Eubanks v. Brasseal

• Decision Date: 03 September 1975
• Docket Number: No. 12380,12380
• Citation: 318 So.2d 79
• Parties: Tommy EUBANKS, Plaintiff-Appellant, v. Isaac BRASSEAL et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 79

318 So.2d 79

Tommy EUBANKS, Plaintiff-Appellant, v. Isaac BRASSEAL et al., Defendants-Appellees.

No. 12380.

Court of Appeal of Louisiana, Second Circuit.

Sept. 3, 1975.

Due & Dodson by Paul H. Due, Baton Rouge, for plaintiff-appellant.

Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appellees.

Before PRICE, HALL and DENNIS, JJ.

PRICE, Judge.

Tommy Eubanks brought this action for personal injuries and related expenses alleged to have been caused by the collision of his vehicle with a tank transport on U.S. Highway 165 in Caldwell Parish, Louisiana, on November 18, 1971. Plaintiff named as defendants Isaac Brasseal, driver of the transport; his employers, Rose Oil Company of Dixie; Rose Oil Transport, Inc., and their liability insurer, Travelers Insurance Company.

The trial court rejected plaintiff's demands on finding he was guilty of negligence which contributed to the cause of the accident. On appeal this court affirmed the judgment of the trial court, 300 So.2d 500. The Supreme Court granted writs of review and reversed the judgment of this court, 310 So.2d 550.

The matter is now before us on remand for the purpose of assessing the amount of damages due plaintiff.

Plaintiff claims substantial damages for personal injuries allegedly resulting from the accident associated with an injury to the cervical and lumbar region of his back. He seeks recovery for pain and suffering endured in the treatment and surgical correction of his spinal injuries; permanent disability and impairment of physical function; loss of earnings, both past and future, and medical expenses incurred in connection with his injury.

The principal issues in dispute in determining damages are:

1. Whether a herniated disc ultimately diagnosed as causing plaintiff's continuation of symptoms of pain and the resultant degree of disability caused by surgical correction thereof was causally related to the accident.

2. Whether the evidence is sufficient to show plaintiff is permanently disabled to perform the manual labor involved in the trade of a pipefitter, which he contends is the usual occupation for which he is best suited by training and experience.

A favorable finding to plaintiff on both of these issues would necessitate a larger award than he would otherwise be entitled. The evidence relating to plaintiff's injury and his subsequent course of treatment as shown by the record is summarized as follows:

Plaintiff, who was 25 years of age, was self employed at the time of the accident and was driving a one-ton truck with a flat metal bed. The tank transport driven by defendant, Brasseal, struck the rear of plaintiff's truck with a minimum degree of impact, causing negligible damage to each vehicle. According to his testimony plaintiff developed a rather severe headache immediately after the accident, which he attributed to his head having struck the rear window of the truck cab. As the headaches continued tor the next two days following the accident, plaintiff sought medical attention from Dr. John M. Coats at Mer Rouge. Dr. Coats testified that plaintiff showed symptoms of spasm of the lumbar vertebrae and some minimal loss of the normal curvature of the spine.

Plaintiff was admitted to the Morehouse General Hospital in Bastrop where he remained for 13 days. He was treated by Dr. Coats with cervical and pelvic traction and muscle relaxant drugs. His lumbar region was also treated with deep heat by use of a 'sonolator.'

After plaintiff's discharge from the hospital on December 16, 1971, Dr. Coats continued to treat him for lumbar pain as an outpatient for several weeks. In January, 1972, plaintiff, after consulting with Dr. Coats, sought the services of an orthopedic surgeon, Dr. Robert D. Hightower of Shreveport. Dr. Hightower examined plaintiff initially on January 27, 1972, and concluded at that time his continued complaints of pain in the lumbar region were caused by a lumbosacral strain. Plaintiff was given instructions for flexion exercises to strengthen back muscles and to reduce spasm. He was prescribed muscle relaxant drugs and referred back to Dr. Coats for periodic observation during the anticipated period of recovery.

Plaintiff returned to Dr. Hightower in October, 1972, and a myelogram was performed on his spine by Dr. W. S. Bundrick, an associate of Dr. Hightower, to determine if plaintiff's continued symptoms were being caused by a bulging disc. Positive indications received from the myelogram resulted in surgery being performed by Dr. Bundrick on October 20, 1972, at Bossier General Hospital. A soft bulging disc was removed at the L 4--5 interspace. Subsequently, on December 18, 1972, a second operative procedure was performed by Dr. Bundrick to remove a recurrent disc on the opposite side of the same L 4--5 disc space.

Dr. Bundrick last examined plaintiff on May 23, 1973, at which time he had satisfactorily recovered from his surgery which apparently had relieved plaintiff's symptoms of pain.

Defendants primarily contend the evidence is insufficient to show that the herniated disc in plaintiff's lumbar spine, which was not diagnosed until October of 1972, was caused by the accident which occurred on November 18, 1971. They argue that the extent of the injury to plaintiff which may be causally related to the accident is a strain of the musculature of the cervical and lumbar spine from which he recovered with no resultant disability.

Defendants contend it was just as possible plaintiff sustained the disc injury when he attempted to return to work in May of 1972 performing pipeline work for a period of approximately one month and thereafter driving a produce truck for a short period of time. This work was attempted by plaintiff after the initial X-rays taken by Dr. Hightower failed to disclose the cause of continued pain in the lumbar region was an injured disc. Plaintiff testified his symptoms of pain were present when he undertook to return to work and that the labor involved merely increased the intensity to such an extent he was forced to quit and return home for further medical treatment.

There is no evidence of any further injury to plaintiff during this period, and although it is asmitted that a herniated disc can result from normal or usual activities, the medical testimony is unanimous in the instant case that plaintiff's disc injury more probably originated with the accident.

In his testimony given by deposition, Dr. Hightower explains clearly the factors which influenced his medical opinion that the herniated disc resulted from the accident and we quote the pertinent testimony as follows:

'Q. Now, Dr. Hightower, would you tell me if you could the reason that it was your impression when you first saw him that it was a lumbosacral strain and an illeolumbar ligament strain, whereas, the second time you felt it was more indicative of a herniated disc?

'A. Well, the first time I saw him, I couldn't put my finger on anything specific which is quite frequently the case in injuries or discs like this. Nothing particularly showed except that he did have some spasm in his lumbar area. And he had some questionable hyperthesia or loss of sensation, which was certainly not a...