Extent of injury and treatment disputed by State Farm after crash. $227K arb award after low offer.
Rear-ender at low impact exacerbates preexisting condition. Uninsured motorist arbitration.
- Case Name: Wade Atteberry v. State Farm
- Court and Case Number: Arbitration
- Date of Arbitration Award : Tuesday, February 02, 2021
- Date Action was Filed: Monday, June 24, 2019
- Type of Case: Underinsured Motorist, Vehicles - Auto vs. Auto
- Judge or Arbitrator(s): R.A. Carrington
Plaintiffs: Wade Atteberry, 56, self-employed.
Defendants: State Farm
- Type of Result: Arbitration Award
- Gross Verdict or Award: $227,505.23
- Net Verdict or Award: $197,505.23 (after reducing for prior payment of $30,000 by State Farm)
- Contributory/Comparative Negligence: 0%
- Trial or Arbitration Time: 1 day
Attorney for the Plaintiff:
Hinman Law Group, P.C. by John Hinman and Seth Workman, Long Beach.
Beverly Law by Michael Shemtoub, Los Angeles.
Attorney for the Defendant:
Henderson & Borgeson by Jay Borgeson, Santa Barbara.
Plaintiff’s Medical Expert(s):
Sherwin Hua, M.D., neurosurgery, San Jose. (Treating physician.)
Herman Cherra, D.C., San Jose. (Treating physician.)
Defendant's Medical Expert(s):
Thomas Kula, M.D., orthopedic surgery, Los Gatos.
Lawrence Harter, M.D., radiology, Santa Barbara.
Defendant's Technical Expert(s):
Henry Lubow, M.D., billing.
Thomas Fugger, PE, accident reconstruction/biomechanics, Valencia.
Facts and Background
Facts and Background:
On June 15, 2018, claimant was driving northbound on U.S. 101 near Santa Barbara when he slowed and stopped due to stop-and-go traffic ahead of him. He was then rear-ended at 9-15 mph (based on defense accident reconstruction opinions) by the car behind him, an uninsured driver. The collision was an under-ride type of collision, and as a result the property damage photos of claimant's vehicle were largely unimpressive.
After the collision, claimant was taken to the ER the same day where he had a CT scan of his back that showed moderate left and mild right L5-S1 neuroforaminal stenosis due to a disc bulge and osteophyte complex. He began chiropractic treatment on July 2, 2018. He saw a pain management specialist on July 20, 2018 due to radiating right leg pain. An MRI on August 20, 2018 showed a 3-mm disc bulge at L5-S1. On August 20, 2018, claimant received a lumbar epidural steroid injection which provided only temporary relief.
Claimant continued chiropractic treatment through December 7, 2018 without any significant relief. As a result, he saw neurosurgeon Dr. Sherwin Hua on December 18, 2018 who recommended L5-S1 decompression and fusion. Claimant underwent fusion surgery on April 12, 2019. Thereafter he had some significant post-operative complications requiring two ER visits. Ultimately, he experienced a good recovery and successful outcome of surgery with some lingering lack of mobility and pain in his lower back.
That claimant suffered an exacerbation and aggravation of a pre-existing degenerative lumbar back condition as a result of the June 15, 2018 collision. That although he had treated several times before for lumbar back pain, including prescription of narcotic pain medication, his treatment was episodic, there was no treatment for three years prior to the subject collision, and there had never been any recommendation for or performance of injections or surgery on his lumbar spine.
That as a result of the collision claimant's previously stable back condition rapidly progressed to the point that his pain and symptoms were unbearable and prevented him from living his life, such that lumbar fusion surgery was necessary. That claimant's recovery from surgery was complicated and long and although he ultimately had a successful outcome from surgery, he still dealt with some pain and moderate disability everyday and would likely experience adjacent level degeneration in the future.
Further, as to defendant's claims regarding his activities before and after surgery, that none of the activities performed proved claimant was not injured and suffering in the fashion he claimed.
That claimant had significant pre-existing relevant complaints to his back.
That the imaging done of the lumbar spine before and after the accident showed no structural change and that the post-MVA imaging showed no acute or traumatic findings. In other words, there was no change in the before and after imaging.
That claimant denied in written discovery, under oath, that he had prior back complaints and treatment. That was untrue.
That claimant denied in his deposition testimony that he had prior back complaints and treatment. That was untrue.
That any of his further complaints and his need for surgery were because of his pre-existing degenerative condition in his back or due to subsequent off-road racing or other physical activity.
That claimant was engaged in activities after the subject accident that were inconsistent with a significant injury including off-road racing, riding in sports cars at a Las Vegas event where the claimant was traveling at high speeds and undergoing significant lateral forces on his spine, camping and extensive construction activities involving heavy labor.
That claimant had multiple subsequent accidents including a subsequent accident for which he made an injury claim for his low back in an accident, in which he was transported from the scene.
That claimed general damages were questionable due to the lack of credible and reliable discovery responses and were inconsistent with the substantial evidence of strenuous physical activity involving recreational activities and work-related activities.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Exacerbation and aggravation of pre-existing degenerative low-back disease, specifically at L4-L5 and L5-S1, requiring lumbar decompression and fusion.
- Special Damages Claimed - Past Medical: $455,634.17 in billed lien medical expenses
- Special Damages Claimed - Future Medical: $300,000 for future adjacent level fusion
The only pre-arbitration offer from State Farm was $30,000. Respondent's counsel never took a single deposition of a treating healthcare provider for the injuries suffered as a result of the subject collision (instead only deposing doctors regarding claimant's prior condition) until the doorstep of arbitration, when respondent's counsel finally deposed the treating neurosurgeon after he was designated as an expert.
Per respondent's counsel:
The claimed medical expenses were reduced as a result of the testimony of Dr. Lubow from the amount claimed, $755,634.17 TO $79,089.23.
Defense counsel did not depose treating healthcare provider for the injuries suffered as a result of the subject collision, but did depose claimant's prior treating doctors to avoid Sanchez objections.
Of extreme importance were the ruling made by arbitrator Carrington in ruling on respondent’s motions in limine. claimant failed to designate experts. Nearly one month after respondent exchanged their list of experts, and on the eve of the hearing on respondent’s motions in limine, claimant sent a list of experts. Arbitrator Carrington ruled the late designation would be allowed but stated that if the matter were in the superior court, the outcome would be different. Claimant was allowed one week to depose the experts which included the surgeon who operated on claimant. Claimant did not depose any of the experts properly retained and designated by respondent.