A sample arbitration submission. This claim arises out of a car accident. The claimant had sustained serious personal injuries, but the insurance coverage on the other car was only $25,000. After collecting the maximum amount from the other car policy, the claimant here sought additional money from the supplemental coverage provided by his own insurance policy. The arbitration packet below was submitted to the judge presiding over the supplemental coverage arbitration.
AMERICAN ARBITRATION ASSOCIATION
UNDER INSURED MOTORIST FORUM
GEICO INSURANCE COMPANY,
The claimant in this case, Devin Donovan, seeks fair and reasonable compensation for his serious personal injuries sustained in motor vehicle accident on March 20, 2004 with an under-insured vehicle. The offending vehicle tendered the full policy limits: $25,000. Claimant now seeks compensation from his contract of supplementary under insured motorist insurance with respondent Geico Insurance. The SUM insurance limit is $100,000. Claimant now seeks the balance of that contract limit: i.e., $75,000.
The following Exhibits are attached:
Exhibit “1” -Police accident report (D/A 3-20-04) and supplemental accident report. At the police precinct, while reporting the hit and run collision, claimant was treated by Ambulance personnel.
Exhibit “2” -Narrative Reports of orthopedic surgeon Alan Zuckerman, M.D. Initial report establishes a fracture of the right medial malleolus, cervicalgia, lumbago, and a chip fracture of the distal clavicle on the left side. Narrative notes that patient was a diabetic and he was given an aircast. Additional treatment records or narrative reports dated May 3, 2004, May 11, 2004, July 10, 2004, June 18, 2005, April 11, 2006 and May 4, 2006.
Exhibit “3” -Narrative Report of Respondent’s physician, Dr. Richard A. Nolan, dated June 27, 2005, submitted to Arbitration by Respondent (Exhibit “A”). Narrative acknowledges “there is a causal link between the accident of March 20, 2004, and his neck pain and right malleolus fracture” (page 5).
Exhibit “4” -Article from University of Medicine and Dentistry of New Jersey, Dated Fall 2004, entitled “Impaired Bone Healing in Patients with Diabetes Mellitis” by Sanford S. Sanders. The article notes: “The effects of diabetes upon fracture healing have been well documented with increased healing time (2-3 times the normal rate) and concomitant increased complications (delayed union, non-union, etc.) (page 18).
Exhibit “5” – Internist examination conducted by Ping Chan, M.D. on April 26, 2004 (noting cervical spine strain with radiculitis; thoracic spine strain with radiculitis, lumbar spine strain with radiculitis; left shoulder sprain; right ankle sprain and headaches).
Exhibit “6” – Medical consultation performed by Dr. Gelfand on April 27, 2004 (requiring Mr. Donovan to remain in New York City and not return to Virginia).
Exhibit “7” – Psychotherapy Sessions with Douglas G. Fisher, Ph.D. on May 10, 2004 and May 15, 2004.
Exhibit “8” – Podiatric examinations conducted by Vincent A. Silverman, DPM, FACFAOM on August 10, 2011, August 20, 2011 and August 31, 2011 (noted current discomfort results from adhesive extensor tendonitis right foot secondary to chronic injury of medial malleolus from approximately 7 years ago).
Supplementing Exhibit “8” – with the following additional material: additional Podiatric examinations conducted by Vincent A. Silverman, DPM, FACFAOM on August 10, 2011, August 20, 2011 and August 31, 2011, January 10, 2011, January 11, 2011 (noting dorsal anterior ankle region adhesive extensor tendonitis right foot secondary to chronic injury of medial malleolus from approximately 7 years ago; administered corticosteroid injection to the area where the fracture was at the ankle region; prescription for orthotics).
Also, Spectrum Physical Therapy treatments on August 31, 2011, January 10, 2011, and January 12, 2011
Exhibit “9” – Neurology exam conducted by Douglas G. Weiner, M.D. on May 25, 2004 (noting cervical radiculopathy; lumbosacral radiculopathy; right ankle fracture; left shoulder fracture and post-traumatic headaches).
Exhibit “10” – MRI of the cervical spine conducted by Richard Adelson, M.D. on May 3, 2004 (showing cervical bulging discs).
Exhibit “11” – MRI of the lumbar spine conducted by Corey H. Traub, M.D. on June 13, 2005 (showing lumbosacral trace disc bulging).
Exhibit “12”– HealthSouth Spinal Evaluation and Treatment conducted in Virginia Beach, VA on June 5, 2004, June 6, 2004, June 20, 2004, June 27, 2004, June 29, 2004, July 6, 2004, and July 25, 2004.
Exhibit “13” – Physical Medicine and Rehabilitation examination conducted by Gabriel Ursuline, MD on May 5, 2004 (noting Impingement Syndrome of the left shoulder; painful left shoulder; cervicalgia; cervical strain/sprain; cervical herniated disc C3-C4 through C6-C7; and painful right ankle/foot, S/P fracture).
This accident occurred on March 20, 2004 on the FDR at or near the East 63rd Street exit in New York City, New York. Mr. Donovan, a resident of Virginia Beach, Virginia, who was visiting family at the time, was driving lawfully in his lane southbound on the FDR when he was struck by another driver traveling southbound who veered out of his lane. The second driver veered directly into Mr. Donovan causing an impact to Mr. Donovan’s vehicle. The second driver fled the scene. As a direct result of driver “2” hitting Mr. Donovan’s vehicle, serious damage was sustained by both Mr. Donovan and his vehicle. In spite of the fact that Mr. Donovan was wearing a seatbelt, the impact caused by the second driver was great enough that Mr. Donovan was thrown about the car repeatedly. Immediately thereafter he complained of pain in his back, neck, left shoulder as well as his right foot and right leg. (Exhibit “1”).
Mr. Donovan reported to the police station the following day, April 23, 2004. There, when questioned, he complained of serious pain. An ambulance was summoned to the police station and the medics examined Mr. Donovan.
Since Mr. Donovan’s pains only worsened, he sought out Dr. Ping Chan, M.D. (Exhibit “5”) Dr. Chan noted that Mr. Donovan was experiencing pain in his neck, middle back, lower back, left shoulder, right ankle and was experiencing headaches. Upon examination, Dr. Chan noted that there was tenderness on palpitation of the cervical spine with muscle spasm at C2-C5 and pain radiating down both upper extremities every time that Mr. Donovan flexed his neck. Upon further examination, Dr. Chan found tenderness on palpitation of the lumbar spine and thoracic spine area, with muscle spasm at T2 through T5 and L2 through L5. He also found that every time Mr. Donovan would flex his back, pain radiated down both his lower extremities. Dr. Chan also noted tenderness of the right ankle and limited range of motion as to the cervical spine, lumbosacral spine and left shoulder as well as right ankle area. He ordered x-rays and MRIs. He opined that Mr. Donovan was totally disabled and ordered physical therapy five times a week for four weeks. He also ordered consultation with a neurologist, orthopedist and physiatrist. He prescribed Naproxen.
On April 27, 2004 Dr. Gelfand (Exhibit “6”) saw Mr. Donovan and required this Virginia resident to remain in New York until he could establish the extent of his lumbar disc injuries.
Mr. Donovan next treated with Alan Zuckerman, M.D, P.C., F.A.O.S., F.A.C.O.S. on April 27, 2004. (Exhibit “2”). At that time Mr. Donovan complained of continuing back pain, neck pain, left shoulder pain as well as pain in his right foot and right leg. He gave a history indicating that he is a diabetic. Up to the time of the accident Mr. Donovan, with the exception of his diabetes, was in good health and had no previous complaints of pain. He had never been hospitalized. Dr. Zuckerman’s examination revealed tender cervical lumbar regions. His examination further revealed neck flexion of 45 degrees, extension 20 degrees, left/right bending 30 degrees, left/right bending 45 degrees, left right rotation 45 degrees. He found that Mr. Donovan has a tender distal clavicle left shoulder. He also found tender medial malleolus of the right ankle. Dr. Zuckerman reviewed various x-rays including those taken of the left shoulder indicating a fracture of the clavicle and x-rays taken of the right ankle also indicating a fracture. His diagnosis was injury to and fracture of the right medial malleolus, cervicalgia, lumbago, and fracture of the distal clavicle of the left side, both knees and the cervical and lumbar regions of the spine. Dr. Zuckerman opined that Mr. Donovan was totally disabled and that his limitations and functional disabilities were causally related to the aforementioned accident.
On May 3, 2004 an MRI of the cervical spine was performed by Richard Adelson, M.D. who diagnosed Mr. Donovan with C3-C4 through C6-C7 bulging discs. (Exhibit “10”).
On May 10, 2004, Mr. Donovan next treated with psychologist, Douglas G. Fisher, Ph.D. who noted that Mr. Donovan was suffering from stress and anxiety resulting from his accident and the fact that he was detained for treatment from returning to Virginia due to the necessity of treatment continuing in New York. (Exhibit “7”) Mr. Donovan’s children remained in Virginia and it was a cause of never ending stress to be separated from them as a result of this accident.
On May 11, 2004, Mr. Donovan treated again with Dr. Zuckerman, still complaining of pain and tenderness and problems with his left shoulder. Dr. Zuckerman advised that his fracture of the medial malleolus would take time to heal. Physical therapy was recommended upon his return home to Virginia, as well as treatment with an orthopedist.
Mr. Donovan returned to Fisher on May 25, 2004 still feeling stressed and fatigued as a result of the accident.
Next Mr. Donovan was seen by Douglas G. Weiner, M.D. on May 25, 2004. (Exhibit “9”). Dr. Weiner conducted a neurological examination who diagnosed Mr. Donovan with cervical radiculopathy, lumbosacral radiculopathy, right ankle fracture, left shoulder fracture and post traumatic headaches. Dr. Weiner recommended EMG/NCV and SSEP studies of both the upper and lower extremities and physical therapy as well as chiropractic care 3 to 4 times a week.
On June 5, 2004, Mr. Donovan returned to Virginia where he was evaluated at HealthSouth and a spine and treatment care plan instituted. (Exhibit “12”). Mr. Donovan continued undergoing evaluation at HealthSouth on June 6, 2004, June 20, 2004, June 27, 2004, June 29, 2004 and July 25, 2004. Notably, on July 25, 2004, Mr. Donovan still had complaints of suffering from extensive pain, feeling worse than at his last visit and continued stress and anxiety. It was noted that it was difficult for him to bend over and tie his shoes. Improvement due to therapy was noted to be slight to minimal.
On July 10, 2004, Dr. Zuckerman treated Mr. Donovan again, noting that the patient is still experiencing pain in his back, has tenderness of the right shoulder, as well as the ankle and needs to use a cane.
On June 13, 2005 an MRI was performed of Mr. Donovan’s lumbar spine by Dr. Traub indicating disc bulges at L3/4 through L5/S1. (Exhibit “11”).
On June 18, 2005, Mr. Donovan was compelled to return to New York to treat again with Dr. Zuckerman, complaining of serious pain of the lower back and continuing pain in the neck and right ankle. Dr. Zuckerman recommended that he continue to treat with his doctors in Virginia.
Mr. Donovan continued to live with pain and discomfort, throughout the tremendous disruption and dislocation of his family caused by this accident.
Mr. Donovan return to Dr. Zuckerman in 2006 for examination and treatment and Dr. Zuckerman diagnosed claimant’s condition as “fair” in light of Mr. Donovan’s continued complaints of pain.
Then, in 2011, Mr. Donovan finally found some relief from pain from podiatrist Dr. Vincent Silverman, DPM. Mr. Donovan is currently receiving physical therapy and pain management to the right foot from Dr. Silverman. Last week, on January 11, 2011, Mr. Donovan received the first of a series of corticosteroid injections into his right foot.
In sum, Mr. Donovan not only suffered the physical repercussions of this accident caused by a hit and run driver, with pain, discomfort and treatment continuing to the present day, but his situation was further exacerbated by the fact that he was detained in New York for treatment and compelled to travel back and forth between Virginia and New York to see the full panoply of treating doctors. This only added to the stress and anxiety of an already difficult and painful situation, that continues to the present day.
In conclusion, Mr. Donovan remains partially disabled and continues to experience pain. Based upon all of the above and the discussion that follows, fair and just compensation for these injuries is warranted.
Insurance Law § 5102(d) defines a “serious injury”:
(d) “Serious injury” means 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.
Similarly, the Pattern Jury Instructions provide:
PJI 2:88C. NO-FAULT LAW–THRESHOLD—FRACTURE You must answer the following question: As a result of the accident, has the plaintiff sustained an injury that results in a fracture of the [specify the bone involved]?
A fracture is a break of a bone or of a part of a bone. On the basis of the medical evidence which you have heard, you must decide whether the plaintiff has sustained a fracture of the [specify the bone involved].
If you find that the plaintiff has suffered a fracture, you must answer the question “yes.” If you find that plaintiff has not suffered a fracture, you must answer the question “no.”
You will be given a form on which the question is written. Try to make your answer unanimous; but if all of you cannot agree, when five of you have reached agreement, that agreement will constitute the answer. The foreperson must then fill in the answer in the space left for that purpose, and each of you must then sign your name in the appropriate place on the form.
In the present matter, the plaintiff was diagnosed by his own physician Dr. Zuckerman as having sustained fractures to his left collarbone and right ankle. (Exhibit “2”). The fracture to the right ankle (and causal connection to this accident) were conceded by Geico’s own doctor, Richard A. Nolan. (Exhibit “3”).
Based upon the foregoing, I offer that the plaintiff has sustained a “serious injury” as defined by the New York State Insurance Law.
The extensive injuries suffered by the claimant in this matter required continued care, treatment, therapy and pain management. As apparent from the medical records and testimony, Mr. Donovan has experienced tremendous discomfort and dislocation of his life and family. In addition, his diabetes condition slowed the healing process, and extended the pain.
Not only has Mr. Donovan had to live with pain, the difficulties he has been forced to go through have effected his enjoyment of life.
It is entirely reasonable to contemplate that injuries such as Mr. Donovan’s will linger over time and effect his enjoyment of life and his ability to continue to work to retirement age. Although, there is no guarantee of what the future will actually bring, it is obvious these injuries will have a significant impact on the plaintiff’s life going forward.
A fair and reasonable award in the present matter compensating the claimant for having sustained and endured his fractures and other injuries would be the full amount of the available supplemental underinsurance coverage.
Based upon all of the preceding I respectfully ask for an award on behalf of claimant finding that he has sustained a serious injury, and awarding compensation for pain and suffering in the amount of $100,000.
Dated: White Plains, New York
January 25, 2011
MARTIN + COLIN, P.C.
Attorneys for Claimant
44 Church Street
White Plains, New York 10601
(914) 771 7711 phone
The injury lawyers at Martin Colin, P.C., headquartered in White Plains, New York, handle accident claims, negligence and personal injury cases. If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.
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