Aggravation of Spinal Injury Award is a Fraction of Claimant’s Demand
On January 21,2021, Michael Cody and associate Michele Spencer obtained a successful binding arbitration award in a very contentious uninsured motorist claim. The claimant was a 55-year-old woman with significant pre-existing low back pain, radiculopthy, nerve compression and spinal stenosis. She claimed that she was injured when she was the front seat passenger in a vehicle being driven by her husband that was rear-ended by the underinsured driver.
Claimant had multiple prior accidents, including a slip and fall and other automobile accidents for which she received medical care for low back issues. Just month before the accident at issue, she sought out consultation and treatment with a neurologist because her pain, weakness and nerve symptoms had gotten so severe that she couldn’t stand or walk for more than 10 minutes at a time. She underwent nerve conduction studies and has an MRI of her lumbar spine. Her neurologist informed her she had some long-standing, likely irreversible, nerve damage in her lumbar spine, and she referred claimant for epidural steroid injections. Claimant had one lumbar spine epidural injection just 3 months prior to the subject accident.
After the subject accident, claimant complained of a severe increase in her symptoms, telling her treating neurologist that prior to the accident she had been “80% better”. Claimant’s neurologist repeated nerve conduction studies that had been done 5 months prior and ordered a repeat MRI of her lumber spine. Her neurologist testified that the EMG/NCV tests revealed “new injuries” that weren’t present on the prior test. She referred a claimant for pain management and physical therapy.
Claimant underwent 5 lumbar epidural steroid injections over the next couple years before ultimately being referred to a neurosurgeon for consultation. Claimant underwent lumbar decompression and microdiscectomy at L4/L5 4 years after the subject accident.
At arbitration, claimant argued that she was an eggshell claimant, and experienced a severe exacerbation of her pre-existing condition, which she claimed had been 80% better just before the accident. Claimant argued that the post-accident MRI showed that her lumbar spine condition worsened, When compared to the MRI taken a few months prior to the subject accident.
She argued that she was never told she was a surgical candidate before the subject accident, and that the accident caused her significant increased symptoms of warranting multiple epidural injections and eventually surgery.
Mr. Cody and Ms. Spencer argued on behalf of the insurance carrier that claimant did not sustain any significant injury as a result of the accident, other than soft tissue strains. Experts opined at the arbitration that claimant needed lumbar spine surgery prior to the accident, and that her need for surgery was not caused by or hastened by the accident. Moreover, the defense team was able to establish that the post-accident increase in symptoms was actually the result of a cyst in claimant’s spinal column that was not present on the pre-accident MRI, but was clearly present on the post-accident MRI. It was argued that the cyst was the result of pre-existing degenerative disc disease and facet arthropathy, not the result of any trauma from the accident.
Claimant received $50,000 from the underinsured motorist’ insurance carrier. She present a claim for the remainder of her $500,000 UIM policy limits ($450,000) from her own carrier together with the demand for arbitration. Throughout the pendency of the claim, claimant refused to come off her policy limits demand, even at a mediation session that was held in an effort to avoid submitting the matter to arbitration. Prior to arbitration, the underinsured motorist insurance carrier offered $100,000, which was rejected. After 2 days of testimony and submission of evidence at the arbitration hearing, claimant requested an award of $929,000. The arbitrator awarded claimant $150,000 – only slightly more than the pre-arbitration.