I very recently arbitrated a case where my client seriously injured his neck in a car accident, requiring surgery. However, he had surgery at the same level six months prior to the accident. The guy who hit him was underinsured, so he turned a portion of the claim over to his UIM carrier, Farmers. Because the claim was contractual as against Farmers, they were only liable up to their available limits – $25,000. Unfortunately, the medical bills alone were over $100,000. Rather than doing the right thing and just paying the $25,000, Farmers drug my poor client through discovery and ultimately, an arbitration, hoping that it could slide out on their doctor’s opinion letter.
This wasn’t the initial doctor’s opinion who Farmers hired (they didn’t like his opinion); rather, this was a second bite at the apple with their go-to doctor. This is the same doctor they seemingly ALWAYS hire in these cases, who seemingly ALWAYS says that the client was injured, but only a little, and everything else is due to age. Too bad nothing hurt and there was no evidence of injury until immediately following the crash. Thankfully, the arbitrators did the right thing, awarding over $215,000. However, because my client did not have high UIM limits, he could only collect the $25,000. To make matters worse, his health insurance carrier had a lien on the proceeds, and took most of it pursuant to its lien. Definitely a bittersweet victory.
Anyway, for your interest, I have reproduced only my portion of the arbitration memo discussing Farmer’s THREE separate medical opinions. Note how they not only contradict one another, but also contradict all of my client’s treating physician’s and surgeon’s opinions. The “NOTEs” are original to the arbitration memo – I simply pasted into this blog the portion of the memo I submitted on behalf of my client. I have also included the section on his prior medical condition and why it is he was lawfully entitled to a recovery in this case. Note that I took the name of my client out to protect his identity.
RESPONDENT’S THREE DEFENSE MEDICAL OPINIONS (BUT ONLY ONE EXAM)
On December 1, 2009 Mr. P underwent a Defense Medical Examination with Holm Neumann, M.D., an orthopedic surgeon in Bend, at the request of Farmers Insurance. A discussion of his conclusions follows:
– “He did have a sprain/strain injury of the cervical spine secondary to the claim incident of 12/06/08.”
- NOTE: He admits injury.
– “It appears that symptoms of his left shoulder are related to the 12/06/08 incident by his history alone. However, it is my opinion that, on more probable than not basis, the left shoulder symptoms are related to age related degenerative rotator cuff and labral disease.”
- NOTE: He provides no basis for his opinion that this injury is age-related. Further, there is nothing in Mr. P’s medical history to indicate “age-related rotator cuff and labral disease.” Moreover, he does not discuss the likelihood that, if age related, the MVA exacerbated the condition from its previously asymptomatic state.
– “In regards to his shoulder injury, I am of the impression that his symptoms and need for treatment was brought about entirely by the motor vehicle accident. In regards to the left shoulder condition, I do not feel it is related to the motor vehicle accident.”
- NOTE: These statements are contradictory. He does admit shoulder injury at the time of the MVA. There is no evidence in Mr. P’s medical history that the shoulder condition is related to anything other than the MVA. Thus, Dr. Neumann’s conclusion is a bit of a leap, particularly where he does not discuss the likelihood that, if age related, the MVA exacerbated the condition from its previously asymptomatic state (though he states essentially the same in the first sentence).
– The diagnostics and treatment rendered to the cervical spine as of the date of exam was “efficacious, reasonable, necessary, and causally related to the accident/injury.” Also opines that treatment for the left shoulder SLAP lesion was not related to the MVA.
NOTE: He thus agrees that the subsequent cervical surgery of May 7, 2009 was reasonable, necessary, and caused by the MVA. Again, he provides no basis for his opinion that the SLAP lesion treatment was unrelated, at least symptomatically.
– Admits that activities of daily living, such as stooping and squatting, as well as dressing himself are difficult and discomforting for Mr. P.
– Defers to neurosurgeon’s opinion as to whether Mr. P is able to work, either with restrictions or without. Admits that “he does appear to have physical restrictions and is unable to push, pull, or do overhead
activities with his shoulder.”
- NOTE: This opinion clearly supports Mr. P’s impaired earning capacity claim with regard to his shoulder injury.
In sum, Dr. Neumann admits thatMr. P’s neck, cervical spine and shoulder were injured in the MVA at issue. While he inexplicably opines that Mr. P’s left SLAP lesion is unrelated to the MVA, he provides no basis for that opinion, and does not address the issues of prior infirm conditions or exacerbation of prior conditions. Clearly, however, his left shoulder symptoms were caused by the MVA. Finally, Dr. Neumann opines that Mr. P’s cervical injuries, symptoms, and treatment to date were a result of the MVA, and further that his physical activities are limited due to his injuries.
On February 3, 2010, Dr. Joel Seres, who is apparently a neurosurgeon in Portland, reviewed Mr. P’s medical records on Farmers Insurance’s behalf. It is important to note that Dr. Seres did not examine Mr. P at any time. A discussion of Dr. Seres’ conclusions follows:
– Mr. P “probably would have had to have the additional cervical surgery following the MVA whether or not it occurred.”
- NOTE: Mr. P was asymptomatic at immediately prior to the MVA. He was anything but asymptomatic at the scene of the collision and forward. A physical examination by Dr. Yundt two days after the crash revealed new
and severe pain. Dr. Yundt performed a second surgery five months after the MVA (less than one year after Mr. P’s first neck fusion). The only logical conclusion is that the surgery was necessary because of the cervical symptoms Mr. P sustained in the crash.
– “While it is possible that the MVA may have resulted in some increased cervical symptoms, it is not reasonable to assume that it resulted in nerve root irritation persistent and severe enough to warrant further surgical
decompression and fusion.”
- NOTE: Mr. P was not receiving treatment for nerve root damage prior to the MVA. Nerve root blocks (performed subsequent to the MVA) provided Mr. P with temporary relief, indicating that the nerves had, in fact, been irritated. After these treatments, Dr. Yundt determined that, because the nerve root blocks only provided Mr. P with temporary relief, a second surgery was necessary. Again, Mr. P’s symptoms were caused by the MVA, and these symptoms necessitated the surgery.
– “It is not at all likely that the patient could reasonably have been as symptom-free prior to the MVA as claimed.”
- NOTE: To agree with this conclusion, you would have to find that Mr. P was dishonest with both his physical therapist and his neurosurgeon. You would further have to find that Mr. P was able to somehow fool his
physical therapist and Dr. Yundt into believing that he was asymptomatic in the weeks before the crash. Neither of these findings is likely or reasonable. Rather, it is mere guesswork, conjecture and speculation – exactly that which the finder of fact cannot base their decision.
– “The patient probably did sustain a cervical sprain or strain of a minor degree.”
- NOTE: At least he agrees that Mr. P was injured.
– Opines that the nerve root injections are “probably not related to the MVA.”
- NOTE: As noted above, Mr. P’s treating physicians – who actually examined him – were of a different opinion, as was Dr. Holm Neumann, the first DME doctor Farmers sent Mr. P to see. Moreover, “probably not related” is much different than “definitely not related” – Dr. Seres is clearly hedging.
– “There is no evidence that the MVA resulted in any long-term effects.”
- NOTE: Perhaps if Dr. Seres had examined Mr. P, he would have come to a different conclusion – one similar to that of his colleague, Dr. Neumann. Moreover, he does not discuss the likelihood that the MVA exacerbated the condition from its previously asymptomatic state.
– “While the motor vehicle accident did result in a sprain or strain of the cervical spine, there is no evidence that it produced any structural damage or worsening of the pre-existing condition that now requires the patient to remain off work because of persistent complaints.”
- NOTE: At least the good doctor agrees that Mr. P is permanently restricted. He apparently ignores the evidence that Mr. P was asymptomatic prior to the MVA, and quite symptomatic at the crash scene on. Moreover, a physical examination would have provided Dr. Seres the opportunity to observe Mr. P’s ongoing physical limitations as noted by Dr. Neumann.
– “Given the relatively minor nature of damage to the patient’s vehicle, it is not likely that the accident occurred at 35 mph as claimed by the patient.”
- NOTE: To the best of our knowledge, Dr. Seres is not a crash re-constructionist or an expert on vehicle body damage. Moreover, had he actually spoken with Mr. P, he would have learned that Mr. P was estimating speed based solely on feel, as he did not see the Jeep before it hit him.
– Again opines that Mr. P would likely have required a second operation regardless of whether the crash had occurred or not.
- NOTE: It is extremely unlikely a jury would find that Mr. P’s first spinal fusion suddenly and inexplicably failed on its own at the moment of impact between the vehicles, particularly where the MRI showed no change in hardware position, and further given that he was asymptomatic in the weeks leading up to the crash.
– “I cannot explain the dramatic improvement that is described to Dr. Yundt and to the physical therapist after several weeks of no therapy at all when the patient had been so much worse immediately before.”
NOTE: It is unclear where Dr. Seres got the impression that Mr. P was “so much worse immediately before.” Admittedly, Mr. P complained of severe neck pain to Dr. Tien (his former neurosurgeon) in August 2008, nearly four months before this crash. However, he then attended numerous physical therapy sessions. The chart notes from those sessions shows consistent improvement, including 10/22/2008 which notes “Upper back felt pretty good … he slept the best he has in a while.” In fact, there is no indication in Mr. P’s medical records that he was in any notable pain immediately before the accident.
In sum, Dr. Seres admits that Mr. P suffered a strain or sprain of the cervical spine in this crash. Dr. Seres also opines that Mr. P’s second neck surgery would likely have been necessary regardless of whether the MVA occurred and that his nerve root damage was unrelated to the crash. Again, Mr. P’s treating physicians, who actually examined him, came to a different conclusion. Finally, Dr. Seres states that the crash had no long-term effects on Mr. P’s life, though his colleague, Dr. Neumann – who also actually examined Mr. P – found otherwise.
Respondent further commissioned a records review by Dr. Stephen P. Ireland, a Bend neurologist. Dr. Ireland’s opinions are documented in a May 11, 2011 letter and are summarized as follows:
– Mr. P sustained a cervical sprain/strain in the MVA but there was no objective evidence of these injuries.
- NOTE: Emergency room physicians who examined Mr. P within hours of the crash found he had paraspinous tenderness and provided him with a soft collar due to neck sprain/strain. However, Dr. Ireland does admit that subjective complaints support injury to the neck.
– “Symptoms from cervical sprain/strain typically last a number of weeks to months. Usually patients are substantially improved in three months.”
- NOTE: While these observations may generally be true, it is unclear how they apply specifically to Mr. P and his condition. The terms “typically” and “usually” clearly provide for exceptions to the rule – in this case, that exception is Mr. P.
PRIOR MEDICAL HISTORY
The most notable relevant treatment Mr. P received prior to this crash was the July 23, 2008 C6-7 anterior cervical discectomy and fusion. While Respondent will undoubtedly argue that Mr. P’s ongoing physical problems can all be traced back to this first neck surgery, a closer look at his providers’ chart notes unequivocally refute such a contention. Though Mr. P did complain of neck pain and radiating pain in his right arm in the weeks following his July 2008 neck surgery, his symptoms resolved well before the crash now at issue. This is incontrovertibly noted in a November 20, 2008 Discharge Summary from La Pine Physical Therapy, where George Kohler, M.P.T., wrote that Mr. P “presented without symptoms” at his last session and “now has full (range of motion) and strength and we will discharge him from physical therapy.”
While the discharge summary is certainly sufficient to show that Mr. P had recovered from his prior surgery, it does not stand alone. Three days prior to the discharge from La Pine Physical therapy, Dr. Yundt released Mr. P to return to work, with a temporary lifting limitation up to 50 lbs, and “medium work.”
Unfortunately for Mr. P, he was able to enjoy his good health for only a few weeks before this rear-end crash caused the injuries that necessitated the medical care detailed above. Nonetheless, we anticipate Farmers will argue that – because Mr. P had a prior neck surgery and experienced related pain – he should not recover for the injuries he sustained in this accident. However, this argument fails, for the reasons in the following section.
PRIOR INFIRM CONDITIONS / EXACERBATIONS ARE COMPENSABLE
If you find that Mr. P was predisposed to injury, due to his age, body habitus, or pre-existing bodily conditions, he is nonetheless entitled to full compensation for his injuries. The Prior Infirm Condition jury instruction, UCJI 70.06 states[1]:
If you find that Mr. P had a bodily condition that predisposed him to be more subject to injury than a person in normal health, Farmers would nevertheless be liable for any and all injuries and damage that may have been suffered by Mr. P as the result of the UIM driver’s negligence, even though those injuries, due to the prior condition, may have been greater than those that would have been suffered by another person under the same circumstances.
Thus, any frailty of Mr. P does not excuse Farmers from its obligations to him in this case.
Moreover, while Farmers may assert that Mr. P was symptomatic at the time of the collision, there is no evidence to support such a notion. In fact, the November 20, 2008 Discharge Summary from La Pine Physical Therapy directly controverts this argument. If, however, you find that Mr. P was in some way symptomatic prior to this crash, he is nonetheless entitled to compensation for any worsening of that condition. The Aggravation of Preexisting Injury or Disability jury instruction, UCJI 70.07, states[2]:
In the present case Mr. P has alleged that the injury which he sustained as the result of the negligence of the UIM driver aggravated a preexisting injury or disability of his.
In determining the amount of damages, if any, to be awarded Mr. P in this case, you will allow him reasonable compensation for the consequences of any such aggravation that you find to have taken place as the result the UIM driver’s
negligence.
The recovery should not include damages for the earlier injury or disability but only those that are due to its enhancement or aggravation.
We know that Mr. P sought treatment immediately after the collision now at issue and reported severe neck pain. He continued to report persistent neck pain to his care providers and, as additional symptoms of shoulder pain and radiating extremity pain arose, Mr. P reported those symptoms as well. It was the symptomatic activation/aggravation that brought about Mr. P’s need for treatment, including his May 2009 cervical surgery. Indeed, as discussed above, Farmers’ own doctor, Holm Neumann, agrees.
Given the above, Mr. P’s neck and shoulder pain, as well as the other symptoms he experienced after the crash, were caused by the MVA. Again, if either the neck or shoulder conditions were felt to preexist the MVA, Mr. P is still entitled to compensation relating to the symptomatic activation or aggravation of each, as Oregon law clearly dictates.
MR. P’S TREATMENT IS ATTRIBUTABLE TO THE MVA
Mr. P was not receiving ongoing treatment of his neck and shoulder pain at the time of the MVA. The La Pine Physical Therapy Discharge Summary and Dr. Yundt’s work release note make that fact clear. Nonetheless, had Mr. P required further treatment for symptoms related to his first neck surgery, Farmers is not entitled to an offset for any visits that Mr. P would have otherwise participated in had the MVA never occurred. It is clear the MVA is the legal cause of Mr. P’s subsequent treatment; specifically, UCJI 23.01 (Causation) explains:
A cause is defined as an act or omission that is a substantial factor in [producing / bringing about] the [harm / injury / damage]. [A substantial factor is an important or material factor and not one that is insignificant.]
UCJI 23.02 (Multiple Causation) goes on to state:
Many factors [or things] may operate either independently or together to cause [harm / injury /damage] even though the others by themselves would have been sufficient to cause the same [harm / injury / damage]. If you find that the defendant’s act or omission was a substantial factor in causing the [harm / injury / damage] to the plaintiff, you may find that the defendant’s conduct caused the [harm / injury / damage] even though it was not the only cause.
Because the MVA clearly caused new injuries to Mr. P’s neck and shoulder (and resultant radiating pain), and because those injuries necessitated the subsequent treatment, those injuries are a substantial factor in bringing about the medical expenses (economic damages) Mr. P incurred. Thus, Farmers is liable for those medical expenses, regardless as to whether Mr. P might have incurred some of them had the MVA never happened (which is speculative anyway).
Perhaps more illustrative of this point, it is notable that, in the chart notes subsequent to December 6, 2008, both Mr. P and his care providers consistently and repeatedly attribute his injuries to the MVA.
Moreover, the fact that he suffered a neck strain, which indisputably happened when he was struck from behind, and which Farmers’ own doctors agree occurred in this MVA, is sufficient in and of itself to support a full recovery in this case. This is, of course, not to mention the fact that Farmers’ own doctor – Holm Neumann, M.D. – clearly opines that Mr. P suffered a left shoulder injury from the MVA, and that all of his cervical treatment (at least up to the time of the Defense Medical Exam), including the surgery, was reasonable, necessary, and caused by the MVA at issue.
Thankfully, the arbitrators used the above information to reach the right decision. Unfortunately, there just wasn’t enough insurance coverage to pay Mr. P his damages. Indeed, he was only able to obtain a little over 10% of his damages as a result of the UIM arbitration. A sad day indeed.