Tuesday, January 27, 2015

Rolling truck produces $10 million verdict

In a civil case, a jury awarded a plaintiff 10 million dollars but found him 65% at fault  resulting  in multiple orthopedic and internal injuries when a truck rolled back and trapped him.  Key v Diamond International Trucks, WD 77323 (Jan 27, 2015).

Key delivered trucks to dealerships.  In 2007 he sustained injuries when undecking trucks using a hoist provided by Diamond.  Key had lifted a truck and used wheel chocks out of a container bin and became trapped when the truck rolled as he released a U-bolt.  He had used one strap rather than two.

Diamond asserted, among other instructional errors, that it owed no duty to the plaintiff and asserted he was an independent contractor and Diamond had no duty to provide equipment (wheel chocks) for him to perform the job safely.  The court distinguished between the duty owed to independent contractors in cases of premises liability and cases involving a specific instrumentality.  A landowner owes a duty of ordinary care for their safety and for injuries involving unsafe appliance or instrumentality furnished by the landowner. The court noted Diamond  should have preserved  the issue in a motion for a directed verdict.

The jury found plaintiff's wife sustained damages but found the amount of damages was zero.  The plaintiff required ongoing treatment for urology and gastroenterology. 

Monday, January 26, 2015

Climbing steps a lot supports knee disability claim

Claimant, 64,  is a former career-employee with bad knees that required bilateral knee replacements.  The Commission affirmed an award of benefits because he used steps a lot at work.  Tarpeo v New World Pasta, 2015 MO WCLR Lexis 4 (Jan 15, 2015).

The parties agreed that claimant used steps daily to perform his job duties as a pasta pressman. The employer's expert, the only knee surgeon to testify in the case,  found the prevailing cause in claimant's condition was degenerative arthritis and weight.   The employer contends the employee over-estimated how many times he used steps and his knees were bad because he was old.

The claimant's father died 40 years earlier. Dr. Rende indicated claimant's father had arthritis.  Dr. Rende  stated his opinion that OA was age related did not change even absent that genetic history.  The ALJ  rejected the genetics defense because claimant denied his father had arthritis.  The ALJ also noted that the employer over-relied on an opinion in the treating records that the condition was not work related and faults the employer for not deposing the treating physician. The physician does not indicate the full basis for his conclusions, and the conclusion disputing causation according to the ALJ could have been "predicated on a desire to have his medical bills paid by Claimant's personal health insurance company, so he could provide the needed treatment to Claimant, since it was not being accepted by the Workers' Compensation insurer."  

Claimant testified he climbed steps several times an hour.  The ALJ found 2880 stairs per week  over 35 years was extensive.  The ALJ based his causation opinion on the conclusions of a non-treating hand surgeon and awarded more than $150,000 including temporary and permanent disability.  

The ALJ found claimant was PTD but not from the last accident alone, and that claimant failed to introduce sufficient medical evidence to show his English deficiency or other prior conditions flowed from permanent medical conditions. 

ALJ Ottenad
Atty:  Hoener, Hendershot, Frazier
Experts:  Schlafly, Rende