TOPIC: Workplace Injuries

RESULT: $ 2.3 million settlement, reached at the close of the plaintiff’s case. The settlement consisted of $ 1,950,000 from CBS Broadcasting, and $ 350,000 from Alexander Wolf & Son.

INJURY: The plaintiff sustained a shattered left calcaneus, or heel. He underwent reconstructive surgery, and suffered chronic pain thereafter. In December, 2002, he underwent a second surgery, in an effort to reduce his pain. All hardware was removed, and the subtalar joint, between the top of the calcaneus and the talus bone above was fused. He developed extensive arthritis in the left ankle, and his prognosis was and is guarded. He then developed meniscus tears due to an altered gait, and underwent arthroscopic knee surgery in 2004.

At the time of the accident, plaintiff was earning approximately $ 90,000 per year, with additional benefits. He has not worked since the accident and his job prospects, as both plaintiff’s and defendant’s vocational experts agreed, were limited in earning potential.

Workers’ compensation lien in excess of $ 100,000, reduced pursuant to the Kelly decision. Loss of earnings were projected in excess of $ 2 million.

SUMMARY: The male plaintiff, then 39 years of age, was working as a union journeyman for Petrocelli Electric, Inc. at the CBS facility in New York, N.Y.

The jobsite was owned by CBS Broadcasting, Inc. and was part of a Y2K power upgrade project. CBS hired Alexander Wolf & Son to perform the structural work and Petrocelli Electric to perform the electrical work.

The plaintiff was working upon a mezzanine platform, located between the basement and lobby floors. The mezzanine ended in a platform that was approximately 12 feet high and overlooked the basement hallway below; cinderblock walls of the hallway extended outward, perpendicular to the ends of the platform. At the edge of the platform, Alexander Wolf & Son had recently installed a double-set of swinging doors which opened inward, and were double-wide to permit delivery of large equipment. Prior to the doors’ installation, the platform was open-ended. On the adjacent wall, on the left side of the platform, was an affixed, permanent iron ladder which had been used to ascend and descend from the platform, long before the doors were ever installed. On the date of the accident, the ladder was still being used by workers on the mezzanine, who would climb onto the ladder, through the open doors.

At the time of the accident, the plaintiff was leaving the mezzanine, to get equipment located on the basement level. Both of the two staircases which provided access to the mezzanine (in addition to the ladder) were blocked with equipment and workers from other trades. The plaintiff used the ladder. The doors which opened onto the platform’s edge were chocked open. As plaintiff began to descend, the door nearest the ladder came loose, either due to its having been struck by a passerby, or of its own volition. Since door closure devices had not as yet been installed, as plaintiff alleged the heavy door swung freely, striking Parker as he was midway between the platform and the ladder, and propelling him to the ground below.

COURT: New York Cty. Sup. Ct. New York

Topic: SEC. 240 LABOR LAW – ABSENCE OF FALL PROTECTION ON STAIRWAY USED AS WORK PLATFORM DURING HOISTING OF MATERIALS AS EXISTING LOFT BUILDING WAS BEING ALTERED TO RESIDENTIAL CONDOMINIUMS – COMMINUTED BURST FRACTURE AT C-6 – PERMANENT PARAPLEGIA

Result: $ 7,250,000 Recovery

County: Kings County

Facts: A male plaintiff laborer, age 31 at the time, who was working on a former loft building that was being converted into residential condominiums, contended that he was not provided fall protection while engaged in assisting the hoisting of metal sheeting through the center portion of the staircase.  The plaintiff contended that while he was standing approximately 12 feet above the floor, a piece of sheeting slipped from the hoist and knocked him to the ground below.  The plaintiff suffered a comminuted burst fracture at C-6 which has left him a permanent paraplegic.

The evidence disclosed that the metal sheeting was being hoisted through openings that had been made in the center of the staircase at each level.  The plaintiff moved for summary judgment under Labor Law Sec. 240.  The defendant and third-party defendant employer denied that Sec. 240 should apply in this situation involving a permanent stairway and crossed-moved for summary judgment.  The plaintiff argued during the motion that applicable case law supported his position that Sec. 240 should apply in this situation in which the stairway was being used as a work platform to effectuate the substantial interior alteration which involved changing the building from a loft-type building to residential condominiums.  The case settled prior to any judicial determination on this issue.

The plaintiff suffered a comminuted burst fracture at C-6 and was immediately rendered paraplegic.  The plaintiff also contended that initially, he suffered some hand and arm weakness.  The evidence reflected that after undergoing a fusion from C-5 thru C-7, the plaintiff was transferred to Mt. Sinai Hospital where he received in-patient rehabilitation services for four months.  The plaintiff continues to receive physical therapy on an out-patient basis.

The plaintiff indicated that through extremely hard work in therapy, he has been able to regain a significant degree of relative independence.  The plaintiff maintained that the initial arm and hand weakness has greatly improved, indicating that he is able to readily transfer himself to and from his wheelchair and that he is also able to drive.  The plaintiff would have testified that he is attempting to lead as active a life as possible and faces the future with hope.  The plaintiff contended, however, that he suffers permanent sexual dysfunction, must catheterize himself four times per day for urination and must use laxatives and a stimulator daily for bowel movements.  The plaintiff, who is unmarried, would have related that he resides in a two family house and that although he lives on the first floor, there are 4- 5 steps leading to his apartment.  The plaintiff contended that he must be carried to and from his building in his wheelchair.

The plaintiff maintained that he obviously can no longer work in the construction field and would have introduced evidence of earnings of approximately $ 50,000 per year.  The defendant would have contended that the plaintiff can work in alternative sedentary fields.  The plaintiff would have countered that his talents and inclinations geared him towards physical labor and that as a practical matter, he is permanently unemployable.  The plaintiff further maintained that he requires a home attendant six hours per day and that such need will continue permanently.

The case settled prior to the Court’s ruling on the motions for summary judgment for $ 7,250,000 plus the waiver of the approximate $ 400,000 Workers Compensation lien.

Commentary: The plaintiff had moved for summary judgment under Sec. 240 of the Labor Law.  The defendant and third-party defendant cross- moved for Summary Judgment, arguing that Sec. 240 should not apply in this situation in which the plaintiff fell from an existing staircase.  The plaintiff argued that the defendants’ position should be rejected in this situation in which the staircase was being used as a work platform for extensive alterations necessary to convert this loft building to residential condominiums.  It should be noted that the Court reserved on the motion and that the case settled before any judicial resolution was rendered.

The plaintiff was able to obtain a substantial recovery in view of the relatively limited claim for future costs of care, contending that he requires a home attendant only six hours per day and the limited cost of renovating his home to accommodate his paraplegia.  It is felt that the combination of the severe and undisputable nature of the paraplegia and the evidence that through extremely hard work in physical therapy, the plaintiff has been able to regain a significant degree of independence and can even drive, would have placed him in a favorably stoic posture before the jury.  In this regard, the plaintiff would have also stressed that notwithstanding his determination, the reality of the plaintiff’s life is that he will be permanently unable to walk, will experience sexual dysfunction as well as bowel and bladder difficulties throughout the remainder of a lengthy life expectancy and that such factors would clearly warrant significant compensation.