OTLA Trial Lawyer Fall 2022

23 Trial Lawyer • Fall 2022 a base annual salary of $126,000 with variable compensation of 30% (or $37,000) for a total of $163,000 annually. His hiring into this position with significant pay and benefits, supported our position that, had he not been injured, Smith would have commanded a five-figure monthly salary. Based on the timing of his likely employment, Smith’s testimony regarding his earnings and tax documents, we sought lost earnings of $160,630. Because Smith’s executive positions consistently had an excellent benefits package, we argued for 30.4% in addition, resulting in a total lost compensation claim of $209,461. Proving noneconomic damages Smith’s mild TBI affected all aspects of his life, including his work, his home life and his recreational activities. Smith testified he needed workplace accommodations in his full-time product manager position. These included replacement/avoidance of fluorescent lights, special computer screen, adding more frequent breaks with walks outside and printing out work to read and revise on paper to reduce screen work time. These accommodations and limitations made each work day longer. It took more hours to get the required work done. Smith testified he continued to suffer headaches, with a daily baseline headache rated on the pain scale at a 2 and some days where his headache was excruciating. Smith’s wife testified that at home her husband has increased and more dramatic mood swings that sometimes strained his relationships with her and their teen son and daughter. His mood was worse when he had a headache. Then, he was prone to snapping at his family and their dogs. He continued to be irritable about things that before his injury he treated as minor passing irritations. She testified that after work he was exhausted and went to bed between 8 and 8:30 p.m. He no longer worked in his woodshop or read books as he did before his injury. Smith testified he had resumed biking but was limited to short day rides a few times a week either outdoors or on a stationary bike in the gym. While he did take some longer rides on the weekends, he remained hesitant to ride around cars and limited his routes to low traffic roads. Before the collision, Smith often rode on both weekend days. He missed both the 2018 and 2019 racing seasons. The award In its binding award, the panel found the driver 100% at fault. It awarded $419,661, which included all claimed past medical expenses of $53,661, future medical expenses of $6,000, lost earning capacity damages of $110,000, and noneconomic damages of $250,000. We asked the panel to identify which medical expenses it found reasonable, necessary and related to the collision and it concluded they all were. After the arbitration, the UIM carrier asserted a $138,379 credit (under¬lying settlement of $100,000 plus PIP paid medicals of $8,529 plus PIP paid wages of $29,850). (The carrier did not claim defense or excess PIP benefits paid by the driver’s carrier.) Accounting for the credi t the carr ier paid $281,282 ($419,661-$138,379 = $281,282). Once the UIM arbitration was concluded, separate counsel and OTLA member Emery Wang, who represented Smith in the PIP dispute to recover PIP benefits in the face of the UIM carrier cutting off PIP medical benefits, relied on the panel’s finding that the medical expenses incurred were necessary, related and reasonable, to persuade the UIM carrier’s PIP dispute handler to pay all the remaining PIP funds — $11,471 — and Wang’s fee and costs totaling $3,358. (Smith had $20,000 in PIP coverage.) Smith thus received the UIM arbitration award in addition to the PIP benefits earlier denied, i.e. $281,282 plus $11,471, and, in fact, recovered twice for the bills the carrier earlier denied paying. This case shows how UIM arbitration is a very useful and perhaps underused tool at our disposal. We can — and should— employ it whenever needed to secure for our clients with mild TBI just compensation for this all-encompassing injury. Cynthia Newton specializes in personal injur y cas e s wi th an emphas i s on pedestrian and bicycle collision, 3rd party workers’ compensation and medical negligence. She is a partner in the firm Thomas Coon Newton & Frost, 820 SW 2nd Ave., Ste. 200, Portland, OR 97204. She contributes to the OTLA Guardians of Civil Justice at the Stalwart Level. Newton can be reached at cnewton@tcnf.legal or 503228-5222. 1 The “magic words” “reasonable medical probability” are not required. In Baughman v. Pina, 200 Or App 15, 18-19 (2005), the court held: Although, as we emphasized in Baughman, HN4 “magic words” are not required, the expert's [*353] opinion, read as a whole, must establish a probability of causation. Baughman, 200 Or App 18); Joshi, 198 Or App 545. 2 According to the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition” (DSM 5), there are three separate criteria for diagnosing traumatic brain injury or TBI. They are: Criterion A The criteria are met for major or mild neurocognitive disorder. Criterion B There is evidence of a traumatic brain injury — that is, an impact to the head or other mechanisms of rapid movement or displacement of the brain within the skull, with one or more of the following: Loss of consciousness, Posttraumatic amnesia, Disorientation or confusion. Neurological signs (e.g. neuroimaging demonstrating injury; a new onset of seizures; a marked worsening of a preexisting seizure disorder; visual field cuts; anosmia (loss of smell); hemiparesis). Criterion C The neurocognitive disorder presents immediately after the occurrence of the traumatic brain injury or immediately after recovery of consciousness and persists past the acute post injury period. 3 “Vision Therapy: Ocular Motor Training in Mild Traumatic Brain Injury” Annals of Neurology, 15 June 2020 https://doi.org/10.1002/ ana.25820

RkJQdWJsaXNoZXIy MTY1NDIzOQ==