Shawn Bernard v. the Hartford Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-71

SHAWN BERNARD

VERSUS

THE HARTFORD INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20066286
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

AFFIRMED.

Harry Karl Burdette
The Glenn Armentor Law Corp.
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
Counsel for Plaintiff Appellant:
Shawn Bernard

Jason R. Garrot
Briney & Foret
P. O. Drawer 51367
Lafayette, LA 70505
(337) 237-4070
Counsel for Defendants/Appellees:
Humberto E. Salcedo
Omni Insurance/Indemnity Company

SAUNDERS, Judge.

This is an automobile accident case where the plaintiff prevailed at trial, but

was dissatisfied by the judgment rendered. The plaintiff claims that the trial court

erred by disregarding part of the uncontroverted medical testimony of his treating

physician, by using manifestly erroneous reasoning, and by awarding damages that

were abusively low.

After reviewing the record, we find no merit to any of the plaintiff’s

assignments of error. As such, we affirm the trial court’s judgment and assess all costs

of these proceedings to the plaintiff.

FACTS AND PROCEDURAL HISTORY:

On March 23, 2006, Shawn Bernard (Bernard) was driving west on West

Pinhook Road in Lafayette, Louisiana when defendant, Humberto Salcedo, driving

a different vehicle, attempted to pull out from a private drive, entered the roadway

prematurely, and caused the vehicles to collide. Officer Jared Brown, with the

Lafayette Police Department, testified that the extent of the damage to the plaintiff’s

vehicle was minor. Further, Officer Brown testified that there were no reports of

injury at the scene.

Bernard began to have pain in his neck and sought treatment for his injuries on

May 2, 2006, with Dr. John Humphries. Bernard was diagnosed with neck pain and

a cervical strain by Dr. Humphries, but was given no prescription for pain medication

nor was physical therapy ordered. On August 28, 2006, Dr. Humphries discharged

Bernard from his care.

In the meantime, Bernard underwent two preemployment physicals where he

denied having any neck pain and denied ever having been injured in any accidents

within the last five years. Bernard allegedly began to have recurrent pain in his neck

shortly after the August 28, 2006, discharge, yet did not seek further medical

treatment until December 20, 2006, again seeing Dr. Humphries up until he was again

discharged on April 25, 2007.

At trial, Dr. Humphries’ video deposition was admitted. Dr. Humphries was the

only medical expert to testify in this case. In that deposition, Dr. Humphries stated

that Bernard had sustained a soft tissue neck sprain/strain, that an MRI performed

after August 28, 2006, revealed no abnormalities related to this accident, and that he

had not seen any objective evidence of Bernard’s injury other than a minimal

decreased range of movement in his neck. Dr. Humphries also stated that the gaps in

treatment are not uncommon with this type of injury.

Dr. Humphries was then made aware that Bernard, only a few days after

reporting neck pain to him, denied having any neck pain in one of the preemployment

physicals. After learning this fact, Dr. Humphries answered that he would “question

the [veracity] of [Bernard’s] subjective complaints to [him].”

After considering all of the testimony, the trial court awarded Bernard

$4,500.00 in general damages for the pain and suffering he endured from May 23,

2006, to August 28, 2006. Bernard was also awarded $505.00 in special damages,

representing the medical bills incurred in that same time frame. Bernard appealed this

judgment, alleging the following three assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error and was clearly wrong in ignoring the
expert medical opinion of Dr. Humphries, who causally related his medical
treatment of Shawn Bernard to the accident of March 23, 2006; the trial court’s
error was manifest because there was no other equally rational view of the
evidence presented for the trier of fact to consider.

2. The trial court’s judgment had no reasonable basis because it ignored expert
medical opinion and manifestly erred in its reasoning.

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3. The trial court erred by limiting its awards to Shawn Bernard by granting no
special and general damages past August 28, 2006. The trial court did award
an amount for general damages suffered from March 23, 2006, to August 28,
2006, but the trial court erred, because the amount was abusively low.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Bernard claims that the trial court committed

manifest error when it ignored the expert medical opinion of Dr. Humphries, who

causally related his medical treatment to the accident of March 23, 2006. He argues

that there was no other equally rational view of the evidence presented for the trier

of fact to consider.

“Whether an accident caused a person’s injuries is a question of fact which

should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d

973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)).

It is well settled that a court of appeal may not set aside a finding
of fact by a trial court or a jury 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.
Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v.
ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365
So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716,
724 (La.1973). The rule that questions of credibility are for the trier of
fact applies to the evaluation of expert testimony, unless the stated
reasons of the expert are patently unsound. Lirette v. State Farm Ins.
Co., [][563 So.2d] at 853; Sistler v. Liberty Mutual Ins. Co., 558 So.2d
1106 (La.1990).

Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201,
p. 6 (La.App. 3 Cir. 10/19/1999), 748 So.2d 417, 421.

In the case before us, Bernard must show that the record, when viewed as a

whole, provides no reasonable basis for the trial court to disregard part of Dr.

Humphries’ expert medical testimony. We find that Bernard has failed to do so.

Bernard relies heavily on the fact that the testimony of Dr. Humphries was not

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controverted. As such, Bernard asserts that because there are not two rational views

as to what medical treatment was related to the accident, the trial court erred when it

found that not all of Dr. Humphries’ treatment was related to the accident.

Bernard is correct that Dr. Humphries’ testimony is not controverted. However,

there is evidence in the record that Dr. Humphries’ opinion relating all the medical

treatment to the accident was not based upon all the facts. “Ultimately, the weight to

be given expert testimony is dependent upon the facts on which it is based, as well

as the professional qualifications and experience of the expert.” Rogers v. Roch, 95-

242, p. 16 (La.App. 5 Cir. 10/18/95), 663 So.2d 811, 817.

The following excerpt is from Dr. Humphries’ deposition testimony admitted

at trial:

Q Doctor, if the patient reports [subjective] symptoms and has a
range of movement that varies between visits, do you have to
simply trust what the patient is telling you or is there any other
way to verify what they’re telling you?

A I’m relying heavily on what the patient is telling me.

....

Q Assuming [Bernard] went to - - seven days after he first saw you,
he took an employment physical at Stafford Health Care Clinic
where he denies any neck injury whatsoever. Would that call you
to question your opinions as to his [veracity] of what he told you?

A Let me ask you, again. What visit are we speaking of?

Q Well, I’m talking about an employment physical that he took
through an outside agency, Stafford Health Care Clinic, where he
signed and dated and noted that he had no cervical pain
complaints.

A What is the date of that?

Q Its May 9, 2006. It’s seven days after you first saw him.

A That would not be what he told me on May 2nd.

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Q If he is on two occasions, two employment physicals, where he
specifically denies any cervical pain complaints, would that call
into question the [veracity] of his subjective complaints to you?

A It probably would, yes.

We find that this exchange provides a reasonable basis for the trial court to

disregard Dr. Humphries’ testimony as to the relationship between medical treatment

he provided to Bernard and the accident. Dr. Humphries treated Bernard starting on

May 2, 2006. The employment physical where Bernard denied any neck pain was

seven days later. As such, it was within reason for the trial court to disregard any

testimony Dr. Humphries made regarding medical treatment he performed on Bernard

after that date.

Next, Bernard argues that a gap in medical treatment is of no consequence.

This statement is misguided. While a gap in treatment does not necessitate a finding

that the medical treatment is not related to an accident, a trial court may use a gap in

treatment as a factor in analysis when making its decision as to whether medical

treatment is related to an accident. See Griffin v. Kurica, 03-190 (La.App. 5 Cir.

6/19/03), 850 So.2d 807.

Finally, Bernard argues that a person’s injuries are presumed to have resulted

from an accident if, prior to the accident, the person was in good health and, after the

accident, the symptoms appear. This presumption is based upon our Supreme Court

case of Housley, 579 So.2d 973. This case is distinguishable from Housley.

In Housley, there were medical records in the record indicating that Mrs.

Housley was in good medical condition prior to her fall, and there were medical

records objectively indicating that, just after her fall, her water bag was diagnosed as

having ruptured prematurely. Here, we have no medical records or any indication that

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Bernard was in good health prior to the accident other than his testimony, which the

trial court found lacked credibility. Further, Housley is based upon a objective finding

that Mrs. Housley’s water bag was prematurely ruptured, whereas here, aside from

a slightly limited range of movement in his neck, which was described as “almost

full,” Bernard had no other objective findings of an injury.

Accordingly, we find that there is ample evidence in the record for the trial

court to disregard a portion, or even all, of Dr. Humphries’ testimony. Further, we

find no error in the trial court’s decision not to apply the Housley presumption. As

such, we find this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Bernard contends that the trial court’s

judgment had no reasonable basis because it ignored expert medical opinion and

manifestly erred in its reasoning.

We have already determined in assignment of error number one that the trial

court had a reasonable basis for disregarding Dr. Humphries’ testimony. Thus, we

will only address the part of Bernard’s argument in this assignment not previously

adjudicated.

Bernard argues that the trial court erred when it found that he lacked credibility

based upon his purposeful misrepresentation in two preemployment physicals. We

find this argument unconvincing.

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.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

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Bernard goes to great lengths to convince this court that the trial court was not

required to find him lacking in credibility when he lied in two preemployment

physicals, but was truthful as to why he did so in court. We agree with Bernard.

However, the question before us is not whether lying on two preemployment

physicals mandates a finding such as was made by the trial court, rather the question

before us is whether lying on two preemployment physicals provides a reasonable

basis for the trial court to find as it did.

To help support his position, Bernard cites Robertson v. Scanio Produce &

Institutional Foods, Inc., 449 So.2d 459 (La.1984). In Robertson, our Supreme Court

found that there was no sound reason in the record for the trial court to reject the

uncontroverted testimony of a claimant for workers’ compensation benefits.

Here, the trial court elucidated that its rejection of part of Bernard’s testimony

was based not only on the preemployment physicals, but also on when Bernard was

impeached regarding how much weight he had to lift at work, and on when Bernard

described his pain in court as constant ,while Dr. Humphries’ medical records showed

that Bernard described his pain as occurring approximately twice a month. Moreover,

in Robertson, the claimant sustained a back injury involving a herniated disc and

resulting in surgery. Surgery is an objective, measurable circumstance of an injury.

Here, we only have Bernard’s testimony and Dr. Humphries’ testimony in which the

doctor, when confronted with an established fact that Bernard had lied on two

preemployment physicals, stated that his opinion may change. Thus, we find that

Bernard’s arguments in this assignment are also without merit.

ASSIGNMENT OF ERROR NUMBER THREE:

Bernard alleges in his final assignment of error that the trial court erred by

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granting no special and general damages past August 28, 2006. Further, Bernard

contends that while the trial court did award an amount for general damages suffered

from March 23, 2006, to August 28, 2006, it erred because the amount was abusively

low.

In addressing Bernard’s third assignment, we must look to two different

standards of review. Bernard’s first allegation is that the trial court should have found

that the accident caused the pain and suffering he was allegedly enduring past August

28, 2006. As we stated in Assignment of Error number one, such finding are findings

of fact and the standard of review of such questions is that of manifest error. Housley,

579 So.2d 973.

Bernard saw Dr. Humphries on August 28, 2006. The progress notes from that

visit are as follows:

Mr. Bernard states that his neck continues to do well and has given no
pain since last visit.

....

The cervical, thoracic and lumbar areas were all free of tenderness. He
moved his neck fully and with no associated pain.

....

My plans were to discharge Mr. Bernard today if he had no recurrent
pain between now and the last visit. Such is reported to be the case.

Bernard did not see Dr. Humphries again until December 20, 2006, nearly four

months later. While Dr. Humphries did testify that this was not out of the ordinary for

some spinal injuries, we have already determined in Assignment of Error number one

that the trial court had a reasonable basis for disregarding some, or all, of Dr.

Humphries’ testimony based on Dr. Humphries’ reaction to learning that Bernard had

denied any neck pain or accidents on two preemployment physicals, one of which was

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just days after Bernard saw Dr. Humphries with complaints of neck pain. As such,

based on that finding, we find no error in the trial court’s decision to limit Bernard’s

recovery to the pain and suffering he endured prior to August 28, 2006.

Bernard’s second allegation in this assignment is related to the quantum

assessed by the trial court. This court, in Guillot v. Doe, 03-1754, p.5 (La.App. 3 Cir.

6/30/04), 879 So.2d 374, 379-80 (footnotes omitted), stated, “[a]n appellate court

should rarely disturb an award of damages due to the great and, even, vast discretion

vested in the trial court. We can disturb such awards, only, when the trial court clearly

abused its discretion.”

Bernard cites Kilpatrick v. Alliance Casualty & Reinsurance Co., 95-17

(La.App. 3 Cir. 4/5/95), 663 So.2d 62, writ denied, 95-2018 (La. 11/17/95), 664

So.2d 406, to bolster his position that the quantum awarded, $4,500.00 in general

damages and $505.00 in special damages, for “roughly a six month period” was

abusively low. First, as our Supreme Court stated in Bourdier v. Louisiana Western

R. Co., 133 La. 50, 62 So. 348, 349 (La.1913)(citing Eichorn’s Case, 114 La. 712, 38

South. 526) “each case must stand on its own special facts”. Moreover, we find

Kilpatrick has little relation to the case before us.

In Kilpatrick, the plaintiff sought medical treatment two days after the accident,

underwent physical therapy and was prescribed pain medication for over seven

months, and complained of headaches, neck pain, and sleeplessness causing him to

be treated with antidepressant sedatives and steroid injections. Further, the plaintiff

in Kilpatrick had a preexisting medical condition that was aggravated by the accident

in addition to a cervical strain.

Here, the trial court only found just over five months of Bernard’s pain and

suffering were related to the accident. Further, unlike the plaintiff in Kilpatrick,

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Bernard did not seek medical treatment for a month and a half, was not prescribed any

pain medication or physical therapy, had minimal complaints of intermittent pain, and

had no preexisting condition that was aggravated by the accident.

Further, the date of the accident was March 23, 2006. Bernard did not seek

treatment until May 2, 2006, and the trial court found that none of the pain and

suffering Bernard alleged to have endured past August 28, 2006, were related to the

accident. The actual time for which the trial court compensated Bernard was five days

more than five months, calculated from the date of the accident rather than the date

when Bernard actually sought treatment. This is not “roughly six months,” as

Bernard claims. As such, awarding Bernard just under $900.00 per month for what

Bernard described to Dr. Humphries as pain only a couple times a month, and for

what Dr. Humphries diagnosed as a soft tissue neck sprain/strain, is not unreasonable.

Accordingly, we find that the trial court was not manifestly erroneous in

limiting Bernard’s recovery to pain and suffering endured prior to August 28, 2006.

Additionally, we find that the quantum awarded by the trial court, while perhaps on

the lower end of the reasonable scale associated with the circumstances of this case,

was not abusively low. As such, we dismiss this final assignment of error raised by

Bernard.

CONCLUSION:

Bernard raised three assignments of error. After reviewing the record, we find

that none of the assignments raised by Bernard have any merit. As a result, we affirm

the trial court’s judgment and assess all costs of these proceedings to Bernard.

AFFIRMED.

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