Curtis Tezeno v. Daniel Robert Young

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-046

CURTIS TEZENO

VERSUS

DANIEL ROBERT YOUNG, ET AL.

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 76318-B
HONORABLE CHUCK R. WEST, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W.
Perry, Judges.

Perry, J., concurs in part, dissents in part, and assigns reasons.

AFFIRMED AS AMENDED.

Jerry J. Falgoust
Falgoust and Caviness, LLP
Post Office Box 1450
Opelousas, Louisiana 70571-1450
(337) 942-5812
COUNSEL FOR DEFENDANTS/APPELLANTS:
Daniel Robert Young
City of Ville Platte

Marcus L. Fontenot
Fontenot & Ludeau, LLC
Post Office Box 69
Ville Platte, Louisiana 70586
(337) 363-2388
COUNSEL FOR PLAINTIFF/APPELLEE:
Curtis Tezeno

GREMILLION, Judge.

Defendants, Daniel Robert Young and the City of Ville Platte, appeal the trial

court’s judgment awarding Plaintiff, Curtis Tezeno (Tezeno), $225,000.00 in

general damages and $241,395.10 in special damages after its determination that

Tezeno sustained both an aggravation of a preexisting condition and a new injury as

a result of a rear-end collision. For the following reasons, we affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

On August 3, 2015, Tezeno’s truck was rear-ended by a vehicle driven by

Daniel Young (Young) when Young failed to see Tezeno’s truck stopped at a stop

sign at the intersection of Cotton Street and Court Street in Ville Platte, Louisiana.

Young was traveling in a tractor with a front-end loader owned by his employer, the

City of Ville Platte (the City).

Tezeno filed a petition for damages in July 2016 against Young and the City.

The matter proceeded to a bench trial on September 26, 2018. The parties stipulated

that Young, who was acting in the course and scope of his employment, was solely

responsible for the accident. The extent of the damages Tezeno suffered from the

accident was greatly contested because he had a preexisting back injury,

accompanied by complaints of right leg pain.

The only live testimony heard at the bench trial was from Tezeno and Cody

Savoie (Officer Savoie), the former Ville Platte police officer who responded to the

accident. The remainder of the evidence consisted primarily of medical reports,

medical bills, and depositions.

Tezeno submitted into the record the medical reports of his family doctor, Dr.

Charles E. Fontenot (Dr. Fontenot); the medical reports and two depositions of his

orthopedic surgeon and treating physician, Dr. Louis C. Blanda, Jr. (Dr. Blanda); the

deposition of and Life Care Plan prepared by Dr. Shelly N. Savant (Dr. Savant), a

neurologist, psychiatrist, and certified life-care planner; and the contingent fee

contract1 executed by Tezeno. The defendants submitted into the record the

deposition testimony of Dr. Joan C. Wojak (Dr. Wojak), a neurosurgeon and

interventional neuroradiologist, and Dr. Neil C. Romero (Dr. Romero), an

orthopedic surgeon.

The trial court took the matter under advisement and, on October 11, 2018,

issued written Reasons for Judgment, ruling in favor of Tezeno. The trial court

awarded Tezeno damages for past medical expenses in the amount of $32,834.42, 2

past and future pain, suffering, and loss of enjoyment of life in the amount of

$225,000.00, and $208,560.68 for future medical care. The trial court further

ordered the creation of a reversionary trust for Tezeno’s future medical care award,

in accordance with La.R.S. 13:5106(B)(3)(a).

On November 2, 2018, Tezeno filed a Rule to Show Cause based on the

defendants’ objection to the proposed judgment. Specifically, defendants objected

to Tezeno’s attorney fees being deducted from the future medical care award before

establishment of the reversionary trust, i.e., prior to the medical care being

administered. 3 After a hearing on November 16, 2018, the trial court overruled

1
The contingent fee contract, dated August 3, 2015, provided Tezeno’s attorney would
receive: (1) thirty-three and one-third percent of the amount recovered in the event (a) settlement
was achieved without the necessity of filing suit, (b) suit was filed, and (c) a trial actually started;
or (2) forty percent of the amount recovered if an appeal was filed by any party.
2
Defendants do not assign as error the trial court’s award for past medical expenses.
3
The disputed portion of the proposed Judgment stated:

IT IS FURTHER ORDERED ADJUDGED AND DECREED that in
accordance with La.R.S. 13:5106, the amount owed by the City of Ville Platte for
future medical care shall, after deduction of attorney[] fees of $69,520.23, be
deposited into a reversionary trust established for the benefit of the plaintiff and
that all medical care and related benefits incurred subsequent to judgment be paid
pursuant to the reversionary trust instrument, and that said reversionary trust
instrument provide that such medical care and related benefits be paid directly to
the provider as they are incurred.

2

defendants’ objection, ordering that the amount owed by defendants for Tezeno’s

future medical care shall, after deduction of attorney fees, be deposited into a

reversionary trust.

On November 26, 2018, the trial court signed a Judgment in conformity with

its written Reasons for Judgment of October 11, 2018, and its ruling of November

16, 2018.4 Defendants appeal and assign three errors: (1) the trial court erred in

awarding $225,000.00 in general damages; (2) the trial court erred in awarding

$208,560.68 for future medical care; and (3) the trial court erred in ordering the

defendants to deduct the total amount of attorney fees from the award for future

medical care before deposit into the reversionary trust.

ANALYSIS

Causation

In their first assignment of error, defendants claim the trial court’s award of

$225,000.00 in general damages was abusively high. Although defendants’ first

assignment of error refers to quantum, the crux of this argument revolves around the

IT IS FURTHER ORDERED ADJUDGED AND DECREED that the
amount of $69,520.23 shall be paid as attorney fees directly to counsel for Curtis
Tezeno prior to placement of funds into the reversionary trust.
4
Pertinent to attorney fees, the Judgment states:

IT IS FURTHER ORDERED ADJUDGED AND DECREED that in
accordance with La.R.S. 13:5106, the amount owed by the CITY OF VILLE
PLATTE for future medical care shall, after deduction of attorney[] fees, be
deposited into a reversionary trust established for the benefit of the plaintiff and
that all medical care and related benefits incurred subsequent to judgment be paid
pursuant to the reversionary trust instrument, and that said reversionary trust
instrument provide that such medical care and related benefits be paid directly to
the provider as they are incurred.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that should
this judgment not be appealed, the total amount of attorney fees to be deducted from
the amount awarded for future medical damages before deposit into the
reversionary trust shall be $69,520.23. However, in the event this judgment is
appealed, the total amount of attorney fees to be deducted from the amount awarded
for future medical damages before deposit into the reversionary trust shall be
$83,424.27. The attorney fees shall be paid directly to counsel for Curtis Tezeno
prior to placement of funds into the reversionary trust.
3

causal link between the accident and the resulting injuries, particularly the causal

relationship between the accident and the sacral injury of which Tezeno complains.

Tezeno alleges the accident caused both a major aggravation of his preexisting

back condition and a fracture in his sacrum. As a result, Tezeno asserts he is entitled

to past and future general damages, extensive future medical care, and a housekeeper

for the remainder of his life.

Defendants argue Tezeno did not prove the accident caused either a major

aggravation of his preexisting back condition or a fractured sacrum. Defendants

contend that the accident caused, at most, a minor aggravation of Tezeno’s

preexisting, chronic back condition. Defendants argue the trial court erred in

awarding Tezeno excessive damages in light of the medical evidence and differing

medical opinions concerning whether Tezeno had a sacral fracture. In brief,

defendants state: “The many MRIs taken before and after the accident at issue in this

case . . . show the plaintiff’s condition did not change.” Defendants further allege:

The consistent complaints the plaintiff had before and after the
accident at issue and the same treatment and recommendations
provided by Dr. Blanda before and after the accident at issue do not
evidence a back that has undergone serious trauma justifying a general
damages award of nearly a quarter of a million dollars.

The record in this matter includes a vast amount of medical evidence. Mindful

of the fact that only two live witnesses were presented at trial—Tezeno and Officer

Savoie—the following is a complete account of the evidence before the trial court.5

We begin with the relevant history pertaining to Tezeno’s preexisting injury.

Prior to the accident at issue, Tezeno was involved in an automobile accident

on November 18, 2011, and he injured his lower back, accompanied by right leg

pain. Tezeno saw his family doctor, Dr. Fontenot, and an MRI was performed on

5
The manifest error standard of review applies to all factual findings regardless of the form
of the evidence before the trier of fact. Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir.
11/2/00), 774 So.2d 1022; Shephard v. Scheeler, 96-1690 (La. 10/21/97), 701 So.2d 1308.
4

January 20, 2012. The impression of the radiologist, Dr. Gerard Ballanco, Jr. (Dr.

Ballanco), was, “Mild disc bulging at L4-5. No spinal canal or nerve root

impingement.”

Tezeno began seeing Dr. Blanda, an orthopedic surgeon, as a patient on

October 18, 2012, and another MRI was performed on November 13, 2012. The

impression of the radiologist, Dr. Edward Willett (Dr. Willett), indicated: “Mild

disc bulge L5-S1” and “Minimal bulge at L4-L5 is unchanged in January, 2012.”

Also, Dr. Willett’s findings stated: “There is abnormal signal density identified in

the S3 vertebral body which is T1 hypointense and T2 hyperintense, stable. This

has not changed since the prior study and could represent an atypical angioma. A

CT scan of the sacrum may be of additional value.”

According to Dr. Blanda’s records, Tezeno’s appointment on May 26, 2015—

his last before the accident at issue—was a “routine [follow-up for] his chronic lower

back condition associated with the disc herniation L5-S1. He has primary axial pain

associated with instability and does not have significant radicular symptoms at this

point. He is managing nonsurgically. He continues on Norco, cyclobenzaprine and

ibuprofen which offer symptomatic relief[.]” Tezeno’s next appointment was

scheduled for August 25, 2015.

On August 3, 2015, Tezeno was involved in the subject rear-end collision.

The day after the accident at issue, Tezeno sought treatment from his family doctor,

Dr. Fontenot. His examination showed that Tezeno had “right sided paravertebral

muscle spasms” and “tenderness of the L4-L5 and L5-S1 interspaces.” Dr. Fontenot

gave Tezeno an injection of steroid, a liniment application, and prescribed physical

therapy.

On August 25, 2015, Tezeno saw Dr. Blanda. Dr. Blanda’s records indicate

Tezeno reported “symptoms with his back have been significantly worsened” as a

5

result of his accident on August 3, 2015. Nonetheless, Dr. Blanda did not change

his treatment of Tezeno. He continued to prescribe the same medications and

scheduled a routine appointment in three months.

Tezeno continued to have follow-up care with Dr. Fontenot, who ordered a

lumbar MRI. Tezeno had an MRI on October 7, 2015. The impressions of the

radiologist, Dr. Ballanco, were: “1. No nerve root impingement seen within the

lumbar spine. 2. T2 hyperintense lesion within the S3 segment which is likely

nonaggressive as it is similar in appearance to comparison from November 13,

2012.” Notably, the MRI did not identify the presence of an L5-S1 disc herniation,

as was indicated on the MRI performed on November 13, 2012.

Tezeno returned to Dr. Blanda on November 24, 2015, with complaints of

lower back pain and right leg pain, rating his pain on a scale of one to ten as seven,

with one being the lowest. Dr. Blanda prescribed Tezeno a lumbar support brace

and recommended an electromyography/nerve conduction velocity (EMG/NCV)

test of the right leg.

The medical records of Dr. Daniel L. Hodges indicate Dr. Blanda referred

Tezeno for “EMG/NCV studies of the right lower extremity to assess for occult

radiculopathy.” The EMG/NCV test performed on December 15, 2015, indicated

an “essentially normal EMG/NCV of the right lower extremity. No clear cut [sic]

findings to verify acute radiculopathy[.]”

Tezeno saw Dr. Blanda on January 5, 2016. Dr. Blanda’s notes reflect Tezeno

reported “pain in the lower right aspect of his back in the sacroiliac joint which then

radiates into his posterior thigh to behind his knee.” His notes further declare: “He

does have a bulging disc at L5-S1. His EMG/NCV is normal.” Notably, the MRI

performed on October 7, 2015 showed no bulge present at L5-S1. Dr. Blanda

recommended Tezeno have a right sacroiliac joint injection.

6

According to Dr. Blanda’s records, Tezeno was seen on March 8, 2016, “for

the first injury.” Tezeno rated his pain as seven out of ten. Dr. Blanda’s notes state

Tezeno “has gotten worse with back pain since the new accident. Will close this

account and begin seeing him for new injury since he was made worse.”

On March 28, 2016, Dr. Blanda performed a right sacroiliac joint injection

with the use of fluoroscopy. At his follow-up appointment on April 15, 2016,

Tezeno complained of lower back pain and occasional right leg pain, and he reported

he had no relief from the injection. Tezeno received refills of his medications and

was encouraged to attend another course of physical therapy. Dr. Blanda’s notes,

however, indicate Tezeno would “think about it for now.”

When Tezeno returned to Dr. Blanda on July 14, 2016, his pain rating

remained a seven out of ten. However, Tezeno complained of pain in his left leg,

not his right leg. Dr. Blanda ordered an updated MRI of Tezeno’s lumbar spine.

An MRI from Stand-Up-Open MRI Centers of Louisiana (the Stand-Up MRI)

was obtained on August 30, 2016. The radiologist, Dr. Lawrence W. Glorioso, III,

indicated bulging of the L4-5 intervertebral disc toward the left side. Notably, the

Stand-Up MRI showed no bulge present at L5-S1; however, Dr. Blanda’s notes

reflect: “The report reads bulging of the L4-5 disc eccentrically prominent to the left

side. There also appears to be centralized disc bulge at L5-S1 that is not noted on

the report.”

Tezeno saw Dr. Blanda on September 6, 2016. He reported lower back pain,

left leg pain, and again rated his pain as seven out of ten. Dr. Blanda referred him

to Dr. Steven K. Staires (Dr. Staires), a pain management specialist, for lumbar

epidural steroid injections (LESI).

On October 6, 2016, Dr. Staires administered to Tezeno fluoroscopically

guided LESIs at L4, left, and L5, left. At his follow-up appointment with Dr. Blanda

7

on October 20, 2016, Tezeno complained of lower back pain, left leg pain, and rated

his pain as ten out of ten. Tezeno also reported he had no relief from the injections.

Dr. Blanda’s notes indicate: “The patient is asking for possible surgical intervention

due to the severity of his symptoms. I explained to [Tezeno] that the MRI results

are somewhat equivocal so we will order a discogram of L4-L5 and L5-S1.”

A lumbar discography was performed by Dr. Staires on November 29, 2016.

The medical records of Dr. Staires indicate the discogram produced negative results

at L3-L4, L4-L5, and L5-S1.

Tezeno returned to Dr. Blanda on December 6, 2016, with lower back pain,

left leg pain, and a pain rating of seven to eight out of ten. The medical records of

Dr. Blanda indicate that after the negative results of the discogram were reviewed,

and the possibility of referring Tezeno to pain management was discussed. Tezeno

declined, opting instead for refills of his prescription medications.

Tezeno was deposed by defendants on January 10, 2017. The first time he

was asked to describe “the area of [his] back that [he] injured in this accident,”

Tezeno responded, “The lower right hand side.” Defense counsel asked, “Do you

have any issues with any other area of your body, other than your lower right hand

side of your back?” Tezeno responded, “My leg. . . . Right leg. And my -- not right.

Getting confused. Left. It was the left. . . . And my testicles.” He said he had issues

with his right leg before the accident but stated that since the accident his right leg

“doesn’t really bother me.”

Tezeno rated his pain as three out of ten before the accident, and as eight to

nine out of ten after the accident. The following testimony was elicited when defense

counsel once again asked Tezeno about what injuries he suffered as a result of the

accident:

8

Q. Before this accident, you said you injured your low back on the
right side, with light [sic] leg pain?

A. Yes, sir.

Q. Okay. After this accident, you said you injured your lower right
hand side of your back near the belt line?

A. Left hand side. This accident is the lower left hand side.

Q. So this accident, the area where you injured is your lower left
hand side of your back?

A. Yes, sir.

Q. Okay. So when you told me that you injured your lower right
hand side of your back near your belt line, that was incorrect?

A. That was --

Q. You had gotten confused?

A. -- the right hand side.

Q. The right hand side is not correct?

A. No, sir.

Q. For the 2015 accident --

A. It’s the left hand side.

Q. The left hand side of your back, near the belt line, is what you
injured in this accident?

A. Yes, sir.

Q. And it is your left leg?

A. Left leg.

Q. As opposed to your right leg?

A. Yes, sir.

Q. The 2011 accident, it was the right side of your back, and your
right leg?

A. Yes, sir.

9

Q. And in this accident, 2015, it is the left side of your back, and
your left leg?

A. Left leg right now.

Q. Okay. Due to this accident in 2015, did you have any injury to
your right leg?

A. Not that I can recall.

Q. Any injury, increasing in pain in your right side of your back?

A. Not that I can recall.

Q. So basically, what you were having from the 2011 accident,
basically has remained the same? Is that right?

A. Yes, the pain is still there.

Q. The pain is still there from the 2011? That’s on the right side of
your back and your right leg, that has remained basically the
same after the 2015 accident; is that right.

A. Correct.

Q. But your injury that you are relating to this accident, is your left
side of your back, along with the left leg?

A. Yes, sir.

Q. That is the only injury you had in this particular case?

A. Yes, sir.

Following his deposition, Tezeno saw Dr. Blanda on January 31, 2017,

reporting lower back pain, left leg pain, and again rated his pain as seven to eight

out of ten. Dr. Blanda recommended a lumbar support brace and continued

prescribing medications.

Tezeno returned to Dr. Blanda on April 25, 2017. Although Tezeno rated his

pain as seven out of ten, Dr. Blanda’s record states: “The patient has increasing pain

as well as radicular symptoms on the left. At this time I will request an updated MRI

of his lumbar spine. The disc is probably worsened.”

10

Tezeno saw Dr. Blanda on July 25, 2017, with complaints of lower back pain,

left leg pain, and rated his pain as seven out of ten. Since Tezeno’s MRI was not

approved, Dr. Blanda continued prescribing medications.

The record indicates Tezeno had an MRI on September 26, 2017. Along with

findings of discs bulging at L4-5 and L5-S1, the impression of the radiologist, Dr.

Ballanco, indicated an “[a]bnormal signal within the S3 segment which could reflect

a fracture or other osseous lesion[]” for which he advised obtaining a “[d]edicated

MRI of the lumbar spine with and without contrast[.]” Notably, the report indicates

there was no comparison of this MRI to any of Tezeno’s previous MRIs.

At his first deposition in this matter on September 28, 2017, Dr. Blanda

testified he began seeing Tezeno as a patient on October 18, 2012, for lower back

and right leg pain related to an automobile accident on November 18, 2011. He

ordered Tezeno’s second MRI, the one performed on November 13, 2012, because

he “thought [Tezeno] had some type of lesion in his sacrum.” Dr. Blanda attributed

Tezeno’s lower back and right leg pain to the accident in November 2011, stating,

“I thought he had a small disc bulge or a small herniation in -- in the low back.”

The last time Tezeno reported right leg pain to Dr. Blanda was on May 7, 2013.

From October 18, 2012, until the subject accident on August 3, 2015, Dr.

Blanda saw Tezeno regularly for treatment of his back condition. Although Dr.

Blanda’s records indicate he considered Tezeno a surgical candidate, his primary

treatment consisted of prescription medications.

During a routine appointment on August 25, 2015, Dr. Blanda learned Tezeno

was involved in the subject accident. According to Dr. Blanda, Tezeno reported “his

pain had worsened since [the accident], and he presented with increase of back pain,

and he was asking about being treated for this injury, and my office pretty much told

him that we’d have to set up a separate or different account record for a new injury.”

11

Dr. Blanda did not alter his treatment and continued to issue Tezeno the same

prescription medications.

Dr. Blanda testified Tezeno had a follow-up appointment on November 24,

2015. On this occasion, Tezeno reported lower back pain and a recurrence of right

leg pain. Dr. Blanda testified he reviewed the MRI ordered by Dr. Fontenot and

performed on October 7, 2015. Comparing the MRI performed on November 13,

2012, which showed a mild disc bulge at L5-S1, Tezeno’s counsel asked Dr. Blanda

if the MRI performed on October 7, 2015, “show[ed] the bulge at the L5-S1 level?”

Dr. Blanda replied:

[T]he MRI ordered by Dr. Fontenot did not -- at least on the
report indicate any problems. It still showed that lesion in the
sacrum, which had been previously diagnosed by the radiologist
as an hemangioma, which is a collection of blood vessels.

I -- let’s see. I’m pretty sure I looked at that MRI and
commented on it.

Yeah, I said I reviewed the -- the MRI, and that the
previous bulge at L5-S1 was not visible on this new MRI.

Q. Is that a common thing?

A. It happens sometimes. And sometimes it’s just the technique, the
way the scan’s done, I might miss it. Sometimes the bulge itself
shrinks and -- and that’s where the body tries to heal itself.

Q. On the date of November 24th, was Mr. Tezeno’s complaints
consistent with lower -- lower back pain?

A. Yes.

Q. He also, it looks like, maybe had some right leg problems?

A. He had a recurrence of his leg pain again. He had some weakness
in his right foot, and he had the numbness in his foot and calf
again.

Dr. Blanda testified that until April 15, 2016, Tezeno continued to report pain in his

lower back and right leg. However, on July 14, 2016, he reported pain in his left

leg, not his right leg.

12

Under cross-examination, defense counsel probed the inconsistency between

Dr. Blanda’s testimony and Tezeno’s deposition, where Tezeno claimed he only had

left leg pain after the accident. The following exchange occurred after defense

counsel asked Dr. Blanda, “[D]idn’t you do some injections on the right side?”

A. I did a SI joint injection on his right side, yes.

Q. And so if -- so obviously, he was telling you his right side is
hurting [him], his right leg and not his left leg?

A. Correct.

Q. So if, in fact, he tells me in his deposition that he had no right leg
pain after the . . . August 3, 2015, accident, but only had left leg
pain, that is inconsistent with the information he presented to
you?

A. Yes.

Q. And you’re basing your opinion as to what this accident may or
may not have done to him, you’re basing that on his -- his
complaints and his credibility to relate to you correct responses?

A. Sure.

Q. Would you agree that what I’m telling is correct about what he
said his complaints were and what he told you were inconsistent?

A. Well, I don’t think, you know, in retrospect, that the left leg
problems are likely related because that didn’t present at least, in
my records, till a year later.

Q. Okay. So the -- no. Wait. Would you repeat that? I might have
missed --

A. I said I -- if it’s -- what you’re saying is correct, that the left leg
didn’t start hurting him for about a year afterwards, then it would
probably not be related.

Q. To the -- this August 2015?

A. Right.

Q. And based on your records, that -- does that confirm, you don’t
have any reports of his left leg issue prior to July of 2016?

A. Correct.

13

In terms of his treatment after Tezeno complained of left leg pain, Dr. Blanda

testified he ordered an updated MRI. On August 30, 2016, Tezeno had a Stand-Up

MRI. Dr. Blanda explained why a Stand-Up MRI is different: “[T]he idea with a

stand-up MRI is that the discs are stressed more with the body weight on -- on the

discs, and if you have a -- a subtle injury that doesn’t show without the discs being

loaded, it might show up on the -- the body weight standing MRI.” The Stand-Up

MRI indicated bulging of the L4-5 intervertebral disc toward the left side, which Dr.

Blanda stated “could account for [Tezeno’s] left-sided symptoms.”

Dr. Blanda reviewed the results of the Stand-Up MRI with Tezeno on

September 6, 2016. He was specifically asked about his notation in his records from

that visit: “There also appears to be centralized disc bulge at L5-S1 that is not noted

on the report.” Dr. Blanda explained, “Yeah. The radiologist didn’t report it, but

when I looked at it, I thought there was still some -- some bulging there.” Thereafter,

Dr. Blanda referred Tezeno to Dr. Staires for lumbar epidural steroid injections.

Dr. Blanda saw Tezeno again on October 20, 2016, after administration of

epidural steroid injections by Dr. Staires to Tezeno at L4 and L5 on October 6, 2016.

Dr. Blanda recommended a discogram because Tezeno reported he did not get any

relief from the injections. In his deposition, Dr. Blanda explained that in a

discogram, “the suspected discs are injected with dye, and there’s also a control disc

that’s injected with dye[]” along with “an x-ray to see what . . . the dye does inside

the disc, whether it leaks out or goes through a rupture or a tear of some type.”

Dr. Blanda saw Tezeno on December 6, 2016, after a discogram was

performed by Dr. Staires on November 29, 2016. Dr. Blanda testified the discogram

did not produce any positive pain responses; therefore, he ruled out Tezeno’s need

for surgery for a ruptured disc. When Dr. Blanda was asked what his diagnosis was

after Tezeno’s discogram, he answered:

14

I was surprised, so . . . by ruling out the other things probably left
us with a -- diagnosis of some type of soft-tissue injury, whether
it’s muscular or ligamentous.

And it -- it still -- I guess maybe that -- that lesion in the
sacrum could be causing symptoms, but that is not a trauma
thing. It’s a developmental problem with a blood vessel, and it
-- kind of like an aneurysm in the bone.

Dr. Blanda saw Tezeno on January 31, 2017, April 25, 2017, and July 25,

2017. He testified that Tezeno reported increased pain at his April 2017 visit;

therefore, Dr. Blanda recommended an updated MRI.

Tezeno had an MRI on September 26, 2017, two days before Dr. Blanda gave

his first deposition. Dr. Blanda testified he had reviewed a copy of the MRI report

and, based on the radiologist’s remark concerning a possible fracture in Tezeno’s

sacrum, it was Dr. Blanda’s belief Tezeno needed an MRI with contrast. Tezeno’s

counsel asked, “And [the radiologist] said the ‘abnormal signal could reflect a

fracture’?” Dr. Blanda replied:

Well, he said “could reflect a fracture or -- or other osseous
lesion,” so it’s -- it’s kind of inconclusive.

Q. Okay. And a fracture could be trauma related?

A. It’s possible. Don’t know yet though.

When Dr. Blanda was cross-examined by defense counsel about that MRI, the

following exchange ensued:

Q. First of all, on the new OGH Imaging that was done on
September 26, 2017, when it talked about an abnormal signal
within his first three segments --

A. Right.

Q. -- that is something that was preexisting this particular accident,
right?

A. Yeah. That was present on the very early MRIs, as well.

Q. We’re -- you’re talking about the ones in 2012?

15

A. Yes.

Q. And that S3 is -- although it -- it has a suggestion that you might
want to look for a fracture or some other lesion, that was
something you -- you explained, is -- was -- I think you said, a
lesion in the sacrum, and it was not trauma-related when you
looked at it from the 2012, but just because the radiologist says,
“You might want to look to see if there was some other reason,
other than the -- the lesion in the sacrum, unrelated to trauma,[”]
you -- you suggest that he does that new MRI?

A. Yes.

Q. But there’s nothing for you to indicate right now that this S3 is
related to any type of trauma?

A. Not that I can tell, no, sir.

Q. And --

A. I don’t think it is. It -- it was reported, and when I looked at it, it
looked like [it’s] what is called a “hemangioma,” a collection of
blood vessels in the bone. And sometimes it can expand and
grow, and it -- certainly, if -- if the patient falls on his pelvis or
something of that nature, it could traumatize him, but I’m just not
sure. I don’t think he had any falls or anything. It was just a
twist --

Q. He didn’t report any falls --

A. -- twisting mechanism.

Q. -- to you?

A. No.

Q. Okay. And if, in fact, it is something else, then it would appear
that it was something that occurred sometime in -- before 2012,
because it showed up on those previous MRIs that he had before
this accident in August of 2015?

A. Right. And -- like I said earlier, I don’t think it’s trauma related,
and I -- I still feel that way, unless the new scan shows something
totally unexpected.

Q. And you indicated that a -- you diagnose him with a kind of soft-
tissue injury at the chronic stage?

A. Yes.

16

Following his first deposition, Dr. Blanda saw Tezeno on October 10, 2017.

Tezeno rated his pain as eight out of ten. Dr. Blanda ordered an MRI with contrast

to evaluate Tezeno’s S3 vertebral area.

Tezeno had an MRI with contrast on October 18, 2017. Along with findings

of discs bulging at L4-5 and L5-S1, the impression of the radiologist, Dr. Ballanco,

relative to Tezeno’s S3 vertebral area was:

Abnormal signal with some enhancement within the S3 vertebral body
without expansion but with suggestion of mild posterior cortical
disruption. Findings are most suspicious for fracture. Osteomyelitis
can also [make] this appearance, however, is thought to be less likely
given the lack of adjacent soft tissue findings. Neoplastic disease is
thought to be much less likely. CT[6] may be of value for confirmation
if this diagnosis [is] in doubt.

At his follow-up with Dr. Blanda on October 19, 2017, Tezeno rated his pain

as nine out of ten. Although a CT scan was recommended, Dr. Blanda performed

X-rays. His notes reflect: “X-rays today of sacrum are done. I think I do see a faint

fracture line present at the area that is suspicious on MRI.” Subsequently, Dr. Blanda

recommended a consultation with Dr. Staires regarding a caudal epidural steroid

injection (CESI).

Tezeno saw Dr. Blanda on December 12, 2017, reporting his pain rating as

seven out of ten. Since Tezeno’s CESI was not approved, Dr. Blanda continued

prescribing medications.

On February 6, 2018, Dr. Staires administered to Tezeno a fluoroscopically

guided CESI. At his follow-up appointment with Dr. Blanda on February 20, 2018,

Tezeno rated his pain as four out of ten and six out of ten. Dr. Blanda’s records

reflect Tezeno reported the CESI “helped better than 50%.”

6
On November 13, 2012, Dr. Willett, likewise, recommended a CT scan of Tezeno’s S3
vertebral area.

17

At his follow-up appointment on March 22, 2018, however, Tezeno reported

his pain returned two weeks after he received the CESI. He rated his pain as seven

out of ten.

At his second deposition on April 20, 2018, Dr. Blanda testified that following

his first deposition in September 2017, he examined Tezeno on October 10, 2017.

Because Tezeno’s symptoms remained the same and because the radiology report

indicated the MRI on September 26, 2017 “was a little suspicious for a fracture down

in that sacral lesion,” he ordered an MRI with contrast. When asked about his

conclusion that Tezeno did, in fact, have a fractured sacrum, Dr. Blanda explained:

Yeah. I did an [X]-ray, and I focused on it. And the [X]-ray
doesn’t show things nearly as good as the MRI. But I thought
there might have been a faint fracture line that was in the area of
suspicion on the MRI. But the MRI is the most important thing.

Q. And on page two of that October 19th visit -- on the physical
exam portion of it, you note that Mr. Tezeno’s pain is worse with
sitting and lying down. Is that consistent with the sacral fracture?

A. Yes, it could be. Sure. As you mentioned before, it’s right by
the tailbone. You’ve probably had or heard or talked to people
that have had incidences where they have tailbone pain, and it’s
where you sit -- or laying on it -- all that could aggravate it.

Q. Okay. And given the fact that you treated Mr. Tezeno -- I believe
in your prior deposition, we went over it. You’ve been treating
him prior to the motor vehicle accident in August of 2015?

A. Yes.

Q. Given his change in complaints and the finding of the sacrum
fracture, do you -- are you of the opinion that the sacrum fracture
is trauma related?

A. I think it is. I mean, there’s no other way to explain it. He didn’t
relate any other injury since then. So I suppose the mechanism
was that he bounced or came down hard on his tailbone and that’s
what caused the injury.

Q. Okay. And you relate it to the trauma from the August 3rd, 2015,
accident?

18

A. Like I said, that’s the only trauma he described to me. I mean, if
there’s something else, certainly it’s worth reconsidering.

Q. Sure. But I’ll ask you just to assume that’s the only thing that he
described to you and the only thing that he has, then you would
relate it to the motor vehicle accident?

A. Yes, sir.

Concerning Tezeno’s need for further treatment, Dr. Blanda indicated, “The

plan is just to treat the symptoms.” This exchange followed when Dr. Blanda was

asked, “Your plan is to continue doing what you had done in the past?”

A. Yes.

Q. Just treat with injections and medication?

A. Yes. And then --

Q. And some therapy?

A. -- this should heal. I mean, it’s probably slower healing than
most sacral fractures because of the lesion there. But it may
already have come to the -- what’s called maximum medical
improvement time, where the healing is pretty good. The
radiologist just read it as a faint, small defect. So I don’t expect
that this is going to be a permanent problem.

When Dr. Blanda was cross-examined by defense counsel about his opinion

that Tezeno had a fractured sacrum, the following exchange ensued:

Q. Dr. Blanda, in regards to the fracture, how long does it generally
take a fracture to heal?

A. Normally in that area, I would say about a year.

Q. Okay. The MRI and all that that shows the -- the one that you --
well, let me ask you this. The one that the radiologist says is
highly suspicious of a fracture is over two years from the
accident?

A. Right.

Q. Isn’t it kind of unusual that the facture would still be there two
years later?

A. Well, under normal circumstances, you’re right. But, like I said,
this is a cystic area, it’s a thin wall, the pathologic fracture, so

19

that fracture line may be visible for longer that the regular
healthy bone.

Q. But if there was nonunion or something, wouldn’t that be present
if he had some nonunion or fibrosis union? Wouldn’t the
changes be present on the MRI?

A. The earlier MRI or the recent?

Q. Well, the ones -- you know, usually within -- you know, you had
said within a year --

A. Yeah.

Q. -- the fracture should be gone and it wouldn’t show up as a
fracture on an MRI.

A. Well --

Q. And we are now over two years.

A. Yeah.

Q. And you’re indicating that it appears that there’s a fracture there.
If it’s not healing correctly, shouldn’t there be some other
changes on the MRI that shows, you know, the nonunion or the
fibrosis union on the MRI?

A. Not really. I mean, I think it’s healing. It’s probably almost
healed from that point of view. But you’ve got to remember that
this was the first MRI that was done with the dye, with contrast.
So it’s showing things that the other MRIs probably couldn’t
show.

Q. The -- given that we have two MRIs that were done before this
accident and he now has three MRIs that were done subsequent
to this accident, and I think you had previously indicated that
looking -- well, two of them were done after the accident, before
our other deposition we took.

A. Right.

Q. And I think you had indicated that the lesion in the sacrum could
be causing the symptoms, but it was not a trauma thing. It was a
developmental problem?

A. Right.

Q. And you were comparing the MRIs that were before his accident
to those that were after this 2015 accident, and I think you
indicated that it was not a trauma thing.

20

A. Yeah. Again, that was before this last MRI with contrast in it
because the other MRIs did not --

Q. Insofar as the individual, who would be the best one to -- as far
as looking at the MRIs and comparing the MRIs before and the
MRIs after, to make an opinion as to whether or not whatever is
there today was also there since 2012?

A. Well, certainly the radiologist. But you’ve got to remember, it’s
comparing apples to oranges because the previous MRIs were
noncontrasted. And you can’t compare that with a contrast MRI,
because the contrast MRI is a little bit better test in looking for a
fracture or some sort of active process going on because it’s
related to the blood flow. And the blood flow picks up the dye,
and that’s why the other radiologist had recommended it.

Q. But you don’t think it would be better -- you would have some
kind of evidence of an MRI of maybe some edema or
hemorrhage or some other traumatic changes in the MRI in the
area if it was trauma related?

A. Well, you’ve got to remember, too, that this is a very small
fracture line. It’s not like a complete through-and-through break
or anything of that sort. So -- but, yeah, there would probably be
some, but it probably wouldn’t show without the dye.

Q. Okay. Do you know whether or not that is -- that shows even the
one that was done with the dye -- the edema --

A. He said there’s --

Q. -- or hemorrhaging?

A. No. He said it’s not any -- we’re over two years. So all that
edema and soft tissue swelling would have resorbed by this time.

Q. But -- okay. Would you think that having a neuroradiologist
review the MRIs before the accident, the x-rays before the
accident, and the MRIs done subsequent to the accident --
including all three of them and the x-rays that you did after the
accident -- would be able to give an opinion as to whether or not
what is there today has been there at the S3 level, whether it’s a
fracture or whatever, during that entire period of time.

A. I wouldn’t object to that. But, I mean, we’re talking about a very
minor problem here.

Q. Okay.

A. I don’t know whether it’s worth, you know, whatever you --

21

Q. Okay. So what you’re saying is that even if there’s a fracture,
the fracture is not that serious a fracture --

A. Right.

Q. -- to begin with?

A. No. It’s --

Q. And it was a very minor incident. And this individual was seeing
you on a regular basis for pain medication, maybe injections, and
all even before this accident.

A. Right.

Q. And you’re doing the same thing for him now?

A. Yeah. That’s what I had alluded to earlier, that, you know, he
was coming here for chronic pain even before this happened.
This happens. He gets a -- you know, what I think explained the
increase in pain. But it’s healing or going to heal, and he’s going
to probably be back where -- his pain now is going to be a blend
of pre and post-injury problems.

Q. So do you feel that, you know, if it has not already -- the fracture
part has not healed, that it’s -- that part of it is going to be you
know, probably shortly resolve itself?

A. Yeah. I think so. Like I said, the fracture’s small. It’s hardly --
probably not even visible on a plain x-ray, and it took the MRI
with a contrast to see it. And -- but it’s there. And it would
probably explain the increase in pain, particularly in that area.

Relating to his future treatment plan, Dr. Blanda reaffirmed that Tezeno’s

injury was not permanent. Defense counsel asked, “And the treatment that he has

been getting, even before the accident and after the accident, will be pretty

consistent?” Dr. Blanda further conceded:

Yes, sir.

Q. So whatever he’s doing now is related also to his pre-accident
treatment that you were giving him?

A. Yeah. I think partially, sure. I mean, you know, those symptoms
didn’t go away.

22

Following his second deposition, Dr. Blanda saw Tezeno on June 21, 2018.

Tezeno rated his pain as seven out of ten. Dr. Blanda recommended another MRI

with contrast again to evaluate Tezeno’s S3 vertebral area.

Tezeno had an MRI with contrast on June 27, 2018. The findings of the

radiologist, Dr. Richard Lastrapes, indicated:

There again is abnormal marrow signal involving the S3 segment of the
sacrum. This is low signal on T1 and increased signal on T2. This
could represent a[n] incidental hemangioma. Following contrast
administration there is slight enhancement within this area. No other
focal areas of abnormal marrow signal are noted. In retrospect this is
noted on the old MRI of the lumbar spine November 13, 2012
suggesting a benign process. The SI joints appear symmetric without
diastases. No focal marrow signal abnormalities are otherwise noted
involving the SI joints.

Tezeno saw Dr. Blanda on July 10, 2018. Tezeno rated his pain as seven out

of ten. Dr. Blanda’s notes indicate:

The patient is followed for low back pain. He had a sacral MRI that
was reported as a benign process. I think it could also represent a healed
fracture as had been reported on a prior MRI. I don’t see a surgical
lesion. He says his medications help. The caudal ESI helped a lot and
may need to be repeated.

Dr. Blanda continued the prescription medications Norco, Flexeril, and Ibuprofen,

and added Neurontin to Tezeno’s medication regime.

Tezeno saw Dr. Blanda on August 9, 2018. He rated his pain as seven out of

ten. This is the last appointment recorded in evidence before trial in this matter on

September 26, 2018.

The defense presented Dr. Wojak as an expert in field of diagnostic radiology.

Prior to her deposition on September 4, 2018, Dr. Wojak reviewed the films of

Tezeno’s MRIs and X-rays taken both before and after the accident, with the

exception of the seventh and final MRI performed on June 28, 2018.

Dr. Wojak disputed Dr. Blanda’s belief that Tezeno had a sacral fracture. She

opined there was no radiographic evidence Tezeno had a fracture in the sacral lesion.

23

When asked what conclusions she drew from her evaluation of Tezeno’s MRIs, Dr.

Wojak replied, “All of the MRIs demonstrated a focus of abnormal signal in the

sacrum at approximately the S3 level, . . . it never changed. It was there since the

beginning, since the first examination.” She denied there was any indication of

trauma, and opined it was “a benign lesion . . . what we call an indolent lesion.

Likely it’s a hemangioma[.]” Under cross-examination, Dr. Wojak expounded, “[I]f

you look at a bone with a hemangioma, the bone structure, it’s thinned out but it’s

still there so it’s not a tumor that’s eating away things or expanding. It’s just a

development abnormality.”

Dr. Wojak also opined there was no indication of a healed sacral fracture on

either the pre-accident or post-accident MRIs. When asked what the MRIs would

show if a fracture had existed, Dr. Wojak explained:

Immediately after the fracture you would see swelling in the soft tissue,
soft tissue edema surrounding the bone and possibly a little bit of blood.
You would see edema swelling in the bone marrow itself, water in the
bone matter itself surrounding the area. And then with time you would
see it evolve as the swelling the[n] goes down both in the bone marrow
and outside of the bone marrow and either heals, you get a bony union
and you may -- you’[ll] probably just see a little faint line but really it’ll
-- it heals solid or if it doesn’t you get a fibrous union, then you’ll persist
in seeing a fracture line and seeing some soft tissue signal abnormality.
But there’s nothing to suggest either an acute or a chronic fracture in
any of the studies.

Addressing Tezeno’s first MRI with contrast performed on October 18, 2017,

Dr. Wojak testified she did not see anything that was suspicious for a fracture.

Referring to Dr. Ballanco’s notation that the findings were “suspicious for a

fracture,” Dr. Wojak was asked, “[I]f there would have been any kind of fracture

that would have shown up on October 18th, 2017[,] would it be related to a[n]

accident that occurred over two (2) years from that date?” Dr. Wojak opined:

It shouldn’t be. No, but here’s the thing, they don’t -- but it’s not
suspicious for a fracture because it hasn’t changed in five (5)
years. It hasn’t -- a fracture, it heals or it doesn’t heal and if it

24

doesn’t heal, then it’s very obvious on an MRI. It’s obvious on
a plane film. You see chronic bony changes. The bone gets
sclerotic. It gets dense across the fracture lines. You see this soft
tissue and that enhances generally quite rightly with contrast so
-- and if you had a fracture two (2) [years] earlier and it healed,
it shouldn’t still be looking the same. It’s shouldn’t still have
marrow edema. That report to me says that the person that read
it didn’t look at the old films.

Q. Okay. Well, it does say that they compared it with the September
26, 2017[,] which was then the month before.

A. Correct. So, yeah. I mean, but they didn’t go back and look at
the historical films.

Specifically rebutting Dr. Blanda’s perception of a fracture on X-rays of Tezeno’s

sacral area, Dr. Wojak opined:

You should see changes in the bone. If there’s a chronic
non-union, so just from the bone sliding and rubbing on each
other, you’ll get -- you get -- the bone gets polished. It gets
eburnated. It gets sclerotic so you -- and you kind of get these
rounded margins. It doesn’t look like a fresh fracture anymore.
And you have granulation tissue, fibrous tissue that’s trying to
hold it together and so you’ll see this soft tissue surrounding the
fracture and that soft tissue generally enhances pretty
significantly. It’s one of the things that they were looking for.
Any other fracture that would have healed, it if [sic] had -- you
know, if you had a fracture when it’s acute, as I said before, you
have edema. You have water in the bone marrow, swelling in
the bone marrow but that goes away when the bone heals so it
should not still be there two (2) years later.

Based on her review of the MRIs performed between 2012 and 2017—two

pre-accident and four post-accident—Dr. Wojak found “no radiographic evidence

of any change” in Tezeno’s sacral area.

The defense also presented Dr. Romero, an orthopedic spine surgeon. Prior

to his September 12, 2018 deposition, he performed an independent medical

examination of Tezeno on July 11, 2018. Dr. Romero explained that prior to this

exam, he reviewed all of Tezeno’s medical records dating back to 2011.7 During

7
Dr. Romero’s review included Dr. Fontenot’s medical records; Dr. Blanda’s medical
records; Dr. Staires’s medical records; a report from Dr. Wojak; the two depositions of Dr. Blanda;
25

this exam, he reviewed these medical records with Tezeno to allow him to clarify or

expand upon Dr. Romero’s appreciation of Tezeno’s medical history.

According to Dr. Romero, during his examination, Tezeno “complained of

low back pain. He also described left leg pain over his medial thigh and foot which

appeared to be most consistent with an L3 distribution.” Dr. Romero, however,

testified Tezeno denied pain over his sacral area during the physical examination.

His examination revealed Tezeno had a moderate decrease in motion in his lumbar

spine, a normal gait, normal reflexes, and “his straight leg raise produced back pain

but no radicular leg symptoms which would make it negative straight leg raise. So

overall his exam was consistent with subjective complaints but decreased range of

motion and pain.”

Relating to his review of Tezeno’s MRIs and X-rays, Dr. Romero testified he

found no evidence Tezeno had a sacral fracture. Dr. Romero was of the opinion that

Tezeno’s MRIs and X-rays “taken before and after the accident showed no change.”

He explained:

So the first MRI study [Tezeno] had after the motor vehicle
collision was on October 7th, 2015. I did review the images. It
showed very mild disc bulging at L4-5 and L5-S1. It also
showed what appeared to be a lesion in the S3 vertebral body
which I thought was consistent with the hemangioma. But really
no evidence of stenosis or nerve root impingement or acute
pathology on this MRI.

Q. Did it look like it had any type of fracture at that S3 level?

A. No. So there was -- you know, we do different images, different
types of spins, and you have what’s called T1, T2 images. You
have stir images. So you look at the character of a lesion on the
different imaging studies and while some of the components of
this lesion could be consistent with the fracture, it was also very
consistent with the hemangioma which we often see as an
incidental finding in the spine quite often. I went back and
looked at the MRIs from before the accident, it was also there.

the MRI films and reports taken between 2012 and 2017; and X-rays taken by Dr. Blanda of
Tezeno’s sacrum and pelvis of October 18, 2012, November 24, 2015, and October 19, 2017.
26

Dr. Romero defined a hemangioma as a benign blood tumor.

Based upon his review of Tezeno’s extensive medical history, along with his

own physical examination, Dr. Romero disagreed with Dr. Blanda’s view that

Tezeno had a sacral fracture. Dr. Romero explained:

[I]f a fracture had been present since 2012, it would have likely healed
now, that, and the physical exam. So imaging studies don’t often stand
alone. You have to have a person to examine and correlate that
clinically. He had no pain over the S3 region so if he still had a sacrum
fracture there, you would expect him to have pain. In addition, if he
had a fracture back in 2012 you would expect[] it would likely have
healed by now and you would no longer see that -- those changes on T1
and T2 images.

When asked whether the MRI with contrast performed on October 18, 2017,

presented a clearer picture of a fracture or a healed fracture, Dr. Romero declared:

[T]he contrast really doesn’t add to a fracture, it more adds to a
metabolic process so if you have like a tumor or something that’s active
like a malignant tumor or something like that, you might be able -- or
an infectious process. I didn’t think that the contrast added much to the
picture and it was still consistent with the hemangioma.

Thus, Dr. Romero opined, “The only thing you can relate to the accident is

[Tezeno’s] subjective increase in symptoms but it’s not really backed up by either

the records or the imaging studies. It’s not like when he saw Dr. Blanda after the

accident that he changed his treatment.”

At his deposition, Dr. Romero was presented with the report from Tezeno’s

MRI with contrast performed on June 27, 2018.8 Dr. Romero observed the

radiologist, Dr. Lastrapes, reported an “abnormal marrow signal” in the S3 vertebral

area which “has been documented on an old MRI of the lumbar spine in 2012 likely

representing a benign process such as an incidental hemangioma.” Dr. Romero

8
Defense counsel indicated Tezeno’s seventh and final MRI performed on June 27, 2018,
was not known to him at the time of Dr. Romero’s examination of Tezeno on July 11, 2018.
27

noticed the radiologist compared Tezeno’s first and last MRIs—2012 to 2018—and

mentioned nothing about a fracture in Tezeno’s S3 vertebral area.

At the bench trial of this matter on September 26, 2018, Tezeno called Officer

Savoie to testify about the accident. At the time of the accident, Officer Savoie, now

employed with Scott Police Department, worked as a patrolman with the Ville Platte

Police Department. Officer Savoie responded to the accident scene and noted the

damage to the rear end of Tezeno’s truck as being minor to moderate. He testified

Tezeno denied being injured in the accident.

Tezeno testified that immediately after the collision, he felt pain in his back.

He insisted he told Officer Savoie he was hurt. Tezeno drove home and took pain

medication which had been prescribed to him by Dr. Blanda, taking more than the

dosage prescribed because of his increased pain.

Tezeno went to see Dr. Fontenot the next day because his medications did not

provide him any relief. He was not prescribed any medication by Dr. Fontenot since

he was already taking prescribed pain medication—hydrocodone (Norco),

cyclobenzaprine (Flexeril), and Ibuprofen—from Dr. Blanda. He attended therapy

with Timothy Fontenot, physical therapist, on August 4, 2015 and August 17, 2015,

but he did not experience any relief from his therapy sessions.

Tezeno testified his accident in 2011 injured his lower back and right leg but

prior to the accident at issue, his right leg pain had stopped, and his lower back pain

had become manageable. He stated the accident on August 3, 2015 caused his lower

back pain to become unbearable and caused his right leg pain to recur. He also

testified that several months after the accident, he began to experience pain in his

left leg and he temporarily felt testicular pain. Tezeno testified that since the

accident, his back pain has become unbearable, and he cannot sit for prolonged

28

periods. He rated his pre-accident pain as three out of ten and his post-accident pain

as ten out of ten.

Tezeno claimed Dr. Romero examined him for only twenty minutes. He

performed certain physical tasks for Dr. Romero, but claimed Dr. Romero never

physically examined him nor did he ask Tezeno to identify where he felt pain. When

asked if he knew “why Dr. Romero would say that you denied having sacrum pain?”

Tezeno replied, “He never asked me.”

Tezeno attributed his inability to do certain tasks to the accident. Before the

accident, he employed his aunt to clean his house three or four times a year. Since

the accident, he needs his aunt to clean his house once a week. He pays $80.00 a

week for the assistance of a housekeeper. His pain prevents him from playing

softball with his daughters, riding four-wheelers in trail rides with his children, and

mowing his own grass. Because of his limitations, Tezeno feels constant anger, but

he testified he does believe psychological treatment recommended by Dr. Savant

would help.

Under cross-examination, Tezeno reiterated he told Officer Savoie he had

back pain immediately after the accident but claimed Officer Savoie simply did not

write it down. Tezeno admitted to being involved in an accident in 2011, and to

being under Dr. Blanda’s care for injuries since that accident and at the time of the

subject accident. When asked if the medication he was prescribed before the

accident changed or remained the same after the accident, Tezeno confirmed the

medication remained the same, but he stated, “we also discussed upgrading my

medicine also because of the pain.” Tezeno could not recall whether Dr. Blanda

recommended surgery after his accident in 2011. He acknowledged seeing Dr.

Blanda and receiving prescription medications every three months.

29

When confronted with variations between his trial testimony and his

deposition testimony from January 10, 2017, specifically regarding whether the

accident caused him pain on his right or left side, Tezeno claimed he confuses his

left and right and stated that defense counsel’s deposition questions confused him.

Reasons for Judgment

After taking the matter under advisement, the trial court issued written

Reasons for Judgment, ruling as follows on causation:

The testimony of police officer Mr. Cody Savant was heard. Mr. Savant
noted that at the time of the accident no injuries were reported and there
was damage to the back end of the plaintiff’s vehicle.

The testimony of Mr. Curtis Tezeno was heard. He stated that
the impact shoved his truck forward, the tailgate of his vehicle was beat
up, and the bumper was damaged. Mr. Tezeno had a preexisting back
injury and had been treating with Dr. Louis Blanda since 2011. He
testified that he experienced an immediate change in his condition after
the August accident. Mr. Tezeno testified that after the August 3, 2015
accident he continued his treatment with Dr. Blanda. Mr. Tezeno
testified that he was offered stronger pain meds but he declined because
he didn’t want to become addicted and that his pain has been
consistently worse since the accident of August 3, 2015. He also
testified that prior to the August 3, 2015 accident the pain was
manageable and the [r]ight leg pain was better. After the accident he
hurts constantly in his back and has had sacrum pain since the 2015
accident. Mr. Tezeno stated that he had no other accidents since August
of 2015. His testimony further revealed that although he had a
housekeeper before the accident he needs her more now since the
accident. He also testified that this accident has changed his
interactions with his small children because that interaction has become
limited because of the accident. He testified that he is no longer able to
ride four-wheelers with his children, he does not do yard work anymore,
and that since this accident, he is angry all the time. He testified before
the accident his pain level was a three and since the accident his pain
level is a ten. He also testified that he has not worked since the accident
although he was limited prior to the accident to part[-]time work. His
testimony was largely un-rebutted although Mr. Tezeno was
cross-examined concerning inconsistent statements he gave in his
deposition prior to the trial and his testimony at trial. . . .[9] The issues
turn on [whether] this was an aggravation of a preexisting condition and
the extent to which that condition was aggravated. Dr. Blanda[,] the
[plaintiff’s] long time treating physician[,] in his September 28, 2017
9
The trial court’s itemization of evidence in the record is omitted since the evidence
introduced by the parties is previously listed.

30

deposition found that the August 15 accident aggravated Mr. Tezeno’s
preexisting condition. His pain systems changed and he continued to
rate his pain levels higher. Dr. Blanda also found that that [sic] it was
feasible that his old injury would have gradually gotten better absent
the new injury[.] Also[,] Dr. Blanda diagnosed the plaintiff with a
sacral fracture, he stated[,] “I think this pretty much explains why the
pain increased with his second injury or new injury.”

Dr. Joan Wojak was hired to perform a medical examination of
the plaintiff by the defendant for litigation purposes.

The [d]eposition of Dr. Neil Romero was introduced. Dr.
Romero testified to essentially the same thing; that defendant contacted
him in connection with performing an evaluation. Both Dr. Wojak and
Dr. Romero had differing medical opinions on causation and diagnosis
than Dr. Blanda.

In a negligence action[,] the plaintiff bears the burden of proving
fault, causation, and damages. One injured through the fault of another
is entitled to full indemnification for damages caused thereby. A
defendant takes his victim as he finds him and is responsible for all
natural and probable consequences of his tortious conduct. [Wainright
v. Fontenot, 00-492, (La. 10/17/00), 774 So.2d 70]. The trial court is
bound by the general rule that a treating physician’s opinion is given
more weight than that of a non-treating physician. Furthermore[,] a
Specialist in a given field is given more weight than a general
practitioner. [Ellis v. Rapides Parish School Bd., 419 So.2d 990
(La.App. 3 Cir. 1982)]. Applying the law as cited above[,] this court
finds that the August 2015 accident caused an aggravation of plaintiff’s
preexisting condition as well as a [s]acrum [f]racture.

(Footnotes omitted).

Standard of Review

An appellate court should not disturb reasonable factual findings of the trial

court in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330

(La.1978). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (quoting Arceneaux,

365 So.2d at 1333), the supreme court put forward a two-part test for the appellate

review of facts: “1) The appellate court must find from the record that there is a

reasonable factual basis for the finding of the trial court, and 2) The appellate court

must further determine that the record establishes that the finding is not clearly

wrong (manifestly erroneous).” The two-part test in Mart “dictates that a reviewing

31

court must do more than simply review the record for some evidence which supports

or controverts the trial court’s finding. Id. The reviewing court must review the

record in its entirety to determine whether the trial court’s finding was clearly wrong

or manifestly erroneous.” Stobart v. State through Dep’t of Transp. & Dev., 617

So.2d 880, 882 (La.1993) (citing Mart, 505 So.2d 1120). Even when a reviewing

court feels “its own evaluations and inferences are more reasonable than the

factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact

should not be disturbed upon review where conflict exists in the testimony.” Stobart,

617 So.2d at 882). However, a reviewing court may find manifest error in a finding

purportedly based upon a credibility determination “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 factfinder would not credit

the witness’s story.” Stobart, 617 So.2d at 882.

A plaintiff in a personal injury suit has the burden of proving by a

preponderance of the evidence a causal relationship between the accident and the

injuries of which the plaintiff complains. Maranto v. Goodyear Tire & Rubber Co.,

94-2603, 94-2615 (La. 2/20/95), 650 So.2d 757. The supreme court stated in

Maranto that the plaintiff must prove “through medical testimony that it is more

probable than not that the subsequent injuries were caused by the accident.” Id. at

759 (citing Mart, 505 So.2d 1120 (La.1987)). “[C]ausation is a factual finding which

should not be reversed on appeal absent manifest error.” Detraz v. Lee, 05-1263, p.

7 (La. 1/17/07), 950 So.2d 557, 561-62.

Another pertinent tort rule is the “eggshell plaintiff” principle: the well-

settled rule that a defendant in a personal injury case takes his victim as he finds him

and when a defendant’s tortious conduct aggravates a pre-existing injury or

condition, the defendant must compensate the victim for the full extent of the

32

aggravation. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). “The ‘eggshell

plaintiff’ is required to establish a causal link between the tortious conduct and the

aggravation of his pre-existing condition.” Bienemann v. State Farm Mut. Auto. Ins.

Co., 08-1045, p. 4 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 624.

“The test for determining the causal relationship between the tortious conduct

and subsequent injuries is whether the plaintiff proved through medical testimony

that it was more probable than not that subsequent injuries were caused by the

accident.” Arabie v. CITGO Petroleum Corp., 10-2605, p. 19 (La. 3/13/12), 89

So.3d 307, 321 (citing Lasha, 625 So.2d 1002). Whether the accident caused the

plaintiff’s injuries and whether the plaintiff established a causal link between an

aggravation of a preexisting condition are factual determinations reviewable under

the manifest error standard of review. See American Motorist Ins. Co. v. American

Rent-All, Inc., 579 So.2d 429 (La.1991); Touchard v. SLEMCO Elec. Found., 99-

3577 (La. 10/17/00), 769 So.2d 1200. “Lawsuits cannot be decided on speculation

or suspicion alone. There must be a reasonable amount of probative evidence to

fortify a finding of fact.” Miller v. Miller, 226 La. 273, 76 So.2d 3,4 (1954).

In this case, defendants argue the trial court erred in awarding $225,000.00 in

general damages to Tezeno. They contend the evidence demonstrates Tezeno had a

chronic back condition prior to the subject accident, as shown by Dr. Blanda’s

treatment following Tezeno’s automobile accident in November 2011, which the

subject accident aggravated only slightly, if at all. Defendants also argue the

evidence does not support the trial court’s determination the accident also caused a

new injury, i.e., a fractured sacrum.

The primary evidence by Tezeno on the issue of whether the accident caused

a new injury, i.e., a fractured sacrum, came from Dr. Blanda. The trial court

concluded that Tezeno proved the accident worsened his preexisting back condition

33

and caused a sacral fracture, in part relying on the case of Ellis v. Rapides Parish

School Bd., 419 So.2d 990 (La.App. 3 Cir. 1982), for the proposition that the

testimony of a treating physician should be given greater weight than the testimony

of other physicians and, thus, decreed it was “bound by the general rule that a treating

physician’s opinion is given more weight than that of a non-treating physician.”

The record reveals Tezeno regularly visited Dr. Blanda, obtaining prescription

medications for treatment of his lower back and left leg symptoms resulting from his

motor vehicle accident in 2011. Prior to the subject accident, Dr. Blanda even

recommended surgery to alleviate Tezeno’s lower back symptoms.

Following the subject accident, Tezeno reported increased back pain and a

recurrence of right leg pain. Dr. Blanda continued to issue Tezeno the same

prescription medications. In July 2016, Tezeno reported pain in his left leg;

however, Dr. Blanda did not believe Tezeno’s left leg problems were related to the

accident since his left leg pain manifested more than a year afterward. In November

2016, Dr. Blanda ruled out Tezeno’s need for surgery following a discogram which

produced no objective signs of pain. During his first deposition in September 2017,

Dr. Blanda characterized his diagnosis following Tezeno’s discogram as “some type

of soft-tissue injury, whether it’s muscular or ligamentous.”

In October 2017, Dr. Blanda formed a new diagnosis—a sacral fracture. A

lesion in Tezeno’s sacrum was first observed in 2012. After the subject accident, a

sacral lesion was seen on two MRIs—October 7, 2015 and August 30, 2016—before

the suggestion was made that Tezeno may have a sacral fracture.

Following Tezeno’s MRI on September 26, 2017, Dr. Ballanco intimated

Tezeno may have a sacral fracture. Dr. Ballanco did not identify a fracture; instead,

it was his impression that an “[a]bnormal signal within the S3 segment which could

reflect a fracture or other osseous lesion.” In Tezeno’s MRI with contrast on October

34

18, 2017, it was Dr. Ballanco’s impression the lesion was “most suspicious for

fracture.”

According to Dr. Blanda, the fracture could be seen on X-rays he performed

on October 19, 2017. Despite having testified he observed a sacral fracture via

X-rays, Dr. Blanda also claimed “the fracture’s small. It’s hardly -- probably not

even visible on a plain x-ray, and it took the MRI with a contrast to see it.” He also

characterized the fracture as “a minor problem.” In his second deposition, more than

two years after Tezeno’s accident, Dr. Blanda testified sacral fractures normally heal

in “about a year.” When Dr. Blanda was reminded the subject accident had occurred

two years prior, he stated he could only assume the accident caused the sacral

fracture since no other accidents or traumas had been communicated to him by

Tezeno.

According to the defendants’ experts, Dr. Wojak and Dr. Romero, the medical

evidence revealed Tezeno has a sacral lesion—a developmental defect which was

not caused by trauma. Dr. Wojak testified Tezeno’s sacral lesion appeared

unchanged in each of his radiographic studies since 2012. Dr. Romero echoed Dr.

Wojak’s opinion relative to Tezeno’s radiographic studies, and also testified Tezeno

did not exhibit symptoms of having a sacral fracture.

After reviewing the entire record, we are unable to find that the trial court

manifestly erred in finding that Tezeno proved by a preponderance of the evidence

that the subject accident caused an aggravation of his preexisting back condition and

that a causal relationship existed between the subject accident and a sacral fracture.

Expert testimony is often contradictory and medical findings are often equivocal,

particularly when differing studies show different minute fractures on x-rays and

radiographic images. The trial court’s decision to credit Dr. Blanda’s opinion over

defendants’ experts cannot be manifestly erroneous when reasonable people could

35

conclude that the doctor had a sufficient basis for his opinions. The testimony of Dr.

Blanda is reasonable and supported by the record. Accordingly, we find no merit in

this assignment of error.

Damages

General Damages

Defendants complain that a general damage award of $225,000.00 was an

abuse of discretion. We agree. Our law authorizes compensatory damages of special

and general damages. La.Civ.Code art. 2315. The supreme court has

defined general damages as ‘those which may not be fixed with any
degree of pecuniary exactitude but which, instead, involve mental or
physical pain or suffering, inconvenience, the loss of gratification of
intellectual or physical enjoyment, or other losses of life or life-style
which cannot really be measured definitively in terms of money.’

McGee v. A C and S, Inc., 05-1036, pp. 3-4 (La. 7/10/06), 933 So.2d 770, 774

(quoting Duncan v. Kansas City S. R.R., 00-066, p. 13 (La. 10/30/00), 773 So.2d

670, 682).

When a quantum award is found to be an abuse of the lower court’s discretion,

it should be adjusted only to the extent of lowering or raising it to the highest or

lowest point reasonably within the discretion of the court. Youn v. Maritime

Overseas Corp., 623 So.2d 1257 (La.1993); Coco v. Winston Ind., Inc., 341 So.2d

332 (La.1976).

While we find no manifest error in the trial court’s finding that Tezeno

suffered a sacral fracture, Dr. Blanda specifically testified that the fracture was so

“small” as to be “hardly . . . visible.” It was, said Dr. Blanda, a temporary, “minor

problem.”

The record shows that the vast majority of the plaintiff’s complaints pre-

existed the subject accident. There has never been a surgical recommendation for

Tezeno except for one that was made before this accident. In fact, Tezeno’s

36

treatment subsequent to this accident was identical to the treatment before this

accident for his chronic back condition. Any fair reading of this record establishes

that the most Tezeno suffered as a result of this accident is a temporary aggravation

of his pre-existing condition even considering the minor fracture discussed above.

In Pannell v. Encompass Ins. Co., 06-1601 (La.App. 3 Cir. 5/2/07), 956 So.2d

152, we reduced a $195,000.00 bench verdict for aggravation of a pre-existing low

back and new neck and shoulder injuries to $90,000, which was held to be the highest

amount within the trial court’s discretion. The plaintiff had a long history of back

problems before the subject accident.

In Deville v. Frey, 10-1290 (La.App. 3 Cir. 5/4/11), 63 So.3d 435, writ denied,

11-1157 (La. 9/23/11), 69 So.3d 1158, the plaintiff was involved in two accidents

approximately seventeen months apart. He subsequently underwent lumbar surgery,

which he testified would not have been needed but for the second accident. His

doctor, comparing before and after MRIs, testified that “there wasn’t ‘much

difference’ between them, but the disc herniation was ‘somewhat’” enlarged. Id. at

440. We conducted a de novo review of the record because the jury had been told

that the plaintiff received $450,000.00 to settle his claims from the first accident.

This court found that he was entitled to $100,000.00 in general damages and

$46,627.63 in medical specials.

Under the facts of this case, we find that $100,000.00 is the highest amount

that could be awarded under these facts. Accordingly, we reduce the general damage

award from $225,000.00 to $100,000.00.

Special Damages

Special damages are those which are determined with some degree of

certainty and include past and future medical expenses. Deligans v. Ace American

Ins. Co., 11-1244 (La.App. 3 Cir. 3/7/12), 86 So.3d 109. When reviewing a trial

37

court’s factual conclusions regarding special damages, we employ the manifest error

standard of review. Id. Defendants, who have not challenged the trial court’s award

of past medical expenses, assert the trial court erred in awarding Tezeno $208,560.68

for future medical care primarily based on Dr. Savant’s Life Care Plan for Tezeno.

We agree.

At trial, Tezeno submitted a Life Care Plan prepared by Dr. Savant. At her

deposition on August 29, 2018, Dr. Savant explained that the role of a life-care

planner is to prepare medical treatment plans and set a value for future life care and

medical needs for patients. In preparing Tezeno’s plan, Dr. Savant interviewed and

examined Tezeno for one hour on July 5, 2018, and she reviewed medical records.

Dr. Savant formulated a Life Care Plan, which set the value of $364,394.63

for Tezeno’s future life care and medical needs. Dr. Savant re-formulated Tezeno’s

Life Care Plan after conferring with Dr. Blanda, lowering the value to $208,560.68.

Tezeno’s Life Care Plan included:

Durable Medical Items $169.70
Evaluations $7,172.00
Future Medical Care $43,764.93
Home Care $68,191.00
Medications $2,192.40
Plan Administration $59,500.00
Surgical Intervention $15,072.65
Therapeutic Services $12,498.00

Dr. Savant designated $169.70 for durable medical items. This amount would

provide Tezeno with a transcutaneous electrical nerve stimulation (TENS) unit and

a back brace, as recommended by Dr. Blanda.

Dr. Savant explained $7,172.00 for evaluations accounts for Tezeno to have

initial consultations with physicians in the fields of chronic pain, family therapy,

internal medicine, pain psychology, physical therapy, psychiatry, and rehabilitation

services. When asked to explain what rehabilitation services entailed, since

38

$4,500.00 was attached to this consultation alone, Dr. Savant explained, “It’s a

vocational rehab assessment. It’s a one-time visit with a voc specialist, and the

pricing is from Conservant [Health Care] because they’re the ones who provide that

particular service.” When asked the benefit of rehabilitation services, she explained:

The benefit is that you an [sic] assess the patient for what their
future functionality is occupationally or to do an avocational
assessment, that is, to help them structure their days to include
recreational activities, things that are going to keep them from
sitting around and becoming deconditioned and thereby
worsening their pain. So it’s vocational as well as avocational
rehab assessment.

Dr. Savant arrived at the valuation of $43,764.93 for Tezeno’s future medical

care. The plan included an EMG/NCV, two MRIs, a yearly comprehensive

metabolic panel for five years, quarterly visits to a chronic pain specialist for life,

and a yearly visit to an internist for life. Notably, Dr. Savant testified it was Dr.

Blanda’s decision to limit the plan for Tezeno’s orthopedic care to five years.

Dr. Savant determined $2,192.00 was needed for five years of Tezeno’s

medications, including the prescription medications of Flexeril and Ibuprofen, and

the over-the-counter medication Pepcid. Dr. Savant testified she omitted Norco

from Tezeno’s plan because Dr. Blanda planned to wean Tezeno off this medication.

The “home care” (housekeeping) valuation of $68,191.00 was based upon the

Bureau of Labor and Statistics’ value of $9.25 an hour for one visit per week for the

rest of Tezeno’s life.10 She explained, “I do have a budget in here for housekeeping

so that [Tezeno] doesn’t unintentionally injure himself doing that.”

Dr. Savant set $59,500.00 for plan administration. She explained the plan

administration component as

Having case management available to [Tezeno] so the plan is routinely
updated as the resources are utilized, and also, if he is – let’s say he’s

Dr. Savant’s Life Care Plan was based upon Tezeno, who was forty, living to the age of
10

seventy-six.

39

discharged from the doctor’s care in the future. And he has a flare-up,
the case manager can provide the treating doctors with clinical vignettes
and coordinate appointments, follow-up appointments and things like
that.

Dr. Savant designated $15,072.65 for surgical intervention. According to Dr.

Savant, this involved Tezeno having CESIs once a year for five years, as

recommended by Dr. Blanda.

Dr. Savant recommended $12,498.00 for therapeutic services. This

calculation included psychiatry evaluations quarterly for two years, then psychiatry

evaluations twice a year for three years, and weekly evaluations by a pain

psychologist for one year.

Under cross-examination, Dr. Savant conceded she was not solicited to review

Tezeno’s medical records which predated the accident. She also denied knowing

Dr. Blanda recommended Tezeno have back surgery prior to the accident. When

defense counsel referred to deposition testimony from Dr. Blanda concerning

whether Tezeno’s injuries resulted from the accident, Dr. Savant stated:

Well, first of all, you’re getting into causation with me, and Dr.
Blanda is going to testify, as far as I understand, to the causation
aspect of the case. But as it relates to me with the life care plan,
I have specifically addressed this with him over the phone in
saying that the things we include in the plan are things that should
be only related to the accident in question.

According to Dr. Savant, Tezeno’s Life Care Plan was formulated based upon Dr.

Blanda’s view that Tezeno’s accident on August 3, 2015, worsened his back injury

and caused a sacral fracture.

Even though Dr. Savant readily admitted that Dr. Blanda truncated the

medical treatment plan at five years, when questioned about costs that last a lifetime,

Dr. Savant testified:

A. …And then there were items that [Dr. Blanda] deferred to me
because it was outside of his scope, and this is written in his handwritten

40

letter. Some of those I have truncated as well to five years based on our
discussion. And some of them are ongoing.

Q. Which ones of the ones you have are lifetime as opposed to truncated
to the five-year period of time?

A. Okay. Hold on a second. Let me look here. So since Dr. Blanda
has given him five years of treatment from an orthopaedic standpoint,
he will need a provider to take over management in the future of his
pain. So we’ve got a chronic pain specialist to help with that. And
chronic pain specialists tag team with the primary care doctors because
sometimes the medications they use can cause adverse reactions and
side effects and weight gain and exacerbation of their other comorbid
medical problems. So you have an internal medicine and pain
management, which Dr. Blanda agreed with, that are ongoing for
lifetime. Everything else I have truncated to five years or less. For
example, the psychological management of his chronic pain is one year
only. And then some of the items are one time only or two times only.

Dr. Savant was questioned why Tezeno suddenly needed a life care plan

administrator when he had “managed” his chronic back condition on his own for the

previous eight years. The following colloquy occurred:

Q. He had been able to provide for himself for the last eight years
without the necessity of having a life care plan?

A. He did not have a situation wherein a life care plan was a necessity.

Q. Well, what all of sudden eight years later makes it is necessity?

A. Well, he’s had an exacerbation in his previous condition. His
previous condition he had very, very minimal pain between two and
three out of ten, and he was completely functional.

Dr. Savant was then presented with Dr. Blanda’s deposition testimony

indicating that his treatment plan would be identical to what it was pre- and post-

accident.

Q. So [Dr. Blanda] feels that the aggravation of his preexisting
condition will be temporary up to five years?

A. From an orthopaedic standpoint.

Q. From an orthopaedic. What other--if that portion of it resolves or
goes back to his preaccident status, what is--what are you treating him
for after the five years if it’s not an orthopaedic problem?

41

A. Because there are nonsurgical, nonorthopaedic aspects to this when
you have this kind of cumulative situation. The last accident
aggravated things orthopaedically. The pain syndrome worsened over
time, and there are other things that come with it like the psychological
aspects. But I, too, have given him the five period.

However, life care plan management and housekeeping surpassed the five

year period. Dr. Savant was never able to explain how the lifetime plan components

could be distinguished as not attributed to the former accident except to say that she

and Dr. Blanda had ongoing discussions about the issue.

Nothing in the record established that Tezeno suffered a permanent injury of

any kind. Dr. Blanda found a minor and temporary injury. He agreed that the

plaintiff had a pre-existing chronic back condition for which he had provided

conservative treatment. Dr. Blanda provided identical treatment before and after the

subject accident, and he recommended identical treatment in the future.

Furthermore, he expressly declined to offer any treatment recommendations beyond

five years finding that it would not be necessary. Despite no evidence of a permanent

injury, and only minimal evidence of a temporary one, the trial court relied upon the

“life care plan” to award a lifetime of future care to Tezeno that included excessive

fees for consultations and other assorted services despite there being no proof that

Tezeno would need these services.

As we have found no manifest error in Dr. Blanda’s findings that the subject

accident caused an aggravation of a pre-existing injury and a minimal injury of

limited duration, we find that Dr. Blanda’s recommendations regarding future

medical care and needs credible. After thoroughly reviewing the itemized costs in

the life care plan, we find that Dr. Savant had no factual basis for determining various

awards other than that she was asked to by plaintiff’s counsel. Nearly $60,000 to

“administer” the “life care plan” she created for Tezeno, when his orthopedic

symptoms will be resolved after, at most, five years is unsupported and defies reason.

42

The administerial requirements of Tezeno’s care consists of making several

appointments a year with Dr. Blanda, to attend those appointments, and to obtain the

medications that the doctor prescribed. There was no evidence that he had ever had

any trouble handling basic adulting tasks or would need a person to do these tasks

for him. On the contrary, the record suggests that he had done so without issue or

fail since 2012—a full three years before the subject accident even happened.

Accordingly, we find that the trial court was clearly wrong in awarding

$208,560.68 in special damages. Tezeno’s future medical treatment will be identical

to what it has been in the past. Reviewing the life care plan award line-by-line we

find the following awards are supported by the record and Dr. Blanda’s testimony:

Durable Medical Items

TENS UNIT $110.00
Lumbar Back Brace $59.70

Evaluations

Chronic Pain $434.00
Physical Therapy $890.00
Rehabilitation Service $4,500.00

Future Medical Care

Electromyography and Nerve Conduction Studies $701.93
Comprehensive Metabolic Panel and CBC $555.00
Magnetic Reasonance Imaging $4,168.00

Medications

Medication $1,127.40

Surgical Intervention

Lumbar/Sacral (Caudal) Epidural Steroid Injections $15,072.65

TOTAL: $27,618.68

Accordingly, we reduce the award for special damages to $27,618.68.

43

REVERSIONARY TRUST FOR FUTURE MEDICALS

The Louisiana Governmental Claims Act, La.R.S. 13:5101 through La.R.S.

13:5113, establishes procedural rules that apply to any suit in contract or for injury

to person or property against the state, a state agency, or a political subdivision of

the state. La.R.S. 13:5101; Fecke v. Bd. of Supers. of La. State Univ., 15-1806,

15-1807 (La. 9/23/16), 217 So.3d 237, modified on rehearing, 15-1806, 15-1807

(La. 10/19/16), 218 So.3d 1.

Louisiana Revised Statutes 13:5106(B)(3) governs personal injury awards for

future medical expenses entered against political subdivisions. It provides, in

relevant part:

(a) In any suit for personal injury against a political subdivision
wherein the court, pursuant to judgment, determines that the claimant
is entitled to medical care and related benefits that may be incurred
subsequent to judgment, the court shall order that a reversionary trust
be established for the benefit of the claimant and that all medical care
and related benefits incurred subsequent to judgment be paid pursuant
to the reversionary trust instrument. The reversionary trust instrument
shall provide that such medical care and related benefits be paid directly
to the provider as they are incurred. Nothing in this Paragraph shall be
construed to prevent the parties from entering into a settlement or
compromise at any time whereby medical care and related benefits shall
be provided, but with the requirement of establishing a reversionary
trust.

(b) Any funds remaining in a reversionary trust that is created
pursuant to Subparagraph (3)(a) of this Subsection shall revert to the
political subdivision that established the trust, upon the death of the
claimant or upon the termination of the trust as provided in the trust
instrument. The trustee may obtain the services of an administrator to
assist in the administration of the trust. All costs, fees, taxes, or other
charges imposed on the funds in the trust shall be paid by the trust. The
trust agreement may impose such other reasonable duties, powers,
provisions, and dispute resolution clauses as may be deemed necessary
or appropriate. Disputes as to the administration of the trust can be
appealed to the district court. Nothing in this Paragraph shall preclude
the political subdivision from establishing other alternative funding
mechanisms for the exclusive benefit of the claimant. The terms and
conditions of the reversionary trust instrument or other alternative
funding mechanism, prior to its implementation, must be approved by
the court. The parties to the case may present recommendations to the
court for the terms and conditions of the trust instrument or other

44

funding mechanism to be included in the order. Upon request of either
party, the court shall hold a contradictory hearing before granting a final
order implementing the reversionary trust or the alternative funding
mechanism.

According to La.R.S. 13:5106(D)(3), “medical care and related benefits” means “all

reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial

services and includes drugs, prosthetic devices, and other similar materials

reasonably necessary in the provision of such services.” Additionally, La.R.S.

13:5106(D)(4) defines “reversionary trust” as:

[A] trust established by a political subdivision for the exclusive benefit
of the claimant to pay the medical care and related benefits as they
accrue, including without limitation reasonable and necessary amounts
for all diagnosis, cure, mitigation, or treatment of any disease or
condition from which the injured person suffers as a result of the
injuries, and the sequelae thereof, sustained by the claimant on the date
the injury was sustained. The trustee shall have the same fiduciary
duties as imposed upon a trustee by the Louisiana Trust Code. Nothing
herein shall limit the rights of claimants to contract with respect to
attorney fees and costs.

Acknowledging this case presents an issue that no court has decided, the

defendants argue the trial court erred in ordering the deduction of the total amount

of attorney fees from the award for future medical care before the award is placed

into a reversionary trust pursuant to La.R.S. 13:5106(3)(a). They contend the

supreme court’s logic in Fecke, 217 So.3d 237, for “deciding that the deduction of

attorney fees from the award for future medical care in [a Future Medical Care Fund

(FMCF)] case under La.R.S. 13:5106(B)(3)(c)[11] should apply to reversionary

trust[s].”

11
Louisiana Revised Statutes 13:5106(B)(3)(c) provides:

In any suit for personal injury against the state or a state agency wherein the
court pursuant to judgment determines that the claimant is entitled to medical care
and related benefits that may be incurred subsequent to judgment, all such medical
care and related benefits incurred subsequent to judgment shall be paid from the
Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related
benefits shall be paid directly to the provider as they are incurred. Nothing in this
Subparagraph shall be construed to prevent the parties from entering into a
settlement or compromise at any time whereby medical care and related benefits
45

Tezeno argues La.R.S. 13:5106(D)(4) authorizes the trial court to approve his

contingent fee contract with his lawyer for reasonable attorney fees which may be

deducted from the future medical care award before its deposit into a reversionary

trust. He refers to the definition of “reversionary trust,” which states, “Nothing

herein shall limit the rights of claimants to contract with respect to attorney fees and

costs.” La.R.S. 13:5106(D)(4). Thus, Tezeno asserts the trial court rightly ordered

deduction of contractual attorney fees from his future medicals award prior to

placing these funds into a reversionary trust.

The plaintiff’s personal injury suit in Fecke was against a state agency.

Tezeno’s suit is against a political subdivision. In Fecke, the plaintiff was awarded

future medical care to be paid from the FMCF. Tezeno’s award for future medical

care is required to be deposited into a reversionary trust to “be paid directly to the

provider as they are incurred.” La.R.S. 13:5106(3)(a). The supreme court ruled the

plaintiff in Fecke was not entitled to attorney fees and costs from the FMCF prior to

its placement into the fund. The Fecke court reasoned:

Louisiana [Revised Statutes] 13:5106(B)(3)(c) provides a claimant is
entitled to “medical care and related benefits that may be incurred
subsequent to judgment.” As noted in our discussion of judicial
interest, neither this statute nor the statutory definition of “medical care
and related benefits” includes attorney’s fees or costs. Moreover, in
Starr v. Dept. of Transp. & Development, 46,226 (La. App. 2 Cir.
6/17/11), 70 So.3d 128, the Second Circuit Court of appeal concluded
that attorney’s fees are not “medical care and related expenses” that
qualify for payment from the FMCF. Id at 25, 70 So.3d at 144.

In addition, a search of the statutes and jurisprudence reveals no
statute that authorizes payment of attorney’s fees for future medicals
prior to payment of the judgment into the FMCF. Louisiana [Revised
Statutes] specifically provides for payment of costs in a personal injury
suit against the state, but does not specifically provide for attorney’s
fees. Although [La.R.S. 13:5106(D)(3) refers to attorney’s fees in the
provision defining “reversionary trust,” that “[n]othing herein shall
limit the rights of claimants to contract with respect to attorney’s fees

shall be provided but with the requirement that they shall be paid in accordance
with this Subparagraph.
46

and costs,” the Feckes’ reliance on this provision is misplaced because
it applies only to political subdivisions.

Fecke, 217 So.3d at 250-51 (footnote omitted).

While Fecke is informative, we do not find it wholly dispositive of the issue

before this court. As such, we find there is no basis on which to rule the trial court

erred in ordering that the amount owed by the defendants for Tezeno’s future

medical care shall, after deduction of attorney fees, be deposited into a reversionary

trust. The trial court’s judgment in this regard is affirmed.

CONCLUSION

While we find no manifest error in the trial court’s finding that the subject

accident aggravated a pre-existing back injury and caused a minor sacral fracture,

we find the trial court’s general damage award to be an abuse of discretion and

reduce it to $100,000.00. We find the trial court’s award of special damages to be

manifestly erroneous and reduce it to $27,618.68 for future medical care. We affirm

the trial court’s ruling relating to the distribution of attorney fees before placement

in the reversionary trust for future medical expenses. Costs of this appeal are

assessed equally to the parties, with appellate costs in the amount of $4,729.47

assessed to the City of Ville Platte, in accordance with La.R.S. 13:5112(A).

AFFIRMED AS AMENDED.

47

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-046

CURTIS TEZENO

VERSUS

DANIEL ROBERT YOUNG, ET AL.

PERRY, Judge, concurs in part and dissents in part.

I agree to a certain degree with the majority’s reduction of the plaintiff’s

damage awards; yet, I write to explain the different analyses I used to arrive at nearly

the same result. Unlike the majority, I find the trial court manifestly erred in finding

Tezeno proved by a preponderance of the evidence that a causal relationship existed

between the subject accident and a sacral fracture.

The main evidence on the issue of whether the subject accident caused a sacral

fracture came from Dr. Blanda. At his first deposition two years after the subject

accident, Dr. Blanda testified he considered Tezeno a surgical candidate until

November 2016. His opinion changed after a discogram produced no objective signs

of pain. Dr. Blanda also acknowledged that an MRI performed two months after the

subject accident showed the lesion in Tezeno’s sacrum was “not a trauma thing. It’s

a developmental problem with a blood vessel[.]” In September 2017, it was

Dr. Blanda’s diagnosis that Tezeno had either a muscular or ligamentous soft-tissue

injury.

Dr. Blanda reversed course with regard to Tezeno’s sacral issue based on an

MRI performed in September 2017, two years after the subject accident. In medical

records dated October 19, 2017, Dr. Blanda noted, “I think I do see a faint fracture

line present” on X-rays of Tezeno’s sacrum.

At his second deposition nearly three years after the subject accident, when

asked about his conclusion that Tezeno had a sacral fracture and whether it was

trauma related, Dr. Blanda answered, “I think it is. I mean, there’s no other way to

explain it. He didn’t relate any other injury since then. So I suppose the mechanism

was that he bounced or came down hard on his tailbone and that’s what caused the

injury.” Under cross-examination, Dr. Blanda was asked, “how long does it

generally take a fracture to heal?” He answered, “Normally, in that area, I would

say about a year.” When Dr. Blanda was reminded the subject accident had occurred

nearly three years prior, he stated he could only assume the accident had caused the

sacral fracture since no other accidents or traumas had been communicated to him

by Tezeno.

Regardless of whose opinion is accepted—Dr. Blanda’s opinion that Tezeno

has a sacral fracture or the defense experts’ opinions that Tezeno merely has a sacral

lesion—it is the evidence relating the subject accident to a sacral fracture that I find

unreasonably insufficient. While I fully appreciate the majority’s reliance upon the

jurisprudential rule that a treating physician’s opinion is given more weight than that

of a non-treating physician, this court has also held that this jurisprudential rule is

“not [an] absolute, rigid[] rule to be mechanically applied in every case in which the

medical evidence and testimony conflicts.” Danzey v. Evergreen Presbyterian

Ministries, 95-167, p. 11 (La.App. 3 Cir. 6/7/95), 657 So.2d 491, 497. This court

elaborated:

If this were the law, then every case in which a positive medical finding
is made would result in victory for the claimant. The jurisprudential
rules are not intended to operate in this manner. Instead, the rules are
evidentiary in nature and create an evidentiary presumption which can
be rebutted by the presentation of sufficient countervailing evidence of
negative medical findings.

2

Id. Further, “[l]awsuits cannot be decided on speculation or suspicion alone.

Accord, Miller v. Miller, 226 La. 273, 76 So.2d 3, 4 (1954).” Mart v. Hill, 505 So.2d

1120, 1127-28 (La.1987). “There must be a reasonable amount of probative

evidence to fortify a finding of fact.” Miller, 226 La. at 278. A treating physician’s

testimony should not carry greater weight if that opinion is based on speculations

and assumptions.

Because I find clear error in the trial court’s ruling relating to causation, I

would review damages de novo, using principles set forth in Mart, 505 So.2d 1120.

See Thibodeaux v. Donnell, 15-503 (La. 1/20/17), 219 So.3d 274 (the supreme court

found an appellate court’s alteration of a jury’s causation finding to be “manifest

error—or, in Professor Maraist’s articulation, an error which ‘interdicted the

damage-determining process.’ 1 La. Civ. L. Treatise, Civ.Pro. §14:14.”

Thibodeaux, 219 So.3d at 281. The supreme court expounded, “after a reviewing

court finds manifest error in a trier of fact’s finding, that court should perform a de

novo damages review as articulated in Mart, unbound by the highest/lowest

limitations of the Coco Rule.[1] Mart, 505 So.2d at 1128-29.” Thibodeaux, 219

So.3d at 281).

With regard to the amount ultimately awarded for general damages, I agree

with the majority. My de novo review establishes that $100,000.00 is a fair award

for general damages in this case. In reaching this figure, I considered the accident

caused an aggravation of a preexisting chronic back condition, producing past and

future pain, mental anguish, and loss of enjoyment of life.

My position regarding special damages, however, differs from the majority—

I would reduce this award even more. In view of my opinion that Tezeno failed to

1
Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

3

prove the subject accident caused a sacral fracture, I would further decrease his

special damage award by $15,072.65, reflecting the exclusion of future

lumbar/sacral (caudal) epidural steroid injections.

In all other respects, I agree with the majority.

4