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Warner v. USAA General Indemnity Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

December 29, 2017





          Panel composed of Judges Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst


         Appellants, Larry and Ava Warner, appeal the trial court's February 2, 2016 judgment, rendered in accordance with the jury's verdict, and the trial court's August 8, 2016 judgment denying appellants' motion for new trial and/or judgment notwithstanding the verdict (JNOV). For the reasons that follow, we affirm.

         Facts and Procedural History

         On July 28, 2011, appellant, Larry Warner, was involved in a motor vehicle accident in which Mr. Warner's 18-wheeler truck was hit by a vehicle driven by Patrick Alexis[1] and was insured by USAA Casualty Insurance Company (USAA CIC). Mr. Warner filed a petition for damages contending that he sustained injuries as a result of the accident.[2]

         During the trial on the merits, appellants' case consisted primarily of the testimony from Mr. Warner and the testimony from his treating physicians. The following testimony and evidence was elicited at trial.

         Mr. Warner testified that on July 28, 2011, it was raining when he pulled up to the intersection at Mounes Street and South Clearview Parkway. A vehicle was in front of him when he stopped at the red traffic light. The light changed to green and he proceeded forward when he heard a noise and stopped his truck. He opened the door, attempted to grab the bar to get down, and in his words, "the bar was wet and the steps were wet. I fell out of the truck on my butt." He testified that he was in a hurry to get out when he grabbed the bar and that when he hit the ground, his buttocks went numb. On cross-examination, he acknowledged that his feet slipped off the steps because the steps were wet. He conceded that he previously testified in his deposition that he was not in a hurry, he did not mention grabbing the bar to get out of his truck, and when asked if he was injured when he fell he stated, "Counsel, I would suppose so."

         Mr. Warner testified that he is 64 years old and has been driving trucks since 1975. He conceded that he had back pain prior to this accident and received treatment from Dr. James Antinnes with Southern Bone & Joint Specialists, P.A, in Hattiesburg, Mississippi. He first saw Dr. Antinnes in 2009 and 2010 for back pain. Dr. Antinnes ordered an MRI and recommended an epidural steroid injection (ESI), which was performed by Dr. Todd Sitzman. He testified that he did not treat with Dr. Antinnes or have any back pain between 2010 and this accident, and was able to return to work consistently. Mr. Warner further acknowledged that he previously received treatment at the Prentiss Family Medical Clinic (Prentiss) for back pain and was prescribed Lortab prior to his accident. The Prentiss medical records showed that he was diagnosed with sciatica in 2009, continued to receive treatment for it in 2010, and was prescribed additional pain medications. Mr. Warner also testified that he injured his shoulder in a separate accident and received treatment at Jefferson Orthopedic Clinic (Jefferson Orthopedic). He additionally received treatment at Ochsner for a torn ligament in his hand and an MRI for his shoulder from an injury unrelated to this case. He admitted that he was also having problems with his back at that time and was prescribed hydrocodone and tramadol.

         Mr. Warner testified that he sought medical treatment approximately a week after the July 28, 2011 accident. He subsequently conceded that he was first sent to see Dr. Barry Bordonaro at Allied Adult and Child Clinic (Allied) by his attorney in September 2011, six weeks after this accident. Dr. Bordonaro from September 2011 through March 2012, and received "back and heat treatment and shock." An MRI was performed in 2012. Mr. Warner acknowledged that Dr. Bordonaro's medical records did not mention this accident or that he had been involved in any other accidents in which he was injured.[3] He testified that he was discharged from Dr. Bordonaro's care because the treatment did not help his pain and Dr. Bordonaro recommended that he see Dr. Antinnes. On cross-examination, Mr. Warner was confronted with his deposition, and conceded that he had previously stated in his deposition that his treatment with Dr. Bordonaro was helpful.

         Mr. Warner next saw Dr. Antinnes. He saw Dr. Antinnes two times in 2012 and told him that his lower back and legs were giving him problems. He did not tell Dr. Antinnes that he had been involved in an accident. Dr. Antinnes ordered an MRI and Mr. Warner received an ESI and hydrocodone. He continued to see Dr. Antinnes through 2014, until Dr. Antinnes recommended surgery. Mr. Warner testified that he was afraid to have surgery at his age, and decided against it. Dr. Antinnes then increased his pain medication. He was last seen by Dr. Antinnes was November 18, 2014.

         Mr. Warner stated he next saw Dr. Allen Johnston, at the Louisiana Orthopedic & Spine Institute (Louisiana Orthopedic), for the first time in June or July 2015. Dr. Johnston examined him and performed a procedure in which needles were inserted into his back. Since he received relief from the procedure for six days, Dr. Johnston recommended he have a "burn" procedure performed, which he declined because it was too expensive. Dr. Johnston then prescribed tramadol. On cross-examination, Mr. Warner acknowledged that he told Dr. Johnston that he had a few symptoms from May 2010 through July 2011, and it was raining when he got out of his 18-wheeler, slipped, and landed on his buttocks.

         Mr. Warner testified that he decided on his own to stop working in September or October 2011. One of the reasons he could no longer work was because his "back, rear" would start to get numb. He was confronted with his deposition testimony in which he testified that he stopped working in August 2011, and that he had not worked in any capacity since the accident. Mr. Warner conceded that since his accident, he was not declared disabled by any of his doctors and no doctor told him that he should not or could not work. Mr. Warner was also confronted with his medical records dated after this accident, from Louisiana Orthopedic, Jefferson Orthopedic, and St. Elizabeth Physicians (St. Elizabeth) which conflicted with his testimony that he had numbness in his back and that he had stopped working shortly after this accident. His medical records stated that he did not inform his doctors that he had any numbness, he was allowed to drive, he continued to work as a driver after this accident, he did not list prior injuries on his medical forms, and he had no pain in his "spine, ribs, or pelvis."[4] Mr. Warner additionally admitted that he filed a claim for disability benefits related to an accident that occurred on June 15, 2011, six weeks prior to this accident on July 28, 2011. On the disability form dated April 20, 2012, Mr. Warner stated that on June 15, 2011, he "slipped and fell off top of trailer at work" and injured his "left shoulder and back." Mr. Warner stated that his last day of work was "part-time from June 17, 2011, stopped completely January 6." At trial, when asked if he meant January 6, 2012, Mr. Warner testified he could not say whether "January 6" referred to 2012.

         Mr. Warner testified that as a result of his injuries he can no longer drive his personal truck and has lost personal income, which has financially impacted his life. He could no longer drive because he was taking pain medication after this accident which advised against driving or use of heavy equipment while taking the medication. He testified that although he stopped driving between September and October 2011, he continued work in the administrative functions at his business. Since the accident, he hired a mechanic and someone to drive his personal truck. When he drove, he earned 100% of his average weekly wages, which were between $1, 800 and $3, 000. On a document created by him and his counsel and shown to the jury, his average weekly wages were listed as $1, 800 to $2, 500. When he hired someone to drive his personal truck, he paid the driver 33% of the gross amount, which left him receiving 67%, for a "30% loss." He testified that for future lost earnings based on the retirement age of 66 years old, he calculated that would lose "250, 300, 000" over the next two years based on an average of $2, 300 a week. Mr. Warner further testified that his injuries affected other areas of his life.[5] Since the accident, he has not been able to ride horses, drive a four wheeler, or fish. He also has not been able to perform sexually.[6]

         Dr. Johnston[7] testified that he first saw Mr. Warner on June 8, 2015, four years after this accident. Mr. Warner told him that he was previously treating with a doctor that recommended surgery and he was seeking an alternative to surgery. Mr. Warner told him that he had pain in his "low back and right leg" and began having symptoms on July 28, 2011, when he was involved in an accident while working as an 18-wheeler driver. Mr. Warner stated that he got out of his truck while it was raining and "slipped landing on his buttocks." Mr. Warner informed him that a year prior to this incident, he had some pain in his low back and right leg that was treated by a doctor in Mississippi, but his pain resolved in 2010. He stated that he was symptom free for a period of at least 14 to 15 months, maybe longer, prior to this "slip and fall." Mr. Warner stated he received treatment continuously since 2011. Dr. Johnston testified that the "fall" in July 2011 "caused his pain to begin again." He successfully performed a medial block on Mr. Warner, after which 90%-100% of his pain went away. Mr. Warner's last visit was in August 2015, and he recommended that Mr. Warner have an additional procedure, a Radiofrequency Oblation Neurotomy (RFA). He did not restrict Mr. Warner's driving because he was not driving at the time. If he was taking pain medications and narcotics, he would not have let him drive. Dr. Johnston conceded that in his deposition he testified that given Mr. Warner's symptoms, he "would think that he certainly could drive, " and recommended short distances would be better, but believed that he could drive. Mr. Warner did not return to see him.

         Dr. Johnston's medical records showed that Mr. Warner told him that he had an accident in 2010, which resulted in bulging discs and focal protrusions at L3-4 and L4-5, and that Mr. Warner had a few symptoms regarding his back and right leg pain from May 2010 to July 2011. Dr. Johnston reviewed Mr. Warner's MRIs from 2010 and 2012, but conceded he did not look at the MRIs side by side because that is something a radiologist does, and in this case, Dr. Curtis Partington had reviewed the MRIs side by side. Dr. Johnston further conceded that he described the findings on both the 2010 and 2012 MRIs as "age-related" findings and that the 2014 MRI showed a progression of the pathology previously noted. He agreed that part of his treatment was to account for the new findings in the 2014 MRI. Dr. Johnston acknowledged that Mr. Warner did not state he had any numbness on his intake form. He further acknowledged that when he examined him, Mr. Warner had some right leg complaints, which could have been related to his sciatica. Moreover, he conceded that in his report he stated that it was impossible to say with certainty what percentage of Mr. Warner's pain was "facet versus discogenic." He acknowledged that he could not say whether the pain was from the irritation of the facets versus whatever was occurring with his discs. He further conceded that Mr. Warner's facet joints showed wear and tear.

         Dr. Curtis Partington testified via video deposition.[8] He testified that he reviewed Mr. Warner's MRIs and X-rays and issued a report and an addendum. He only looked at the diagnostic studies themselves. The June 2011 and November 2012 MRIs were of Mr. Warner's left shoulder, which are not alleged as an injury in this case. The January 13, 2012 MRI of his lumbar spine showed arthritis in the lower three levels, with bulging discs, arthritis in the joints in the back part of the spine on the lower three levels, degenerative spine or joint disease. Mr. Partington associated the findings to be consistent with the normal aging process and opined that there was nothing to suggest a superimposed injury on top of the underlying condition or that the condition was caused by the motor vehicle accident. He also reviewed three X-rays of Mr. Warner's lumbar spine. In May 2003, Mr. Warner had arthritis in his lower back, narrowing of the discs, spondylosis, disc bulging, and arthritis in the facets. Dr. Partington testified that this showed Mr. Warner was having issues for a long time at L3-4, L4-5, and L5-S1 (lower three levels). These are the same areas shown on the January 2012 MRI. He opined that Mr. Warner had low back issues and arthritis in his back for at least 8 years prior to this accident. In October 2003, his films showed the same conditions. Dr. Partington said that it was obvious that Mr. Warner had low back pain and radiation down his leg based on the October 2003 films. In March 2010, his films showed the same conditions. When he compared the X-rays to the January 2012 MRI, he saw very little change. Dr. Partington opined that he did not attribute any of the changes in 2012 to a traumatic injury or motor vehicle accident. In his opinion the lumbar pain developed from normal wear and tear from everyday living and was age-related.

         Dr. Antinnes[9] testified on behalf of the defendant. Dr. Antinnes testified that he first saw Mr. Warner in 2010, he had a few visits in 2012, and his most recent visits were in 2014. He saw Mr. Warner about every 2 years. In 2010, he reviewed Mr. Warner's MRI which showed a L4-5 bulging disc and degenerative changes (normal age-related changes). He recommended an ESI, which was performed in April 2010. He did not recommend surgery nor did he restrict Mr. Warner's work. On March 6, 2012, two years later, Mr. Warner complained of low back pain. He said the "pain he had two years prior came back." A new MRI was ordered. He compared the two MRIs, which were essentially the same. He recommended another ESI since Mr. Warner had received two years of relief from the prior ESI. Mr. Warner did not mention this accident to him and he was not placed on any work restrictions. Dr. Antinnes testified that Mr. Warner had the same complaints, at the same location, and he received the same treatment. On June 24, 2014, Mr. Warner complained of back pain with radiculopathy down the right leg. He recommended another ESI since Mr. Warner had excellent relief from the ESI in 2012, and it concerned the same areas. He did not recommend surgery for Mr. Warner. On August 26, 2014, Mr. Warner stated that he did not obtain any relief from last ESI and a new MRI was ordered. The MRI of the L4-5 was the same; however, it also showed new findings at the L5-S1, which had more degeneration with arthritis, and a cyst in the facet joint. Dr. Antinnes could not say what happened to cause this change, but stated that the change shown in the new MRI was not the type usually related to an event. Also, the cyst was age-related and not related to an event. He recommended another ESI at the L4-5 and the L5-S1 and because the cyst had no symptoms and was asymptomatic, he only watched it at that time. On his last visit, November 18, 2014, Mr. Warner stated he was starting to feel better, so he refilled his current medications and prescribed additional medications. Mr. Warner also mentioned this accident for the first time on his last visit. Mr. Warner informed him that his pain began after someone hit him. Mr. Warner stated that he was getting out of the truck when he slipped on the catwalk or running board, and fell to the ground. He did not recommend surgery and Mr. Warner was not placed on any work restrictions. Dr. Antinnes testified that after reviewing Mr. Warner's MRIs, he could not say that this accident caused any of the changes.

         Harold Asher was called as a defense expert.[10] Mr. Asher testified that he was asked to calculate Mr. Warner's income prior to and after the accident. According to his tax returns, Mr. Asher stated that Mr. Warner had a loss in 2009 and 2010. He averaged a loss of $1, 258 or he was losing about a $1, 000 a month after paying all of his business expenses. In 2011, he made a profit operating at some point in a different fashion than he did before the accident. In 2012 and 2013, Mr. Warner hired contract labor and his revenues soared compared to what he was doing beforehand on his own. Due to the change in his business model as a result of the accident, Mr. Warner made a profit of around $1, 000 a month, or $12, 000 a year with him not driving and having his contractors do the work. His gross revenues increased by $180, 000 a year from using contractors. Prior to the accident, he was losing $11, 258 per year in cash. After the accident, he was making a profit of $11, 484. This was an annual improvement of almost $22, 742 or $2, 000 a month. Thus, Mr. Asher opined that based on his observations, when Mr. Warner was hurt, he was forced to change his business model. His new business model caused him to not have any losses after the accident, and increased his profits through 2013. Based on his analysis, Mr. Asher opined that Mr. Warner did not sustain an economic loss as a result of his injuries. He further found that Mr. Warner's calculation as to his future wage loss was not supported by his tax returns.

         After the testimony and evidence, the jury found that Mr. Alexis was negligent for the accident. However, the jury found that Mr. Warner was not injured on July 28, 2011, and, therefore, did not award damages to Mr. Warner. The verdict of the jury was made the judgment of the court and all the claims brought by appellants against USAA CIC were dismissed with prejudice. Appellants filed a motion for new trial, or alternatively JNOV, which was denied by the trial court. This appeal followed.


         An appellate court may not set aside a trier of fact's finding in the absence of manifest error or unless it is clearly wrong. Arabie v. CITGO Petroleum, 10-2605 (La. 3/13/12), 89 So.3d 307, 312, citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Therefore, in order to reverse a trier of fact's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, 03-3024 (La. 07/02/04), 877 So.2d 89, 94-95.

         When there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own evaluations are as reasonable. Rosell, 549 So.2d at 844. Credibility determinations, including evaluating expert witness testimony, are for the trier of fact. Detraz v. Lee, 05-1263 (La. 01/17/07), 950 So.2d 557, 564; Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201 (La 10/19/99), 748 So.2d 417, 421. The trial court is in a better position to evaluate live witnesses, as compared with the appellate court's access ...

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