Thomas v. Hartford Ins. Co.

• Decision Date: 28 February 1989
• Docket Number: Nos. CA,s. CA
• Citation: 540 So.2d 1068
• Parties: Earl THOMAS v. The HARTFORD INSURANCE COMPANY and Terrebonne Parish Police Jury. 87 1340, CA 87 1544. 540 So.2d 1068
• Court: Court of Appeal of Louisiana — District of US

Page 1068

540 So.2d 1068

Earl THOMAS v. The HARTFORD INSURANCE COMPANY and Terrebonne Parish Police Jury.

Nos. CA 87 1340, CA 87 1544.

540 So.2d 1068

Court of Appeal of Louisiana First Circuit.

Feb. 28, 1989.

Writ Denied April 28, 1989.

Gordon Hackman, Boutte, for plaintiff and appellant, Earl Thomas.

James C. Cockfield, Metairie, for defendant and appellee, Hartford Ins. Co.

Coleman T. Organ, Metairie, for Terrebonne Parish Consol. Gov. and South State Ins. Co., Intervenor.

Before CARTER, LANIER and LEBLANC, JJ.

LANIER, Judge.

This action has cumulated causes of action in tort and workers' compensation. The tort cause of action asserts a claim for damages arising out of a vehicular collision, wherein a vehicle being driven by the plaintiff and another vehicle struck each other. The plaintiff's wife asserts a claim of loss of consortium therein. Made defendants are the employer of the driver of the vehicle which struck the vehicle being driven by the plaintiff and the employer's insurer. The workers' compensation cause of action seeks workers' compensation benefits and statutory penalties from the plaintiff's employer and its insurer. The plaintiff's employer's insurer intervened in the tort cause of action for reimbursement of all medical and benefit payments made to the plaintiff. The trial court found that (1) the accident was caused by the concurrent fault of both drivers; (2) the fault of each driver was 50%; (3) the plaintiff had tort damages of $40,000 in general damages, $3,864.42 in past medical expenses, no future medical expenses, loss of wages of $5,488 (20 weeks at $274.40), for a total of $49,352.21, which was reduced by 50% to $24,676.21; (4) the wife had loss of consortium damages of $5,000, which was reduced by 50% to $2,500; (5) the plaintiff was not disabled, he had received all payments due to him for workers' compensation, and his cause of action for workers' compensation was dismissed with prejudice; and (6) the intervenor was entitled to recover $6,231.85, which was reduced by 50% to $3,115.92. The attorney for the plaintiff filed a motion in the tort cause of action requesting the trial court to fix an attorney fee for him for the intervenor's proportionate share of his attorney fee, citing Moody v. Arabie, 498 So.2d 1081 (La.1986); the trial court denied this motion. The plaintiff and the intervenor appealed devolutively. ¹

FACTS

On June 28, 1983, at approximately 10:30 a.m., the plaintiff, Earl Thomas, was driving a dump truck owned by his employer, the Terrebonne Parish Consolidated Government (formerly the Terrebonne Parish Police Jury) (Terrebonne), away from the Radcliff Materials yard on Country Club Drive in Terrebonne Parish, Louisiana. Country Club Drive is a narrow two-lane road with a marked centerline and narrow shoulders. Alcide Chaisson was a guest passenger in Thomas' vehicle. At this same time and place, Audrey Folse was driving a dump truck owned by her employer, the Lafourche Parish Council (formerly the Lafourche Parish Police Jury) (Lafourche), toward the Radcliff Materials yard on Country Club Drive when the side mirrors of the two trucks struck each other. The broken glass from the side mirror on Thomas' truck came through the open window of the truck, got into Thomas' left eye and caused him to jerk his neck to the right. The sudden jerking motion caused Thomas to experience pain. At this time, the Hartford Accident and Indemnity Company (Hartford) was Lafourche's liability insurer and South State Insurance Company (South) ² was the workers' compensation insurer for Terrebonne.

Thomas was unable to continue working and his wife, Beverly E. Thomas, came and got him and brought him to the Terrebonne General Hospital (Hospital). Thomas complained of pain in his neck, headache and pain in the corner of his eye. Thomas' eye was examined by Dr. James F. Bourgeois, an ophthalmologist. Dr. Bourgeois diagnosed Thomas' eye condition as a conjunctival abrasion (scratch on tissue surrounding the eye) of the left eye. He treated it with ophthalmic solution. Thomas was diagnosed as having a left cervical strain by Hospital staff doctors. He was given a shot for pain and released.

On July 1, 1983, Thomas saw Dr. Chris Cenac, an orthopedic surgeon. Dr. Cenac examined Thomas and diagnosed his neck problem as acute cervical strain. He treated this condition with physical therapy ³, anti-inflammatory medications and analgesics. Thomas returned to Dr. Cenac on July 19 and 29, 1983, complaining of pain and numbness in his left arm. On August 4, 1983, EMG and nerve conduction studies were performed on Thomas. They revealed possible cervical, nerve root irritation at the C-6, C-7 and C-8 levels. Thomas saw Dr. Cenac on August 8 and 29, 1983, and his complaints persisted. Dr. Cenac, referred Thomas to Dr. Donald J. Judice, a neurosurgeon.

Dr. Judice first saw Thomas on August 31, 1983. Thomas complained of pain in his neck, pain down the left arm and numbness in the inferior part of the left arm. Dr. Judice examined Thomas and felt he had a herniated ⁴ cervical disc with a left cervical radiculopathy. Thomas was admitted to the Hospital on September 8, 1983, for diagnostic testing, which included a myelogram. The myelogram showed an enlarged nerve root on the left at C-6, but a herniated disc was not detected. Thomas was discharged from the Hospital on September 10, 1983, with a diagnosis of cervical nerve root stretchentary. Conservative therapy was continued, and he was given Percodan for pain. Dr. Judice next saw Thomas on October 14, 1983. Thomas had the same complaints, and conservative treatment was continued. Dr. Judice saw Thomas on November 7, 1983, and he was much improved. Dr. Judice released Thomas to go back to work on November 14, 1983, with no restrictions. Dr. Judice felt no further medical therapy was needed. Thomas was instructed to return on an "as needed basis only." Dr. Judice did not attribute any residual disability to Thomas.

At the trial, the parties stipulated that South paid $3,280.38 in compensation benefits to Thomas through November 14, 1983, and paid $2,942.29 in medical expenses for Thomas. These payments total $6,222.67. ⁵

This suit was filed on June 28, 1984.

Thomas testified that, in October of 1984, he was hauling tree branches in his dump truck, some branches got caught in the tailgate of the truck, and he had to pull them out. That night his neck and arm started bothering him, and he took Tylenol to go to sleep. The next day, he still had pain, so he notified his boss. Althea Blanchard testified she was a clerk in Terrebonne's Drainage Department (where Thomas worked), and the department's records showed Thomas missed work on October 3, 1984, to go to the doctor "because his arm and neck were hurting." Earl Fischer, Terrebonne's insurance manager, testified that Terrebonne had an accident report on Thomas for October 2, 1984. This report was forwarded to Terrebonne's insurer. ⁶ The evidence is unclear about whether or not Thomas saw Dr. Judice at this time.

Thomas returned to see Dr. Judice on March 18, 1985, complaining of increased pain in his neck and left arm. Dr. Judice had a CAT scan performed on April 1, 1985. Dr. Judice sent a report to South's attorneys on April 3, 1985, which advised, in pertinent part, as follows:

I obtained a CAT scan of his cervical spine, and it showed a 1mm bulging disc at the C5-6 level and a 1mm bone spur at the C6-7 level. I did not feel that either of these was a surgically significant lesion, and since the patient had been able to work all along, I did not see any reason why he should not be able to return to full duty with no restrictions.

I think his prognosis is excellent, I do not feel that he has suffered a major injury to his disc or to his nerve roots. He is released from my care to full duty and I do not feel that he needs any further medical therapy at this point. However, should his condition worsen, this may change at sometime in the future. I do not have a return appointment scheduled for him at this time.

On that same date, Dr. Judice sent a report to Dr. Cenac which advised as follows:

I saw Earl Thomas in my office recently for a complaint of neck and arm pain. He states that this had recurred after being asymptomatic for awhile. His examination is unremarkable at that time. I obtained a CAT scan of his cervical spine, and this showed only a 1mm bulging disc and bone spur, it does not show a major disc injury or disc herniation. He has been able to continue to [sic] his job as a heavy equipment operator for Terrebonne Parish Police Jury, and he has not had any undue difficulty with this. I think he just has some mild degenerative disc disease in his cervical spine and I think there is no reason he can not continue his employment. I plan to see him on an as needed basis, he is given no regular scheduled appointment.

Dr. Judice testified that one millimeter is approximately 1/25 of an inch.

Dr. Judice saw Thomas again on July 30, 1985, and sent Dr. Cenac the following report:

I saw Earl Thomas in my office today in re-evaluation. He came in for a check-up. He is examined today. His cervical spine is supple and his neurological examination is normal. I do know that he has 1mm bulging disc, but I do not think that it is large enough to warrant a myelogram or any more aggressive therapy. He is to continue his neck exercises, and is to return on an as needed basis.

Thomas went back to Dr. Judice on September 24, 1985, complaining of neck pain and headaches. Dr. Judice issued a report to Thomas' attorney on that date which stated, in part, as follows Also with time these disc tend to worsen. I do know that he has bone spur formation in his neck at this time, and I predict that this will continue to get worse with time. I will continue to follow him along as long as he is symptomatic.

The first day of the trial of this case was held on October 15, 1985.

Thomas saw Dr. Judice...