A truck driver got a $210,000 settlement for his claimed shoulder joint tear (glenoid labrum tear). Another truck rear ended him.
$200,000 of the total settlement was from the trucking company’s liability insurance. $10,000 was from my client’s personal uninsured motorist coverage.
Case type: Personal Injury, Florida Truck Driver Rear Ended by 18 Wheeler
State/County of Settlement: Florida/Broward County, Florida
Settlement Date: 1/29/14
Claimant’s Atty: Justin Ziegler
Trucking Dispatcher Company Who Provided Coverage to Driver Who Received Ticket /Insurer for Dispatcher/Liability Claims Adjuster for Dispatcher/Claims Adjuster for Insurer
Customized Trucking/Travelers Insurance/ Adjuster Mark Miller/Adjuster Brant Wintersteen
Personal Auto Insurer Providing Uninsured Motorist Coverage:
Parties:
My client was a 58-year-old male, who worked as a 18 wheeler truck driver delivering flowers throughout the United States.
Summary:
On February 15, 2012, my client was rear ended by an 18 wheeler while he was driving an 18 wheeler for work. My client is a truck driver. He was traveling on a highway as part of his delivery duties.
The other driver was under dispatch for the the prospective defendant. He was also driving an 18 wheeler.
My client’s work truck sustained about $25,000.00 worth of property damage, which you can see in the picture below.
It is my understanding that the dispatcher – for the driver who received a ticket – paid $21,000.00 to settle the property damage claim with my client’s employer.
The photo at the top of this article shows the damage to the truck that caused the crash.
The other truck driver signed an “exoneration card” at the crash scene wherein he admitted fault. Liability was clear and there was no comparative negligence on my client.
Claimant’s Injuries Damages:
As in most shoulder tear cases that I have handled, the claims adjuster argued that this accident did not cause my client’s injuries. We mediated the case.
The defense attorney argued that the property damage to my client’s huge truck was minor and it was questionable that his injuries were caused by this accident.
My client was not treated at the accident scene and the crash report said that my client did not complain of any pain. The defense attorney argued that the value of the claim was reduced because my client waited to get medical treatment following the crash.
On 2/21/13, about 6 days following the crash, my client treated with his primary care physician, where he diagnosed with a sprained/strained neck.
The following day he treated with Physician’s health center and complained of right shoulder pain and a neck sprain. He continued to treat there.
My client underwent physical therapy at length and was referred to have an MRI about one month post-accident, which was on 3/29/13. The MRI was read by Joel Rosner, MD, Board Certified Radiologist. His impression, paraphrased was:
1. Tear of Posterosuperior labrum
2. Mild supraspinatus, infraspinitus, and subscapularis tendinosis. Slit-like low-grade intrasubstance tearing is noted in the superior distal subscapularis tendon;
3. mild to moderate acromioclavicular join arthrosis with active capsulitis.
4. Glenohumeral joint and long head of the biceps tendon are intact.
5. Trace fluid in the subacromial/subdeltoid bursa.
My client continued to have neck and shoulder complaints and received a little under 8 months of physical therapy. During this time, he was referred to Dr. Rafael Fernandez, MD through his workers compensation adjuster.
The workers compensation third party administrator was Commercial Risk Management, Inc. On 10/3/12, about 7 ½ months post-accident, due to unrelieved pain Dr. Fernandez performed a right shoulder arthroscopy; debridement labrum; chondsroplasty glenoid; subacrominal decompression.
Dr. Rafael Fernandez post-operative diagnosis of the shoulder was:
- labral tear/fraying
- chondrol flaps on the glenoid
- bursitis and impingement.
My client then underwent about 4 months of physical therapy.
On 2-2-13, Dr. Fernandez placed my client at MMI and assigned him a 2% permanent impairment rating.
On 3-11-13 my client still was in pain and he went to see Dr. Wilkerson, MD, Board Certified Orthopedic Surgeon. Dr. Wilkerson is one of the orthopedic doctors that I recommend in Florida to treat shoulder, neck and back injuries for people in accidents. He sent my client to get an MRI of the right shoulder and the impression was:
1. Mild supraspanitus tendinopathy. No tendon tear
2. Diffuse thickening & increased signal in the capsular structures. This is consistent with capsulitis
3. AC joint arthritis and minimal subacromiol bursitis
4. Type 2 slap tear. Also diffuse anterior labral tear. Small paralabral cyst seen on the border of the glenoid.
At that same time he had an MRI of the neck due to persistent pain. The impression was:
1. marked straightening of the normal cervical lordosis consistent torticollis
2. minimal spondylotic changes at c5-c6 with no associative degenerative endplate changes
3. C3-C4 1mm focal central disc herniation w/ compression on the thecal sac
4. C5-C6 1mm broad-based diffuse disc herniation w/ compression on the thecal sac
5. C6-C7 1mm broad-based central disc herniation w/ compression on the thecal sac
As a result of this accident, my client has advised me that he does not ride a bike anymore due to having his arms extended for an extended period of time. He was an avid cyclist before the accident.
He also cannot lift heavy objects so he is no longer getting paid $.05 per cubic load rate that he was getting before the crash. This causes a loss in future earning capacity of about $6,000 per year.
Due to his disability from this crash, my client did not work for approximately 1 year – from 2/19/12 through 2/16/13 – following the crash. My client also did not work for about two months following the date when workers compensation carrier stopped paying him benefits of work.
He was unemployed from 2/17/13 through 4/2/13 and he did not receive workers compensation indemnity at that time. My client currently works as a truck driver but, as mentioned earlier, he earns $.05 per cubic load less than he did prior to the accident.
He also does not get a $5 “door” fee for backing up the tracking to a delivery stop. When he worked at his prior job, he would get about door fees for about 17 stops per trucking trip. That amounts to a loss in door fees of about $600 or so a year.
My client also claimed a future earning capacity loss of approximately $70,000 because the treating ortho (post WC MMI) stated that he cannot lift about 5 lbs from waist to chest and thus he currently does not get paid per cubic foot to unload the truck that he drives.
The breakdown of economic damages is as follows:
Past Wages
Indemnity Benefits Paid by WC: $41,597.65
Lost Wages not paid by WC (33 1/3% of wages): $20,798.98
Lost wages when WC not paying anything (45 days): $7,227.00
Total Past Lost Wages: $69,623.63
Lost Future Earning Capacity due to not being able to unload trucks: $6,000 per year
Medical
Total Past Medical Bills: $59,363.92
Future Medical Bills for Surgery to repair labrum in shoulder (All costs, surgeon, hospital, etc.): $41,306.00
Total Past and Future Medical Billed Amounts: $100,669.92
Total Past Wages + Past Medical Billed Amounts + Future Medical Bills =$170,293.55
Workers Compensation Lien: $88,430.58. My client received these benefits because he was injured while working. This lien was made up of payments for indemnity (wage loss) for temporary total disability, impairment benefits and medical treatment.
Health Insurance Lien: $125.93
Policy Limits for Personal Injury Coverage of the dispatcher that covered the truck driver who was under dispatch:
2 million dollars ($2,000,000) Travelers Insurance with a self-funded retention of $250,000.
Travelers has a reputation for paying more money to settle injury claims than State Farm, GEICO and many other insurers.
Policy Limits for Uninsured Motorist Coverage Under my client’s personal auto insurance policy:
$10,000 nonstacking.
We notified Progressive of the PIP and uninsured motorist claim by sending a letter to their Florida address. We were able to get Progressive to pay the policy limits by arguing that the truck was considered a uninsured motor vehicle for purposes of uninsured motorist coverage in Florida.
This is because the dispatcher had a self-funded retention (SIR). The Progressive adjuster told me she had not heard of this argument but quickly paid the $10,000 limits after I filed a civil remedy notice.
In another case, I was able to get Ace American Insurance Company to pay its uninsured motorist coverage limits of $100,000 by arguing that the car that hit my client was driven by a federal government employee – US Customs and Border Protection – and thus was considered uninsured for purposes of uninsured motorist coverage in Florida.
The total gross settlement in that case – before attorney’s fees, costs and medical bills were deducted – was $325,000.
You should use this argument in any motor vehicle accident claim against a company with a self-funded retention, such as Publix, Walmart, etc.
The workers compensation adjuster hired a Miami attorney hired to recoup money for them. They claimed a lien of close to $90,000.
In Florida, the workers compensation insurer is required to reduce its lien by attorney’s fees and costs. This is one of the 11 reasons to hire a Florida personal injury lawyer.
My fees on the 3rd party settlement were $66,666. My costs were $1,249.
Their attorney said that the least that he will take to settle his client’s workers compensation lien is $25,000. I eventually negotiated with him and he accepted $19,250.00 to settle the workers comp lien.
The total reduction $68,000 in my client’s pocket.
I tried to get my client’s former employer’s Personal Injury Protection (PIP) to pay for some of his medical bills.
My client’s PIP coverage on his personal auto insurance policy did not pay for his medical bills because the accident happened out of state and my client was driving a work vehicle and not his personal vehicle.
I think that my client received a fair amount for his herniated disc given his age, as well as the fact that he had months without any complaints of neck pain to the doctor.
Given the trucking dispatcher’s arguments that my client’s labrum tear was not caused by the accident, I think that this was a good settlement for his shoulder joint tear (glenoid labrum tear).
The entire amount of this settlement is in line with the pain and suffering values for settlement purposes that I use as a starting point when evaluating an injury claim in Florida.
I – along with a different law firm – was able to get my client a workers compensation settlement as well since the accident happened while my client was working.
Some of my other shoulder tear settlements in the following amounts: $147,000, $65,000, $57,000, $35,000, $18,000, $10,000. I was able to represent my client because the dispatcher was based in Florida, my client lived in Florida.
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1/2 of those diagnoses are chronic. How does he feel after the labral repair? In a 40 plus year old non-elite overhead athlete? Unnecessary surgery. Sub AC decompression? Unnecessary surgery.
Irrespective of the above, can only hope that the now “partially disabled” drive can do something productive – other than deliver flowers. help the poor; feed the hungry; foster the children; write poetry; go tyo law school and become a public defender?
JP:
Thank you for your comment. Thank you for your concern for our former client. He is doing well.