Case details

Failure to maintain train yard road caused back injuries: plaintiff

SUMMARY

$250000

Amount

Settlement

Result type

Not present

Ruling
KEYWORDS
back, bulging disc, depression, disc protrusion, herniated disc, lower back, lumbar, mental, neurological, psychological, radiculopathy
FACTS
At around 1:30 a.m., on July 12, 2010, plaintiff Crystal Thomas, 42, a van driver for Renzenberger Inc., was driving a van on 17 Team Track Road, in Union Pacific Railroad Co.’s train yard in Fresno. Union Pacific Railroad contracted with Renzenberger to provide van service to transport its railroad employees to and from its trains. As a result, Thomas would drive Union Pacific Railroad employees from the yard office to the trains located within the yard. However, Thomas claimed that while she was driving in the train yard on July 12, 2010, her van dropped into a large pothole on a narrow portion of the road, causing her to be violently jarred and jolted in her seat. As a result, she claimed to her lower back. Thomas sued Union Pacific Railroad, alleging that it failed to inspect, maintain, repair, install and ensure the road was in good condition. Thomas alleged that as a result, Union Pacific Railroad created a dangerous condition. Thomas contended that she was traveling between 15 and 17 mph and that the pothole was deep and large in diameter, measuring approximately 3 feet, 7 inches by 2 feet, 8 inches. She also contended that the pothole was concealed by poor yard lighting and overgrown vegetation. Thus, Thomas claimed that the pothole could not be avoided without driving off the yard’s narrow road. In addition, she claimed that since Union Pacific Railroad had received multiple complaints, including complaints by Union Pacific Railroad’s own train service employees, it was on actual notice of the pothole. Defense counsel asserted that the size and depth of the pothole was insufficient to cause injury to Thomas., Thomas claimed she heard a loud pop in her lower back, felt immediate shooting pain down her legs, and an electric tingling sensation in her foot. She claimed she was in extreme pain, but still finished her shift that night. The following day, she requested medical treatment from her supervisor, who proffered over-the-counter BenGay cream in the hope that it would help. However, Thomas claimed she continued to have excruciating pain, and self-treated with ice and over-the-counter pain medications. Ultimately, on Aug. 6, 2010, her pain was severe, and her symptoms were so apparent, that a co-worker called an ambulance. Thomas was subsequently taken to Saint Agnes Medical Center, in Fresno, with complaints of right-sided body pain, left-sided lower back pain, and severe headaches and vomiting. The emergency room physician indicated that Thomas complained of a loss of sensation in the right fourth and fifth toes, so morphine was prescribed to treat her pain. After being discharged from the hospital, Thomas was referred to various workers’ compensation doctors for extensive treatment of her . On Sept. 7, 2010, Thomas underwent a MRI of the lumbar spine, which revealed a right paracentral disc protrusion with downward extrusion of a fragment compressing on the thecal sac and narrowing the lateral recess at L4-5. The MRI also revealed degenerative disc disease and a diffuse disc bulge with a small focal left paracentral disc extrusion minimally impinging on the thecal sac at L5-S1. On Oct.14, 2010, Thomas was evaluated by a neurosurgeon, who noted complaints of lower back pain, right lower extremity pain, and a right foot drop. As a result, the neurosurgeon diagnosed Thomas with a herniated nucleus pulposus on the right side of the lumbar spine with radiculopathy and displacement at L4-5 with a foot drop. He subsequently recommended a microdiscectomy on the right at L4-5. However, Thomas received a second opinion from another neurosurgeon, who diagnosed Thomas with a herniated nucleus pulposus of L4-5 with right L5 radiculopathy and an asymptomatic disc protrusion or herniation at L5-S1. This physician recommended a lumbar laminectomy and discectomy at L4-5. However, the physician noted that Thomas’ were so severe that even with a completely successful surgery, it was likely that Thomas would continue to suffer from residual permanent radiculopathy. On Dec. 20, 2011, Thomas underwent a lumbar laminotomy and discectomy at L4-5. Consistent with the prior diagnosis, the pre-operative and post-operative findings were a lumbar herniated nucleus pulposus at L4-5 with right L5 radiculopathy. Although Thomas obtained some relief and improvement as a result of the surgery, she claimed she continued to suffer from the painful and symptoms, causing her to need to continue treating with various narcotic pain medications, physical therapy, acupuncture, and other treatment. On Dec. 4, 2012, Thomas saw her primary treating physician, who noted that Thomas was still suffering from constant pain in her lower back and noted that Thomas rated the pain as being a five or six out of 10 on a pain scale. At that time, Thomas also expressed that she was suffering from radiating pain to both feet with numbness, tingling, and weakness in her legs. The doctor claimed that the accident affected Thomas’ activities of daily life, including difficulty standing, walking, sitting, lifting, twisting, squatting, climbing, and kneeling for prolonged periods of time. The doctor also claimed that Thomas had difficulty driving or riding a vehicle or bike; an inability to climax; and difficulty falling asleep, remaining asleep, and maintaining one position due to pain. During the physical examination, the doctor noted that Thomas had numbness extending from the knee and involving the lateral right foot, and that Thomas had inversion of her right foot, consistent with foot drop, as well as numbness involving the dorsum of the right foot. On Dec.13, 2012, Thomas underwent another MRI, which allegedly revealed that her lumbar spine continues to degenerate since the accident, including a 1 to 2 millimeter posterior disc bulge without evidence of canal stenosis or neural foraminal narrowing at L2-3, and moderate bilateral neural foraminal narrowing secondary to a 2 to 3 millimeter posterior disc bulge at L3-4. The MRI also allegedly revealed an 8 millimeter right, paracentral, posterior disc bulge with focal disc extrusion traveling 5 millimeters in a caudal direction, effacing the right lateral recess, and resulting in moderate to severe bilateral neural foraminal narrowing in conjunction with facet joint hypertrophy and moderate to severe canal stenosis seen at L4-5. In addition, the MRI allegedly revealed moderate right and moderate-to-severe left neural foraminal narrowing secondary to a 3 to 4 millimeter posterior disc bulge and facet joint hypertrophy at L5-S1. As a result, on Aug. 20, 2013, Thomas underwent another lumbar laminotomy and discectomy at L4-5 to treat the recurrent herniated nucleus pulposus. She also received bilateral sacroiliac injections to treat the chronic sacroiliitis. The operation allegedly revealed that there was a fibrotic disc fragment encroaching upon the L5 nerve root. Thomas continues to treat her allegedly painful and disabling with physical therapy and pain management. She claimed that she is expected to have disability, weakness, pain, and radiculopathy for the rest of her life. Plaintiff’s counsel contended that Thomas was involved in an prior accident in 1994, during which Thomas sustained to her back and left knee. However, counsel contended that Thomas generally recovered from those and continued to live an active life until the subject accident in 2010. Plaintiff’s counsel further contended that at the time of the subject accident, Thomas was employed full-time by Renzenberger Inc. and earning approximately $17,500 per year. Thus, counsel asserted that Thomas’ lost wages as a van driver were in excess of $432,000, assuming that Thomas would have continued to work until at least age 67. Defense counsel asserted that Thomas was not credible and that she was exaggerating the extent of her disability and . Counsel further asserted that Thomas’ future lost wages were nominal because she was essentially making minimum wage at the time of the accident.
COURT
Superior Court of Fresno County, Fresno, CA

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