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ARTICLE ID 32828

$________ INCLUDING $________ TO HUSBAND SUFFERING LUMBAR HERNIATIONS WITH A SURGICAL COMPLICATION OF FEMORAL NEUROPATHIES CAUSING TEMPORARY PARAPLEGIA AND $________ TO PLAINTIFF WIFE SUFFERING RSD AND NON-FRACTURE CRUSH INJURIES TO FOOT - REAR END COLLISION - COMMERCIAL UIM COVERAGE - CASE RESOLVED FOR AWARD AMOUNT AFTER UNANIMOUS FINDING BY ARBITRATORS.

Camden County

This was an action involving a plaintiff driver and his passenger wife whose automobile was struck in the rear in October ________. The plaintiff driver contended that he sustained herniations at L4-L5 and L5-S1 that caused severe radiculopathy, denervation and weakness. At the time of the accident, the plaintiff, who was an operating engineer, was employed by the union as a business agent and was not required to perform physical labor. The plaintiff contended that when he lost this position upon a change in union leadership in ________, he was required to go back onto the hiring hall list to operate heavy equipment. The plaintiff underwent disc surgery seven years after the accident and suffered complications, including bilateral femoral neuropathies, that left him a paraplegic for slightly more than one year. The plaintiff maintained that although earlier surgery was recommended, he was able to delay the surgery until he faced the prospect of returning to heavy physical labor. The plaintiff contended that although he is no longer a paraplegic, he will permanently suffer severe pain and weakness and need pain-killing medication. The wife/passenger maintained that she suffered non- fracture crush injuries to a foot and developed RSD. The defendant driver had $________ in coverage, and the case against the driver settled for $________ in ________. The plaintiffs had $________ in UIM coverage from their personal carrier. The plaintiff was driving a car owned by the union and was en route to a union function when the accident occurred. The union’s policy had UIM coverage of $________ with $________ in excess UIM coverage. The union’s carrier had initially contended that since the plaintiffs had their own personal UIM coverage, the union’s policy would not be available to them. In ________, the plaintiff filed a declaratory judgment action and during the pendency of the action, case law, reflecting that such UIM coverage would be available to the plaintiffs, was decided. As a result, the UIM carrier(hereinafter referred to as "defendant") consented to arbitration. The arbitration provision in the employer’s policy required binding arbitration without any right to appeal.

The evidence disclosed that after losing his position as a business agent, the plaintiff husband was required to return to a position as a heavy equipment operator, which was physically demanding. The plaintiff maintained that his physicians advised against this work unless he underwent surgery to alleviate the low back pain caused by herniations, radiculopathy and weakness in his legs. The plaintiff related that from ________ until he lost his position as a business agent in ________, he learned to live with the pain. In September ________, plaintiff underwent bilateral decompression at L3-L4 and L5-S1, with L5-S1 partial discetomy. The plaintiff contended that he suffered bilateral femoral neuropathies as a complication from the surgery that left him a paraplegic for more than one year. The plaintiff, who regained the ability to walk after extensive physical therapy, related that he currently continues such painful therapy. The plaintiff related that operating heavy equipment was the only job he ever knew, as he was a third-generation operating engineer, and that he will be permanently unable to work. The plaintiff presented evidence of economic losses that exceeded $________.

The plaintiff also contended that femoral neuropathies are extremely painful and that he required extensive amounts of pain medication. Every doctor who treated or evaluated him, including defense doctors, confirmed that it is a very painful condition.

The plaintiff’s psychologist discussed the development of a narcotic addiction resulting from the injuries, bouts of crying as well as thoughts of suicide, and diagnosed him with mood disorder due to orthopedic/neurologic injuries with depressive features and posttraumatic stress disorder. The psychologist discussed that the plaintiff suffered significant damage to his sense of self, as his identity was defined by his work and the pride and respect that he took in his accomplishments as both a third-generation operating engineer and as a business agent, and is now left with the task of attempting to rebuild and redefine his sense of self. The psychologist maintained that the plaintiff will permanently suffer emotional depression to some degree. The plaintiff also pointed out that from the date of the surgery in September ________ through August ________, he was prescribed more than ________ pills over ________ days, all related to the injuries and complications from the surgery, with ________ pills per day taken solely as pain medication.

The plaintiff was evaluated by five different defense examiners, all who denied the causal relationship between the accident and the condition requiring surgery. In addition to pointing to the seven-year period between the accident and surgery, the defendant pointed to the fact that the plaintiff required prior surgery to the same area of the back in the early 1980s. The plaintiff, who underwent a laminectomy after suffering a disc injury, countered that after his recuperation, he was able to work with heavy equipment without difficulties and averaged 48 hours of work per week prior to the time he obtained the union business agent position in ________.

The defendant also contended that the femoral nerve complications were related to diabetes, medical malpractice, the plaintiff’s overweight condition and spinal stenosis. The plaintiff countered that to the extent that underlying conditions rendered him more vulnerable to complications, the defendant should be liable, and that although no malpractice occurred, even if it did, case law supported holding the original tortfeasor responsible. The plaintiff also pointed out that prior to the disc surgery, he suffered urinary problems and sexual dysfunction, which defense experts related to diabetes. The plaintiff’s physicians maintained that the urinary problems and sexual dysfunction were related to the herniated discs. The plaintiff maintained that following disc surgery, he regained urinary and sexual function, arguing that it was clear that these conditions had not been caused by the diabetes.

Both plaintiffs were extremely activate prior to the accident and maintained a hunting cabin in western Pennsylvania where the male plaintiff hunted frequently before the accident, was an avid fisherman and water-skier, with a boat in the Chesapeake Bay, and frequently rode two collector Harley Davidson motorcycles he owned. The accident deprived him of those enjoyments at a relatively young age. Both the husband and wife presented claims for loss of consortium as to each other.

The plaintiff wife further contended that the she suffered non- fracture crush injuries to the foot, and that based upon continuing severe pain as well as signs of color and temperature changes, she also suffered RSD in the area. This plaintiff maintained that she will permanently suffer pain and difficulties walking. The defendant denied that the plaintiff wife’s claims of RSD should be accepted and maintained that she made a relatively good recovery. The wife made no income claims, although she did allege that the injuries required her to close a delicatessen that was open prior to the accident and though not very profitable, was a source of enjoyment, as many members of the small close knit community frequented it and became like family.

Plaintiff’s accountant was able to attribute minimal losses as a result of the closing of the deli.

The case resolved in accordance with the binding arbitration award for $________ to the plaintiff husband and $________ to the plaintiff wife.

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