ARTICLE ID 33226
$________ - SEC. ________ LABOR LAW CASE - FALL FROM ROOF - FRACTURE TO DOMINANT ELBOW NECESSITATING FUSION p73 SURGERY - FROZEN DOMINANT SHOULDER - COGNITIVE DEFICIT - DIFFICULTIES CONCENTRATION AND HEADACHES - STAMMERING AND STUTTERING SPEECH DEFECT.
Suffolk County
This was a Sec. ________ labor law action in which the plaintiff, who
was performing work on a portion of the roof of the department
store which leased the premises from the defendant owner,
contended that he was provided no safety equipment whatsoever,
resulting in his being blown off the roof by a gust of wind. The
plaintiff fell 20 feet and contended that he suffered a severe
fracture to the right, dominant elbow which required fusion
surgery, a frozen right shoulder which stemmed from extended lack
of use of the arm, and a closed head trauma which resulted in
significant cognitive deficit, difficulties concentrating and
continuing headaches. The plaintiff also contended that he
developed a stuttering and stammering defect which partially
stemmed from the organic brain injury and was partially emotional
in nature. Finally, the plaintiff contended that he sustained a
severe reactive depression. The plaintiffs motion for summary
judgment on liability under the absolute liability provisions of
Sec. ________ had been granted and the Court also directed a verdict
against the third-party defendant employer, who failed to provide
any safety devices, under common law indemnity.
The plaintiffs neurologist related that the plaintiff suffered a
severe fracture to the right elbow and that because of the
severity, a fusion was ultimately required. The physician also
related that because of the extended disuse occasioned by the
fusion, the plaintiff developed a frozen shoulder. The
neurologist contended that the plaintiff will permanently suffer
severe restriction of use of the dominant arm. The plaintiff
indicated that although he can perform everyday tasks with the
arm, he has very little strength.
The plaintiffs neuropsychologist maintained that the plaintiff
suffered a closed head trauma which resulted in a significant
cognitive deficit manifesting in difficulties with concentration
and memory and that the deficits were confirmed by a battery of
neuropsychological testing which was performed. The plaintiff
contended that because of the injuries to the dominant arm, he
will never be able to resume roofing or perform other physical
work and that because of the cognitive deficit, he will, as a
practical matter, be permanently unemployable. The defendants
vocational expert contended that the plaintiff could be retrained
in a field such as a bank employee taking loan applications. The
plaintiffs neuropsychologist contended that the loss of
concentration and memory difficulties will preclude the plaintiff
from working in such a field. The plaintiff also argued that the
jury should consider that the defendants vocational expert had
not personally interviewed the plaintiff.
The plaintiffs treating neuropsychologist contended that the
because of the physical and mental limitations, the plaintiff
suffered a severe depression and that he has already undergone
________ psychotherapy sessions. The plaintiff maintained that he was
previously very active and that because of his limitations, he
has become extremely frustrated and has lost a significant degree
of self respect. The plaintiff also maintained that the p 7 3
difficulties have led to significant marital discord. The
defendants examining psychiatrist contended that the reaction is
less severe than claimed. The plaintiff countered that in view of
the evidence that he has already undergone ________ psychotherapy
sessions, it was clear that he was suffering a significant
reaction.
The plaintiff also presented his brother-in-law and wife who
maintained that prior to the accident, the plaintiff was a
relatively gregarious and active individual and that he has
become extremely depressed ever since the incident. The plaintiff
also contended that the jury should consider that the defendant
did not present any of the plaintiffs co-workers to describe
their observations of his pre-accident emotional state and the
plaintiff argued that based upon this factor, the plaintiffs
contentions that he did not suffer such difficulties before the
incident should be accepted.
The plaintiff also maintained that he developed a stutter and
stammer in his speech after the accident. The plaintiffs proofs,
stemming from the testimony of both the neuropsychologist and
neurologist, reflected that the injury was probably partially
organic in nature and partially an emotional reaction to the
incident. The defendant contended that there was no evidence of
an organic cause. The diagnostic testing including an MRI was
negative. The plaintiff countered that irrespective of the
question of whether the condition was psychological or organic in
nature, he did not suffer such deficits before the accident and
that it was clear that it was caused by it. The plaintiffs
experts contended that the speech defect is permanent nature.
The jury awarded $________, including $________ for past pain and
suffering, $________ for future pain and suffering, $________ for
past lost earnings, $________ for future lost earnings, $________
for medical expenses, $________ for past loss of services and
$________ for future loss of services. The defendant owner and
third-party defendant had no contractual relationship and the
recovery was based on common law indemnity. The third-party
defendants post-trial motions are pending.
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