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Truck Driver Injured in Collision Receives $650,000 in Mediation

Type of action: Motor vehicle accident
Injuries alleged: Neck, back and shoulder injuries
Case name: Confidential
Case number: Confidential
Court: Martin County
Tried before judge or jury: Mediation
Name of mediator: James D. Llewellyn
Verdict or settlement: Settlement
Settlement date: June 5, 2007
Amount: $650,000
Experts: Dr. Ed Cooper, orthopedic surgeon, Kinston, N.C., and Dixon Pearsall, rehabilitation and vocational expert, Little River, S.C.
Plaintiff’s attorneys: Robert E. Whitley and Paul A. Rodgman of Whitley Law Firm
Submitted by: Alicia Delamere

Description: The plaintiff is a 50-year-old truck driver who was involved in a head-on collision with an SUV on July 12, 2004. The plaintiff took evasive action, and his tractor-trailer turned over. He was admitted and discharged from the emergency room with impressions of contusion to the chest and head, lumbar sprain and strain, right shoulder contusions and left elbow lacerations.
On Aug. 11, 2004, the plaintiff was seen by an orthopedic surgeon, who reviewed X-rays and MRIs of the plaintiff’s upper and lower spine. The surgeon had the impression that the plaintiff had cervical spondytis, mild degenerative changes, mild stenosis and spurring.

The plaintiff was treated conservatively and underwent anterior C3-4, C4-5, and C5-6 discectomies, followed by inter-body fusion and the application of a titanium plate and screws on June 14, 2005. He then underwent a shoulder operation and was given a permanent rating for his shoulder and work restrictions.

The plaintiff submitted to an independent medical examination by a doctor hired by the plaintiff’s counsel. The defendant hired a doctor to conduct a second independent medical examination, in which the doctor concluded the plaintiff received no acute injuries in the wreck and would be able to return to sedentary work.

The plaintiff never returned to work after the accident. Because he was on the job at the time of the wreck, his claim was covered by workers’ compensation.

The plaintiff filed for binding arbitration of the case pursuant to the underinsurance policy on his employer’s tractor-trailer rig. The parties agreed to mediation about 10 days prior to the arbitration hearing. Several months prior to mediation of the wreck case, a mediation was held in the workers’ compensation claim. The carrier’s position was that there was no medical reason that the plaintiff could not return to work, and the plaintiff’s position was that he was permanently disabled. The plaintiff retained the services of Dixon Pearsall, a rehabilitation and vocational expert, who said the plaintiff was basically unemployable.

A settlement of the workers’ compensation claim was reached at the mediated settlement conference, leaving the issue of the carrier’s lien unresolved. Mediation was held in the auto claim, which was attended by attorneys for the workers’ compensation carrier as well as the attorney for the underinsurance carrier.

An issue facing the parties at the mediation was the question of the plaintiff’s injuries and his employability. The plaintiff had sustained a very similar injury a couple of years prior to this wreck, and many of his complaints and symptoms from that earlier incident were exactly the same as those contained in his records in this wreck. Another obstacle for the plaintiff was that most of his complaints of pain were unsubstantiated by objective medical evidence.

The mediation proceeded with parties and counsel for the underinsurance carrier separated from the attorneys for the workers’ compensation carrier. A settlement was finally reached after almost a full day of negotiations. The settlement was complicated by the underlying UIM setoff for workers’ compensation as well as the issue of the workers’ compensation lien.

These issues were further complicated by the medical issues involved and the wide difference of opinions between the plaintiff’s medical and vocational experts and the defendant’s medical experts.

Early on, the liability insurance carrier for the responsible driver paid $50,000 in coverage, and by agreement with all counsel, one-third of these proceeds were placed in the trust account of the plaintiff’s attorney, pending the resolution of the worker’s compensation lien. The claims were settled by the defendant underinsured carrier paying, in “new money,” the sum of $650,000. “New money” means the amount was the net amount paid free and clear from any workers’ compensation setoff.

The parties also reached a compromised agreement which substantially reduced the workers’ compensation lien. The only negotiating tool that the plaintiff’s counsel had with respect to the workers’ compensation carrier was the threat of taking the issue before a Superior Court judge to have the workers’ compensation lien substantially reduced or totally eliminated.