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Personal Injury Law (Accidents/Slip & Fall)/Rotator Cuff (and other) injury due to fall through floor

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QUESTION: I will try to keep this brief, but these details important. 5/10/12: I was at my Mothers, meeting with her homeowner's insurance adjuster, due to a flood claim at her mobile home. Also present was the contractor who had started the remediation, including drying out the floor and removing damaged sub-flooring. The adjuster and I were talking, and headed toward a room to assess the damage. The contractor held open a temporary plastic "door" they had installed, so we could enter the area of rooms damaged from flood. The adjuster and I were conversing and heading toward the bedroom.  I took a step, with my right leg. No problem. Stepped onto my left leg...and fell through the floor! Contractor had removed a portion of the subflooring (approximately 20" deep x 30" wide). This area (apparently) had been covered with plastic, as well as an "X", made out of duct tape. No one advised me of this. My bod went through the hole, while my right leg remained on the house (existing) surface. the ground, below the mobile, was only a few feet below. I got myself up, with assistance. Was pretty shook up, and had scrape on underside of left arm, from elbow to armpit, likely from scraping teh raw edge of the cutout subflooring/plywood . I could tell nothing was broken. Over the next few weeks, I was sore and bruised, my shoulder/arm, back and neck hurt. Mid June: went to chiropractor, as I wasn't getting better - thinking I threw my back out. Reported the fall as reason for seeking treatment. Chiropractor thought I likely tore a ligament. After a month of treatment, and not getting better, went to my doctor, who ordered shoulder x-ray, then mri. MRI showed tears and saw orthopedic surgeon. Had surgery 10/18/12 to repair rotator cuff. MRI also showed neck and back injuries, which haven't been dealt with yet. Spoke to an attorney, to see what claim I could have. He asked how I can "prove" my injury was from the fall....and that I didn't tear my cuff some other way. I replied I had never had pain before the incident Asked if I had gone to the ER the day of the incident. No, I hadn't....didn't see a need to at the time. He said we need to PROVE my injury was from the fall. My questions: 1. How do I "prove" this? Even though there were witnesses (insurance adjuster, contractor, my Mom), how do I proceed? 2. What (if anything) - other than medical and lost wage reimbursement (out on FMLA leave for 4-6 weeks)might I be entitled to? I haven't had a good night's sleep since May, am consistently fatigued, my work performance was affected (not thinking clearly, due to consistent lack of sleep) and my personal life. I haven't been able to sleep with my new husband since this happened. No sleep...no nothing else! 3. If I have further neck/back injury, which could prohibit me from keeping my desk job, how is this figured in? I was planning on retiring in 6 years and, if I can't keep my job, the financial devastation would be huge (loss of insurance, salary for the next 6 years, retirement contributions/payments...the list is endless). By the way, the attorney said "give me a few days. I am going to find a curb and stop down and see how you could have torn your cuff". I told him to find a three foot high curb then! I think I should seek consultation elsewhere, but thought asking on this site would provide me some good information. ANY advice will be most appreciated.

ANSWER: The first issue is liability of the contractor for any damages you have had.  Surely he should have warned you that the floor was removed and the area was dangerous but his argument through his insurance carrier's lawyers would be that you knew construction was going on, the hole was marked with the X, and you were to some extent negligent yourself.  Don't know the truth of this but that argument could be expected.  

It is not surprising that you were hurt by the fall but what the other lawyer said to you is indeed the big problem.  The delay in getting treatment, then only chiropractic, and then only several weeks later do you get a real diagnosis, does really complicate any claim.  You don't mention your medical history but if you had ever treated with the chiro before or ever had any complaints to your shoulder, back or neck, the case becomes very very weak and no lawyer is going to take it on.  Of course, the rotator cuff injury is fairly distinct as opposed to "back and neck" complaints which are extremely common.  So, if there is no history of a complaint about your shoulder and the chiro documents some findings there, that is at least SOME PROOF of the shoulder injury.  Personally, I wouldn't take the case.  Other concerns: would the contractor have liability insurance to cover the damages?  If not, it wouldn't be worth pursuing him personally unless you have nowhere to turn and you sue him in Small Claims Court for the limit.  That is probably the most viable approach. Tell the Judge what happened, document your injury, and you would probably get the maximum and not have any legal fees to pay. But you do not mention that the cuff injury is serious enough for surgery so the argument would be that you have had developing problems in these areas and you can't blame it all on the fall.  The other issue:  You should be looking at making a claim against your mother as well. She might be seen as a primary defendant in this situation.  It was her mobile, she knew about the contruction, and arguably shares responsibility for the accident.  I know you don't want to do that but if it were not your mother, that is where you would turn first....maybe.

So, bottom line: try a couple more attorneys but then consider the Small Claims approach.  I believe the most important advice I have however is that you not let this accident ruin and control your life.  If you are working and have medical insurance, get the injuries treated.   They are common and treatable. There is no reason to let them dominate and reduce your life so much.  People continue working, especially at a desk job, with much worse.  So, while I am not unsympathetic, I think you really need to "buck up" a bit and carry on with life.  I get the distinct impression that things have been stressful for you even before this accident and you are now using the accident as an excuse for not being able to work, sleep normally, etc. I don't mean to be cruel but as you see, your legal recourse is limited and even if you got $20,000 or whatever, you still have to cure yourself medically and regain enthusiasm for a successful life. Good luck.



---------- FOLLOW-UP ----------

QUESTION: Hello Mr. Dorfman: Thank you for your very prompt response! I do have a few followup questions and information which may clarify some things and you may want to comment on, with this information.
- I agree...the contractor surely should have warned me. I was at the house daily, for various reasons relating to the renovation, and the floor was in place one day, and gone the next! I suppose their lawyer could argue it was my responsibility to assess, on a daily basis, what work had been performed throughout the four damaged rooms of the home, and how the job-site had changed, from one day to the next, but I would think most people would agree that is unrealistic. The MOST IMPORTANT person that was made aware of the "hole", AND banished from that part of the home, was my 84 year old Mom! You mentioned her as a primary defendant in this situation. The reason I was completing overseeing and handling the renovation for her, is because of her current mental state. The reason the contractor partitioned off the damaged portion of the house, was so Mom would not "forget" and go in those areas. They were well aware of her mental state - and forgetfullness - and I doubt they would expect her to "remember" to tell me about the floor! You expressed concern about their liability insurance: the contractor is an Arizona licensed contractor, and I believe liability insurance is a requirement of that licensing.
- I understand the potential complication you explained, due to the delay in me getting treatment, etc. The truth of the matter is...I thought I was just bruised and going to be sore for a time, and it would get better. When it didn't, I sought treatment. I have not been treated, previously, for shoulder, back or neck complaints.  Your answer also said I "do not mention that the cuff injury is serious enough for surgery...". I think something was overlooked, as I stated I have recently HAD the surgery, on 10/18/12. My concern about future back and neck problems, is from the additional MRI findings (disc bulge and disc protrusions), which the doctor said we need to address, after the shoulder repair. I have no idea what the diagnosis (or treatment) will be, at this point. When I spoke of the possibility of not being able to work, should there be OTHER issues undiagnosed at this time, my concern becomes a financial one, as a limitation to perform desk work (my job) would drastically affect my financial future, in many areas.  I haven't let this accident control my life...but I certainly don't want it to ruin my life, financially, if there are other problems associated with the fall. I assure you, I have not used this accident as "an excuse for not being able to work or sleep normally"; I have not substantially missed work, prior to my surgery...I've just been semi-functional, due to sleepless nights from the shoulder pain! My torn cuff has not dominated (or reduced) my life, as a matter of fact I was married post accident and pre-surgery!

With the additional information I have provided (no prior history of injury, surgery performed, and documentation from the chiropractor first visit states I was there as a result of an accident)can you address the "proof" question?  The attorney I spoke with said to me "you could have torn your rotator cuff taking off a shirt over your head....how can you prove it was from this fall?" I hope my shoulder/arm is the only injury I have to "prove" was a result of the accident. however, if there ARE additional problems, the shoulder/arm is just the first treatment.

I hope this makes better sense and I look forward to your additional response.

Answer
Sorry I overlooked the fact that you did have the surgery.  So, I would say that if there is nothing in your medical history about that shoulder and your orthopedist would be willing to go on record stating that the tear is consistent with the accident as you describe it and it is quite possible that it didn't get really bad for a few weeks,thus accounting for the delay in getting to the ortho and chiropractic exam was timely and consistent with a rotator cuff tear and it is conceivable that the chiro did not realize the true extent of the injury and that injury to the rotator cuff caused by the chiropractor can be ruled out, then..........maybe then, you have a case worth pursuing.  However, are you saying the surgery was of no benefit?  You still can't use that arm and shoulder?  Why is that? When was the surgery? Are you still recovering and have not completed physical therapy? In that case you need to give it more time.

I have a low threshold for accepting cases.  However, unless there is something unuusual about your shoulder injury that just can't get fixed and you will have some level of disability for years to come and you have a doctor to testify to that,  I wouldn't take the case. From the attorney perspective (this one anyhow), the delay in treatment and maybe some contributory negligence on your side must be outweighed by a severe and long term disability causing injury.  I don't think you have that and for your sake I hope you don't have it.  Your shoulder should get back to normal or nearly so.  It shouldn't keep you away from work at your desk.  You haven't mentioned your age but if you are in middle age somewhere, buldging discs are almost expected to be found.  You could never ever prove that they were from this particular accident, short of having had spinal MRI done soon BEFORE the accident.  So, good but not great liability case involving a few weeks loss of income, fairly routine shoulder surgery, assume normal recovery..............surgery cost $15,000..............maybe case is worth 25-35K.  That's it.  Thinking about this, what I would do, maybe, is accept your case, document it, try to settle it in the range noted but with a caveat to you that I would not litigate the case because of investment of time and money necessary and high chance of a modest result that would never pay for the legal services.  So best bet is to try and find a lawyer who thinks similarly about it.  Forget the big firms.  Look for some lone attorney who is hungry for a new case. Again, I stress to you that you have a better outlook about the future.  Act on the assumption that your shoulder will make a full recovery, your neck and back issues are common things that come and go, are treatable and many of us deal with and still conduct productive lives, and that this single accident WILL NOT reguire you to accept an entirely different life than you have had. Good luck

Personal Injury Law (Accidents/Slip & Fall)

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Glenn A. Dorfman

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Thirty-two years experience in personal injury, medical malpractice, medical product liability law and class actions. Qualified to answer all questions regarding injuries and the law, except for worker`s compensation. Actively involved and fully experienced in litigation regarding recalled hip implants as well as the Mirena IUD.

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Hundreds of satisfied clients in previous litigation

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California State Bar Association in good standing since 1976. Federal District Court

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Jurisx Doctor degree 1976

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