Marcus Ryan v. Zurich American Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-618

MARCUS RYAN

VERSUS

ZURICH AMERICAN INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2004-5691
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

Cooks, J., Concurs and assigns reasons.

AFFIRMED AS AMENDED IN PART; REVERSED IN PART; AND
RENDERED.

Raleigh Newman
Attorney at Law
1830 Hodges Street
Lake Charles, LA 70601
(337) 439-5788
Counsel for Plaintiff/Appellant:
Marcus Ryan

Geraldine Fontenot-Roberts
Attorney at Law
450 Laurel Street, Suite 1701
Baton Rouge, LA 70801
(225) 382-5550
Counsel for Defendants/Appellees:
Zurich American Insurance Company
Custom Ecology, Inc.
Raymond Johnson

EZELL, JUDGE.

Marcus Ryan appeals a jury’s award of damages for past wage loss, loss of

future earning capacity, pain and suffering, mental anguish, and loss of enjoyment of

life. Mr. Ryan was injured when he was rear-ended by Raymond Johnson who was

driving an eighteen-wheeler owned by Custom Ecology, Inc. and insured by Zurich

American Insurance Company. He claims that he is entitled to an increase in the

award of these damages as a result of the injuries sustained in the accident.

FACTS

On October 15, 2003, Mr. Ryan was traveling home from Vinton Middle

School where he was working for Lewing Construction Company, Inc. as a carpenter.

He was stopped behind another vehicle when he noticed an eighteen-wheeler

approaching behind him. Mr. Ryan realized that the eighteen-wheeler was going to

hit him, so he braced himself for the impact. He had no pain immediately after the

accident.

Mr. Ryan went to work, but he complained to his superintendent that he had

headaches and his neck was hurting. After three to four hours of working, the

company sent him home.

On October 20, 2003, Mr. Ryan went to see Dr. Damon Cormier, a

chiropractor. At that time, Mr. Ryan’s primary complaints were cervical pain which

radiated into his right shoulder in addition to headaches. Dr. Cormier began

treatment and last treated Mr. Ryan on December 29, 2003. Dr. Cormier released Mr.

Ryan to return to work with no limitations. In doing so, Dr. Cormier wrote a letter

to Mr. Ryan’s attorney, explaining that he had released Mr. Ryan but that Mr. Ryan

still had some soreness and stiffness. Dr. Cormier explained that carpenters generally

want to return to work with no limitations. Mr. Ryan returned to work at Lewing

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Construction in January 2004.

Continuing to experience problems, Mr. Ryan saw Dr. Clark Gunderson, an

orthopedic surgeon, on March 31, 2004. Mr. Ryan reported to Dr. Gunderson that the

pain in his neck was constant and that he had headaches once or twice a week. He

also had back pain which did not radiate into the legs. The pain was made worse by

daily activities. An MRI showed slight bulging in the neck. Dr. Gunderson referred

Mr. Ryan to physical therapy. Dr. Gunderson testified that he thought Mr. Ryan was

going to be okay and told him to continue working.

After several weeks, Mr. Ryan’s back pain had disappeared but he continued

to have neck pain. By June 29, 2004, the pain was moderately severe and constant

in the neck and right shoulder and arm. Dr. Gunderson explained that he initially

thought the pain was originating in the neck, but he decided to get an MRI of the

shoulder on December 7, 2004. The MRI indicated an injury to the labrum, which is

part of the lining of the shoulder that acts as a stabilizer to keep the shoulder in the

joint as well as an attachment for the ligaments. Dr. Gunderson referred Mr. Ryan to

Dr. David Drez, another orthopedic surgeon.

Dr. Drez saw Mr. Ryan on January 10, 2005. Initially, injections and therapy

were administered. However, neither helped. On June 22, 2005, Dr. Drez performed

an arthrosporic procedure to repair the tear in the labrum. Dr. Drez explained that

Mr. Ryan did not do well after surgery. He had difficulty with the range of motion

in his shoulder despite intense physical therapy. A second surgery became necessary

to release the scar tissue and was performed on February 22, 2006. Dr. Drez last

treated Mr. Ryan on August 25, 2006, at which time he found Mr. Ryan had reached

maximum medical improvement.

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During his treatment with Dr. Gunderson, Mr. Ryan developed numbness in

his right hand. On January 25, 2005, Dr. Gunderson recommended an EMG, which

was performed on February 17, 2005. The EMG indicated a moderately severe right

carpal tunnel syndrome. Dr. Gunderson recommended a carpal tunnel release

procedure which was performed on March 10, 2005.

Two days prior to the EMG, Mr. Ryan tested positive at work for marijuana.

He received notice of termination from Lewing Construction on February 17, 2005.

Since that time he has not worked for Lewing Construction.

Dr. Drez suggested that a functional capacity evaluation (FCE) would be

beneficial to determine Mr. Ryan’s physical limitations. Following his release from

Dr. Drez, an FCE was performed on Mr. Ryan on September 7 and September 8,

2006. The FCE results indicated that Mr. Ryan could work but only at a light-duty

level.

Following the carpal tunnel release procedure and the two shoulder surgeries,

Mr. Ryan did not work. About a week before trial, Mr. Ryan began working as a

security guard.

Trial was held before a jury on October 17 and 18, 2006. The jury returned a

verdict finding that the accident had caused Mr. Ryan’s injuries. He was awarded

$72,000 in past medical expenses, $6,000 for loss of past wages, nothing for loss of

future earning capacity, $24,000 for pain and suffering, $24,000 for mental anguish,

and $24,000 for loss of enjoyment of life. Aside from the award for past medical

expenses, Mr. Ryan appeals the other awards of damages, claiming them to be

contrary to the law and evidence.

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LOST WAGES

Loss of Past Wages

Mr. Ryan claims that the jury’s award of $6,000 for loss of past wages is

contrary to the law and evidence. He argues that all doctors agreed the he was unable

to work from the date of the carpal tunnel surgery on March 10, 2005, to the date of

trial because of his severe shoulder problem and surgeries, not because of a failed

drug screen.

Under Louisiana jurisprudence, damages for lost
wages may be established by any proof which reasonably
establishes the claim, including the plaintiff’s own
reasonable testimony. While claims for past lost wages
must be established with some degree of certainty, they
need not be proven with mathematical certainty, but only
by such proof as reasonably establishes the plaintiff’s
claim. This award may be supported by the plaintiff’s
detailed and uncorroborated testimony.

Smith v. Ebey, 04-889, pp.6-7 (La.App. 3 Cir. 12/29/04), 896 So.2d 143, 148

(citations omitted).

At trial, Mr. Ryan admitted that he tested positive for marijuana in August 2002

while employed by Lewing. However, he was rehired by Lewing a month later. Prior

to his shoulder surgery, Mr. Ryan tested positive again for marijuana in February

2005. He did not go back work for Lewing after this failed drug test.

Subsequent to his release from Lewing at this time, Mr. Ryan had the carpal

tunnel release surgery in March 2005 and the two shoulder surgeries in June 2005 and

February 2006. In August 2006, Dr. Drez found that Mr. Ryan had reached maximum

medical improvement, and the FCE indicated that Mr. Ryan could return to work at

a light-duty level.

Mr. Ralph Lewing, owner of Lewing Construction Company, testified on

behalf of Mr. Ryan. Acknowledging that Mr. Ryan had been fired in February 2006

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because he failed a drug test, Mr. Lewing testified that Mr. Ryan showed a lot of

potential and he would have rehired Mr. Ryan as he had once before. Mr. Lewing

then went on to explain that he could not hire someone with a permanent disability

due to the nature of a carpenter’s work. Chris Arceneaux, a superintendent with

Lewing Construction, worked with Mr. Ryan prior to his automobile accident. Mr.

Arceneaux testified that Mr. Ryan was a good worker.

Dr. Gunderson testified that when he first started treating Mr. Ryan, he found

it hard to believe that Mr. Ryan wanted to continue to work given his shoulder

problems. Dr. Gunderson testified that Mr. Ryan was unable to work for a while after

the carpal tunnel release. He opined that Mr. Ryan could have returned to work in

May 2005. However, the following month, the first shoulder procedure was

performed on Mr. Ryan.

According to Dr. Drez, Mr. Ryan’s shoulder condition was a lot better after the

second surgery in February 2006. Dr. Drez stated that Mr. Ryan could not work when

he was treating him. Dr. Drez released him from his care on August 25, 2006. While

Dr. Drez opined that Mr. Ryan could return to his work as a carpenter, he testified

that he would rely on the results of the FCE since it is based on objective data. He

specifically testified that the FCE conclusions are more important than what he

thinks. Manny Gala, the occupational therapist who performed the FCE, testified that

Mr. Ryan gave a good effort during the testing.

The jury awarded Mr. Ryan $6,000 for loss of past wages. Each side presented

evidence of the value of Mr. Ryan’s wage loss. Kenneth Boudreaux, an economist,

testified on behalf of the Defendant. Mr. Boudreaux did not believe that Mr. Ryan

had suffered any past wage loss because he was terminated from his job. Obviously,

the jury disagreed with this opinion since it did make an award for loss of past wages.

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Mr. Boudreaux then went on to testify that “if Mr. Ryan was unable to work due to

the accident after he was terminated in February of ‘05, and if there would have been

a job for him to work but for an inability, physical inability caused by the accident,

then I have no trouble that there is a past loss.”

Dr. Charles Bettinger, and economist and statistician who testified on behalf

of Mr. Ryan, calculated Mr. Ryan’s loss of past wages from March 10, 2005 to

October 16, 2006 at $61,429. This was based on $15 an hour that Mr. Ryan was

earning at the time of the accident in addition to $3.50 an hour in fringe benefits and

6.2% for the employer’s contribution to social security. Since Mr. Boudreaux did not

make any calculations for loss of past wages, Mr. Boudreaux used the same

information and calculated Mr. Ryan’s wage loss at $60,622 at Plaintiff’s counsel’s

request.

Defendants argue that the $6,000 awarded covered the time that Mr. Ryan

initially did not work following the accident while he was seeking treatment with a

chiropractor, a little less than three months. No evidence of the amount of wage loss

during this time period was offered by either party.

Based on this evidence we find that the jury erred in awarding only $6,000 for

loss of past wages. The jury found that Mr. Ryan’s injuries were caused by the

accident. The evidence clearly established that Mr. Ryan was unable to work

following his surgeries even if he had not been terminated. We increase the award

to $60,622 as the amount that is clearly established by the record as to Mr. Ryan’s

loss of past wages.

Loss of Earning Capacity

The jury failed to award any damages for loss of earning capacity. Mr. Ryan

claims that this was in error as he is now relegated to light-duty work which effects

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his future earning capacity.

Earning capacity in itself is not necessarily determined by actual
loss; damages may be assessed for the deprivation of what the injured
plaintiff could have earned despite the fact that he may never have seen
fit to take advantage of that capacity. The theory is that the injury done
him has deprived him of a capacity he would have been entitled to enjoy
even though he never profited from it monetarily.

Folse v. Fakouri, 371 So.2d 1120, 1124 (La.1979); See also, Carrier v. Nobel Ins.

Co., 01-983 (La.App. 3 Cir. 2/6/02), 817 So.2d 126, writs denied, 02-728 (La.

5/10/02), 815 So. 2d 843; 02-739 (La. 5/10/02), 815 So. 2d 845.

At the time of the accident, Mr. Ryan was a member of the union and was

working with Lewing Construction under a four-year apprenticeship program to

become a journeyman carpenter. He was hired by Lewing Construction in November

2001 and was close to completing the apprenticeship before his surgeries. Mr. Ryan

was earning $15 an hour. As a journeyman he would be entitled to rates of $17.97

an hour.

As previously stated, Dr. Drez testified that he would rely on the results of the

FCE as to Mr. Ryan’s limitations. Dr. Stanley Foster, an orthopedic surgeon who

testified on behalf of the Defendants, agreed that Mr. Ryan could return back to work

within the guidelines of the FCE.

No one disputes that Mr. Ryan would not be able to work as a carpenter now.

Even though Mr. Lewing stated that he would have rehired Mr. Ryan, he testified that

he could not hire someone with a permanent disability due to the nature of the work.

The Defendants presented the testimony of Karen Keller, a vocational

rehabilitation counselor, to establish that Mr. Ryan was capable of returning to other

employment earning at least as much, if not more, than he earned before. She was of

the opinion that Mr. Ryan was capable of vocational retraining and returning to

gainful employment earning $40,000 a year. The jobs she thought were appropriate

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considerations included a computer assisted design drafter, an electronics technician,

and a hot shot driver.

Admittedly, the first two suggestions would require retraining of two years.

While these two jobs were light-duty, there was a math component to them. Testing

established that Mr. Ryan was performing math at a seventh grade level. Glenn

Hebert, the vocational rehabilitation counselor who testified on behalf of Mr. Ryan,

testified that Mr. Ryan could not master the mathematical skills of a design drafter.

Ms. Keller explained that a hot shot driver is someone who usually runs items

back and forth to oilfields and other areas. She testified that the research indicates

that the drivers are not required to assist with loading and unloading but could offer

no specific job description. Ms. Keller could not specifically indicate which of these

jobs were actually available.

Mr. Hebert indicated that Mr. Ryan wanted a direct placement in a job because

he had no funds to support his wife and three children. Mr. Hebert testified that he

did not believe that Mr. Ryan could master the mathematical skills involved with the

jobs listed by Ms. Keller. Mr. Hebert also stated that the hot shot driver was

considered medium work with occasional climbing of stairs and ladders and

scaffolding and would not fall into the limitations provided by the FCE. He further

testified that hot shot driving did require loading and unloading at times. Mr. Hebert

felt that the most Mr. Ryan could earn was $6.50 an hour up to $7.00 an hour given

his limitations.

We find that the evidence clearly establishes that Mr. Ryan would have been

rehired at Lewing Construction but for the injuries he suffered as a result of the

accident. While there was evidence presented that he could seek employment in

fields within his limitations that provide the same income, we find that the evidence

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was not very realistic. For some of the jobs, Mr. Ryan would have to be retrained

which means he would be out of work for at least another two years. Furthermore,

we find it unreasonable to believe that he has the ability to be retrained in these fields

given his learning ability. Due to Mr. Ryan’s physical limitations, we also find that

the other jobs listed by Ms. Keller were not feasible options. All doctors agreed that

they would rely on the FCE as indicative of his physical abilities. The FCE

specifically limited Mr. Ryan from any overhead activities or overreaching. He could

not be in a position that required repetitive use of his right hand, and his endurance

level was poor. We find that Mr. Ryan clearly established that his earning capacity

was diminished as a result of the accident, and the jury erred in failing to award any

damages.

Mr. Boudreaux found that Mr. Ryan would have suffered a loss of $647,470

if he could earn $7.00 an hour. This amount did not include any calculation for loss

of fringe benefits or the employer’s contribution to social security and assumed that

Mr. Ryan had a work-life expectancy of 30.83 years as of the time of the accident.

The amount of loss would be $783,170 if Mr. Ryan worked to age sixty-five.

Mr. Bettinger calculated Mr. Ryan’s total wage loss at $1,249,727. This

amount was based on a residual earning capacity of $7.00 an hour. Mr. Bettinger also

assumed that Mr. Ryan would work to age sixty-five and used a real interest rate of

two-and-a-half percent. This amount also included fringe benefits and the employer’s

contribution to social security which amounts to a total of $317,420. Additionally,

$61,429 in loss of past wages is included. Adjusting the calculated amount since loss

of past wages has already been discussed, the total amount of loss of future earning

capacity as calculated by Mr. Bettinger is $1,188,298.

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One of the biggest differences between Mr. Boudreaux’s calculation and Mr.

Bettinger’s calculation is Mr. Bettinger’s inclusion of fringe benefits and the

employer’s contribution to social security. Mr. Bettinger also used a higher

percentage rate for Mr. Ryan’s earnings to increase in accordance with the inflation

rate.

Mr. Ryan’s employment at the time of the accident provided fringe benefits,

and his employer contributed to social security. There is no doubt that Mr. Lewing

would have continued to employ Mr. Ryan. Right before trial, Mr. Ryan had secured

a job as a security guard earning $5.50 an hour. He testified that he received no

insurance or fringe benefits from this job. Mr. Ryan had consistently worked for Mr.

Lewing and was a few months shy of journeyman status. Under the circumstances,

we find the jury erred in failing to award damages to Mr. Ryan for loss of earning

capacity. Based on the evidence in the record, we find that $1,188,298 is an

appropriate award for loss of earning capacity.

GENERAL DAMAGES

Mr. Ryan also appeals the award of general damages of $24,000 for pain and

suffering, $24,000 for mental anguish, and $24,000 for loss of enjoyment of life. He

claims that these awards are inadequate given the circumstances of this case.

The assessment of damages by a jury is a determination of fact. Youn v.

Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114,

114 S.Ct. 1059 (1994). The role of an appellate court in reviewing an award of

general damages is not to decide what it considers to be an appropriate award, but

rather, to review the exercise of discretion by the trier of fact. Id. The adequacy of

the award should be determined by facts or circumstances particular to the case under

consideration. Id.

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Reviewing the record, we do not find that the jury abused its discretion in the

awards of general damages. We, therefore, affirm these awards.

For the reasons discussed, the award for loss of past earnings is increased to

$60,622. Furthermore, we reverse the jury’s failure to make an award for loss of

earning capacity and award $1,188,298. In all other respects the judgment is

affirmed. Costs of this appeal are assessed to the Defendants/Appellees.

AFFIRMED AS AMENDED IN PART; REVERSED IN PART; AND
RENDERED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-618

MARCUS RYAN

VERSUS

ZURICH AMERICAN INSURANCE COMPANY, ET AL.

COOKS, J., concurs.

I concur in the majority’s decision, but note that I would increase the awards

for pain and suffering, mental anguish and loss of enjoyment of life.