XX/2-49 LABOR LAW - 600-LB I-BEAM FALLS FROM ELEVATED JACK

FRACTURED ULNA AND ULNAR IMPACTION SYNDROME- SURVEILLANCE FILM

SETTLEMENT: James and Sharon F. v. Brick & Ballerstein, Inc.; Dynaire Corp. 8237/97 Date of Settlement 4/9/02 Queens Supreme

Pltf. Atty: Mark T. Freeley and James V. Mattone of Buttafuoco & Assoc., Woodbury.

Deft. Atty: James M. Furey of Perez & Furey, Uniondale, for Brick & Ballerstein,

Roy W. Vasile ofCurtis, Vasile, Devine & McElhenny, Merrick, for Dynaire.

This action settled for $500,000 during the presentation of plaintiff s case. On 5/29/96, plaintiff, a 34-year-old sheet metal mechanic employed by Aeroduct, was injured while working on the roof of a building located at 1085 Irving Ave. in Ridgewood. Brick & Ballerstein had hired Dynaire Corp. to install commercial air conditioning units on the roof of the building. Dynaire subcontracted with its subsidiary, Aeroduct, to fabricate the steel I-beam supports for the units. Testimony indicated that the plaintiff was told to use a high-jack with one helper to move the 600-lb I-beams off a dolly and onto a parapet wall. Plaintiff claimed that when the I-beam had been placed on the jack in the load position; he and the co-worker jacked it up 4 feet to push it onto the parapet wall when the jack kicked out and the beam fell, crushing his arm against the wall. Plaintiff claimed that the bottom of the jack was on wheels, and that there were no locks, blocking, or cribbing mechanisms. Plaintiff brought this action pursuant to Labor Law §241(6) and claimed violations of New York Code Rules and Regulations 23-1.27, which applies to raised loads on jacks and the use of a jack under the direction of a supervisor. Defendants would have argued that this Rule did not apply to this situation and would have argued that plaintiff was the direct supervisor or foreman on the job. Plaintiff s Labor Law §240 claim was dismissed on summary judgment motion.

Injuries: fracture of the right (dominant) ulna. Plaintiff was hospitalized overnight. His fracture was casted for 6-8 weeks and splinted for 4 additional weeks. Plaintiff underwent physical therapy, and hand surgery was performed after an arthrogram revealed a ligament tear and ulnar impaction syndrome. He never returned to work, and claimed permanent loss of use of the right hand. Plaintiff s expert would have testified that plaintiff is occupationally disabled, but if he completed vocational training, he could earn approximately $31,000 per year .(He had been earning $37,000 at the time of the accident.) Defendants would have argued that plaintiff is not totally disabled, and that he has the ability to earn $32,000 per year. Demonstrative evidence: Defendants would have introduced a surveillance video allegedly showing that plaintiff is able to use his hand. Settlement apportionment: The entire settlement was paid by Dynaire. Carriers: Chubb for Brick & Ballerstein; Royal for Dynaire and Aeroduct.

Pltf. Expert(s): Plaintiff would have called Dr. Arthur Mirza, treating orth. surg., Smithtown; Stuart Sachnin, Ph.D., vocational economist, Manhattan.

Deft. Expert(s): Defendants would have called Dr. Frank Hudak, orth. surg., East Meadow; Dr. S. Murthy Vishnubhakat, neurologist, Manhasset; Dr. Seth Paul, orth. surg., Cedarhurst, James Pascuiti, vocational rehabilitation, Springfield, New Jersey.