Unguarded Drain Leads to Injury Recovery

Note: The recoveries in these cases are not necessarily indicative of recoveries in similar cases in the future, since each case must be decided on its own facts and circumstances.

On January 20, 2007, the plaintiff injured his left knee when his foot shot out from under him and into an unguarded/uncovered drain hole. The injury occurred as he was wheeling a loaded handcart during an early morning delivery to the defendants’ restaurant. According to the plaintiff’s expert Charlie Crim, the uncovered drain and inadequate lighting to illuminate the drain were violations of the property maintenance code. The defendants actually admitted liability in response to requests for admission. Although an MRI of the plaintiff’s foot revealed a meniscus tear, this tear proved too small to repair, so a microfracture surgery was conducted to alleviate symptoms attributable to degenerative changes. The plaintiff had sustained a work injury to the same knee three months before the accident. That injury was also diagnosed as a meniscus tear. He had been released back to full duty prior to the drain hole accident.

Although Dr. O’Brien, the defendant’s expert witness physician, stated that only the first three to six weeks of treatment were related to the accident, he conceded in his deposition that the surgery and up to 12 weeks of treatment were related and reasonable. Meanwhile, after first testifying in his de bene esse deposition that the accident was a precipitating factor for the future total knee replacement he had recommended, Dr. Beach, another expert of the defendant, admitted on cross-examination that the plaintiff would have eventually required the knee replacement anyway based on pre-existing changes. Dr. Beach then offered on re-direct that the accident was one of multiple causative factors. The physician was cross-examined with an early, contradictory draft of a report he wrote in the underlying workers’ compensation claim.

The plaintiff’s wage loss claim was complicated by the fact that his employer subsequently fired him for alleged fraud related to his time clock usage. These allegations were rejected twice in the underlying workers’ compensation case, and a motion in limine to exclude this evidence was pending at the time of settlement.

Although the results of a Functional Capacity Evaluation showed that he should be limited to medium demand work, the plaintiff already had the same restrictions for a prior shoulder injury. Dr. Sinsabaugh, the plaintiff’s expert witness, found a future loss of earning capacity lasting five years, while Gray Broughton, an expert for the defense, testified that similar paying jobs were available, even though the plaintiff applied for more than 180 jobs after being terminated.

The plaintiff was simultaneously litigating both the workers’ compensation and personal injury claims. Despite having a subrogation lien, the compensation carrier aggressively defended the underlying claim. The personal injury case settled approximately two weeks after the original mediation, thanks to the efforts of mediator Mike Harman. Ultimately, the compensation carrier waived the subrogation lien of approximately $49,500.00, and the plaintiff was awarded $339,000.00.

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