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McMaster v. Progressive Security Insurance Co.

Court of Appeal of Louisiana, Fourth Circuit

October 29, 2014

ANTHONY C. MCMASTER
v.
PROGRESSIVE SECURITY INSURANCE COMPANY, ABC INSURANCE COMPANY, D & S STEERING SERVICE, INC. AND JAMES M. STEVENS

Page 980

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-01294, DIVISION " N-8" . HONORABLE ETHEL SIMMS JULIEN, JUDGE.

WAYNE M. LEBLANC, Metairie, Louisiana, Counsel for Plaintiff/Appellant.

NAT G. KIEFER, JR., MEGAN C. KIEFER, KRIS P. KIEFER, KIEFER & KIEFER, Metairie, Louisiana, Counsel for Defendants/Appellees.

Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard.

OPINION

Page 981

James F. McKay III, Chief Judge.

[2014-0155 La.App. 4 Cir. 1] In this auto tort case, the plaintiff, Anthony McMaster, appeals the quantum of damages awarded by the jury and a number of rulings made by the trial court. The defendants, James Stevens, D& S Steering Services, Inc. and Progressive Insurance Company, have answered the plaintiff's appeal and seek damages for a frivolous appeal. For the following reasons, we affirm the judgment below and deny the defendants' request for damages.

FACTS AND PROCEDURAL HISTORY

On November 2, 2009, Anthony McMaster was allegedly injured when the car he was driving was struck from the rear by a vehicle driven by James Stevens, who was in the course and scope of his employment with D& S Steering Services, Inc. At the time of this accident, Mr. McMaster was employed as a chef at Byblos Restaurant. Prior to this accident, Mr. McMaster had been involved in an automobile accident in 1999. Following the 1999 accident, he received treatment for his neck for a year and a half from Drs. John Cazale and Jay Binder, both orthopedists. The last time Mr. McMaster saw either of these doctors, his neck [2014-0155 La.App. 4 Cir. 2] pain remained symptomatic. In connection with the 1999 accident and his associated injuries, Mr. McMaster filed a lawsuit alleging " severe" injuries to his neck causing " permanent disability."

Following the November 2, 2009 accident, Mr. McMaster sought medical attention at the Touro Infirmary emergency room. Shortly thereafter, Mr. McMaster retained legal representation and his attorney referred him to a chiropractor, Michael Haydel. On December 15, 2009, Dr. Haydel referred Mr. McMaster to Dr. Daniel Johnson for a cervical MRI, which showed a disc herniation at C5-6, but no pathology at C4-5. Mr. McMaster then underwent an EMG with Dr. Daniel Trahant on May 11, 2010. Dr. Trahant diagnosed pathology at C5-6 but found no injury at C4-5. As his treatment progressed, Mr. McMaster was referred to Dr. Lucienne Marianne, a neurosurgeon, on June 4, 2010. Dr. Miranne ordered Mr. McMaster undergo a second MRI in June of 2010 and a myelogram CT in August of 2010. Dr. Miranne and Dr. John Joslyn, a neuroradiologist, reviewed the two MRI's and the myelogram and determined that Mr. McMaster had a herniation at C5-6, but no pathology at C4-5. Thereafter, on August 27, 2010, Dr. Miranne recommended that Mr. McMaster undergo a one level arthroplasty at C5-6. Instead, Mr. McMaster did not treat for his neck with any doctor for a period of five months. Mr. McMaster returned to Dr. Miranne on

Page 982

January 31, 2011, after a subsequent injury where he felt a " pop in the neck" and reported an increase in pain. Dr. Miranne noted that the physical exam of Mr. McMaster's neck had worsened and recommended that he undergo a third MRI. [2014-0155 La.App. 4 Cir. 3] The third MRI revealed a new herniation at C4-5 and a worsening of the injury at C5-6. As a result of this new injury, Mr. McMaster underwent a two level fusion on April 28, 2011. Dr. Miranne did not relate the C4-5 herniation or the fusion to the November 2, 2009 accident. On December 21, 2011, Mr. McMaster first saw Dr. Charles Aprill, who performed pulse mode procedures and administered steroids to him. Following the November 2, 2009 accident, Mr. McMaster was also under treatment for mental health issues which he claimed were related to the accident. However, Mr. McMaster had a history of anxiety problems and panic attacks.

As stated above, Mr. McMaster worked as a chef at Byblos at the time of the accident. However, he was let go by Byblos on February 10, 2010, when he missed work without calling in to report his absence. Thereafter, Mr. McMaster received unemployment for seven months. During this time, Mr. McMaster had to certify that he was able to work and place job applications; Mr. McMaster also made a claim with the Deepwater Horizon Claims Center for lost wages due to the BP oil spill. By July of 2011, Mr. McMaster was doing some manual labor for his girlfriend's ...


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