Settlements & Verdicts 2018

August 8, 2018 Combined Settlement $446,712.00 — Injury on job – struck by Backhoe

On September 26, 2013 the Plaintiff Mr Moniz, 27, was injured while working as a laborer on a construction project in Providence, Rhode Island, involving the removal and replacement of curbing on various roadways throughout Providence. The crew on which he was assigned consisted of himself, a second laborer, the foremen and the operator of the backhoe that lifted the pieces of curbing being replaced onto a dump truck.

On the day of the incident, the first day at that location, at approximately 8:00 a.m., Mr Moniz was struck by the backhoe loader bucket being operated the Defendants employee, causing his body to be thrown into an iron fence adjacent to the sidewalk where they were working, injuring his left shoulder and lower back.

LIABILITY

The Plaintiff contacted Brian Cunha & Associates to represent him in this accident. Our office claimed that the only reason the accident occurred was due to the negligence of the backhoe operator, who failed to ensure that the curbing being lifted was properly secured. The Defendant claimed that the Plaintiff improperly failed to stay clear of the backhoe while it was being operated.

WORKERS COMPENSATION

Brian Cunha & Associates were initially able to have Mr. Moniz placed on workers compensation retroactive to September 26, 2013, with an average weekly wage of $1,366.74 per week at a compensation rate of $746.48. He remained on workers compensation with full benefits, including payment of all of his medical expenses for approximately 3 ½ years until January 30th 2017, when his workers compensation case case was settled by Attorney Nelia Destefano from Brian Cunha & Associates in the amount of $68,212.15.

CLAIM AGAINST COMPANY EMPLOYING BACKHOE OPERATOR

Brian Cunha and Associates then institued suit against the Company that employed the backhoe operator.

Both the Plaintiff and the backhoe operator testified that the incident occurred as a result of the loss of control of a piece of curbing that the operator had just lifted and was attempting to load onto the waiting dump truck parked adjacent and to the left of the Backhoe loader bucket. The operator testified that when he recognized that he was losing control of the curbing, in order to avoid damage to the dump truck, swung the loader bucket back to the right continuing the swing past the area in which the curbing had been lifted and over the sidewalk on which Mr. Moniz was standing, causing the bucket to strike him.

The Defendant claimed that Moniz had placed himself within the swing radius of the boom and backhoe bucket and was therefore contributorily responsible for his injuries.
The Plaintiff was prepared to offer expert testimony that it is the duty of the operators of the tractor loader backhoe to make sure that the load is properly secured before lifting the load, which the operator failed to do.

MEDICAL CHRONOLOGY

Rhode Island Hospital – September 26, 2013 (Ex 1)

Mr. Moniz was taken by ambulance to Rhode Island Hospital where his primary complaint, at the time, was a left shoulder injury. He did not complain of a back injury He was treated and released with instructions to follow up with his physician.

Concentra Medical Center- September 30, 2013 (Ex 2)

The next day, Mr Moniz was directed by the Defendant to be see a a physician selected by them to assess his injuries. He was seen on September 30, 2013. During that visit, he reported continuing pain in his left shoulder and increasing pain in his lower back and directed to commence with a structured physical therapy program.

. Dr. Gassman – October 30, 2013 (Ex 3)

Mr. Moniz followed up with Dr. Gassman who evaluated his back and shoulder complaints. Dr. Gassman diagnosed a likely AV left shoulder separation, prescribed anti-inflammatories and disabled him from work. In addition, he ordered a Lumbar MRI which was completed on 10/31/13

Dr. Marcovici May 28, 2014

The plaintiff continued to follow up followed up with Dr. Marcovici, who in correspondence with Dr. Ananta, documented the failed conservative treatments and recommended a decompressive laminectomy.

The plaintiff continued with monthly visits with Dr. Mistikawy, including additional Physical Therapy with Prima Care Physical Therapy October 7, 2015- December 15, 2015, culminating in surgery at Charlton Memorial Hospital April 12, 2016 – Operation Surgical disectomy L4-5, L5-S1.

Dr. Gastel – Ortopedic surgeon – September 9, 2014 (Ex 12)
The first IME occurred on the above date and was related to the injury to his left shoulder. Dr. Gastel opined that he was disabled from work and that the injury was causally related to the incident at work.

Attorney Nelia Destefano from Brian Cunha and Associates had previously secured for Mr. Moniz a Lump sum settlement of his workers compensation claim arising out of the same incident on January 30, 2017 in the amount of $68,212.15.

Settlement: The Defendant at all times defended this case claiming that the Plaintiff was negligent and that his injury was simply a shoulder injury and suggested that the Plaintiff had pre-existing arthritis that caused his disability.

However, Attorney Brian Cunha from Brien Cunha & Associates was able to convince the insurer that both his shoulder and back injuries were related to the accident and that the Defendant was negligent enabling him to secure a settlement in the amount of $378,500.00, which with the earlier workersw compensation settlement amounted to a total settlement of $446,712.15. In addition, all of the medical expenses were paid by the workers compensation carrier.

Mr. Moniz is now back to work full time

May 5, 2018 – Minor’s Settlement – $100,000.00- Injury on Treadmill

This minor’s suit arose out of an incident that occurred on September 3, 2016
while on the premises of the defendant located at 186 Warren Avenue in Cranston, Rhode Island. On that date, the minor plaintiff, age 9, was attending a birthday party at the above premises for the defendant’s son, Anthony Garcia, and was playing in the basement with other children. The parents of the children remained upstairs. A functioning and unprotected treadmill was located against a wall. While in the basement, the minor plaintiff was standing on the treadmill when Anthony turned the treadmill on and it carried Allyson forward causing her to get stuck between the treadmill and the wall.

Plaintiffs through their attorney Brian Cunha alleged the defendant was negligent in that he failed to provide adequate supervision for the minor plaintiff and other children. Defendant denies the allegation.If this matter were to proceed to trial, liability could have been an issue.

MEDICAL CONDITION AND TREATMENT

As a result of the incident, the minor plaintiff was taken by her parents to Hasbro
Children’s Hospital Emergency Room where after receiving a history and conducting
examinations, including a surgical consultation and x-rays of the right shin and left arm,
which were negative for fractures and dislocations, Allyson was diagnosed as sustaining a 2 cm curvilinear right shin laceration, along with second and third degree burns on her right arm and right anterior ankle, along with minor abrasions to both knees. TheRight knee  was cleansed, debrided and sutured closed. The second degree burns were treated with Bacitracin Due to the nature of the injuries, Allyson was admitted to the pediatric surgical unit for observation, pain control and wound care.

The overnight admission was uneventful and the following day, after follow up
examination and dressing changes, the minor plaintiff was discharged home to the care of her parents with instructions as to wound care, pain management and follow up.

On September 13, 2016, the minor plaintiff was seen in follow up for the first
time with her surgeon, Nishant Merchant, M.D., at University Surgical Associates. By
way of history, there was no increase in pain with no redness or drainage at the wound
sites. Activity was normal. On the right forearm, healing was slow; however, the right
ankle area, which was quarter size, was healing with good granulation tissue. The
laceration was healed and sutures removed

Allyson was next seen by Dr. Merchant on September 20, 2016. Examination of
the right forearm revealed a  burn with only a small amount of healing
around the edges with no sign of infection. Surgery was discussed with the family and a
decision made to proceed with  grafting to the right forearm wound. The surgery
was performed on September 28,2016 at Hasbro Children’s Hospital.

Allyson was discharged home to the care of her parents with instructions as to
care for the burn and donor areas, prescription medication for pain and a follow up
appointment at University Surgical Associates on October 4, 2016.

Medical records from each visit demonstrated continued healing of the graft area, with no finding of infections. In addition, Allyson’s other
wounds had completely healed without any complications.

TERMS OF THE SETTLEMENT

Attorney Brian Cunha of Fall River Mass and Providence Rhode Island negotiated a settlement on behalf of the minor plaintiff with the defendant’s homeowners liability insurance carrier,  for the policy limits of $100,000.00.

All medical bills were paid by the minor plaintiff’s healthcare provider at the
time, As far as the net settlement Attorney Cunha was able to work out an annuity for the minor child. Payouts from the annuity will be as follows:

$10,000.00 guaranteed, lump sum payment of$10,000.00 on 2/28/28 (age 18)
$20,000.00 guaranteed, lump sum payment of $20,000.00 on 2/28/29 (age 19)
$30,793.82 guaranteed, lump sum payment of $30,793.82 on 2/28/30 (age 20)

The total payout from the annuity will be $60,793.82.  In addition  $8,357.75  was turned over to the parents of the minor plaintiff to be placed into a trust savings account for Allyson with her mother as trustee. The settlement agreemnet was approved by a justice of the RI Superior court.