Articles Posted in Construction Accident Injury

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In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiffs. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. Summary judgment is rarely appropriate in a negligence action because the issue of whether a plaintiff or defendant acted reasonably under the circumstance could rarely be resolved as a matter of law.

If it cannot be determined who the parties are who owed a duty to the plaintiff and what the defendants’ respective roles and responsibilities were, no determination as to negligence can be made based upon the evidentiary submissions and adduced testimonies.

Labor Law §200 provides in pertinent part that “All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places…. (Trbaci v AJS Construction Project Management, Inc, et al, 2009 NY Slip Op 50153U; 22 Misc3d 1116A [Supreme Court of New York, Kings County 2009). “New York State Labor Law §200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 880 NYS2d 227 [2000]). In order to prevail on a claim under Labor law §200, a plaintiff is required to establish that a defendant exercised some supervisory control over the operation (Mendoza v Cornwall Hill Estates, Inc., 199 AD2d 368, 605 NYS2d 308 [2nd Dept 1993]). Labor Law §200 governs general safety in the workplace, imposes upon employers, owners, and contractors the affirmative duty to exercise reasonable care to provide and maintain a safe place to work and is a reiteration of common-law negligence standards. Therefore, a Staten Island party charged with liability must be shown to have notice, actual or constructive, of the unsafe condition and to exercise sufficient control over the work being performed to correct or avoid the unsafe condition (Leon v J&M Pepe Realty Corp. et al, 190 Ad2d 400, 596 NYS2d 380 [1st Dept 1993]).

New York State Labor Law §240. Scaffolding and other devices for use of employees at section (1) provides “[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

“New York State Labor Law §240 (1) is applicable to work performed at heights or where work itself involves risks related to differentials in elevation”. Labor Law §240 (1) was enacted to “prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person, Labor Law §240 is intended to protect workers from gravity-related occurrences stemming from the inadequacy or absence of enumerated safety devices. The duties articulated in §240 are nondelegable, and liability is absolute as to the general contractor or owner when its breach of the statute proximately causes spinal injury.

The injury claimed to have been sustained by the plaintiff did not arise out of the effects of gravity within the meaning of Labor Law §240 and it is not alleged that something fell or that the plaintiff was working on an elevated work height when he fell (see, Auchampaugh v Syracuse University et al, 57 AD3d 1291 [3 rd Dept 2008]. In Masullo etal v City of New York, 253 AD2d 541, 677 NYS2d 162 [2nd Dept 1998], it was determined that falling into a manhole is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor law 240(1); to the contrary, it is the type of ordinary and usual peril a worker is commonly exposed to at a construction site. Section 240(1) is applicable to work performed at heights or where the work itself involves risks related to differentials in elevation. It is determined as a matter of law that the cause of action premised upon the violation of Labor Law §240 is not contemplated within the meaning of the statute as although this incident occurred while the plaintiff was walking on the ground at the worksite, there was no gravity related event wherein the plaintiff was working at an elevated height giving rise to application of Labor Law §240 to the facts in this action. It is determined that this is an usual and ordinary danger of a construction site rather than a special elevation-related hazard within the meaning of Labor Law §240.

Accordingly, the cause of action premised upon the defendants’ alleged violation of Labor Law §240(1) is dismissed as a matter of law as asserted against all the defendants.
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Claimant was employed as a housekeeper at a Mental Health Center. She held the job for approximately three years until she was injured on 27 January 1993. While at work and engaged in the duties of her job on the premises of her employer, claimant suffered a knee injury. She squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. It turns out that she sustained a tear of the lateral meniscus in that knee. Thereafter, the Judge of Compensation Claims ruled that the injury was idiopathic and not compensable because the claimant failed to prove that her employment involved an exertion greater than that performed during her daily life. The Suffolk Judge issued a worker’s compensation order denying compensation. According to the order, the claimant did not fall, twist, lose her balance or experience any other unusual movement, and the claimant’s injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed. The claimant then filed an appeal from the said order.
Under the law, for an injury to be compensable it must arise out of one’s employment and must occur in the course and scope of that employment. Here, the employer and carrier have conceded that the spinal injury to the claimant occurred in the course and scope of her employment, while performing her job duties on the employer’s premises. The question now is whether the injury arose out of the claimant’s employment.

As a rule, an unexpected injury sustained during the ordinary performance of one’s duties in the usual manner is a compensable accident and it is not necessary for the claimant to demonstrate that there was a slip and fall accident or other mishap. The term “accident” includes an internal failure such as a ruptured disc or a snapped knee cap. Here, the court finds that it was sufficient for the claimant to prove that her spinal injury occurred in the period of her employment and at a place where she would reasonably be, while fulfilling her duties, to establish that her accident arose out of, and occurred in the course and scope of her employment,. The “arising out of” prong of this test is satisfied by evidence that the injury originated in some work connected with the employment, that is, the claimant must show that his injury can be attributed to some event or circumstances connected with his work. Based on the facts and evidence presented, the claimant has done this. Staten Island Claimant produced evidence that she was squatting to pick up a bag of laundry which is one of her job duties.

On another note, when the employer and carrier assert that an injury is the result of a personal risk such as an idiopathic preexisting condition, they must carry the burden of proving the existence of such a condition. Only if the employer and carrier have satisfied that burden of proof is it appropriate for the JCC to hold the claimant to the more stringent standard for compensability which was erroneously applied by the JCC, to establish that the employment exposed the claimant to a risk of injury greater than that the employee would normally encounter in non-employment life. However, if the employee has no prior weakness or disease, any exertion connected with employment and causally connected with the injury as a medical fact is adequate to satisfy the legal test of causation. Here, there was no evidence to support the conclusion that the claimant’s injury was the result of a preexisting condition. There was only one medical expert, presented before the court, who offered evidence relevant to this issue. According to the expert, some older women, over 45 or 50, in express and direct contrast to the 28 year old claimant, may experience meniscal tears simply upon squatting, however, he specifically refuted any suggestion of an abnormality in the claimant’s knee or any knowledge of a preexisting injury. Thus, in the absence of any evidence which could support a finding that there was a preexisting abnormality, the court concludes that the Judge of Compensation Claims erred in ruling that this injury was not compensable.

In view of the foregoing, the court finds that the order must be reversed and remanded for further proceedings. The Judge of Compensation Claims applied the wrong test for determining compensability.
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Claimant, 49 years of age, worked in various positions at the employer’s saw mill, most recently as a millwright. Every position he held during his 24-year career involved arduous physical labor, including heavy lifting on a daily basis. Sometime in March 1998, claimant began experiencing pain in his hip and leg. He did not identify any specific incident that caused the pain, but pointed to a number of his job duties that involved heavy physical labor. According to the Queens claimant, the pain developed gradually. After learning from his family physician that the pain related to a back condition or back injury, claimant sought compensation benefits. The employer and carrier or E/C completely denied the claim, including the request for a medical treatment. On 29 April 1998, claimant came under the care of doctor-A, who is an orthopedic surgeon, who placed him on a no-work status. After testing, physical therapy, and consultation with another doctor, doctor-B who is a neurosurgeon, doctor-A diagnosed lateral recess stenosis with degenerative disk disease and L3-4 herniated disk. Thus, claimant filed a claim under the worker’s compensation for compensation benefits. Thereafter, the judge of compensation claims or the JCC, in resolving the claim for compensation benefits, found the stenosis compensable under a repetitive trauma theory based on claimant’s and doctor-A’s testimony, and concluded that claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years ca
There are two issues raised by the E/C on appeal, viz: first, that the judge of compensation claims (JCC) erred in deciding that claimant provided timely notice of his work injury; and, second, that claimant suffered a compensable accident under a repeated trauma theory. On the second issue, E/C contends that the only competent, substantial evidence (CSE) established that claimant’s non-compensable herniated disk combined with his preexisting lateral recess stenosis to cause his disability and need for treatment, and no evidence was presented that the employment was the major contributing cause of same.

The court finds that CSE supports the JCC’s determination of the first issue. And, on the second issue, after applying the limited standard of review of CSE, the court finds it proper but not for all of the reasons mentioned. First, there was no burden on claimant to prove that the stenosis was the major contributing cause of the disability. The stenosis is not a preexisting condition and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment. Second, a combination of the evidence, both lay and medical, supports the JCC’s determination that the employment caused claimant’s disability and need for treatment.

The instant case is not a case in which a compensable injury is combined with a preexisting condition to cause or prolong a disability. It is true that claimant’s spinal stenosis or spinal injury preexisted claimant’s disability. However, this does not mean that it was actually a preexisting condition. Historically, this expression has been defined to mean something that is personal to the employee, an idiopathic condition which the worker brings to the workplace, that is, a condition or disease which exists independently of any employment contribution, although it may be later aggravated or accelerated by the employment. Here, it cannot be simply concluded from the evidence that the stenosis, which is itself the compensable injury, combined with a preexisting condition to cause or prolong disability or need for treatment. Moreover, the evidence shows that there was only one cause, rather than multiple causes, for claimant’s disability. The record before the court discloses, and the JCC implicitly found by granting benefits, that the employment-related injury was the only cause of claimant’s disability. Because there was only one cause, the burden imposed by the elevated major-contributing-cause standard is inapplicable. Although it is true that the JCC found that the major contributing cause of claimant’s stenosis was the repetitive work activity, this finding was unnecessary, because it implies that more than one cause combined to bring about the disability. As to the herniated disk, which the E/C claims joined with the preexisting spinal stenosis or spinal injury to cause the disability, the JCC essentially rejected doctor-A’s testimony that it was a contributing cause, finding instead that the hypothetical facts on which the Manhattan physician based his opinion were not supported by the trial testimony. Nonetheless, this finding has not been challenged on appeal. Thus, the court cannot review the soundness of its ruling. Additionally, it is unclear from the record when the herniated disk occurred. It could have taken place in September or October 1997, when claimant first sought medical care for back pain or back injury. The absence of proof as to its occurrence may have motivated the JCC to conclude that the disk herniation was not a cause of the disability arising in March 1998.

The question now is whether CSE supports the JCC’s causation determination. In answering this question, it is necessary to identify the appropriate causation test. As the law provides, to establish compensability, a claimant must demonstrate that he or she suffered an accidental injury arising out of work performed in the course and the scope of employment. To show that an injury arises out of work in a repetitive trauma case, the claimant is required to prove a prolonged exposure to a condition or activity, the cumulative effect of which is injury or aggravation of a preexisting condition, and that claimant has thereby been subjected to a hazard greater than that to which the general public is exposed. Alternatively, the claimant must show a series of occurrences, the cumulative effect of which is injury. Causation can be established through lay and medical testimony.

Here, claimant’s injury, specifically, spinal stenosis or spinal injury, is a classic example of a repeated trauma injury, one which is an exception to the ordinary situation involving injury by accident, where both the cause and the result are sudden. In the typical repetitive trauma model, the disabling condition is one that gradually arises over a protracted period of time, often years, as in the present case. Under this theory, each bump, scratch, strain, jar, irritation, noise, etc., is regarded as an accidental occurrence. Compensation is awarded due to the cumulative effect of a long series of such occurrences leading to the disability or need for treatment. It is clear in the case at bar that the lay and medical evidence supports the JCC’s finding that repetitive trauma arising from claimant’s work activity caused his disability. It must be noted that claimant first went to work at the employer’s saw mill during his early twenties when he was symptom-free; that he consistently performed heavy, manual labor over the course of his 24-year employment at the mill; and that he repeatedly pulled chains weighing 40 pounds, moved logs that were 12 inches in diameter and 20 feet long, stacked lumber in piles and moved them, lifted 50-gallon drums of oil, carried oxygen and acetone bottles weighing up to 60 pounds, pulled levers and cables that were the equivalent of 40 pounds, replaced saws, collars, chipper knives, and edging knives, all of which were heavy, and shoved heavy 200-horsepower motors across metal floors. There was no evidence presented that claimant had ever suffered any disabling condition before the compensable injury in question. Thus, basing on the activities which claimant was required to perform during his employment, the repetitive trauma elements of prolonged exposure and a greater hazard than that to which the general public is exposed has been complied with, along with the alternative test regarding the cumulative effect of the repetitive activities.

The rule has long been established that the resolution of causation issues is within the exclusive province of the judiciary and not the medical profession, and may be reached using a combination of medical and lay evidence. Lay testimony is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant. The requirement of presentation of medical evidence in situations involving non-observable injuries has not been overruled. The court has not read the ruling in the case of Closet Maid as overruling such requirement. In that case, the back injury which claimant suffered could be only recognized by a medical diagnosis. The court does find any basis for a reference to the medical testimony presented in Closet Maid, which seems to imply that spinal stenosis is invariably a preexisting, non-work-related condition. However, the facts in Closet Maid show that it was tried under a different theory from that of repetitive trauma. There, the claimant’s disabling condition and need for treatment followed a specific industrial accident, and the medical evidence identified claimant’s spinal stenosis as a personal, preexisting condition, and thus requiring an application of the major-contributing-cause-standard; also, a professor addressed the comparable problem of proving the compensability of heart-related conditions in the absence of evidence that there was a prior history of heart disease saying, that although there is no evidence in the record of a heart disease, that fact will be supplied by judicial notice, because the preponderance of medical theory holds that the worker must have had a preexisting heart disease, but, that this may actually contradict the record, which may contain undisputed testimony that the man was healthy and had no previous history of a heart disease. The legal answer is that the determination of preexisting heart disease is one of medical fact in the particular case. In addition, if another cause unrelated to the workplace existed in the record, this would warrant a reversal of the order but such is not the case. The somewhat unique nature of repetitive trauma injuries, in which, as stated, the disabling condition does not immediately arise following a single incident, but gradually occurs following a cumulative series of incidents over an extended time frame cannot be disregarded.

In sum, the court has a limited standard of review. The court’s function is only to review whether the record contains competent and substantial evidence to support the JCC’s decision, pursuant to the rules and the law. The court does not have the power and authority to assess whether it is possible to recite contradictory record evidence which supports an argument rejected in a lower forum; neither will the court retry the case and substitute its judgment for that of the JCC on factual matters supported by CSE. As a rule, a judge’s findings will be sustained if any view of the evidence and its permissible inferences will permit it. Although one might, in contravention of the court’s long-established review standards, refer to contradictory evidence in isolated portions of the record, a JCC’s determination of causation depends on the substance of all of the evidence, rather than on whether a medical witness’s testimony explicitly tracks the particular statutory language. Thus, since there is actually a competent and substantial evidence to support the JCC’s finding that repetitive trauma from claimant’s work activity caused his stenosis, and that the stenosis in turn resulted in the disability and/or need for treatment arising in March 1998, the court finds that the worker’s compensation order appealed from must be affirmed.
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This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a Bronx laborer for a Brooklyn construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.
The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

The man opposes the motion for summary judgment, arguing that the proof submitted by the woman fails to establish legitimately that he did not suffer a significant limitation of use in his lumbar spine as a result of the subject accident. Alternatively, the man asserts that medical evidence presented in opposition raises a triable issue of fact as to whether he sustained injury within the significant limitation of use category of Insurance Law. The Court notes that although the affirmation by the man’s counsel states that a denial of benefits statement from the no-fault carrier, the insurance company was included with the opposition papers, no such statement was annexed thereto. In addition, while an affidavit by the man states that he treated with a doctor until September 2005, the doctor’s affidavit states that the man ceased treatment in July 2005, because of financial constraints.

Insurance Law defines serious injury as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. When an accused seeking summary judgment based on the lack of serious injury relies on the findings of the accused party’s own witnesses, those findings must be in admissible form, and not unsworn reports to demonstrate entitlement to judgment as a matter of law. An accused also may establish entitlement to summary judgment using the complainant’s deposition testimony and medical reports and records prepared by the complainant’s own physicians. Once an accused meets the burden, the complainant must present proof in admissible form which creates a material issue of fact, or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form. However, if an accused does not establish a legitimate case that the complainant’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the complainant’s opposition papers.

Contrary to the conclusive assertions by the man’s counsel, the medical evidence presented by woman establishes legitimately that the man did not suffer a serious injury as a result of the accident. The Court notes that an accused who submits admissible proof that a complainant has full range of motion and suffers no disabilities as a result of the subject accident establishes a legitimate case that the complainant did not sustain a serious injury, despite the existence of an MRI report showing a herniated or bulging disc. The burden, therefore, shifted to the man to raise a triable issue of fact.

A complainant claiming injury within the limitation of use categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitations of movement and their duration. He or she must present medical proof contemporaneous with the accident showing the initial restrictions in movement or an explanation for its omission, as well as objective medical findings of limitations that are based on a recent examination of the complainant. In addition, a complainant claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so.

The man’s submissions in opposition are insufficient to raise a triable issue of fact. The affidavit by the man’s doctor improperly relies on unsworn reports of others in concluding that the man suffered significant limitations in spinal function as a result of the accident. Further, the man’s doctor’s affidavit states that on February 22, 2005, the man was sent for spinal rave of motion testing using a dual inclinometer and details the degrees of movement measured at that time. It states that range of motion testing using a dual inclinometer was performed again in March 2005 and provides the measurements taken, yet does not indicate who performed such testing. The doctor’s affidavit, therefore, is without probative value on the question of whether the man suffered a serious injury in the accident.

Moreover, the man failed to present competent medical proof contemporaneous with the accident showing significant limitations in spinal movement and the duration of such limitations. He also failed to provide evidence substantiating his allegations that he was forced to cease medical care just months after the accident, because his no fault benefits were terminated and he lacked the financial means to pay for such care. Finally, absent objective medical proof as to the significance or duration of the alleged spinal injuries, the man’s self-serving affidavit, which contains allegations of continued lower back pain and restricted movement, is insufficient to defeat summary judgment. Accordingly, summary judgment dismissing the complaint based on the man’s failure to meet the serious injury threshold is granted.
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The Hudson Bridge in New York was being repaired. The Bridge and Tunnel Authority, the owner of the Hudson Bridge hired a general contractor to do the repairs. The general contractor hired a subcontractor. Under the subcontract, the subcontractor was supposed to obtain insurance in behalf of the bridge owner and the general contractor. The insurance policy of the subcontractor was supposed to cover all expenses for personal injury suits that may arise from the time that the subcontractor was doing repair work under the subcontract.
On August 11, 2003, a male employee of the subcontractor slipped and fell on a makeshift inclined ramp that led from the worksite to the temporary office also at the construction site. The employee of the subcontractor sustained serious spinal injury. His slip and fall resulted in herniated discs of his cervical and lumbar spine and an impinged nerve on the spine. The employee was confined to his home for one month after the accident. He was ordered to rest in bed for five months from September 2004 until February 2004. The employee needed spinal fusion surgery to fully recover from his injuries.

He filed a damage suit under common law negligence and under labor law. He sued the owner of the Hudson Bridge and the general contractor. The man did not include in his damage suit his own employer, the subcontractor. The man claimed for lost earnings and for future loss of earnings due to the spinal injury he sustained. No notice was given by any of the parties to the insurer of the subcontractor until two years had passed from the time that the suit was filed by the employee of the subcontractor.

Notice was finally given to the subcontractor’s excess insurer when the parties were negotiating a settlement of the employee’s claims. The Long Island employee agreed to settle his case in consideration of the payment of $5,500,000.00. The primary insurer of the owner of the Hudson Bridge and the owner, the primary insurer of the general contractor and the general contractor all pitched in to raise the amount to settle the employee’s case. But they were still short of funds. They then asked the excess insurer to cover the rest of the amount. The excess insurer then asked the excess insurer of the subcontractor to contribute its share towards the settlement of the employee’s claims.

The primary insurer of the subcontractor from Staten Island refused to honor the claim on the ground that they were informed of the claim two years after the employee had filed the claim. The primary insurer of the subcontractor refused the claim on the ground that the lateness of the information regarding the claim deprived them of their right to investigate the claim and to assess their proportionate exposure and liability to pay the claim.

This action was brought by the primary insurer of the owner of the Hudson Bridge and the primary insurer of the general contractor to claim payment from the primary insurer of the subcontractor its share. The primary insurers of the owner and general contractor argue that under the insurance contract, the written notice must be given as soon as practicable. The necessity of asking for a contribution from the excess insurer did not arise until the parties had arrived at a price for the negotiated settlement and the liabilities of the insurers had been calculated. Only then did it become obvious that the excess insurers would also need to contribute a share. They also claim that even after written notice was given to the excess insurer of the subcontractor, the excess insurer did not notify them that the claim would be denied by the excess insurer.

The question then to be resolved is: when is it reasonably necessary for the excess insurer to be informed? The Court held that the excess insurer must be informed at the time that the insured first learned of the accident or when the insured first learns of the grounds for disclaiming liability or denying coverage. While it may be true that the notice of claim given to the excess insurer was given late, the excess insurer’s denial of coverage is ineffective because it did not communicate it y to denial of coverage as soon as reasonable possible. That is to say, even the excess insurer was guilty of having given late notice to the insured.
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Spinal injuries can cause problems that increase over the years from the date of injury. An injury that may not seem too severe at the time of injury can actually become much worse as the years go by. An injured spine is more likely to show signs of degenerative disc disease than one that has not been damaged. When a spinal injury occurs at work, it is especially important to document that injury and have it treated immediately to reduce the effects that the personal injury of the spine will have on ones later years. If a person delays too long in filing an application to receive disability benefits on the basis of a spinal injury, they may be denied. The reason for the inability to file a late claim on a spinal injury can be related to the inability to show a direct correlation to the original injury.

When a spine is injured, arthritis and other degeneration of the bone and cartilage of the spine may concentrate in the area of a prior injury. However, it is not possible to determine if the additional degeneration of the spine is associated with normal aging, or has been made worse by the previous injury. One case of this nature was when a Nassau County Police Officer filed a petition on May 5, 1972 with the New York State Policemen’s and Firemen’s Retirement System.

He claimed that six years previous to the application, he had been injured while attempting to carry an injured man on a stretcher from an apartment building. He claimed that his back struck an elevator door where he was compressed between the door and the stretcher. He stated that he sustained an injury to his spine that included a possible injury to the discs. Six years later, he filed his request for total disability associated with the injury from the accident. He claimed that the result of the accident was that he was not able to perform the duties related to being a patrolman on the police force.

The court required that medical evidence be presented that would demonstrate that the officer has sustained a severe and permanent injury that had resulted in his total disability or partial disability. The Retirement System required that the officer be examined by a neurologist and a psychiatrist provided by the state. The doctor filed his results of the examination. He claimed that the tests that he performed on the officer demonstrated that the officer was not severely injured at all. In fact, the doctor pronounces that he did not sustain a herniation injury to the disc and that he would be able to return to his normal police duties with no disability at all.

The officer brought in his own experts. He brought forward the police surgeon who was responsible for the health of all of the members of the police department. He examined the officer immediately following his injury which he had records of happening on April 4, 1966. He stated at the time that he thought that the officer had sustained a herniation injury to a spinal disc. He stated that he had referred the officer to an orthopedic specialist for continued treatment. He stated that he did not believe that the officer was fit to continue work as a frontline police officer in New York. He also testified that the officer’s current disc problems were causally related to the original accident in 1966. However, the other medical experts who the officer brought forward to support his claim stated that they thought that the officer was injured and that it was a spinal injury, however, none of them were willing to state that the officer was permanently disabled. His claim was denied.
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On August 1, 2005, a Manhattan manual laborer was working on a construction site that was being operated on a military base. The objective of the construction was to renovate some military housing buildings that were run down. In order to renovate the buildings, the construction crew had to first remove all of the kitchen and bathroom appliances that were inside each of the units in the multi-unit buildings. The construction crew had a dumpster located outside of the buildings on the street that was available for them to put the debris from the renovation into. The Long Island construction team had been working in one of the buildings for several days and the manual laborer was tasked with the job of transporting the debris from inside the building out to the dumpster on the curb.

On that morning, the crew had filled one of the dumpsters and needed an additional empty one moved from farther down the street up to where the work was being done. The site supervisor instructed the laborer to get the dumpster and move it up. The dumpster was about to be moved when another construction contractor pulled a truck up in front of it. The site supervisor instructed the manual laborer to tell the driver of the truck to move the truck so that they could get to the dumpster. The laborer followed the instructions that he was given and then stepped backward away from the truck so that he could signal to the truck driver where to park. As he walked backward, he stepped on the top of a manhole cover. The cover was not properly in place and tilted up causing the man to fall into the manhole. He sustained several severe injuries as a result of this workplace accident. He contends that he suffered from severe spinal injuryas well as leg impairment.

He had to have several surgical procedures on his spine over the following year including bone grafts and fusions of his spine. He filed a personal injury lawsuit against both companies and the property owner because he contends that they were negligent in allowing the manhole cover to not be securely in place. In this case, there was no argument that the man sustained serious injury as defined by the Insurance Laws of New York. The problem for the court in this case was determining who was responsible for the spinal injury that the man had suffered that left him disabled and unable to work.

In order to determine who was at fault for the accident, the court must determine who left the manhole cover unsecured and who was responsible to ensure the safety of the construction site. The problem was that no one seemed to know who had left the top ajar on the manhole. The manhole housed the water main cut off for the building, so it seemed logical that whoever had been told to turn off the water to the building prior to the removal of the water fixtures would have been responsible. The problem is that two different companies had been charged with that action. One of the companies, the one that the construction worker was employed by had discovered that this building, unlike all of the other buildings, had a water main cut off in the basement of the building. However, the other company had explored all of the manholes in an effort to locate all of the water main cutoffs. There was another employee who was charged with the safety on the site and he stated that he had checked the manhole covers and had not noticed that any of them were ajar. The court determined that the questions in this case were such that a jury would have to determine the degree of liability associated with each company.
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Europe’s second-largest oil company, BP Plc., settled one of the five cases set to go to trial last September on the day the trial was to start. The case concerns an explosion that occurred at its Texas Refinery in 2005.

The two sons of a 26-year-old man who killed himself about six weeks after the explosion, settled with the corporation the night before trial was to start. The settlement was for an undisclosed amount, both sides said. That leaves four claims for the first trial.
The March 2005 blast killed 15 and injured hundreds with spinal injury.

Based in London, BP had managed to avoid earlier trials by settling about 1,350 of the more than 3,000 claims from a $1.6 billion fund that was created just for that purpose. The company admits the explosion was its fault and yet at the same time denied responsibility for all the spinal injuries.

Apparently, a doctor said BP raised its settlement offer the night before trial, and the family wanted to agree to those increased terms. “We would have liked to have taken it to verdict, but we chose security for the boys,” the family’s attorney said in an interview. “The amount will secure them financially for their future, although it will not replace their father.”

A spokesman for BP confirmed that the company settled with the family. “That’s what we have been working towards since the event,” he said in another interview. “We hope to take care of all the people affected by this tragic event.”

The boys’ father, who worked for a contractor, lost his job when the refinery shut down after the explosion. Depression caused the man to shoot himself in the head six weeks later. The explosion, and subsequent layoff, is said to have caused the depression. His two sons are 11-years-old and 6-years-old.

The company settled many of the claims brought by the families of all those who were killed in the explosion as well as the most grievously injured workers. Companies in Nassau and Suffolk try to handle situations like this one in a class manner. Construction sites are often the places in which accidents like this happen.
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An electrical company based in Hertfordshire has been fined £120,000 after a man was knocked from a scissor lift and left paralyzed.
The attending HSE’s (Health and Safety Executive) Inspector said “The fine reflects the seriousness of the omissions by this company. Skanska Rashleigh Weatherfoil Ltd employed people to do highly hazardous work and yet failed to take the appropriate steps to ensure their safety.” The HSE (Health and Safety Executive) prosecuted Skanska Rashleigh Weatherfoil Ltd after the incident which happened on the 25 January 2007 at the Manor Royal Industrial Park in Crawley. Companies in the Bronx and Brooklyn are watching this case.
Lewes Crown Court was told that the company had been subcontracted to design and build the mechanical and electrical systems in a number of new buildings. A cable installer from Hartlepool was working in a scissor lift with two colleagues tying cables into overhead trays when they collapsed, knocking the man out of the lift and causing him to fall 8m to the floor below. According to a New York Spinal Injury Lawyer, the contractor suffered severe spinal injuries and is now paralyzed from the waist down.
The HSE told the court that Skanska Rashleigh Weatherfoil Ltd had failed to ensure the safety of its employees while carrying out the installation of the cable tray systems.
Skanska Rashleigh Weatherfoil Ltd admitted breaching section 2(1) and 3(1) of the Health and Safety at Work Act 1974 and was fined a total of £120,000 with court costs of £81,927.
After the hearing, a New York Spinal Injury Attorney quoted the HSE representative as saying, “This tragic incident would have been avoided if the company had ensured all parts of the cable tray system had been properly designed and installed, including how it was attached to the building. During installation, when components were failing or showing signs of failure, Skanska took no action. When construction work is subcontracted, whether it’s design or installation work, it is essential companies have adequate systems in place to manage this effectively. It is essential that employers consider all aspects of difficult and dangerous work; health and safety is not just a phrase, it is a considered approach to protecting people in the workplace.”
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There are around 12,000 new cases of spinal cord injury every year in the United States. There are about 300,000 patients who are still living with the neurological aftereffects of spinal injury.
Post-injury treatments for such injuries generally focus upon the treatment of complications like pain and urinary tract infections. There are promising new approaches, however, that focus upon regeneration and cell therapy. Early clinical reports using various types of cells have shown some improvement in spinal injury victims. Many of these injuries are caused by construction accidents in New York City and Queens.
New York Spinal Injury Lawyers have been looking into the implications of these procedures, studying selected preclinical and clinical interventions. There have already been attempts at a combination approach, using a number of different cells, as well as a case study which showed promising results. These types of therapy may very well be the wave of the future.
Nerve damage is common in cases of spinal cord injury, both due to the injury itself and due to the inflammation caused by the injury. The spine is other struck, compressed, or stretched, causing severe nerve damage, which can lead to loss of motor ability and/or sensation. The use of umbilical cord blood stem cells has shown improvements in testing on rats, which is a good sign for future therapies on human beings. New York Spinal Injury Lawyers are looking very hopefully at such procedures, hoping they will lead toward true regenerative processes some time in the not-too-distant future.
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