Posts Tagged ‘Rotator cuff tear’

Settlement Update: $900,000 in Benefits For Injured Worker When a Contractor ‘Covers Up” — The Case of the Deleted Defect

Torn Rotator Cuff

MALIS|LAW has obtained a stream of payments of over $700,000, along with waiver of a $210,000 workers’ compensation lien, for an electrician who injured her neck and shoulder after tripping over a floor hazard on a poorly lit construction site, even though the general contractor apparently attempted to ‘get rid of the evidence’ before it was observed by its own safety director.

AN ELECTRICIAN TRIPS AND IS HURT: My client was a 41 year old experienced female electrical worker assisting in the construction of a major addition to a Boston hospital.  While wiring an unfinished floor’s alarm system, she was walking with a spool of wire and tripped over bolt stubs protruding through the floor of a dimly lit corridor.  She fell forward into a pipe rack at the side of the hallway, injuring her left shoulder rotator cuff.  Within minutes of her fall, a crew of workers apparently descended on the accident scene, grinding the bolts level with the floor (leaving shiny patches on the concrete) and stringing new lighting in the hallway.  When the project safety director showed up at the accident scene, he observed a brightly lit corridor with orange paint splotches on the floor where the bolts had been.

THE INJURIES: My client suffered a torn rotator cuff immediately after the accident, which was surgically repaired.  The repair disclosed that the torn shoulder had obscured radiating neck pain into her shoulder caused by a disk herniation, which was surgically addressed by neck fusion.  We contended that she could no longer work in the construction trades, which required heavy exertion, which would cost her hundreds of thousands of dollars in future lost earnings from a highly paid and specialized trade.

OUR INVESTIGATION: Through two years of discovery and depositions, we were able to build a strong case that the general contractor and lighting contractor were negligent, including the following evidence:

  • My client presented a co-worker and independent witness who both verified the presence of the bolts before and after the accident.
  • Persistent document subpoenas and court orders produced ample records that the project lighting contractor had been criticized by the general contractor and its own inspectors for failure to replace burnt out project lighting promptly.
  • A safety audit conducted two weeks prior to my client’s fall harshly criticized the cleanliness of the project’s walkways, citing multiple trip hazards and trash.
  • A deposition of another worker disclosed that the bolts and poor lighting had caused another worker to trip days before, and that the worker had complained to the project’s safety director, who had failed either to note his complaint or to take action to remedy the hazard.
  • Although no one came forward to disclose the workers’  grinding of the floor bolts and new lighting, my client’s project supervisor verified the presence  four shiny ground down bolts in the floor within 40 minutes of the accident, in a pattern which suggested that the bolts had been used to secure an elevator hoist (the elevators had been fully installed weeks before).
  • The project safety director admitted that although he had investigated the accident scene, camera in hand, within 30 minutes of the accident, he failed to document conditions on the scene, although it was his and the general contractor’s policy that he do so.
  • The general contractor had written a letter to all subcontractors weeks prior to the accident detailing poor safety conditions and threatening to backcharge contractors for correcting them.
  • My client’s accident report was withheld for two weeks prior to disclosure to the project’s insurer, with no explanation of why the information was not immediately forwarded.

OUR STRATEGY: We used these facts to paint a picture of a poorly supervised and generally unsafe site, with the project owner and supervisors on notice of impending problems, and an embattled safety director new to the site and not up to speed.  These circumstances would lead a jury to infer that the accident was ‘covered up’ to avoid project controversy, supporting our claims of negligence.

PROVING DISABILITY: As to injury, the contractors and their insurers and attorneys contended that the Plaintiff’s injuries were largely healed and her complaints of pain were largely distorted.  An attempt to intimidate my client with a late-disclosed private investigation which purportedly showed that she was able to perform work was frustrated by a court order allowing the investigator’s deposition.  The investigator admitted (less than a week before a court-scheduled mediation) that he had not observed my client engaging in any substantial exertion, and that she had labored in picking up pieces of firewood that a delivery company had dropped in her driveway.

THE SETTLEMENT: At mediation, we were able to persuade my client’s workers’ compensation insurer to drop its right to be repaid $210,000 in compensation payments which my client had received, and to persuade the liability insurer to pay a stream of payments worth in total over $700,000 over a five year period.  These payments ennabled my client to retrain, and she now works for an electrical contractor in a supervisory position, without need for substantial exertion, at or near her prior pay level.

Settlement Update: $487,500 for Injured Neck and Shoulder Caused by Falling Window –The Case of the Wayward Window

MALIS|LAW has obtained $487,500 for a hospital worker who injured her neck and shoulder when a hospital window tilted inward and fell on her.  We were able to obtain a settlement from the window manufacturer, designer, and three installation companies who worked on the window based on negligent design, manufacture and installation of the window even though the hospital had discarded the window, therefore throwing out the best proof of how the accident happened.

My client, a 41 year old inventory assistant, was opening a window in an employee break room when the window sash (the part we normally think of as ‘the window frame’) flew up out of her hands, fell inwards and struck her a glancing blow on the head, knocking her to the ground.  She sustained a cervical disc herniation, for which she underwent surgical fusion; a tear of her rotator cuff, with resulting frozen shoulder, again surgically treated; and was permanently totally disabled from work.  This incident was one of several window malfunctions occurring after a state hospital opted to replace permanent windows with swiveling replacement windows.  Unfortunately, the hospital decided to discard the window well in advance of our firm being hired, essentially ‘destroying the evidence’ of what had caused the window to malfunction.

Through careful investigation and extensive pretrial discovery and depositions, we were able to reconstruct the window failure, tracing the problem back to the window pivot at the bottom of the window sash and the locking clip at the top.  We initially sued the installer and manufacturer of the window, alleging negligent and defective design and manufacture, as well as negligent installation.

By comparison with window specifications produced by the window’s original factory designer to the actual window, we were able to prove that the factory which manufactured the replacement window purchased its locking clips from a different manufacturer from that specified, but didn’t change the tooling that drilled the holes.  The spring driven lock was therefore installed too far away from the edge of the window, and the locking mechanism would therefore not fully extend into the window channel, making the window unstable at the top.  Similarly, the manufacturer substitued a different ‘pivot bar’ at the bottom of the window with an inadequately threaded and secured locking screw, which would tend to strip and loosen, causing the window to lose contact with its spring counterweight on one side; fly upwards on the other; and leave its channel, resulting in the Plaintiff’s accident.  We were also able to show by deposition that the window’s manufacturer had no idea of the implications which their substitution of components had caused, and had done little to determine whether changing components would have changed tooling or manufacturing requirements prior to putting the changed window out on the market.

Through careful investigation and multiple depositions, we also discovered that there were additional servicing companies which were assigned to repair the subject window prior to the Plaintiff’s accident when it was binding and sticking, likely because of these defects, and that these companies should have detected the design and installation defect.   We added these companies, as well as the company which had initially designed the window 20 years before, as defendants.

The Defendants strongly disputed the extent of the Plaintiff’s injuries, claiming that her complaints of neck pain were vastly exaggerated, and that her shoulder injury was largely healed.  We were able to counter these arguments with strong medical testimony, as well as a comprehensive vocational report that proved that her limitations prevented her from re-entering the work force, supporting a claim of hundreds of thousands of dollars of present and future wage loss.

The case was settled prior to trial for $487,500, with the bulk of the funds coming from the window’s manufacturer for their variance from the window’s original specificaitons.

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Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.