Welcome to this week’s issue of What’s it Worth? We hope you enjoyed the 4th of July holiday weekend and that your work week has treated you well. Below are 2 cases involving shoulder injuries with surgery and an unusual verdict in an auto accident case. Thanks as always for reading along with us. If you would like to discuss any of your pending cases, please reach out by either phone, 718-619-4601 or email at [email protected]
LYNETTE SCHININA V. LAURA AND MICHAEL MUSILLO
VENUE: Supreme Suffolk
TYPE OF CASE: Automobile Liability
FACTS: A 58-year-old physician’s assistant was stopped in traffic when she was hit in the rear by a trailing SUV.
- The plaintiff claimed to have sustained a full-thickness tear of her right, dominant shoulder’s supraspinatus tendon (part of the rotator cuff).
- The plaintiff claimed that she developed bursitis, effusion (swollenness cause by a buildup of the joint’s lubricating fluid), and synovitis (inflammation of joint-lining membrane).
- The plaintiff claimed to have sustained herniations of her T1-T2, T2-T3, T3-T4, T4-T5, T7-T8, and T10-T11 interverbal discs.
- The plaintiff claimed that the T2-T3, T4-T5, and T7-T8 herniations caused impingement of the spinal cord.
- The plaintiff claimed the accident aggravated her preexisting bulge of her C2-C3 disc and preexisting herniations of her C3-C4, C4-C5, C5-C6, and C6-C7 discs.
- The plaintiff claimed that the herniation of her C5-C6 disc caused impingement of the thecal sac, which resulted in a radiculopathy.
- Thirteen weeks after the accident, the plaintiff underwent arthroscopic surgery for her right shoulder including debridement of damaged tissue, a bursectomy with excision of inflamed bursa, and a synovectomy involving excision of inflamed tissue.
- The plaintiff received facet-block injections, cortisone injections, and epidural injections of steroid based painkillers, all directed at her cervical region.
- Two years later, the plaintiff underwent a second arthroscopic surgery on her right shoulder.
- Five months after her second surgery, she underwent a shoulder replacement.
- One year after her shoulder replacement, she underwent a revision of the shoulder’s prosthesis.
- The plaintiff received physical therapy for her right shoulder.
- The plaintiff claims that her back and neck remains painful and she has decreased range of motion in her right shoulder.
- The plaintiff has not worked since three months after the accident.
- The plaintiff’s expert physiatrist opined that the plaintiff needs extensive treatment.
- The defense’s expert neurologist opined that the bulge and herniations predated the accident and stemmed from prior work-related or the plaintiff’s prior motor-vehicle accidents.
- The defense’s expert orthopedist submitted a report acknowledging the plaintiff’s diminution of range of motion in the right shoulder.
- The defense’s vocational-rehabilitation expert opined that the plaintiff could return to sedentary work like medical-billing.
MEDIATED SETTLEMENT: The parties negotiated a pretrial settlement for $2,000,000. The defendant’s primary insurer tendered it’s $250,000 primary policy and $1.75 million from a $2,000,000 excess policy.
STANISLAW OPALINSKI V. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, AND THE COMPTROLLER OF THE CITY OF NEW YORK
VENUE: Supreme Richmond
TYPE OF CASE: Workplace Liability
FACTS: A 59-year-old bricklayer was working on the exterior of a building’s second floor when he fell off a scaffold and dropped six feet onto a lower platform.
- The plaintiff did not seek medical help for five days after the accident.
- The plaintiff claimed to have sustained a tear of his left, nondominant shoulder’s biceps tendon.
- The plaintiff claimed to have sustained a tear of each shoulder’s infraspinatus, subscapularis, and supraspinatus tendons (components of the rotator cuff).
- The plaintiff claimed to sustain a tear of his anterior and posterior regions of each shoulder’s glenoid labrum (a SLAP lesion).
- The plaintiff claimed that he have sustained a traumatically induced impingement of each shoulder.
- The plaintiff claimed that his left shoulder developed tendinosis and synovitis.
- The plaintiff claimed he sustained a concussion and subsequent post-concussion syndrome including anxiety and depression.
- The plaintiff claimed to have sustained herniated discs at L3-L4, L4-L5, and L5-S1.
- The plaintiff claimed to sustain a compression fracture of his C5 vertebra.
- The plaintiff claimed to experience trauma that disrupted the cervical lordosis, the normal curvature of the spine.
- The plaintiff claimed to develop residual stenosis at his C4-C5, C5-C6, and C6-C7 levels which resulted in radiculopathy.
- The plaintiff underwent physical therapy for two years.
- The plaintiff received epidural steroid injections.
- Two years after the accident, the plaintiff underwent arthroscopic surgery on his left shoulder including a debridement of damaged tissue, decompression of the shoulder’s subacromial region, and a synovectomy.
- A year and a half after the first surgery, the plaintiff underwent surgery on his right shoulder including debridement of damaged tissue and an acromioplasty with excision of bone.
- The plaintiff underwent neuropsychological treatment and psychiatric counseling.
- The plaintiff claims to experience residual plain and limitations which prevent him from returning to work.
- The plaintiff claims he will require a six-level spinal fusion.
- Defense counsel argued that the plaintiff’s injuries were not related to the accident and noted that post-accident surveillance showed that he had returned to work since the accident.
SETTLEMENT: The parties negotiated a pretrial settlement of $750,000.
STANDFORD V. RIDEWAY CORP.
AFFIRMED: May 10, 2018, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Automobile Liability
FACTS: A 33-year-old security officer was sitting in the back of a taxicab which was involved in a car accident with another vehicle. The plaintiff sued the drivers of both vehicles
- The plaintiff experienced immediate whiplash induced pain in her back and neck.
- The plaintiff have sustained bulging discs at L4-L5 and L5-S1.
- The plaintiff underwent three spinal manipulations, all while under anesthesia.
- The plaintiff received physical therapy for four months.
- According to the plaintiff, she is still in pain which prevents her from being able to lift her six-year-old daughter, carry heavy groceries, or walk briskly.
- The plaintiff’s treating orthopedic surgeon opined that she had significant range of motion limitations and permanent lumbar and spinal cord injuries, however the expert failed to testify at the trial.
- The plaintiff’s treating chiropractor was the only health care provider who testified on her behalf at trial.
- The defendants argued that the plaintiff’s disc bulges were both minimal and degenerative and there was no evidence of traumatic injury to the cervical spine.
- The defendant’s orthopedic surgeon opined that the plaintiff was morbidly obese and not disabled.
- The jury made an award for lost wages but did not make an award for pain and suffering despite the trial court’s finding that the plaintiff sustained a serious injury under Insurance Law § 5102(d).
AFFIRMATION: On appeal the verdict was affirmed by the Appellate Division, First Department. In reaching its decision the Appellate Division found the plaintiff waived her argument that it was improper for the jury to award her no damages given the court’s finding that she had sustained a serious injury under Insurance Law § 5102(d) by failing to object to the jury charge on the ground that it did not instruct the jury that it was required to award damages for past pain and suffering, and failing to object to the verdict sheet, which instructed the jury to insert “NONE” if it did not make an award for pain and suffering based on the 90/180 category of serious injury. The Appellate Division also ruled that plaintiff also waived her argument that the verdict was inconsistent in awarding damages for lost wages but not for past pain and suffering by failing to raise it before the jury was discharged, thus preventing the court from taking corrective action.