Eugene Bellard v. American Central Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-958

EUGENE BELLARD

VERSUS

AMERICAN CENTRAL INS. CO., ET AL.

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2002-6060
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

**********
Elizabeth A. Pickett
Judge
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Oswald
A. Decuir, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED IN PART; REVERSED IN
PART; AND RENDERED.

Thibodeaux, C. J.,dissents in part and assigns written reasons.

Frederick L. Cappel
Raggio, Cappel, Chozen & Berniard
1011 Lakeshore Drive - Suite 500
Lake Charles, LA 70601
Counsel For Secondary Defendant/Appellant:
Trinity Universal Insurance Co. of Kansas, Inc.

Gregory Paul Allen Marceaux
Marceaux Law Firm, L.L.C.
1800 Ryan Street - Suite 101
Lake Charles, LA 70601
Counsel For Plaintiff/Appellant:
Eugene Bellard

Travis Louis Bourgeois
Degan, Blanchard & Nash
400 Poydras Street - Suite 2600
New Orleans, LA 70130
Counsel For Secondary Defendant/Appellant:
Trinity Universal Insurance Co. of Kansas, Inc.

Pickett, Judge.

The plaintiff/appellant, Eugene Bellard (Bellard), sustained personal injuries

in an on-the-job traffic accident, when he was rear-ended by an underinsured

motorist, Katie Gayle (Gayle). After settling with Gayle and her liability insurer,

American Central Insurance Company, Bellard proceed to trial where he sought

damages from his employer’s uninsured motorist (UM) carrier, Trinity Universal

Insurance Company of Kansas, Inc. (Trinity). On appeal, Bellard seeks a reversal of

the trial court’s grant of Trinity’s motion for summary judgment, which provided

Trinity with a credit for the workers’ compensation medical benefits that had been

paid by Bellard’s employer on his behalf. Bellard also seeks a increase in the trial

court’s awards for general damages and loss of future earning capacity, arguing that

the trial court committed legal error in setting those awards because it improperly

disregarded uncontested, expert witness testimony regarding the causation of his

injuries and his resulting disability. Trinity, likewise, seeks a reversal of the loss of

earning capacity award. It asserts an entitlement to the reduction of that award based

on its claim that the trial court erred in failing to grant it a credit in the amount of the

indemnity disability benefits already paid to Bellard by his employer’s workers’

compensation insurer.

We conclude that the UM insurer, Trinity, is not entitled to a credit for medical

costs paid by the workers’ compensation insurer, nor is Trinity entitled to a credit for

the indemnity disability benefits paid by the workers’ compensation insurer, since

these insurers are not solidary obligors, and the collateral source doctrine prohibits

Trinity from receiving a credit for these payments. Further, as to the issues of

causation and injuries, we find no legal error as we, as did the trial court, find that

there was evidence contesting the causation of his injuries and his resulting disability.

We affirm the awards of general damages and loss of future earning capacity. We

also affirm the award of medical costs in the amount of $334,040.60.

ISSUES

1. Is an uninsured motorist carrier entitled to a credit
for medical and disability wage benefits paid to, or
on behalf of, an injured worker by a workers’
compensation carrier?

2. Did the trial court improperly disregard uncontested,
expert medical testimony when determining the
cause of the plaintiff’s injuries and his subsequent
disability status?

3. Did the trial court abuse its discretion in setting the
general damage and future loss of earning capacity
awards?

FACTS

On August 26, 2002, Bellard was rear-ended by Katie Gayle. He was also

involved in two subsequent accidents—one on November 24, 2002, and the other in

November or December 2003. At the time of the accident at issue, Bellard was a

delivery driver for a building materials retailer, Builders Sav-Mor, Inc. (Sav-Mor),

and was on-duty and driving his employer’s Ford F-250 pickup truck. Bellard was

stopped, yielding to oncoming traffic and, upon beginning a left-turn, was struck as

Gayle’s car hydroplaned into the rear of the truck. Gayle estimated that she was

driving at a rate of speed between twenty and twenty-five miles per hour, and Bellard

estimated that his rate of speed was approximately ten or fifteen miles per hour at the

time of impact.

Gayle’s car struck the “Tommygate” (a brand name of a heavy-duty-steel

mechanized tailgate that can be lowered and raised for loading and unloading cargo)

on the rear of the truck and came to rest under the tailgate. According to Gayle, the

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lift gate fell onto the hood of her car, her front and passenger side windows shattered,

and her air bag deployed. Her car was not driveable and was towed from the scene;

it was ultimately rendered a total loss. The truck driven by Bellard was never

incapacitated by the accident, suffered almost imperceptible damage to the lift gate,

and has remained in use by Sav-Mor without the necessity of any repairs.

Gayle suffered minor injuries as a result of the accident—bruising on her knees

and bruises caused by her seat belt and air bag. Bellard refused medical treatment

twice on the day of the accident— at the scene and upon return to his work site. He

continued working that day and for approximately two weeks thereafter until

September 3, 2002, when he sought treatment for generalized pain in his body at a

local emergency room. He later testified that he had begun to experience pain even

earlier—about five days after the accident. Over the next three years, Bellard

received physical therapy, chiropractic, and orthopedic treatment for the injuries

allegedly sustained in the August accident.

After a course of conservative treatment over the year and a half following the

crash, Bellard underwent the first of a series of four surgeries to repair lumbar and

cervical spine injuries and bilateral carpal tunnel syndrome. Specifically, in March,

2004, he underwent lumbar spine surgery, which included a facetectomy, diskectomy,

and fusion at L5-S1. In early 2005, he underwent bilateral carpal tunnel surgeries,

and later that year underwent cervical spine surgery, consisting of a three-level

diskectomy and fusion at C3-C4, C4-C5, and C5-C6. The lumbar surgery and carpal

tunnel release surgeries were deemed successful. As of the commencement of trial,

Bellard remained under the care of his treating orthopedist and surgeon, Dr. Dale

Bernauer, as he was still recovering from the September 2005, cervical spine surgery.

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Bellard’s pre-accident medical condition was an issue at trial, as was the fact

that he was involved in two additional accidents after the August 2002, rear-end

collision. Regarding his pre-existing medical condition, the record shows that he had

been diagnosed in 1998 with a small disc bulge at L5-S1, and that he had received

successful, conservative treatment for lower back pain caused by that condition until

1999. It is likewise undisputed that Bellard sought treatment for low back pain prior

to the August accident at W. O. Moss Regional Hospital in October 2000, January

2001, and January 2002. However, Bellard testified that he sought those treatments

for what he believed was an apparent strained muscle that had been causing him pain

intermittently.

Notwithstanding these indications of a pre-existing lumbar spine injury, his

medical history conversely showed that upon being hired by Sav-Mor in February

2002, he underwent a physical examination which included a neurological

examination and an examination of the neck, all resulting in normal findings. Also,

his employer’s representative testified at trial that during Bellard’s ten-month tenure

there, as a warehouse delivery driver, he was able to perform the physically

demanding job without any apparent difficulty. This job regularly included loading

and unloading building materials and performing various manual labor duties. Dr.

Dale Bernauer, who was aware of this pre-existing medical and work history, opined

that the ruptured disc in Bellard’s lower back, which he determined was larger than

it had been in 1998, was likely caused and/or aggravated by the August 26, 2002,

accident.

Regarding the two automobile accidents that occurred later, the record reflects

that almost three months after Bellard was rear-ended by Gayle, on November 24,

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2002, he drove his car into a telephone poll in a self-described suicide attempt. He

testified that the car was a total loss and that the impact was “very hard” and

“whipped” him forward and back. Bellard stated that he did not seek medical

treatment for physical injuries immediately after the November accident. Rather, on

November 26, 2002, a few days later, he sought treatment for depression and was

admitted for one week for psychiatric treatment at Lake Charles Memorial Hospital.

Bellard testified that he was depressed due to debt, unemployment, and chronic pain,

which he attributed to the car accident with Gayle. After that accident, Bellard’s

medical records from his treating orthopedist, Dr. Bernauer, note that Bellard reported

an increase in his pain, but that he claimed no new injuries.

The third accident occurred about a year later, in late November or early

December, 2003, when Bellard, traveling at a speed of about thirty-five miles per

hour, ran a stop sign and broad-sided another car. He testified at trial that the impact

was also “hard” and that the front end of his Ford Ranger suffered extensive damage,

rendering it a total loss. Again, he denied suffering any injuries in that accident.

Although both accidents occurred prior to Bellard’s surgeries, Dr. Bernauer testified

that, in his opinion, all of Bellard’s injuries were caused by the first accident with

Gayle and not the subsequent accidents. The trial court questioned that conclusion.

It was established at trial that Dr. Bernauer’s preliminary diagnoses of the

herniated lumbar disc, carpal tunnel syndrome, and a neck injury were all made at his

first evaluation of Bellard, which took place on September 25, 2002. However, the

diagnostic tests, an MRI and EMG, which confirmed these conditions, were not taken

until February 2003, after the second accident had occurred. Despite the additional

accidents, Dr. Bernauer testified that Bellard’s symptoms and complaints had not

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changed since the first accident, leaving him with the opinion that the first accident

likely caused the injuries and/or aggravated pre-existing ones.

Bellard has not worked since September 2002, with the approval of his

physician. At the time of trial, he had not yet been released to return to work. Dr.

Bernauer, at the time of his deposition on February 13, 2006, had reached the

conclusion that Bellard was functionally disabled, explaining that Bellard was

susceptible to adjustment segment syndrome, a condition affecting twenty-five

percent of persons with lumbar and/or cervical fusions. He testified that the condition

causes additional pressure to be placed on the discs above and below those that have

been fused, which could cause further injury and the need for corrective surgery. He

believed that Bellard was particularly susceptible because of the multiple fusions he

had undergone and that the syndrome would be less likely to occur if Bellard did not

return to work. Dr. Bernauer opined that, ultimately, he did not anticipate Bellard

being able to return to the workforce in his prior capacity, but stated that another

functional capacity examination (FCE) could be done in approximately three months

to gauge his ability to return to work in some capacity. He also testified that he

believed Bellard would need medical care for another three years.

The only FCE which had been performed on Bellard, on June 22, 2004, was

done approximately two years prior to trial. Only the lumbar surgery had been

performed at that time. The report, issued by vocational rehabilitation specialist, Dr.

John Grimes, concluded that Bellard was temporarily, totally disabled based on the

light duty limitations that had been placed on him by Dr. Bernauer. At that time, Dr.

Grimes believed that, depending on Bellard’s future medical treatment and residual

functional capacity, he had an excellent potential for returning to the workforce if

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retrained. This was because he found that Bellard possessed average intellectual

capacity and exhibited “impressive academic skills,” considering that he only had a

formal ninth grade education. Dr. Grimes believed that Bellard possessed satisfactory

skills that would enable him to achieve a GED within a few months and complete

additional technical/associate level training, all of which would reduce his loss of

access to the workforce, a history of which consisted primarily of manual labor type

jobs. Dr. Grimes opined that this retraining could be accomplished during an

eighteen to twenty-one month period. The record reflects that this report was

admitted at trial as evidence of Bellard’s disability status. There was no updated

vocational rehabilitation report presented at trial after the subsequent bilateral carpal

tunnel and cervical surgeries were performed. However, the record reflects that the

plaintiff had a full recovery from both surgeries and was experiencing no adverse

symptoms.

The bench trial of this matter occurred on February 22-23, 2006. Prior to trial,

Bellard settled with the negligent driver, Gayle, and her insurer, for her liability

policy limit of $50,000.00, and voluntarily dismissed them from the action. He then

proceeded to trial against Trinity for UM benefits. As of the date of trial, Bellard,

who had been employed at a rate of $6.50 per hour at the time of the accident, had

received workers’ compensation medical benefits in the amount of $334,040.60, and

workers’ compensation disability benefits, totaling of $37,991.00, at a weekly rate of

$273.14.

Prior to the commencement of the trial, the court, in a nine-page ruling, granted

a motion for summary judgment that had been filed by Trinity, which sought a credit

for all workers’ compensation medical benefits that Bellard had received. The trial

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court found that Trinity was entitled to the credit because it was solidarily liable with

the workers’ compensation insurer for Bellard’s injuries. Also, the court concluded

that Bellard could not be compensated twice for the same category of damages under

Louisiana law. The ruling was silent as to whether a credit would also be granted for

the workers’ compensation disability benefits that had already been paid to Bellard.

Consequently, Trinity’s request on this issue was rejected.

In March 2006, after having taken the matter under advisement, the court

rendered its ruling on damages. The court stated that its decision was influenced by

the testimony of Gayle’s mother, Rhonda Allison (a police officer who was off-duty

at the time of the accident, but responded anyway), during which she stated that at the

scene of the accident Bellard told her that he did not even realize that he had been hit

until he looked in his rearview mirror and saw smoke coming from Gayle’s car. Also,

the court focused on evidence of the minor damage suffered by the truck being driven

by Bellard at the time, recalling that the evidence showed that the truck was driven

from the scene and that no repairs to the truck had even been deemed necessary by

Bellard’s employer after the accident. The court further noted the delay of

approximately one week before Bellard sought medical treatment, as well as the

occurrence of two additional accidents after the rear-end collision, both of which

were, by the plaintiff’s own testimony, significantly more severe than the accident at

issue.

Clearly, the trial judge was torn between, and grappled with, seemingly

irreconcilable emotions on the question of causation. On the one hand, he expressed

suspicions over Bellard’s alleged lack of injury in the two subsequent accidents. Yet,

he was faced with the testimony of the treating physician whose testimony was

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buttressed by that of an independently-appointed physician. As explained by the trial

judge:

Mr. Bellard claims that all the injuries he sustained were a result
of that first accident on August 26th, 2002. And this is kind of where it
gets hard for me because I have a doctor -- I have Dr. Bernauer who
apparently was aware of the subsequent accidents, or at least that first
subsequent accident, where he testified that based on the complaints that
he received prior to the second accident that -- and based on his
professional opinion, the type of injuries that were sustained, that those
injuries and the resulting surgeries were caused by the first accident on
August 26th, 2002.

Although I believe Mr. Bellard testified that on November 24th,
2002, or as a result of that November 24th, 2002 accident he did sustain
-- well, he says he didn’t get hurt any worse in that accident or the other
accident, which I do find suspicious. I think he said he did have some
increased pain as a result of that but that it subsided and went back to --
at some point to pre-accident, pre-November 24th accident problems and
that -- and I do find some problems with that as far as the -- because if
we had an eggshell -- you know, the proverbial egg eggshell skull
person, you know, we find the plaintiff -- or we take the plaintiff as we
find them, you know, if he was that fragile to where he sustained those
kind of injuries on August the 26th, 2002, and presumably the same
fragile person would have sustained some additional injuries or some
worse injuries on November 24th, 2002 and December -- November or
December of 2003, because those accidents -- the impact seemed to be
somewhat -- I’ve seen in the evidence that those latter two accidents
were worse as far as the impact than the first one, but I still struggle with
the fact that I have a doctor that -- that is indicating that he believes
those matters are a result -- and actually we have two doctors. Dr.
Bernauer, the treating physician, testified that those -- you know, that
the -- the injuries and the surgery were a result of the first accident and
that -- and we also have Dr. Foret, who although I believe Dr. Foret may
not have had all the information available to him, he did testify that the
carpal tunnel can be caused by trauma, which I believe the defense
expert, Dr. Bernard, said it could not be. So, I mean, I think at least we
have a somewhat independent doctor saying that it could be. But then
the question is: Was it from the first accident or the second or the third?

So, and I don’t know if I’m laying all this stuff out as to why I’ve
struggled with this as much as I have, but that’s -- I do see some
problems and -- with everything that I have seen, but I’ve got to -- but
I’ve got to -- I mean, I’m certainly not an expert, but I still have
problems believing that Mr. Bellard is totally disabled as a result of
everything that’s happened. It’s hard for me to accept that.

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The court then awarded Bellard $62,422.00 for his pre-trial loss of earning

capacity and $29,822.00 for loss of future earning capacity, which constitutes a total

loss of earning capacity award of $92,244.00. The loss of future earning capacity

award assumes that Bellard will be retrained and back in the workforce twenty

months post-trial. These figures represent the amounts calculated by the defense’s

expert economist, Dr. R. Douglas Womack, who took into account the findings stated

in the functional capacity evaluation report issued by Dr. Grimes some two years

earlier.

The trial court also awarded $50,000.00 in general damages, stating that this

amount took into consideration Bellard’s out-of-court settlement with Gayle and her

insurer for $50,000.00. The court awarded medical costs to Bellard but also awarded

a corresponding credit for the total medical costs accrued, in the amount of

$334,040.60, to Trinity. Accordingly, the trial court’s total award to Bellard was

$142,244.00.

LAW AND DISCUSSION

UM Insurer Entitlement to Credit for Workers’ Compensation Benefits Paid

Bellard contends that the motion for summary judgment, which granted to

Trinity a credit for all workers’ compensation medical benefits paid on Bellard’s

behalf, should be reversed. He argues that the ruling was incorrect because the

workers’ compensation insurer and the UM insurer, Trinity, are not solidary

obligors—meaning each has a separate obligation to him under the facts of this case.

Moreover, he contends that the collateral source rule classically operates in this case

to prohibit Trinity from receiving a credit. On the other hand, Trinity, relying on

La.Civ.Code art. 1794, argues that it is a solidary obligor with the workers’

10

compensation insurer under the facts of this case. Consequently, when one obligor

satisfies the mutual obligation, the obligee (Bellard) is not entitled to seek payment

of that obligation from the other solidary party. Consequently, Trinity asserts that all

payments issued by the workers’ compensation carrier for medical benefits to treat

Bellard’s injuries and indemnity benefits paid to Bellard for his lost earning capacity

prior to trial, are resolved obligations that Bellard is prevented from again seeking

recoupment.

Appellate courts undertake de novo reviews of summary judgments, applying

the same criteria governing the trial court’s consideration of the motion. Schroeder

v. Bd. of Sup'rs of La. State Univ., 591 So.2d 342 (La.1991). This means that where

the “pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to material

fact, and that mover is entitled to judgment as a matter of law,” then summary

judgment is appropriate. La.Code Civ.P. art. 966(B). Moreover, a de novo review

is appropriate because this issue represents a question of law.

The issue of whether a UM insurer is entitled to a credit for workers’

compensation benefits paid to an injured worker hinges on whether the insurers meet

the definition of solidary obligors and whether or not the collateral source rule

applies. This analytical framework flows from Civil Code article 1794 which states

that “[a]n obligation is solidary for obligors when each obligor is liable for the whole

performance[,] and that “[a] performance rendered by one of the solidary obligors

relieves the others of liability toward the obligee.” On the other hand, the

jurisprudentially-created collateral source rule states that “a tortfeasor may not

benefit, and an injured plaintiff’s tort recovery may not be reduced, because of

11

monies received by the plaintiff from sources independent of the tortfeasor’s

procuration or contribution.” Bozeman v. State, 03-1016, p. 9 (La. 7/2/04), 879 So.2d

692, 698. The collateral source rule operates to ensure that the injured plaintiff’s

award from the tortfeasor is not reduced by payments received from independent

sources. Id. The goal is to prohibit the tortfeasor from benefitting from the plaintiff’s

entitlement to other benefits under the circumstances. Bozeman, 879 So.2d 692.

The issue of whether an employer’s UM insurer and workers’ compensation

insurer are solidary obligors was squarely addressed by this court in Leger v. Sonnier

Exterminating Co., 05-1291, (La.App. 3 Cir. 4/5/06), 926 So.2d 158, writ denied, 06-

1033 (La. 6/23/06), 930 So.2d 982, wherein the court stated:

Sonnier [,the plaintiff’s employer,] asserts that the jurisprudential
definition of solidarity does not apply to Sonnier and [the plaintiff’s]
UM insurer, State Farm. We agree. Sonnier and State Farm have
different obligations to Leger. Sonnier’s obligation is to provide
workers’ compensation benefits; State Farm’s obligation under the
policy is to provide UM insurance. As stated in Viada v. A & A Machine
Works, Inc., 05-210, p. 6 (La.App. 4 Cir. 6/15/05), 914 So.2d 1113,
1117:

The claim plaintiff has against each entity--his workers’
compensation claim against his employer and its insurer,
on one hand, and against the UM insurer of his employer’s
vehicle sounding in tort, on the other hand--arise from
separate parts of Louisiana law. [Plaintiff's] claims are
[against] different entities. The elements of damage to be
compensated by the two insurers are not identical. For
example, the UM insurer can compensate for pain and
suffering, mental anguish, loss of consortium, and other
items of special and general damage, that are specifically
excluded from the scope of compensation under workers’
compensation jurisprudence.
Thus, the employer’s workers’ compensation carrier
and UM carrier are not solidary obligors. Each is not
bound for the whole. The damages for which the UM
carrier may be held here are different from those for which
a workers' compensation carrier can be held.

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Leger, 926 So.2d at 162. Accordingly, we find that the trial court erred in

determining that the employers’ UM insurer, Trinity, and the employer’s workers’

compensation insurer are solidarily liable for Bellard’s medical expenses. They are

not solidary obligors. We do find, however, that the UM insurer, Trinity, is a solidary

obligor with the dismissed tortfeasor. See Hoefly v. Government Employees

Insurance Co., 418 So.2d 575 (La.1982).

Accordingly, we find that the collateral source rule is applicable. Again,

the rule states that, “a tortfeasor may not benefit, and an injured plaintiff’s tort

recovery may not be reduced, because of monies received by the plaintiff from

sources independent of the tortfeasor’s procuration or contribution.” Bozeman, 879

So.2d at 698. An injured worker receiving workers’ compensation benefits is not

excluded from receiving the protection of the collateral source rule because, as we

stated in Melancon v. Lafayette Insurance Co., 05-762 (La.App. 3 Cir. 3/29/06), 926

So.2d 693, writs denied, 06-974 (La. 6/16/06), 929 So.2d 1291, 06-1293 (La.

6/16/06), 929 So.2d 1293, an injured worker has, in fact, given consideration for the

workers’ compensation benefits received, by waiving the right to sue his employer

for damages when injured on the job. In exchange for providing those workers’

compensation benefits, the employer, in turn, receives a limit on his financial liability

for any applicable injuries. Id.

Consequently, due to Bellard’s contribution to his receipt of these workers’

compensation benefits, the damages awarded cannot be considered as an illegal

double recovery of damages, a concern raised by Trinity. This is because there can

be no double recovery when an “injured party’s patrimony was diminished to the

extent that he was forced to recover against outside sources and the diminution of

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patrimony was additional damage suffered by him.” Bozeman, 879 So.2d at 699.

(Emphasis in original).

Therefore, the judgment granting the motion for summary judgment is reversed.

Trinity must pay medical expenses in the amount of $334,040.60, as ordered by the

trial court, without the benefit of a credit for workers’ compensation benefits paid in

this amount. Applying the same reasoning, we also find that Trinity is not entitled

to a credit for the wage indemnity benefits paid, to date, to Bellard in the amount of

$37,991.00.

Causation and Damages

Bellard also claims that the general damage award and loss of future earning

capacity award should be reversed because they contradict the evidence presented at

trial. Although Bellard acknowledges that the trial court found that the August 26,

2002, accident was a cause of his injuries, Bellard speculates that the trial court

committed legal error by relying on “force of impact” evidence to determine his

damages. As the supreme court wisely noted in Coco v. Winston Industries, Inc., 341

So.2d 332 (La.1976), “it is impossible for an appellate court to judge what evidence

in a particular case was given special weight by the finder of fact.” True to that

notion, we cannot find sufficient evidence in the record to support the contention that

the trial court erroneously relied upon the force of the August collision, or the force

of the subsequent accidents, to inappropriately determine damages. Rather, the trial

court recited a list of factors that influenced the decision. Although the trial court

mentioned the force of the impacts of the multiple collisions, this was just one of his

“problems” with the notion that the first accident caused all of the plaintiff’s injuries,

and the others did not, as testified to by Dr. Bernauer and Bellard. The court also

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took into consideration the testimony of Ms. Becky Becnel, the comptroller at Sav-

Mor, who testified that on the day of the accident, when the plaintiff returned to work

and reported the accident, she asked him “over and over” if he was hurt, and the

plaintiff “told me no.”

Additionally, the records of the plaintiff’s first visit to Dr. Bernauer, on

September 25, 2002 reflect that x-rays of his neck, thoracic spine, and lumbar spine

were all normal. Although Dr. Bernauer ordered an MRI and an EMG on September

25, those tests were not performed until February 2003, after the second accident,

which the record established was significantly more intense than the first. Hence, the

results of these tests cannot conclusively establish which accident caused the

abnormalities they portray. The court, nevertheless, found that Bellard successfully

carried his burden of proving the August accident was a cause of his injuries.

As referenced earlier in this opinion, Bellard suffered a cervical spine injury,

resulting in three-level fusion; a lumbar spine injury, resulting in a one-level fusion;

and bilateral carpal tunnel syndrome, resulting in bilateral carpal tunnel release

surgeries. He also suffered emotional distress after the accident. The trial court

awarded the plaintiff general damages totaling $50,000.00 and a loss of future

earning capacity award of $29,822.00. In doing so, the trial court adopted the loss of

earning capacity estimates provided by Trinity’s expert economist, Dr. R. Douglas

Womack. The loss of future earning capacity award assumes Bellard’s ability to

obtain a GED and receive successful retraining in a light-duty capacity job within

twenty months of trial, as was proposed in the 2004 functional capacity evaluation

report prepared by Dr. Grimes. As alluded to earlier, Dr. Grimes’ report was issued

approximately two years prior to trial and prior to Bellard undergoing the bilateral

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carpal tunnel surgeries and cervical spine surgery. Also, Bellard’s treating

orthopedist and surgeon, Dr. Bernauer, testified that Bellard was functionally disabled

due to his susceptibility to adjustment segment syndrome and recommended that

Bellard not return to work. However, Dr. Douglas A. Bernard, an orthopedic surgeon

who performed an independent medical examination of the plaintiff, was of the

opinion that the plaintiff appeared to be healing well and that, after he healed, Mr.

Bellard would have a 12% anatomical disability rating, but that he should be able to

return to the workforce and engage in “an occupation that requires lifting on a regular

basis of up to 60 pounds.” Further, Dr. Bernard was of the opinion that the August

2002 accident could not have caused the plaintiff’s carpal tunnel problems.

It is clear that the trial court rejected, at least, Dr. Bernauer’s testimony that

Bellard was functionally disabled and unable to return to the workforce, and gave

more weight to the opinion of Dr. Bernard and to that of the plaintiff’s own

rehabilitation expert, Dr. Grimes, who opined that the plaintiff’s test results had

“exceeded expectations” and that the plaintiff had an “excellent potential for return

to the labor force.” The standard of appellate review is well settled:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court
may feel that its own evaluations and inferences are as reasonable. The
appellate review of fact is not completed by reading only so much of the
record as will reveal a reasonable factual basis for the finding in the trial
court, but if the trial court or jury findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse even
though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently. Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong. In applying the manifestly
erroneous--clearly wrong standard to the findings below, appellate

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courts must constantly have in mind that their initial review function is
not to decide factual issues de novo.

When findings are based on determinations regarding the
credibility of witnesses, the manifest error--clearly wrong standard
demands great deference to the trier of fact's findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener's understanding and belief in what is
said. Where documents or objective evidence so contradict the
witness’s story, or the story itself is so internally inconsistent or
implausible on its face, that a reasonable fact finder would not credit the
witness's story, the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a factfinder’s
finding is based on its decision to credit the testimony of one of two or
more witnesses, that finding can virtually never be manifestly erroneous
or clearly wrong.

Rosell v. Esco, 549 So.2d 840, 844-45 (La.1989)(citations and footnote omitted).

After reviewing the record as a whole, we find no manifest error on the part of

the trial court in its conclusions on the issues of causation and damages.

CONCLUSION

For the reasons stated above, the motion for summary judgment, granting

Trinity a credit for medical expenses paid by Sav-Mor, Inc.’s workers’ compensation

insurer, is reversed. The trial court’s award to the plaintiff, Eugene Bellard, of

medical expenses in the amount of $334,040.60, is affirmed. We also find that the

trial court did not err in determining that Trinity was not entitled to a credit for

disability benefits paid by workers’s compensation to the plaintiff prior to trial.

Finally, we affirm the trial courts awards for general damages and for loss of future

earning capacity. Costs of this appeal are assessed against Trinity.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

17

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-958

EUGENE BELLARD

VERSUS

AMERICAN CENTRAL INS. CO., ET AL.

THIBODEAUX, Chief Judge, dissenting in part.

The trial court was manifestly erroneous in its assessment of causation

and damages. The majority compounds that error.

Bellard suffered a cervical spine injury, resulting in three-level fusion;

a lumbar spine injury, resulting in a one-level fusion; and bilateral carpal tunnel

syndrome, resulting in bilateral carpal tunnel release surgeries. He also suffered

emotional distress after the accident. The trial court awarded the plaintiff general

damages totaling $50,000.00 and a loss of future earning capacity award of

$29,822.00. In doing so, the trial court adopted the loss of earning capacity estimates

provided by Trinity’s expert economist, Dr. Womack. The loss of future earning

capacity award assumes Bellard’s ability to obtain a GED and receive successful

retraining in a light-duty capacity job within twenty months of trial, as was proposed

in the 2004 functional capacity evaluation report prepared by Dr. Grimes. Dr.

Grimes’ report was issued approximately two years prior to trial and prior to Bellard

undergoing the bilateral carpal tunnel surgeries and cervical spine surgery. Also,

Bellard’s treating orthopedist and surgeon, Dr. Bernauer, unequivocally testified that

Bellard was functionally disabled due to his susceptibility to adjustment segment

syndrome and recommended that Bellard not return to work.

It is clear that the trial court rejected, at least, Dr. Bernauer’s testimony

that Bellard was functionally disabled and unable to return to the workforce. Dr.

Bernauer’s opinions in this regard were not refuted by any evidence presented by

Trinity. The trial court committed manifest error in failing to accept this testimony.

I note that although the trial court’s decision to accept or reject expert testimony is

not to be disturbed absent manifest error, the appellate court is not required to affirm

the rejection of “uncontradicted testimony or greatly preponderant objectively-

corroborated testimony where the record indicates no sound reason for its rejection

and where the factual finding itself has been reached by overlooking applicable legal

principles.” Mart v. Hill, 505 So.2d 1120 (La.1987).

The trial court was manifestly erroneous in seemingly placing more

weight on Dr. Bernard’s testimony.

Dr. Bernard examined Mr. Bellard on one occasion for the purpose of

litigation. He stated that his opinion of Bellard suffering a residual 15% anatomical

impairment rating of the spine as a result of the lumbar injury only, was not meant to

be indicative of his level of functional impairment, distinguishing it from a functional

disability rating. This anatomical spinal impairment rating did not take into

consideration the existence of a cervical spine injury as well. Also, although Dr.

Bernard stated initially that if Bellard had a successful lumbar discectomy and fusion,

he would place no physical limitations on him, he also acknowledged the possibility

of segment adjust syndrome occurring because of the increase in pressure on the discs

above and below the fused area.

2

Regarding the existence of carpal tunnel syndrome, Dr. Bernard initially

testified that Bellard did not suffer from the syndrome, but recanted that statement

on cross-examination, testifying that he could not say that Bellard was not suffering

from carpal tunnel. This is because it was shown that he did not perform any

diagnostic tests during his examination of Bellard that would indicate the existence

of the condition and that he did not review the EMG and nerve conduction studies

that confirmed the existence of bilateral carpal tunnel syndrome.

When he recanted his prior claim, he then stated that his only opinion

regarding carpal tunnel was that it could not have occurred as a result of the August

accident, which he initially deemed to be minor. His later testimony revealed that he

possessed no knowledge of the severity of the impact of the August 2002 crash

(which he later acknowledged was severe based on the approximate rate of speed

Gayle may have been traveling), no knowledge of the position of Bellard’s arms or

hands during the accident, nor any knowledge of any injuries possibly suffered by

Bellard in the nature of internal bleeding, bruising or otherwise, which may have

readily indicated injury to the relevant areas.

Regarding the cervical injuries, Dr. Bernard stated during direct

examination that Bellard exhibited no objective findings of any nature during his pre-

cervical surgery evaluation on September 30, 2004. However, on cross-examination

Dr. Bernard testified that he did not review Bellard’s CT scan and myelogram, which

are the diagnostic tools used to more accurately identify or determine the extent of

spinal injuries when a physical exam and/or MRI are not clear enough. In this case,

Dr. Bernard admitted that his opinion of no objective findings of cervical spine injury

of any nature did not include a review of the findings shown on the CT scan and

myelogram.

3

Dr. Foret, the court-appointed IME physician, reviewed the MRIs, CT

scan, and myelogram of the cervical spine, and performed a physical examination of

Bellard on June 8, 2005, which revealed spasms in the neck area. He agreed with the

radiologist’s findings of disc bulging and osteophytic formation at the 3-4 through 5-

6 levels and some central canal narrowing. He also agreed with Dr. Bernauer’s

decision to proceed with surgery. He acknowledged that Bellard may have had

arthritic or degenerative changes in the cervical spine preceding the accident, but did

not discount the accident as an aggravating factor in his chronic pain development

and subsequent development of disc bulging.

Does any of this testimony represent that which may be reasonably

viewed differently, such that the trial court cannot be held manifestly erroneous in

its determinations based on such? I do not think so. It is apparent to me that there

was not sufficient evidence presented by the defendant to successfully discount the

three injuries attributed to the first accident, the necessity for the surgeries, nor the

subsequent impairment established by the plaintiff.

Consequently, I would raise the loss of future earning capacity awards

to $547,994.00, representing the loss of future earning capacity determined by

plaintiff’s economist, Dr. Charles Bettinger, based upon Bellard’s inability to return

to the workforce. I would award general damages in the amount of $250,000.00, the

lowest amount which could reasonably be awarded.

For the foregoing reasons, I dissent in part.

4