
    Mark D. DUFFY v. George E. THROWBRIDGE and Allstate Insurance Company.
    No. 7137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Granted May 11, 1976.
    
      Steven R. Plotkin, New Orleans, for plaintiff-appellee.
    Drury, Lozes & Curry, New Orleans (Felicien P. Lozes and Madison C. Moseley, New Orleans), for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

In this appeal by defendants from a judgment awarding plaintiff damages for personal injuries incurred in a rear end collision, the sole issue is whether the trial judge in the assessment of damages abused the much discretion accorded him by C.C. art. 1934(3). We hold that he did and set aside the award.

In the December 2, 1972 accident plaintiff, a 27-year old policeman, sustained a mild cerebral concussion and a cervical, thoracic and lumbosacral sprain, as diagnosed by Dr. Dominick Condie, a general surgeon and the staff doctor for the police department. The doctor prescribed muscle relaxants, sedation and physiotherapy. By late January plaintiff’s principal complaints involved only his neck. On February 2, 1973 plaintiff had shown marked improvement and was allowed to return to work, since he complained of pain only after activity which placed a strain on his neck.

On May 23, 1973 plaintiff returned, complaining of muscle fatigue. Dr. Condie found slight tenderness and motion loss in the neck area and crepitation upon certain neck movements. Between the May, 1973 visit and the first day of trial (September, 1974) plaintiff did not seek further medical attention about the neck condition, although he did consult Dr. Condie twice about unrelated problems.

On the first day of trial Dr. Condie had additional X-rays taken, and he testified as to the radiologist’s report of “beginning narrowing of the posterior aspect of the fourth interspace with early hypertrophic spurring posteriorly.” At this point defendants moved for and were granted a continuance in order to allow adequate time for preparation of rebuttal to this new evidence.

At the second day of trial three weeks later each side presented radiologists, who disagreed as to whether the 1974 X-rays demonstrated minimal spurring or excess bone formation, with minimal encroachment on the foramina. They agreed, however, that the very minimal narrowing shown in the 1974 X-rays was present to the same degree in the 1972 X-rays and the condition therefore pre-existed the 1972 injury.

Dr. Eugene Dabazies, an orthopedic surgeon who examined plaintiff and both sets of X-rays, agreed that the narrowing, if any existed, predated both X-rays and had not changed during the two years between films. As to spurring, he considered the X-rays to be within normal limits, but for purposes of argument stated that if spurring could be reasonably interpreted from the X-rays, it was so small as to be insignificant from an orthopedic standpoint. He observed that any spurring could be the result of trauma, or of natural progression of the degenerative process, already influenced by the narrowing in the same area, or of a speedup of the progression secondary to trauma.

Dr. Dabazies further testified that his examination revealed only tenderness upon palpation of the trapezius muscle and crep-itation, which he attributed to a snapping of the small facet joints and which he categorized as a non-pathological finding, not found in the average individual, but of no significance. He opined that plaintiff was over the acute effects of his injury and that his complaints should diminish with time.

On the other hand, Dr. Condie opined that the crepitation indicated abnormal changes in the neck, probably post-traumatic arthritis, which diagnosis was confirmed by the narrowing and spurring shown in the 1974 X-rays. He estimated a 10 to 20% disability of the neck which was likely to worsen with age.

One of the radiologists admitted, furthermore, that spurring may or may not cause pain and that the clinician who performed a complete examination was in a better position to determine whether the spurring was causing problems than a radiologist who simply interprets X-rays.

The trial judge .found that plaintiff was still suffering at time of trial and that the evidence of-spurring justified his continued complaints. In awarding $40,000.00, plus undisputed loss of wages for the two months following the accident, the judge conceded error if the reviewing court concluded the evidence supported only a finding of a two-month whiplash.

The evidence, while indicating a more severe injury than a cervical sprain of short duration, does not support an award of $40,000.00. Plaintiff had incurred a cervical injury in 1968 (at which time the X-rays revealed no narrowing) and had admitted then that he had suffered earlier difficulty with similar symptoms. The slight narrowing developed thereafter, but prior to the 1972 accident, and had not changed two years later. Furthermore, the only orthopedic specialist who testified attributed no significance to any narrowing or spurring shown on the X-rays, in the absence of any other clinical signs of nerve root involvement. And the radiologists admitted that the X-rays (which they simply interpret) are only one of the diagnostic tools used by clinicians in determining the overall picture.

The evidence presented in this case supports a conclusion that plaintiff sustained a cervical sprain which substantially resolved in two months, but which did cause persistent, non-acute symptoms secondary to the aggravation of a pre-existing degenerative condition. The likelihood of worsening was not established by preponderating proof. On this evidence we fix the award of general damages at $10,000.00.

Accordingly, the judgment of the trial court is amended to decrease the amount of the judgment to $12,030.96. As amended, the judgment is affirmed.

Amended and affirmed.

REDMANN, Judge

(dissenting in part):

This admittedly injured plaintiff set out to perpetrate a fraud on the defendants and on the courts, claiming that a startling neck-cracking noise was the result of this accident when medical records prove it long pre-existed the accident. One may give Dr. Condie the benefit of the doubt despite his own records’ proof of the condition’s pre-existence. But one cannot suppose that plaintiff himself “forgot” his astounding trick-neck ability. Plaintiff knowingly added a fake claim to his legitimate one — making all of his testimony suspect.

The legitimate claim is for a relatively mild and short-lived injury, as the majority opinion shows. General damages should be reduced from $40,000 not to $10,000 but to $2,000 (and the patently excessive expert fees should also be reduced).

GULOTTA, Judge

(dissenting in part).

I concur with the conclusion reached by the majority that the general damage award should be reduced, but disagree with the extent of the reduction. I am of the opinion that a $20,000.00 general damage award is proper.

Plaintiff sustained injury to the neck, shoulder, back and a mild concussion and abrasion as a result of a rear-end collision while he was seated in a stopped police vehicle. Immediately after the accident, Duffy was taken to Methodist Hospital where x-rays were taken, a surgical collar was applied, medication for pain and muscle relaxants were prescribed. Thereafter, he was released.

Dr. Dominick Condie initially examined plaintiff on December 4, 1972. Plaintiff’s condition was diagnosed as a cerebral concussion and a cervical-thoracic and lumbo-sacral sprain of the back. Dr. Condie found severe muscle spasm causing a twisting of the spine, defined as scoliosis. Muscle relaxants, sedatives and pain relievers were prescribed. Diathermy and physiotherapy treatments were administered 26 times between December 4, 1972 and February 2, 1973. Neck traction was applied.

Muscle spasm and tenderness in the area of the neck were found on December 8 and December 13 visits. Examinations during late January and on February 2, 1973, indicated some improvement, but plaintiff continued to complain of neck pain which worsened with strenuous activity. Plaintiff was not seen again by Dr. Condie until May 23, 1973, at which time Duffy complained of muscle fatigue and neck discomfort. The doctor found crepitation (a cracking sound occurring with rotation of plaintiff’s head) and a slight tenderness along the neck muscles. Dr. Condie’s examination of plaintiff and a comparison of x-rays taken on the date of the accident and on September 30, 1974, revealed that plaintiff had developed a narrowing of the posterior aspect of the fourth interspace and spurring (excess bone formation). According to the doctor, it was not normal for a 27 year old male, such as plaintiff, to have these types of x-ray changes. The narrowing and spurring indicated plaintiff had developed an arthritic condition as a result of the trauma. Dr. Condie related continued discomfort to post-arthritic changes caused by trauma from the accident. The doctor was of the opinion that the existing arthritic changes would become progressive and that a possibility existed of further difficulty or surgery. Additionally, he stated plaintiff would continue to suffer pain in the future, extending from mild discomfort to severe pain. The doctor assessed a 10% to 20% permanent disability of the neck.

Dr. Henry M. Duhe, a radiologist, who had taken x-rays of Duffy’s cervical and lumbosacral spine on June 14, 1968, did not find any spurring or narrowing of the cervical spine at that time. X-rays taken on September 30, 1974, revealed narrowing between the fourth interspace with minimal spurring. Based on examination of the December, 1972 x-rays, Dr. Duhe was of the opinion that the accident did not cause the narrowing but could have caused the spurring which Dr. Duhe stated could be classified as traumatic arthritis. According to Dr. Duhe, the spurring build-up, resulting in pressure on the nerve, could produce pain. He indicated this is a permanent process.

Examination of the 1972 x-rays by Dr. Lowell Hurwitz showed a narrowing of the C-4 and C-5 interspace as well as an indication of muscle spasm. His examination of the September 30, 1974 x-rays revealed some narrowing of the interspace and spurring. It is his opinion that the spurring was caused by the trauma from the 1972 accident. The doctor explained that plaintiff’s condition could progress and develop increased spurring or disc changes resulting in continuing discomfort.

Dr. Eugene Dabezies, an orthopedic surgeon, examined plaintiff on October 15, 1974. He also examined the 1972 and 1974 x-rays and concluded that there existed no significant spurring and no narrowing of the disc space. It was his opinion that plaintiff suffered a sprain of the cervical spine. He found some tenderness of the trapezius muscle. Dr. Dabezies concluded that Duffy did not have a degenerative process going on in the spine as a result of the accident. In addition, he did not think plaintiff would need further surgery and did not anticipate any deterioration in plaintiff’s condition that would necessitate any hospitalization. Dr. Dabezies saw no further need for medical treatment and did not discover any objective symptoms on which to base a disability rating.

Samuel J. Fury, plaintiff’s platoon commander, stated that upon Duffy’s return to police work after the accident, he complained of neck and back pain. According to Fury, approximately once a week or every two weeks, Duffy requested to be excused from work. Joseph Gallodoro, with whom Duffy worked for a three-month period between January and October, 1974, stated that plaintiff complained of neck pain and stiffness caused from driving a police vehicle. Duffy was assigned lighter police duty as a prevention against aggravation of his injury.

According to plaintiff, the injury has caused him to become irritable and moody, resulting in a changed disposition which contributed to the separation between himself and his wife.

Sharon Duffy, plaintiff’s wife, corroborated Duffy’s complaints of headaches, neck and back pain. She described plaintiff’s pain as severe, causing Duffy to become irritable and withdrawn.

Under the circumstances, I am led to a conclusion that a reduction to the sum of $10,000.00 for general damages is inadequate. Plaintiff’s injuries support a $20,000.00 award. 
      
      . The three judges who originally heard the case agreed that the judgment should be set aside, but were unable to agree on the amount of damages to be assessed. The case was therefore reargued to a five-judge panel in accordance with La.Const.1974, Art. 5, § 8 (B).
     
      
      . The crepitation had been demonstrated by plaintiff in 1968 as a means of obtaining relief when Dr. Condie had treated him for a neck injury in a rear end collision, an injury significant enough for the doctor to recommend orthopedic consultation after initial treatment failed to achieve desired progress. Furthermore, plaintiff told Dr. Condie in 1968 that the symptoms were similar to a difficulty he had previously experienced.
     
      
      . This opinion was stated at the first day of trial before he was made aware that the narrowing and crepitation predated the injury.
     
      
      . As a result of an unrelated automobile accident, Dr. Condie had previously examined plaintiff in June, 1968, and had heard Duffy make the same cracking sound. I-Iowever, spurring was not present in 1968.
     