John Henry Evans v. Dominic J. Diver dba Irish Craftsman at Your Service (2011)

MEMORANDUM OF DECISION

The plaintiff, John Henry Evans filed a Third Amended Complaint dated June 1, 2010 alleging negligence by the Defendant, Dominick J. Diver in the First Count;  recklessness by the defendant Dominick J. Diver in the Second Count, and Violation of the Connecticut Workers' Compensation Act by the defendant, Dominick J. Diver in the Third Count.

The defendant's answer effectively left the plaintiff to his proof and also asserted a special defense of contributory negligence.

At trial, the plaintiff withdrew his Second Count sounding in negligence;  the defendant withdrew his special defense of contributory negligence.   The defendant also admitted liability and the trial proceeded as a hearing in damages.

By way of background, the plaintiff John Henry Evans was employed by the defendant Dominick J. Diver, as a day laborer on March 30, 2004.   During such employment on March 30, 2004, the plaintiff was severely injured.   The defendant admits that he did not carry workers' compensation insurance as required by Connecticut General Statutes § 31-284(b) thus giving rise to the plaintiff's instant cause of action.  Connecticut General Statutes § 31-284(b) specifically permits a civil personal injury suit in addition to a workers' compensation claim against an employer who has failed to comply with the Workers' Compensation Act's requirement to provide workers' compensation insurance.¹

On March 30, 2004, the plaintiff and the defendant were engaged in cutting a stringer for a staircase.   The defendant was operating an electric SKIL saw.   The plaintiff was holding the stringer with his hands while the defendant cut it.   The SKIL saw bounced, perhaps hitting a knot, and severely injured and cut the plaintiff's dominant right hand.

The plaintiff suffered extensive loss and maceration of bone as well as soft tissue damage of the dorsal hand and open displaced fracture of the fourth and fifth metacarpals, a non-displaced fracture of the third metacarpal, and complete extensor tendon disruptive of the third, fourth and fifth digits.

The plaintiff was admitted to Griffin Hospital on March 30, 2004 and treated by Dr. Scott Waller, an orthopedic surgeon.

The plaintiff's severe injuries required multiple surgeries involving debridement of devitalized skin, subcutaneous tissue, muscle and bone, and open reduction and internal fixation of the displaced metacarpal fractures using multiple K-wires and surgical repair of the disrupted third, fourth and fifth extensor tendons.

The plaintiff required additional surgical procedures on April 1, 2004 (for addition debridement of devitalized skin, subcutaneous tissue, muscle and bone grafting fourth and fifth metacarpal fractures) and again on April 30, 2004 for the removal of retained deeply placed K-wires, plastic sheeting, and multiple extensor tenolyses to free up adhesions forming about the tendons.

Extensive bone loss and comminution as well as marked finger stiffness over time, loss of finger motion and grip power was noted by Dr. Waller.   The plaintiff attended physical and occupational therapy at Griffin Hospital where he had thirty-three visits between July 19, 2004 and December 1, 2004.   On April 22, 2005, Dr. Waller issued a work slip restricting the plaintiff from any work until further notice.

The pain in the plaintiff's hand has gotten worse over time.   His hand still “hurts, throbs, locks up.”   Arthritic changes have caused the plaintiff's hand to lock up on occasion so that he has to “pull it apart to open it.”   It is expected that arthritic changes will progress.   The plaintiff has never regained full digital motion.

On March 28, 2008, Dr. Waller found the plaintiff to have reached maximum medical improvement and assigned a permanent partial impairment rating of 18% to the right hand.   The plaintiff is right handed.   Dr. Waller also noted developing post traumatic arthritic changes in the fourth metacarpo-phalangeal joint, “a direct result of the saw blade violating the articular surface of the fourth metacarpal head at the time of the injury.”   Dr. Waller concluded that “Mr. Evans' progress related to his right hand is fair at best, as permanent loss of finger motion and permanent loss of grip power will ․ make it impossible for him to ever return to gainful employment in any type of manual labor.”

However, Dr. Waller indicates that the plaintiff can reasonably use the hand for light, sedentary, desk type work.

Dr. Waller suggests that the cost of future non-operative treatment for future hand symptoms would be in the range of $3,000-$10,000 to cover the cost of physician's office visits, medication and supplies for injections and splinting.

The plaintiff was examined by Dr. Bache on behalf of the Defendant, on September 23, 2008, an orthopedic surgeon.   Dr. Bache opines that the plaintiff has a significant partial permanent impairment of the right hand and an 18% rating is reasonable.   However, Dr. Bache calculates a 12% partial permanent impairment using the plaintiff's current arc of motion.   The plaintiff has significant grip strength loss which would prevent him from doing normal manual type labor.   Dr. Bache also concludes that it is within reasonable medical probability that the patient will not require any further surgery.

The plaintiff whose date of birth is September 23, 1957, is presently 53 years of age.   He was 46 years of age at the time of the instant accident.   Statistically he has a life expectancy of 31 years.

The plaintiff is in relatively good health despite the impairment to his right hand.   Although he graduated from Masuk High School, he testified that he did not get good grades and passed along through special education classes.   He is intellectually challenged as he cannot write or read English proficiently or with any reasonable degree of understanding.   Because the plaintiff is unable to read or write English, he is unable to pass the written portion of the examination for a driver's license and therefore does not have a Connecticut driver's license, limiting his employability.   At trial the plaintiff appeared to be articulate and with modest coaxing able to answer questions and convey to the court his circumstances and feelings.

Plaintiff is unmarried.   He lives with his brother in Milford.   His brother Arthur Evans assists the plaintiff in his every day ordinary living activities, such as laundry, housekeeping, food preparation and eating, yard work, etc.

The plaintiff's employment history is entirely menial, all unskilled labor jobs including stocking shelves and collecting grocery carts.   The plaintiff's employment history is also sketchy at best because it seems that he doesn't work full time, only when the opportunity presents itself and he wishes to avail himself of such opportunity.

The plaintiff's persona both before and after the subject accident is one of being satisfied with just getting by and depending on persons for his every day welfare.   The plaintiff is not motivated nor ambitious.   For instance, his efforts at vocational rehabilitation are minimal at best.   Also, he testified that he only squeezes a soft ball for therapy for his hand only a few times a week, yet he has ample time to squeeze this therapeutic ball as much as possible.   The plaintiff is content with his lot in life and he is not willing to make simple efforts to improve it.   Could he attend an adult education program to learn basic English writing and reading in order to obtain a driver's license?   He has abandoned all further efforts in regard to occupational or vocational rehabilitation some of which is offered free of charge through workers' compensation.

As a result of the instant accident, the plaintiff has incurred medical expenses totaling $66,983.21 as follows:

Griffin Hospital $37,710.68

Griffin Anesthesia Consultants 3,312.00

Griffin Pathology Consultants 567.00

Connecticut Radiology Associates 72.00

Griffin Hospital Physical Therapy 7,399.04

Advanced Orthopedic Associates 17,894.00

Rite Aid Pharmacy 28.49

$66,983.21

The Court finds that the plaintiff will incur approximately $5000 in future medical expenses as a result of this accident.

The plaintiff's working/earning capacity has also been compromised by this accident but is also implicated by his persona and work ethic.   The plaintiff is entitled to be compensated for his anticipated lost wages since the day of the accident to age 62, which is 15 years and 6 months.

This Court finds that the plaintiff would lose approximately $175,000 in lost wages over his expected working lifetime.

The plaintiff will also experience pain and suffering and loss of life's enjoyment and activities over the balance of his life time and is awarded $250,000 as compensation therefore.

This court awards the plaintiff the sum of $246,983.21 as economic damages together with the sum of $250,000 as non-economic damages for a total award of $496,983.21.   The plaintiff is also awarded taxable costs.

John W. Moran, Judge Trial Referee

FOOTNOTES

FN1. C.G.S. § 31-284(b) provides in part “If the employer fails to comply with the requirements of this subsection, an employee may bring an action against such employer for damages on account of personal injury sustained by such employee arising out of and in the course of his employment ․”.  FN1. C.G.S. § 31-284(b) provides in part “If the employer fails to comply with the requirements of this subsection, an employee may bring an action against such employer for damages on account of personal injury sustained by such employee arising out of and in the course of his employment ․”

Moran, John W., J.T.R.