$1,570,000 Recovery – FELA case – Defective Step Ladder Used by Plaintiff in Attempt to Climb Down into Car for Transport for Inspection/Repair – Step Ladder Shifts – Ankle Rolls and Suffers Fracture and Ligamental Damage – Lumbar Herniation and Surgery
Hudson County, New Jersey
This was a FELA action involving a plaintiff railroad worker in his early 50’s whose duties included transporting cares to and from the railroad’s inspection and repair facility. The train had been brought into a “pit,” on tracks and the plaintiff would gain access to the pit by climbing down a step ladder. The plaintiff maintained that the step ladder was defectively maintained, causing it to slip from under him as he stepped onto the device. He prevented himself from falling by grabbing onto a portion of the train, but felt immediate ankle pain as his ankle rolled. The plaintiff reported the incident shortly after it occurred, and the report of the defendant’s employee, who inspected the ladder, reflected that it was warped, rusty and that one of the legs was shorter than the others. The plaintiff’s expert engineer maintained that the poorly maintained step ladder caused the incident and also contended that the defendant failed to have procedures for regular inspection and maintenance as is required.
The defendant would not have produced a liability expert. The defendant maintained, however, that the plaintiff could have avoided using the step ladder and gain access through an alternative manner. The defendant pointed out that the plaintiff could have avoided using the step ladder and gain access through an alternative manner. The defendant pointed out that the plaintiff could have walked down a ramp that led down into the pit. The plaintiff countered that using the ramp carried its own dangers, including the steep nature of the ramp and a prolonged presence near electrical equipment. The plaintiff maintained that the safest way to accomplish his duties was to descend a step ladder.
The plaintiff suffered a ligament injury to the ankle and a fractured malleolus on the same side. The plaintiff did not require surgery for this injury and underwent injections as well as physical therapy. He also required crutches for a period. The plaintiff further contended that he suffered two lumbar bulges that necessitated surgery with instrumentation and maintained that he will permanently suffer extensive lower back pain and weakness. The defendant denied that this condition was related to the incident, pointing out that approximately six months elapsed between the time of the incident and the plaintiff’s complaints of lower back pain. The plaintiff countered that the stress caused by the need for crutches and the continued altered gait cause the lower back condition, accounting for the period between the incident and the onset of symptoms. The plaintiff missed an initial approximate six month period from work and contended that his attempts to subsequently return were unsuccessful, and that he is permanently unemployable.
The defendant, who had a lien for past lost wages and medical bills, is not entitled to a set off for the disability retirement annuity.
The case settled prior to trial for $1,000,000 cash and a waiver of the $570,000 lien for pas lost earnings and medical bills.
REFERENCE
Plaintiff’s engineering expert: George Widas, PE from Medford, NJ. Plaintiff’s neurosurgeon expert: Alfred steinberger, M.D. from Engelwood, NJ. Plaintiff’s orthopedic surgeon expert: Avrill Berkman, M.D. form West Caldwell, NJ. Plaintiff’s pain management physician expert: Richard Kang, M.D. from Fort Lee, NJ.
T.M. v. PATH. Docket no.: HUD-L-599-13, 7/9/15.
Attorneys for plaintiff: Charles A. Cerussi and Jaclyn A. Gannon of Cerussi & Gunn, P.C. in Shrewsbury, NJ.
COMMENTARY
Although the defendant had a lien for past lost wages and medical bills, it did not under the statute, have a claim for a set off for the disability retirement benefit. The plaintiff, whose engineer stressed that the defendant had no procedures for regular inspection and maintenance of the equipment, also emphasized that the report of the employee investigating the incident immediately after it occurred reflected that the ladder was rusty, warped and that one of the legs was shorter than the other.
Finally, the defendant denied the causal relationship between the incident and the lumbar condition, stressing that approximately six months elapsed before the plaintiff made lower back complaints. The plaintiff countered this position by arguing that the cause of the lumbar bulges was the long period of stress placed on the lower back occasioned by the need for crutches and the altered gait.
