Roofer hit by falling plywood: Negligent handling: Herniated disk: Myelopathy: Mediated settlement

Law Reporter, Nov 2004

Fremont Comp. Ins. Co. v. Brazelton Builders, Inc., Cal., Napa County Super. Ct., No. 2617899, Jan. 6, 2004.

Miller, 45, was working as a roofer at a construction site. A sheet of plywood slid down the roof and struck Miller in the head and back. Miller was treated with pain medication, but it was later discovered that he had two herniated disks on his thoracic spinal region.

Miller subsequently developed progressive myelopathy. His doctors recommended a spinal fusion and thoracotomy, which Miller refused. His doctors predict that he will require an intrathecal pain pump in the future. His past medical expenses were approximately $95,000, and his future medical expenses are estimated at approximately $1.2 million.

A roofer who earned $42,000 annually, Miller has been unable to return to work. His past lost wages were approximately $63,000. His future lost wages are expected to be between $400,000 and $500,000. Miller's insurance carrier paid compensation benefits of $180,000, including Miller's medical expenses.

Miller's insurance carrier, joined by Miller as a plaintiffin-intervention, sued the roofing subcontractor of the construction site, alleging its workers negligently mishandled the plywood sheet.

Defendant argued that the sheet of plywood blew off a stack and hit plaintiff's scaffold but it did not hit Miller. Defendant further alleged that plaintiff was at fault for working below its employees, and that plaintiffs injuries were caused by degenerative disk disease rather than the incident.

The parties settled during mediation for $1.08 million. Miller's insurance carrier agreed to waive its interest in the settlement in exchange for a release of Miller's future workers' compensation benefits.

Plaintiffs experts in this case included Alan Larson, construction safety, Yuba City, Cal.; Carol Hyland, life-care planning, Berkeley, Cal.; Joanna Moss, economics, Berkeley, Cal.; Eric Grigsby, pain management, Napa, Cal.; and James Reynolds, orthopedics, DaIy City, Cal.

Defendant's experts in this case included James Hinson, construction safety, Sacramento, CaL; William Baumgartl, pain management, Antioch, Cal.; Gerald Udinsky, economics, Berkeley, CaL; Tracy Albee, life-care planning, Tracy, Cal.; and Lawrence Guinney, orthopedics, Santa Rosa, Cal.

Plaintiff-in-Intervention's Counsel

*Steven L. Derby, Walnut Creek, Cal.

Plaintiff's Counsel

Jeffrey F. Nossen, Walnut Creek, Cal.