MC, a former client, contacted us after having been injured while making a first time delivery to a grocery store for US Foods. The delivery was made to the basement storage area. To access this area, MC had to push a 2 wheeler loaded with light goods down outside stairs. At the bottom landing of the stairs was a sewer drain with an unattached metal cover.
When MC got to the second or third step from the bottom, the left wheel of his hand truck got stuck in the partially covered drain. His forward momentum carried him down the last steps while holding tight to the hand truck. This caused both wrists to hyperextend backward towards his chest. The hyperextension injured the ligaments aligning the carpal bones in both hands plus causing carpal tunnel syndrome.
Workers’ Compensation AND Personal Injury Claims
As a result of this injury, MC had pain, laxity and weakness in both hands. On behalf of MC, Lipkin & Apter filed a workers’ compensation claim. Separately, but due to the same circumstances, Lipkin & Apter also pursued a personal injury claim against the grocery store.
The Workers’ Compensation Claim
MC initially sought treatment at his company’s clinic. After several weeks wearing a hand brace, therapy and being off work, he continued to have pain and laxity in his wrists. He was referred by his employer’s clinic to noted hand surgeon, John Fernandez, of Midwest Orthopedics at Rush Medical Center. Over the course of the next 3 years, Dr. Fernandez operated 6 times on MC, realigning the carpal structure in his wrists, partially fusing the right wrist, and performing carpal tunnel surgery. Dr. Fernandez kept MC off work for 3 ½ years because his job required him to push/carry up to 100 pounds and fully use both hands.
Throughout this period, MC collected workers’ compensation benefits. When MC reached Maximum Medical Improvement (MMI) towards the end of 2020, Dr. Fernandez maintained a permanent pushing/lifting restriction of 20-40 pounds. US Foods declined to take MC back to work with those restrictions. A short time later, he found work within his restrictions at Waste Management, at a pay rate higher than he had at US Foods.
Lipkin & Apter Overcome Workers’ Compensation Dispute
Receiving the workers’ compensation benefit was a given, as there was no question that MC had a job related injury. Nevertheless, based upon an independent medical exam (IME) respondent concluded that MC’s carpal tunnel syndrome was unrelated to his accident. However, we were able to prove, after deposing the IME doctor, that he had misread the medical records from the company clinic. Contrary to the IME doctor’s initial opinion, the records indicated that, from the outset, MC had complained of pain and numbness in his wrists, a hallmark of carpal tunnel injury. When we untangled this misunderstanding, the workers’ compensation claim proceeded without difficulty and the benefit was awarded.
The Personal Injury Lawsuit
Before leaving the grocery store where the injury occurred, MC had the presence of mind to take pictures of the sewer drain. The picture of the drain with the loose cover led us to file a personal injury lawsuit against the grocery store.
Forensics Expert Hired to Establish Hazard
We hired a forensic expert. Greg Pestine of Robson Forensic conducted an onsite inspection of the landing where this injury occurred. It was Mr. Pestine’s opinion that the cover over the sewer drain needed to be centered at all times to prevent an opening in the drain and subsequent hazard. But because the drain cover was not connected inside the drain, it was free to move. Hand trucks contacting the un-centered sewer drain cover were apt to have their wheels caught, and with a driver’s downward momentum being suddenly stopped, presented a risk of injury.
Grocery deliveries were always made to the basement storage area, always with drivers pushing a hand truck, and it was common knowledge among US Food drivers that the drain hole would catch a wheel of their hand trucks. Testimony of drivers was that even knowing the sewer drain was present, the hazard was unavoidable, as a loaded hand truck has a tendency to wobble side to side. The grocery store could have remedied this problem in one of two ways- either by constantly inspecting the landing to make sure the drain cover was centered, or by purchasing an inexpensive drain cover that could be inserted into the drain and not move.
Client Awarded $525,000 in Mediated Settlement
With trial approaching, the parties agreed to seek mediation, at which time the personal injury case settled for $525,000. There was also a $150,000 reduction due to a repayment of a portion of the already-paid workers’ compensation. Under Illinois law, the workers’ compensation insurance carrier is entitled to recover 75% of paid benefits in the event there is also a personal injury award, as there was in this situation.
The lawyers at Lipkin & Apter explored and successfully achieved the greatest benefit for MC by pursuing both workers’ compensation benefits and a personal injury award. If you are the victim of serious injury, please contact Lipkin & Apter. There is no cost for this consultation.