A client suffered a slip and fall accident in Westfield, New Jersey, that caused extensive and irreparable damage to her back. After Davis, Saperstein & Salomon, P.C. partners Garry R. Salomon and Adam B. Lederman proved that an employee and their employer had been negligent in maintaining a safe environment for patrons, our client was awarded a $725,000 settlement after mediation.
The client slipped and fell on candle wax that had been spilled by a cosmetic supplier’s employee. The employee had failed to properly clean up the spilled wax or to warn customers and other employees about the spill. The employer was also shown to be negligent because the employer did not administer any employee training regarding floor spills, even though the employer knew that there would be candles present at the workplace that could spill wax.
Because of the employee and their employer’s negligence, our client suffered an aggravation of her preexisting back condition. Specifically, the accident aggravated her disc herniation at L5-S1, such that she required three surgeries to treat it. First, she underwent a L5-S1 microdiscectomy and two transforaminal epidural injections, but post-operatively, MRIs revealed that the herniation was still present. Then, the client underwent a lumbar transforaminal interbody fusion with complete facetectomy and discectomy, with the insertion of an intervertebral titanium cage and posterior spinal instrumentation with arthrodesis. She had to undergo surgery again to remove the L1 screw, because it was pressing onto a nerve root and causing her discomfort. Throughout treatment, she attended several months of physical therapy.
Insurance companies and their lawyers often try to defend a personal injury case by arguing that the injured person had a prior injury, condition, or accident-related degeneration. An experienced personal injury lawyer will ask the Judge to tell the jury that they should not consider a prior injury or a prior personal injury claim/settlement. The Judge will tell the jury in its “jury charge” the following:
8.11 DAMAGES CHARGES—General
- AGGRAVATION OF THE PREEXISTING DISABILITY
In this case, evidence has been presented that [plaintiff] had an illness/injury(ies)/condition before the accident/incident—that is [describe the alleged preexisting injury]. I will refer to this condition as the preexisting injury. There are different rules for awarding damages depending on whether the preexisting injury was or was not causing plaintiff any harm or symptoms at the time of this accident.
Obviously, the defendants in this case are not responsible for any preexisting injury of [plaintiff]. As a result, you may not award any money in this case for damages attributable solely to any preexisting illness/injury(ies)/condition.
I will now explain what happens if the [plaintiff] was experiencing symptoms of the preexisting condition at the time of the accident. If the injuries sustained in this accident aggravated or made [plaintiff’s] preexisting injury more severe, then the [plaintiff] may recover for any damages sustained due to an aggravation or worsening of a preexisting illness/injury(ies)/condition but only to the extent of that aggravation. Plaintiff has the burden of proving what portion of his/her condition is due to his/her injuries attributable to the accident.
If you find that [plaintiff’s] preexisting illness/injury(ies)/condition was not causing him/her any harm or symptoms at the time of the accident, but that the preexisting condition combined with injuries incurred in the accident to cause him/her damage, then [plaintiff] is entitled to recover for the full extent of the damages he/she sustained.
I will now explain what happens if [plaintiff] had a predisposition or weakness which was causing no symptoms or problems before the accident but made him/her more susceptible to the kind of medical problems he/she claims in this case. If the injuries sustained in this accident combined with that predisposition to create the plaintiff’s medical condition, then plaintiff is entitled to recover for all of the damages sustained due to that condition. You must not speculate that an individual without such predisposition or latent condition would have experienced less pain, suffering, disability and impairment”.
Our client’s quality of life drastically diminished following the accident, as she continues to live with chronic lower back pain. She can no longer work as a make-up artist nor coach her daughter’s softball and soccer teams because she cannot stand or drive for long periods of time. Our client continues to struggle with tasks that were once part of her daily routine, such as grocery shopping and dressing herself in the morning.
Although the client is not able to resume life as it was before the accident, Davis, Saperstein & Salomon, P.C. partners Garry R. Salomon and Adam B. Lederman fought for her to receive proper compensation and secured her a $725,000 settlement.
Settlements are often limited by the total available insurance coverage. Insurance company adjusters and their lawyers often defend cases by claiming that a client was negligent and could have avoided being injured by arguing comparative negligence on the part of an injured client; or that their pain and suffering was caused by pre-existing medical conditions or prior injuries. Despite those defenses, the Davis, Saperstein & Salomon, PC lawyers won their client’s injury claim. Each client’s case is unique. Results may differ because of different facts, circumstances and available insurance coverage.
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Disc herniation: An extension of disc tissue past the edge of the vertebrae.
Microdiscectomy: A surgical procedure that removes disc material from the affected vertebrae area.
Epidural injection: The injection of anti-inflammatory medicine into the epidural space in the spine.
Lumbar transforaminal interbody fusion: A surgical procedure that aims to fuse together the affected lumbar spine using tools like a titanium cage.