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Castay v. Adm Growmark River Systems3/14/2001
injury of this magnitude, and with the constant pain that Mr. Castay endures, his relationship with his wife is affected.
Defendants also assign as error the jury's $84,000.00 award of future medical expenses. Defendants contend that there was no evidence to prove that plaintiff would more probably than not require future medical treatment, particularly surgery and medications and treatment from Dr. Jerry Wang.
Plaintiff argues, to support the jury's award, that Dr. Carlos Gorbitz, plaintiff's treating orthopedist, testified that plaintiff will probably require a fusion in the future and will certainly require several months of physical therapy, anti-inflammatory medication and detoxification, to cure his addiction to pain medication.
To recover future medical benefits, the plaintiff must prove that these expenses will be necessary and inevitable. Ganucheau v. Winn Dixie LA, Inc., 99-432 (La. App. 5 Cir. 11/10/99), 746 So.2d 812, writ denied, 99-3641 (La. 2/18/00), 754 So.2d 972. Future medical expenses must be established with some degree of certainty and must be supported with medical testimony and estimation of probable costs. Id.
Dr. Gorbitz testified that Castay should continue to participate in active rehabilitation, with a goal of getting him off painkillers. He did believe that future surgery, and specifically a fusion operation, was possible, if his symptoms persist. He did not, however, know the cost of such a surgery. When the need for future medical care has been demonstrated, but cost is not susceptible of determination, a court may make a reasonable award. Id. Here, Dr. Gorbitz testified that he did not know the exact cost of a fusion operation because many factors dictate the cost. We find that the evidence sufficiently supports the award and that the award was reasonable in amount. We, thus, affirm the $84,000.00 future medical expenses award.
In their fourth assignment of error, defendants argue that the trial court permitted the plaintiff to recover twice for his injuries due to initial payment of his medical expenses by plaintiff's employer and its worker's compensation carrier. The record, however, reflects no such double recovery, and instead reflects that plaintiff repaid the worker's compensation carrier's lien in full several years prior to trial. We, therefore, find no merit in defendants' argument to that effect.
Finally, the defendants argue that the trial court erred in not finding the plaintiff partially at fault. We reject that argument. Castay's testimony revealed that he did not know that the tops of the grain dryers contained grain dust and was unable to view or smell the grain. Castay was simply hired to represent Quality Fab at the jobsite and to disconnect the dryers from the elevator, and when he was injured, he was performing those duties. Accordingly, we find that the jury did not commit manifest error by not finding plaintiff comparatively at fault.
Based on the foregoing, we affirm the trial court's judgment in part and reverse in part. We affirm the trial court's general damages award, past and future lost earnings awards, award of future medical expenses and loss of consortium award to Castay's wife. We also affirm the trial court's finding that plaintiff was entirely free from fault in the accident. We reverse that part of the judgment increasing defendants' percentage of liability from 26.7 percent to 50 percent, and, instead find that defendants, Superior Scrap, and its insurer, Essex, are liable for 26.7 percent of the total judgment.
AMENDED AND, AS AMENDED, AFFIRMED
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