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Leonard v. Favaloro10/6/2005
2002. Because these visits were in close proximity to, and clearly related to the April 17th accident we find them to be compensable. We further find the visit to Dr. Eddie Smith on April 29, 2002 related to the accident. Dr. Smith was Ms. Leonard's family physician. However, it is clear from Dr. Smith's deposition that the visit on April 29, 2002 was related to the accident, and that he treated Ms. Leonard for back pain on that day.
However, after the medical visits in April of 2002, Ms. Leonard did not seek treatment again until June of that year. By her own testimony Ms. Leonard admits she moved furniture, hauled heavy bags of mulch and re-injured her back in a subsequent fight, despite the advice of her doctors to rest her back and refrain from heavy lifting. Accordingly, we find subsequent medical visits unrelated to the accident in this case.
Under the circumstances, we are compelled to make a monetary award to plaintiff. In granting this award, our review is not limited by the jurisprudential rule that a trial court trier of fact's factual findings will not be overturned absent a finding that they are manifestly erroneous or clearly wrong. See; Ferrell v. Fireman's Fund Insurance Co., et al, 94-1252 (La. 2/20/95), 650 So.2d 742. When, as here, the trial judge has made no award of damages, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Lasha v. Olin Corp., 625 So.2d 1002 at 1006 (La. 1993). In compliance with the above, we have conducted a de novo review of the record for damages.
Ms. Leonard asserts a claim for medical expenses in the amount of $1,038.04 which includes the total bills for treatment from Drs. Stephenson, Smith and Fernandez. She is also seeking reimbursement for amounts paid to a third party for yard work done during that time. Ms. Leonard claims she injured her back in the accident, and that injury was unresolved for one year after the accident. Ms. Leonard further maintains she was unable to resume her normal life during that time, and could no longer cut the grass, do housework and help elderly relatives as she had done before the accident.
Considering the contradictory and unreliable testimony of Ms. Leonard and her husband, we find no basis for an award of loss of consortium. Additionally, we find her testimony as to her failure to heed doctors' orders, continuing to lift heavy objects and fighting belies her assertion that her back problems are solely related to this accident.
However, we conclude plaintiffs are entitled to recover damages for medical expenses that were solely related to this accident. Those expenses are:
$485.00
| $11.09
| $5.95
| $50.00
|
We also find an award of $500.00 for pain and suffering appropriate, and hereby award that amount, for a total award of $1,052.04.
For the foregoing reasons, we reverse the judgment of the trial court on fault. Judgment is rendered in favor of plaintiffs in the amount of $1,052.04.
REVERSED AND RENDERED
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