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.
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.
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.
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