Our client worked in quality control at a distribution facility with a busy warehouse loading dock area. During 2018, while walking through the area beside the loading dock where tractor-trailers unloaded merchandise, he was struck by a forklift operator who was backing a Yale forklift. The client was knocked down and part of the forklift wheel crushed his lower leg. He was airlifted to a local trauma hospital.
The doctors assessed his injury and conducted appropriate imaging. They determined that he suffered a serious fracture to the tibia and fibula of his leg. If that was not bad enough, he suffered a "degloving" injury, which causes detaching of the skin. This means he was left with a gaping, open wound around more than three-quarters of the circumference of his ankle.
Our client underwent surgery described below for the tibia and fibula fractures and to re-attach skin with stitches for the degloving injury. He was left unable to walk without an assistive device for his foreseeable future. In addition, he endured substantial lost earnings.
When our Virginia personal injury law firm was retained, we told him we would do a comprehensive investigation and try to maximize his potential recovery for his serious personal injuries, applying our extensive experience including several prior forklift injury cases we had handled.
Key Legal Strategy
Our client was covered by workers' compensation from his own employer, so the initial legal question was whether a negligence action would be permitted against the forklift operator and/or the company the operator worked for. Under Virginia law, the workers' compensation system states that if you receive workers' compensation no-fault benefits from your own employer, you can't sue any fellow employees or members of the team that work for your same company.
However, if the negligence of a third party, a “stranger” to your particular employment relationship with your company, negligently causes your personal injuries, you normally have the right to still pursue a negligence case in court-but not against your own employer. One must still pay back the workers' compensation benefits you receive from any settlement against a “third party” company, but a jury trial includes the right to recover all lost wages, medical expenses, and intangible amounts for pain, suffering, and permanent impairment.
The investigation determined that the forklift operator was employed by a different company than our client. We advised our client that he could pursue the negligence action in court and a suit was filed.
Note: All particulars of the place of the incident, the names of the companies, the court and where the case was filed are confidential.
In the course of the forklift lawsuit, the defense attorney for the forklift operator claimed that our client didn't have the right to pursue the negligence action and was limited to workers' compensation benefits. The defense was that our client and his employer were essentially an implied “statutory employer” of the forklift operator. Although our client was employed by one company, and the forklift operator by another, this type of defense can be made in Virginia. The nuances of this Virginia law are complicated and well beyond the case result discussion here.
In our case, extensive legal briefs were filed, a hearing occurred, and ultimately the judge on the case ruled that our client could pursue his negligence claim and that the statutory employer defense was denied.
Our law firm secured a surveillance video of the warehouse loading dock area which visually documented the fault of the forklift operator, and decided to be cautious and retain a forklift safety expert to review all the evidence. He wrote a report documenting the careless actions of the forklift operator.
We assessed all the evidentiary issues involved in the case, and determined we needed many expert witnesses to offer testimony. We needed to develop the medical evidence and we conducted depositions (testimony of witnesses under oath) of our client's treating physicians, retained a vocational counselor expert (as to future earnings losses) and then retained an economics professor to write a report on the projections of our client's lost earnings over the remaining portions of his work-life expectancy. We also retained a wound care doctor to provide a special report on the implications of the degloving injury and the future impairment that the injury may cause to our client in the future.
We asked a skilled medical illustrator to create anatomically accurate illustrations of the surgery and degloving injuries, and we used these visuals with various medical witnesses to demonstrate the significance of the injuries.
(Note: Our client placed a portion of his recovery in a structured settlement, which will shield and protect some of his proceeds tax-free over a period of future).
(Please be advised that party names, geographical locations, court details withheld under written confidentiality agreement.)