Baylor Evnen Newsletter

Mediation has become the order of the day. It's reasonably inexpensive and, more often than not, brings a litigated matter (and sometimes a non-litigated matter) to a successful conclusion. The file can be closed and all involved can move on to the next case. Query, however, whether in many cases, more indemnity dollars may be paid as a result of mediation than after a jury trial.

With jury verdicts heading the list of information relied upon in case evaluation, the fewer there are, the less effective a tool they become. With that having been said, let's have a look at how Nebraska juries have treated personal injury claims over the past year.

Custer County (Broken Bow)

The plaintiff in Wolfe v. Kaelin, a woman of 52 years who was employed as a factory worker, was attacked by the defendant's dog and bitten in the lower left leg. Nebraska's strict liability statute for dog bites applied, so the jury was directed to find for the plaintiff and consider what damages she sustained as a result of the attack.

After a considerable period of treatment, the plaintiff was diagnosed by her physician with reflex sympathetic dystrophy and complex regional pain syndrome, both permanent and painful conditions. The defendant had Ms. Wolfe examined by Dr. Goldner, a neurologist, who disagreed with these diagnoses. The plaintiff's medical expense was approximately $9,800 and she lost wages of nearly $7,500. The jury awarded her a total of $50,000.

Dawson County (Lexington)

Velasquez v. Hetrick was a suit which resulted from a vehicular accident in which the plaintiff's car was struck by the defendant's vehicle on the driver's side door in an intersection protected by traffic lights. Each driver claimed to have had the green light at the time of the collision, and there were no independent witnesses.

The plaintiff, a 37-year-old woman who spoke no English, sustained soft tissue injuries to her neck and left shoulder. She incurred approximately $12,000 in medical expense and $15,000 in lost wages, but presented no evidence of lost earning capacity. Her treating physician testified that her neck injury was permanent and would likely cause her pain for the remainder of her life. The jury found the plaintiff 20 percent at fault and the defendant 80 percent at fault and awarded Ms. Velasquez $30,500. This amount was then reduced by 20 percent for the plaintiff's negligence.

Douglas County (Omaha)

Prochnow v. Hassan was a suit brought by a man in his seventies who was a passenger in a vehicle which was struck from behind as it waited for a red traffic signal. The defendant admitted he was negligent and that his negligence proximately caused the accident and any injuries sustained by Mr. Prochnow. The plaintiff complained of soft tissue injuries to his neck and back for which he sought chiropractic treatment. His medical expense was approximately $5,000, and his treating chiropractor testified that the back injuries were permanent. The jury awarded Mr. Prochnow $8,162.

The plaintiff in Barelman v. Ravnborg was the driver of a vehicle forced to stop when an enraged driver slammed on his brakes in front of a long line of cars. As a result, the defendant struck the plaintiff's car from the rear. The driver who initially slammed on his brakes and caused the accident left the scene and was never identified. Given the circumstances of the accident the defendant denied negligence, but the trial judge directed a verdict in the plaintiff's favor and left the issue of the plaintiff's damages to the jury's discretion.

The accident caused soft tissue neck and back injuries to the plaintiff, for which he sought chiropractic treatment. He was given an 8 percent whole body disability. His chiropractic expense as a result of the accident was just over $15,000. In addition, the treating chiropractor testified that the plaintiff would require maintenance care for the rest of his life at an annual cost of $750. The jury awarded the plaintiff $33,500.

In Butler v. The Estate of Kerzman, the plaintiff was a passenger in a car driven by the defendant's decedent when the southbound car crossed the center line of a rural highway and struck a northbound truck head-on. The plaintiff, who failed to utilize his seat belt at the time of the accident, sustained lacerations to his head, left arm and right leg, along with generalized bruising. He was life-flighted from the scene of the accident, but his injuries were apparently not life threatening.

The plaintiff sustained $16,000 in medical expense. He claimed minor residual scarring from his accident-related lacerations, but his primary complaint was rather ambiguous psychological trauma which resulted from the death of his college roommate, the driver of the vehicle in which the plaintiff was a passenger at the time of the accident. There was no evidence of permanent injury, wage loss or diminished earning capacity. The jury awarded Mr. Butler a total of $20,000.

It was alleged by the plaintiff in Sullivan v. Farmers Insurance Exchange that his vehicle was struck on two separate occasions by vehicles operated by uninsured motorists. The defendant admitted that the two collisions alleged had indeed occurred and had been proximately caused by the negligence of uninsured drivers. Mr. Sullivan was a well known Omaha area man in his sixties who had run for various political offices throughout his career.

As a result of the two accidents the plaintiff alleged that he had sustained a traumatic brain injury which resulted in changes in his visual acuity and damage to his hearing. He further alleged that the accidents had caused a fracture of the left wrist (for which his orthopedist gave him a 15 percent impairment to the upper extremity), meniscal tears in both knees and soft tissue injuries to his neck and back. There was also testimony that the plaintiff would eventually require either a partial or complete fusion of his left wrist and surgery on both knees at a projected cost of $47,000. His pre-trial medical expense totaled $51,000, but there was no evidence of lost income or earning capacity. The jury awarded Mr. Sullivan approximately $91,500.

The plaintiff in Schatz v. O'Driscoll was a woman in her middle thirties who was employed in telephone sales. Her car was struck in an intersection, and she alleged that the defendant's violation of a stop sign was the proximate cause of the accident. The defendant denied negligence.

As a result of the accident the plaintiff claimed herniated discs at the T8-9 and L4-5 levels. No surgery was undertaken, but the plaintiff's physician gave her a whole body impairment of 5-8 percent. Her medical expense was $7,300 and there was testimony that future back surgery may be necessary at a projected cost of $15,000. The jury awarded the plaintiff a total of $15,000.

In Bayliss v. Otgonbayatz, the plaintiff was a vinyl sign maker in his fifties at the time of the accident. By the time of trial, however, he was employed as a truck dispatcher. The accident which gave rise to the case occurred when the defendant's vehicle struck the plaintiff's vehicle in an intersection protected by a traffic light. The defendant admitted that he had violated a red light and that his negligence proximately caused the accident.

As a result of the collision the plaintiff claimed a soft tissue injury to his neck and tinnitus (ringing or roaring in the ears). The plaintiff's physician testified that the tinnitus was a permanent condition, but did not provide a specific disability or impairment rating. The plaintiff's medical expense was approximately $20,000 and the jury awarded him just over $35,000.

Lancaster County (Lincoln)

The plaintiff in Lincoln v. Nguyen was injured in a 2002 motorcycle/car accident which resulted in chronic discogenic pain in his low back and disc bulges at L1-2, L4-5 and L5-S1. Two years later, Mr. Lincoln suffered a compression fracture of the second lumbar vertebra in an unrelated slip and fall accident. At the time of trial he claimed that this fracture had healed and that his ongoing problems were related solely to the injuries he sustained in the vehicular accident.

The plaintiff underwent IDET (a procedure similar to radiofrequency neurotomy) at all three injury levels in his back. His medical expenses totaled approximately $25,000, and his expert testified that $75,000 to $100,000 in future medical expense was anticipated. The plaintiff's lowest demand was $100,000. The defendant's insurer offered $10,000 in settlement prior to trial. The jury awarded Mr. Lincoln $1,500.

Harms v. McPhillips arose out of an automobile collision in which the defendant turned left across the plaintiff's path. The case was tried on the damage issue only, with the defendant having admitted negligence. The plaintiff, a woman in her early thirties, sustained soft tissue injuries to her mid-back and a broken foot as a result of the collision. The fractured foot healed satisfactorily, but the soft tissue injury in her thoracic spine caused continuing pain, despite the fact that her MRI scans demonstrated nothing out of the ordinary.

Prior to the accident Ms. Harms had treated for an extended period of time for depression. Her psychologist testified that this condition was exacerbated significantly by her chronic back pain. It took the plaintiff's physicians a substantial period of time to find a combination of medications which provided satisfactory pain control. The combination of drugs which was ultimately prescribed for this purpose cost approximately $450 per month, and the plaintiff's pain physician testified that she could expect to incur this expense for the remainder of her life. Ms. Harms' past medical expense necessitated by the accident was $30,000. There was no evidence presented on either past income loss or diminished earning capacity. The jury awarded the plaintiff $250,000.

In Kilgore v. White the plaintiff was a 71-year-old retired registered nurse whose vehicle was struck in an intersection when the defendant ran a red light. The defendant admitted that his negligence caused the accident and that the accident caused the plaintiff certain injuries. The nature, severity and extent of the claimed injuries, however, was denied.

The plaintiff, who had been widowed a number of years before the accident, lived alone at the time of the accident. She had numerous pre-existing conditions, which included congestive obstructive pulmonary disease (for which she was oxygen dependent, but only while she slept), osteoporosis and an inner ear balance disorder. The only objective physical injury she sustained in the accident beyond some bruising was a fractured sternum. Mrs. Kilgore's pulmonologist testified that the sternal fracture healed over the course of 6-8 weeks, but during the healing process she was oxygen dependent 24 hours a day. He also testified that the pain associated with the fractured sternum, which he compared with the pain of rib fractures, significantly exacerbated her pre-existing breathing difficulty. He further testified, however, that, once the fracture healed, the plaintiff's breathing returned to pre-accident status.

Mrs. Kilgore's primary care physician testified that she was a very fragile person and that, even though the accident caused no objectively identifiable injuries beyond the sternal fracture, the accident was "just hard on her." The plaintiff incurred medical expense of just over $30,000. Her pretrial settlement demand was the defendant's policy limit of $100,000. The defendant's insurer had offered $75,000, but the plaintiff, in an effort to maintain a possible UIM claim, refused to accept any settlement below the policy limit. The jury awarded Mrs. Kilgore $80,000.

Lincoln County (North Platte)

The plaintiff in Browers v. Great Plains Regional Medical Center slipped and fell outside a hospital as she left to go home. The parking lot was obviously covered with snow and ice, and the facility's maintenance supervisor testified that he had seen ice melt chemical in the area where the plaintiff fell. The plaintiff, on the other hand, testified that there appeared to have been little effort to remedy the slippery surface of the lot.

As a result of the fall, the 52-year-old female plaintiff sustained a broken ankle. She required open reduction, internal fixation surgery with physical therapy thereafter. Her medical expense totaled approximately $35,000. Because her treating physician had moved out of Nebraska at the time of the trial, the medical records were received in evidence and the case proceeded with no medical testimony. The plaintiff was unemployed, so there was no wage loss evidence, nor was there evidence of diminished earning capacity. The jury found in favor of the plaintiff on the liability issue and awarded her $200,000.

You have any employee whose job is to use a sharp knife to cut meat. Pursuant to your company's safety rules, the employee is required to wear safety equipment while operating the knife. The employee knows that he is supposed to use the safety equipment and it is your company's policy that violation of the safety rules is a ground for termination of employment.

One day, the employee fails to use his safety equipment and cuts his hand with the knife. He is then given restrictions of doing one-handed work while his injured hand heals. You terminate the employee's employment for violating the safety rule. Had the employee not been fired, you would have had one-handed work available for him. Do you have to pay him temporary total disability benefits? A recent case from the Nebraska Supreme Court says that likely, you do.

In Manchester v. Drivers Management, LLC, the employee was employed as a truck driver for the employer. She injured her shoulder in an accident where her truck hit ice and ran off the road. The employee was speeding at the time of the accident. The employee was given some work restrictions due to her shoulder injury and later had shoulder surgery. The employer terminated the employee's employment because she was negligent in the accident. The employer argued that had the employee's employment not been terminated, the employer would have had work available for her within the restrictions she was given. The employer took the position that the employee was not entitled to temporary benefits during the period of time when she was released to work with restrictions through the date of her surgery because, had she not been fired due to negligence, the employer would have provided work within her restrictions.

The trial court awarded temporary total disability benefits to the employee during the period of time when she was released to work with restrictions through the date of her surgery, and also imposed a penalty on the employer for failure to pay benefits during that time. The employer appealed and the Workers' Compensation Court Review Panel affirmed the award of temporary total disability benefits, but reversed the penalty. The employee then appealed to the Nebraska Supreme Court.

The Nebraska Supreme Court determined that the trial court was not clearly wrong in awarding temporary benefits and imposing the penalty.

The Manchester Court referenced a previous opinion in the case of Guico v. Excel Corp. as support for its holding that the employee in Manchester was entitled to temporary benefits after termination, and a penalty for non-payment of those benefits. In Guico, the employee failed to wear required safety equipment and cut his hand on the job. He was fired due to violating the safety rule.

The employer argued that an employee whose employment was terminated for the same conduct which gave rise to the accident should not be entitled to temporary benefits where the employer would have accommodated the employee had he not been terminated. The employer cited cases from other jurisdictions which held that employees who were terminated for reasons unrelated to the work injury were not entitled to temporary benefits where the employer would have accommodated the employee. Significantly, the Court noted that the cases cited by the employer were distinguishable from the situation in Guico, where "the injury and the subsequent termination arose from the same conduct of the worker."

In other words, where the injury and subsequent termination arise from the same conduct of the worker, Guico and Manchester obligate an employer to pay an employee benefits if the employee is fired, has not returned to work and is not at maximum medical improvement. In Manchester, the Court did not address whether temporary benefits are owed in a situation where the injury and subsequent termination arose from different conduct.

Some may interpret Manchester to stand for the proposition that an employee is entitled to temporary benefits where her/his employment is terminated after injury as a result of conduct which did not cause the injury and is unrelated to the injury. However, such an interpretation--that the employee's conduct is essentially irrelevant--could lead to results contrary to public policy considerations. For example, taking the argument to its logical conclusion, an employee, who after returning to work following an injury is fired because he has been imprisoned for murdering his wife, would be entitled to temporary benefits until he reached maximum medical healing. It is difficult to envision that the Court would suggest such a result.

Following Manchester, it appears that the opportunity still exists to argue that the employee is not entitled to temporary benefits when the termination arises out of different conduct than that which caused the accident. The basic argument is that the cause of the unemployment is the misconduct of the employee, not the injury. The success of that argument will likely be a function of how egregious the employee's conduct was, which resulted in termination of employment.

In fact, another recent case addresses the issue of entitlement to temporary benefits after the employee's employment is terminated for conduct unrelated to the work accident. Additionally, the case also deals with the issue of whether an employee's illegal immigration status impacts upon his or her entitlement to temporary total disability benefits.

In Visoso v. Cargill Meat Solutions, the employee was injured in 2006 and continued to work for the employer until he had surgery in 2007. In 2007, the employer discovered that the employee was an illegal alien and terminated his employment for that reason. The trial court entered an award in the employee's favor, ordering that he be paid temporary total disability from the date of the trial and for so long in the future as he remained totally disabled. The employer appealed the running award of temporary benefits.

On appeal, the employer argued that the employee was not entitled to the running award of temporary benefits because his illegal status prevented him from returning to work. However, the Court of Appeals determined that there was no evidence in the record that the employee was given a medical release to return to work and the employee testified that he had not been given a medical release to return to work. The Court of Appeals held that based on this evidence, the trial court was not clearly wrong in finding that the employee's injury was "a cause" of his inability to work at the time of trial. The Court of Appeals noted that even though the illegal status would also have prevented the employee from working, he was nonetheless entitled to temporary benefits because "one of the causes" of his inability to work was the work injury.

Does the ruling in Visoso mean that whenever an employee is fired due to illegal immigration status, he or she is entitled to temporary benefits after the termination? Visoso does not mandate such. Visoso simply indicates that when the evidence supports a finding that the work injury is a cause of the employee's inability to work, the employee is entitled to temporary benefits. In Visoso, there was evidence that the employee had not been released to return to work, and thus, the work injury was one cause of his inability to work. However, in a case where the evidence clearly shows that the employee was released to return to work and also clearly shows that the employer would have had work available to the employee but for the illegal immigration status, there remains a strong argument that the illegal worker is not entitled to temporary benefits where a similarly-situated legal worker would not.

In other words, in cases where the only reason the employee was not able to return to work was the illegal status, the argument remains that he or she is not entitled to temporary total disability benefits. To determine otherwise would award benefits to illegal workers that a legal worker in the same situation would not be entitled to. Such would also penalize an employer for following federal law which requires the employer to terminate employment of a worker when it is discovered that the employee has no legal status to be employed in the United States.

It is important to note that both Manchester and Visoso appear to be very fact-specific. Manchester stands for the proposition that when the employee is fired for the same conduct that caused the accident, such does not automatically bar entitlement to temporary total disability. Visoso stands for the proposition that if the work accident is "a cause" of the employee's inability to work, the employee is entitled to temporary benefits although the illegal status would also prevent the person from working. However, the opportunity still exists to argue that the employee is not entitled to temporary benefits when the termination of employment arises out of different conduct than that which caused the accident. Likewise, in cases with illegal workers, the opportunity still exists to argue that the employee is not entitled to temporary benefits when the only reason the employee is not able to work is due to his or her illegal immigration status.