The plaintiff's motion for Summary Judgment on liability under the absolute liability provisions of Labor Law Sec. 240 (1) was granted in this case in which the plaintiff dry wall worker, approximately 60 at the time of the recovery, contended that he fell from the defendant scaffold. The scaffold was four feet off the ground. The plaintiff maintained that when the height of the plaintiff was added, the distance between his shoulder and the floor was approximately nine feet. The plaintiff maintained that he landed directly onto his shoulder and reported immediate shoulder pain. The records also included a reference to occult radiating pain. The plaintiff maintained that it was believed at the time that such radiating pain stemmed from the shoulder injury.
The plaintiff suffered a full thickness tear of the left, non-dominant rotator cuff tear with the retraction of the supraspinatus tendon. The plaintiff's proofs would have reflected that a good analogy would be to a rubber band breaking because the tension is too great. Arthroscopic surgery was inadequate, and the plaintiff required open shoulder surgery. The plaintiff maintained that the surgeries provided mild and temporary relief only. The plaintiff maintained that he will permanently suffer extensive shoulder pain and restriction and cannot raise his left arm above shoulder level.
The plaintiff also contended that when the severe radiating pain continued even after the second shoulder surgery, a cervical MRI, which showed a herniation, was taken. The plaintiff maintained that conservative therapy was inadequate, and that he then underwent cervical fusion surgery. The plaintiff contended that although this surgery provided some pain relief, it also increased his restriction.
The plaintiff also contended that he can no longer work in a physical capacity. The plaintiff maintained that his talents, inclinations and educational level gear him towards physical labor and that as a practical matter, he is permanently unemployable. The evidence reflected, however, that the plaintiff's prior earnings were relatively low and that because of this factor and his age, the plaintiff's claim for lost income was limited.
The defendant questioned whether the herniation, diagnosed approximately two years after the incident, was causally related. The plaintiff countered that the severe nature of the shoulder pain rendered the herniation diagnosis much more difficult. The plaintiff also pointed out that radiating pain from an uncertain location was found shortly after the accident.
The plaintiff is a single parent of two girls. The plaintiff maintained that prior to the incident, he was very active around the home and that he now faces great impediments in attempts to engage in everyday activities such as cooking and shopping. The plaintiff contended that he essentially cannot engage in tasks that would be done with two arms. The plaintiff also maintained that everyday activities otherwise taken for granted, such as tying his shoes, are extremely difficult or impossible. The plaintiff also contended that he can no longer drive.
The case settled prior to trial for $3,600,000.
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