work if she wore a steel shank shoe.

Plaintiff next consulted Dr. Joffrion, an orthopedic surgeon, on October 19, 1978, almost two years after the accident, complaining of foot, knee, neck and low back pain.The doctor found radiographic evidence of increased muscle tone in the cervical spine and clinical evidence of scoliosis, as well as radiographic evidence of moderate degenerative changes in the lumbar spine.He opined that the described accident could have temporarily aggravated the radiographic and clinical findings, but felt there was no indication of need for current therapy or active orthopedic treatment.

On May 31, 1979, plaintiff consulted Dr. Patton, a neurosurgeon, with neck, back and leg complaints.She also described frequent falls when her left leg "gave out".After the initial examination the doctor attributed her problems to obesity and osteodegenerative disease, but did not rule out a ruptured disc, primarily because of a decreased ankle jerk on the left side.

On the July 10 visit plaintiff was using a walker because of leg weakness.The only significant finding at the examination was a decreased ankle jerk, but the doctor opined that if there was any nerve root compression, it was not severe enough to cause frequent falls.However, he suggested a lumbar myelogram "to make sure that we weren't overlooking something".The myelogram was performed in August, 1979, and the doctor reported that the test did not reveal any abnormality which warranted surgical intervention.

Plaintiff did not consult any other doctor prior to the March, 1980 trial.

The trial court found plaintiff was disabled at the time of trial as a result of the 1976 accident and awarded her $10,000 for past and future pain, suffering and disability, $6,000 for loss of wages from the date of the accident to the date of trial, $14,000 for "future loss of earning capacity and wages", and $2,682 in past and anticipated medical expenses.²The court of appeal affirmed the awards of damages incurred as of the date of trial, but deleted the awards for future lost wages and future medical expenses, holding that there was no medical evidence to support those awards.402 So.2d 110.We granted plaintiff's application for certiorari in order to reviewthe appellate court's reduction of the judgment.406 So.2d 610.

In arguing against the reduction, plaintiff relies on her own testimony and that of her relatives, as well as the deposition testimony of Dr. Patton.³The doctor acknowledged that plaintiff had some symptomatology (decreased ankle jerk and hypesthesia) indicative of nerve root compression; that the straightening of the lordotic curve of the cervical spine (shown on his x-rays and on those of Dr. Joffrion), without any history of neck trouble prior to the accident, could indicate plaintiff was still suffering from a residual cervical sprain injury (although he commented that continued straightening two years after the accident was unusual); that the narrowing of the cervical disc space could indicate impingement of nerve roots, causative of pain radiation; and that the osteoarthritic changes of the lumbar spine (shown in ...