Plaintiff was working as a lead inspector at the 170th Street Station - Jerome Avenue line- in the Bronx. As he walked along temporary flooring on the mezzanine level plaintiff stepped with his right foot and a panel gave way. Plaintiff fell straight down into the area below until his back and buttocks struck a steel support beam. Plaintiff experienced immediate low back pain with radicular pain into both of his legs. Nonetheless, plaintiff remained at work until 7pm that evening and never sought treatment at a hospital or emergency room.
Significantly, plaintiff had long-standing back pain that he endured before this accident. Beginning in approximately October 2002, plaintiff started experiencing low back pain with radicular pain into his left leg. In May 2003 plaintiff saw his primary care doctor, who referred him to Dr. Jason Lipetz. Plaintiff treated over the next thirteen (13) months utilizing various modalities including but not limited to physical therapy, home exercise program, pain killers, anti-inflammatory medications as well as lumbar epidural steroid injections. An MRI study performed in May 2003 confirmed that plaintiff had a herniation at L4-5 with canal stenosis that was impinging on the left L5 nerve root. Additionally, Dr. Lipetz sent plaintiff for a surgical consult with Orthopaedic Surgeon Dr. Jeff Silber. The aforementioned treatment and consultation all occurred prior to plaintiff's accident of August 18, 2004.
Plaintiff alleged that this accident exacerbated plaintiff's prior low back and radicular condition and necessitated a lumbar decompression surgery as well as an extreme lateral interbody lumbar fusion at L4-5 performed in June 2007.
Plaintiff further alleged that while he experienced considerable improvement after the treatment he received, he remains unable to work and continues to experience pain with any activity.
Defendants alleged that plaintiff suffered from degenerative disk disease in his lumbar spine from October 2002. They argued that plaintiff received treatment for this condition from May 2003 up to the time of his accident. Defendants argued that an MRI performed in May 2003 confirmed that plaintiff had degenerative disk disease well over a year before this accident. They alleged that plaintiff's degenerative disk condition was severe and required five (5) lumbar epidural steroid injections: two (2) in June 2003, two (2) in February 2004 and one (1) in March 2004. They alleged that plaintiff required surgery before his accident of August 18, 2004 and that plaintiff had a consultation with Orthopaedic Surgeon Jeff Silber who recommended surgery more than a year before this accident.
Defendants argued that the surgery of March 2005 was a procedure he would have required because of his arthritic spine condition even without this accident. Moreover, they argued that plaintiff's later fusion surgery could not have been caused by this accident because Dr. Silber specifically considered a fusion during the March 2005 procedure and deemed it unnecessary.
Defendants argued that the surgery performed by Dr. Silber in March 2005 helped plaintiff tremendously. Defendants argued that Dr. Silber's medical records just three months after the surgery clearly establish that plaintiff was capable of returning to work. Defendants alleged that plaintiff reported that he was "fine" after his first surgery and that plaintiff described his second surgery as a miracle. Thus, they argued that plaintiff made an excellent recovery and was fully capable of returning to all of his pre-accident activities and was capable of working.
The case went to trial and the jury returned a verdict in favor of the plaintiff for $4,011,000.
The case was handled by S. Joseph Donahue and Kareem Vessup of Block O'Toole & Murphy.