Opinion
Civil Action Number 01-3139, Section "M" (1)
December 13, 2002
ORDER AND REASONS
A bench trial was conducted on December 5, 2002 on the personal injury claim of plaintiff, Shannon Meeks, against defendants, Deaton, Inc. and William H. Simkins. At the commencement of trial, counsel for plaintiff and defendants stipulated as to the liability of defendants as well as to insurance coverage. The parties further stipulated that: 1) plaintiff asserts no claim for lost wages; 2) plaintiff applied for social security disability prior to the June 3, 2001 accident at issue in this proceeding and such disability application was based on a pre-existing mental situation which was not aggravated by the accident; 3) that plaintiff's exhibits 1-5 are authentic, with defendants reserving their objections to introduction of the results of the MRI for plaintiff's knee and back; and 4) a bench trial before the undersigned with defendants waiving their right to trial by jury.
At approximately 9:30 a.m. on June 3, 2001, Ms. Meeks was in her 1994 Dodge Shadow automobile when a tractor trailer owned by defendant, Deaton, Inc., and operated by defendant, William Simkins, collided with Ms. Meeks' vehicle. The automobile was declared a total loss. Ms. Meeks testified that at impact she hit the steering wheel, her knees were knocked into the dashboard and she hurt her left shoulder and neck. She was taken to Pendleton Memorial Methodist Hospital emergency room where she was diagnosed as having sprains and contusions, but no broken bones. Ms. Meeks testified that she was in the hospital for an hour or two.
Plaintiff treated with Dr. James Dyess commencing on June 4, 2001. Dr. Dyess is board eligible in Internal Medicine, but is not an orthopedist. Dr. Dyess was deposed on November 21, 2002. Dyess deposition p. 6. Plaintiff reported complaints with regard to her neck, shoulder, left elbow, lower back, both knees and a bruise on her stomach. Id. at 16. On June 19, 2001, Dr. Dyess recommended to Ms. Meeks that she undergo a lumbar MRI and a cervical MRI and continue on light duty work, along with undergoing passive therapy in his office. By the end of June, 2001, Ms. Meeks reported that her knee condition had resolved and Dr. Dyess recommended that she return to full duty work status. Id. at 19. Ms. Meeks did not report problems with her knee again until November 30, 2001. Id. An MRI of the right knee showed no evidence of any abnormality. Id. at 21-22.
Dr. Dyess described his findings of objective symptoms based on spasm, with a rating of four being tight, knotted muscles and a rating of one being barely knotted. Id. at 16-18.
Dr. Dyess treated Ms. Meeks on an almost monthly basis for neck and back complaints. Id. at 23. While the objective signs of spasm improved since the time of the accident, Dr. Dyess rated it as a one plus consistently for over a year. Id. at 23-24. Ms. Meeks' lower back complaints substantially resolved by December, 2001 with one more episode of a little tenderness in February, 2002. Id. at 25. By May, 2002, plaintiff's complaints were limited to shoulder, neck and left knee, all of which Dr. Dyess rated as a one plus on his objective scale. Id. at 28. In August, 2002, Dr. Dyess discussed trigger-point injections with plaintiff for her problems with her shoulder. The only injections administered, however have been cortisone injections to the hip which is absorbed systematically. Id. at 30-31.
Dr. Dyess does not feel that plaintiff is a malingerer. Id. at 33. His diagnosis is of soft tissue injury except in the shoulder where there is also supraspinatus tendonosis which can linger for a long time. Id. at 34. As to the shoulder, an MRI was performed on April 17, 2002. Id. at 35. Treatment for the condition consists of physical therapy and time as well as sometimes injections and, in very rare cases, immobilization. In Ms. Meeks' case, Dr. Dyess did not think immobilization would be necessary. Id. at 36.
Dr. Dyess released plaintiff to full-time work as of late June, 2001 with her only restriction being lifting heavy weights. "She can do normal day-end and day-out stuff . . . ." Id. at 37.
Ms. Meeks last saw Dr. Dyess on August 28, 2002 at which time she complained of left upper shoulder pain. Dr. Dyess discussed the possibility of injections with her as well as the possibility of referral to an orthopedist. Id. at 41. Dr. Dyess testified that he did not "think surgical intervention was an option for her but injections and/or more active physical therapy could be an option." Id. at 42.
As of the last visit with Dr. Dyess, plaintiff exhibited two plus tenderness in her cervical area although she had a full range of motion.Id. at 43-44. Dr. Dyess considers the cervical condition to be chronic, but cannot say that it is permanent. Id. at 46.
Ms. Meeks is 26 years old with a twelve year old daughter. She currently works at the St. Bernard Parish School Board as a substitute teacher. At the time of the accident, she was working as a cocktail waitress at Bally's. She testified that she treated with Dr. Dyess for 12 to 13 months and has also seen a Dr. Vijnar for pain management. The records of Dr. Vijnar were not admitted into evidence, as his treatment of Ms. Meeks was not disclosed prior to trial. Ms. Meeks testified that Dr. Dyess referred her to an orthopedic surgeon for her continuing shoulder problems and that she would submit to surgery if recommended. She has not, however, gone to an orthopedist.
As to Ms. Meeks' ongoing problems, she testified that she is still in pain and takes pain medication. Because of her pain, she testified that her fiancee does most of the parenting of her daughter. She testified that she has gained 50 pounds over the past year and cannot engage in athletic activities with her daughter. She further testified that she is scared of eighteen wheelers and is still unable to physically work out, although previously she was athletic.
On cross-examination, plaintiff admitted that she had been involved in an accident in 1994 or 1995 which had settled, as well as two (2) accidents in 1999 which ultimately settled. She further testified that all of her physical complaints, as a result of those accidents had resolved by June, 2000; one (1) year prior to the accident at issue.
Plaintiff has asserted claims for the following:
pain and suffering
medical bills and prescription bills
rental car expense and storage expense. The parties have stipulated that the rental car totaled $1,088.00 and storage expense, towing and loss of value to the vehicle totaled $200.00.
The parties have stipulated to liability. The Court finds that plaintiff did incur physical injuries as the result of the accident in question and that she received medical treatment by Dr. Dyess on an ongoing and regular basis for approximately 16 months. She was released to return to work within one (1) month of the accident.
As defendants point out, Dr. Dyess believes that all of plaintiff's injuries, except for the shoulder, are soft tissue injuries. Plaintiff's lower back complaints were resolved within nine (9) months of the accident; complaints with regard to her right knee within eleven (11) months of the accident; and complaints regarding her left knee within thirteen (13) months of the accident. While her complaints of shoulder and neck problems persisted through her last visit with Dr. Dyess on August 29, 2002, she has not sought further medical care nor does Dr. Dyess believe that she is a candidate for future surgery. Dr. Dyess has not provided any disability rating or restricted plaintiff's activities other than avoiding heavy lifting.
Plaintiff does have a history of personal injury claims which somewhat detracts from her credibility regarding the extent of injury and ongoing pain. However, Dr. Dyess does confirm ongoing objective signs of shoulder and neck pain. Accordingly,
The undersigned finds that an award of $17,500.00 for general damages for the shoulder injury and $16,000.00 for the various soft tissue injuries will fairly compensate the plaintiff. See discussion inThibodaux v. Guilbeau Marine, Inc. 1998 WL 66130 (E.D. La. 1998) (awarding $70,000.00 in general damages for injured shoulder with surgery and a five percent loss of function of the body as a whole), citing White v. Longanecker, 637 So.2d 1213 (La.App. 1st Cir. 1994), writ denied, 644 So.2d 640 (La. 1994) ($35,000 award for shoulder surgery with thirteen month treatment and five to eight percent permanent impairment of the shoulder). See also, Caldwell v. Smith, 641 So.2d 1011 (La.App. 2nd Cir. 1994) ($35,000.00 award for chronic shoulder joint injury with partial dislocation and joint instability); Mayeux v. Sell, 747 So.2d 1174 (La.App. 5th Cir. 1999) ($22,500.00 awarded for fifteen month shoulder injury involving physical therapy, medication and cortisone injections with residual problems).
Additionally, I am skeptical about the need for MRI studies of Ms. Meeks' left and right knees, performed well after the accident (April 17, 2002) when both knees were reported as much better. However, the Court will award the following actual expenses:
City of New Orleans EMT $ 499.00
Pendleton Memorial Methodist Hospital 1,194.00
Drs. Fortenberry and Hurwitz, Ltd. 135.00
Dr. James Dyess 2,895.00
Crescent City MRI 5,660.00
Prescriptions 1,557.55
Alamo Rental Car 1,088.00
Storage, towing expense and 200.00 value of car ___________
Total award of medicals and out-of-pocket expenses $ 13,228.55
For the foregoing reasons, therefore, the Court will enter judgment in favor of plaintiff, Shannon Meeks, and against defendants, Deaton, Inc. and William H. Simkins, in the amount of $46,728.55 with legal interest at the rate provided by Louisiana law from June 3, 2001 through December 5, 2002. Interest accruing after that date will be computed at the federal rate of interest. All court costs are assessed against defendants.