#### Dwight R. WALTON v. WILLIAM WOLF BAKING COMPANY, INC., Paul M. Teeney, and Liberty Mutual Insurance Company.

No. 13939.

Court of Appeal of Louisiana, First Circuit.

March 2, 1981.

Rehearing Denied April 13, 1981.

Robert J. Prejeant, Houma, for plaintiff and appellee.

John L. Lanier, Thibodaux, for defendants and appellants.

Before LOTTINGER, EDWARDS and PONDER, JJ.

EDWARDS, Judge.

Plaintiff, Dwight R. Walton, was injured on May 31, 1977, when the automobile he was driving collided with a van driven by Paul M. Teeney and owned by Teeney’s employer, William Wolf Baking Company, Inc. The accident occurred because Teeney negligently drove his vehicle directly into the path of Walton’s car.

Walton brought suit against Teeney, William Wolf Baking Company, Inc., and Liberty Mutual Insurance Company. Teeney was never served.

Following trial, judgment was signed in plaintiff’s favor and against William Wolf *963Banking Company and Liberty Mutual Insurance Company awarding damages as follows:

> Pain and Suffering $ 75,000.00

> Medical Expenses 16,571.93

> Past Lost Wages 56,084.00

> Future Lost Wages 164,917.67

> Future Medical Expenses 5,000.00

> Total $ 317,573.60

Plaintiff was also awarded interest and all costs, including $650 in expert witness fees. Liberty Mutual’s liability was limited to its contractual obligation, $250,000 plus the applicable interest.

Defendants appeal suspensively specifying that the trial court erred in:

> 1) holding that the plaintiff would never be able to engage in any gainful employment,

> 2) making awards for loss of past and future earnings,

> 3) awarding $5,000 for future medical expenses, and

> 4) awarding $75,000 for pain and suffering.

The trial court found that plaintiff initially suffered from a moderate to severe cervical strain, moderate to severe cervical spondylosis, and degenerative cervical changes. In addition, plaintiff developed a depressive reactive neurosis secondary to a pain syndrome.

Appellants make a strong argument that, from a purely physical standpoint, Walton could return to work and that, failing to do so, he is a malingerer. This argument is buttressed by one of twelve surveillance films which shows the plaintiff vigorously mowing his lawn.

Appellants further urge that damages based on psychological grounds should be scrutinized most carefully. We agree, *Jackson v. United States Fidelity & Guaranty Company,*382 So.2d 223 (La.App. 3rd Cir. 1980), *writs denied*385 So.2d 275 (La. 1980); *Boutte v. Mudd Separators, Inc.,*236 So.2d 906 (La.App. 3rd Cir. 1970), *writ refused*256 La. 894, 240 So.2d 231 (La.1970), but note that, as held by the court in *Jackson,*the danger of denying recovery to a deserving claimant must be guarded against with equal enthusiasm.

The gravamen of plaintiff’s case, that he was physically and mentally unfit for future work, was supported by the generally concurring testimony of medical experts, in particular Drs. Morse and Edisen. Dr. Ce-nac’s testimony, partially changed as a result of seeing the surveillance films, is consonant with a finding that, while Walton’s condition had improved from an orthopaedic standpoint, he was still suffering from psychiatric disabilities. Plaintiff also established that, before the accident, he had been a reliable employee with a good work record.

Pitted against these established facts are the surveillance films and the somewhat contradictory medical testimony, all of which was considered by the trial court and found to preponderate in plaintiff’s favor. To reverse this case, we would have to find, essentially, that the surveillance films clearly outweighed the evidence in plaintiff’s favor. This we cannot do. We sit as a court of review and the present case may only be reviewed, not retried.

Bound as we are by the limiting rules of review, we cannot say that the trial court’s finding of permanent and total disability was “clearly wrong.” *Arceneaux v. Domingue,*365 So.2d 1330 (La.1978). Nor, despite finding the award made to be quite high, are we able to articulate sufficient reasons, as required by the Supreme Court, to find the award made “a clear abuse” of the trial court’s discretion. *Reck v. Stevens,*373 So.2d 498 (La.1979).

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by William Wolf Baking Company, Inc., and Liberty Mutual Insurance Company.

AFFIRMED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I dissent. I agree that plaintiff was injured and is entitled to damages. In my *964opinion, however, he has not proved the length of his continuing disability.

Plaintiff’s expressions as to length of disability are based on a hearsay statement of his drilling supervisor that he could not drill any more, on resumés of what the employment office employees told him — that there was nothing available then — and on what the rehabilitation man told him — a pessimistic expression of the handicaps of age and limited education upon any rehabilitation program).

Dr. Harold Stokes, orthopedist, found cervical spondylosis with clinical findings exaggerated. He said he would “hope that with continued reassurance and gentle treatment his symptoms will progressively subside and he will be able to return to his job as a supervisor for Delta Drilling.”

Dr. Eugene J. Dabezies, orthopedist, found a chronic pain problem with an “awful lot of psychological overlay.” Because of the psychological problems, he could not be sure that the present pain was a result of the automobile accident. The plaintiff had no evidence of an underlying orthopedic disease but needed psychiatric treatment. He made no statement of possible duration.

Dr. Michael E. Carey, neurosurgeon, found plaintiff making an adequate recovery from cervical sprain and recommended no surgery. He made no estimate of possible duration.

Dr. Homer Kirgis, neurosurgeon, disturbed by the zero motion of head, found that the plaintiff was possibly exaggerating and needed psychiatric evaluation. He made no estimate of possible duration.

Dr. John E. Schumacher, neurosurgeon, found plaintiff’s problem was mostly psychiatric. He made no estimate of possible duration.

Dr. Clayton Edisen, psychiatrist, found plaintiff now disabled by depression and felt that his physical health would not be restored by a monetary award for his damages. He was not asked for and gave no estimate of duration of disability.

Dr. James Knight, psychiatrist, found that the problem was psychiatric and felt plaintiff would be able to return to work with three to six months after resolution of the suit regardless of the results.

Dr. Richard H. Morse, psychiatrist, found plaintiff’s problem was reactive depressive neurosis and felt that he could be expected to return to supervisory work except that he would have to avoid heavy lifting or further injury. The pain would be resolving over a period of six months to one year. The best therapy would be a return to work.

Dr. Robert A. McFarlain, psychologist, found a significant neurotic depression making plaintiff an excellent candidate for rehabilitation. He made no estimate of duration.

Dr. Karl E. Keller, rheumatologist, found a moderately severe cervical spondylosis and apparently a pain syndrome. He made no estimate of duration.

The testimony of Dr. Christopher Cenac, orthopedist, has been left until last because he was the treating physician and because he made significant changes in his testimony after viewing some films of plaintiff’s physical activities.

In the first part of the trial he found total and, inferentially though not expressly, permanent disability because of neuro-psychiatric, not orthopedic, problems. However, after viewing the films, he stated his former opinion of total disability wasted upon lack of function as a result of lack of motion but that the film demonstrated an adequate range of motion.

I find no medical testimony upon which a conclusion of total, and permanent disability could be based. Special and general damages based upon such a conclusion are, therefore, I believe, unjustified.

I therefore dissent.