Donna Yeager v. Maria Alvarez, et al: A licensed practical nurse won a $1.4 million jury award after a car accident in a case that was complicated by workers’ compensation law and a judge’s unusual striking of an offer of compromise.

Nurse Donna Yeager was injured in a rear-end collision while she was working for Patient Care Inc. She sued the driver of the other vehicle, Maria Alvarez, who carried a $300,000 liability insurance policy. The policy wasn’t offered in settlement immediately because Yeager’s injuries were not immediately apparent. She previously had lower back injuries, and the accident complicated those problems. Yeager also sustained new injuries to the part of her spine within her neck.

After more than two years of treatment, Patient Care’s workers’ compensation carrier had paid out $206,000 for Yeager’s medical bills and lost wages.

By state statute, Patient Care’s workers’ compensation carrier has a lien allowing it to recoup any proceeds that Yeager collected from her lawsuit, up to the $206,000. Her lawyer, Michael D’Amico, said he could not persuade the workers’ compensation carrier to reduce the lien “by even a penny,” he said. That, he said, prevented a settlement in a case in which the dollar value of the damages sustained by his client far exceeded the value of the defendant’s relatively small liability policy.

“If you were to pay back the workers’ compensation lien in full, and reduce the settlement amount by the plaintiff’s legal fees and costs, [under this relatively small] liability policy, you leave nothing for the plaintiff,” he said.

In the view of D’Amico, of Watertown’s D’Amico, Griffin & Pettinicci, the circumstance illustrate why Connecticut needs legislation to reduce workers’ compensation liens by one-third in cases like this. That, he said, would leave a plaintiff with a potential settlement while still leaving payment for their lawyers.

A bill that would have made that change failed to pass in the just-concluded session of the General Assembly.

Attorney Royce Vehslage, of the Wethersfield firm of Vehslage & Lahr, represented the defendant, her husband and their small used-car business. He said defense lawyers don’t have a “warm and fuzzy” attitude toward legislation aimed at insuring that plaintiffs’ lawyers get paid, but he said he sees D’Amico’s point.

Vehslage said he’s seen workers’ comp companies threaten to scuttle carefully negotiated settlements over lien amounts as small as $500 – to the dismay of judges and lawyers on both sides who “had all bent over backwards to achieve a fair result.”

Insurers feel they’re entitled to 100 percent of the lien because “they’ve paid out” that amount to the injured worker, said Vehslage.

Suited For Battle

Beyond the workers’ comp snag, another reason this case was not settled is that D’Amico had already spent about $50,000 in trial preparation costs. That expenditure could be justified by a large jury verdict.

Yet another incentive for a trial was that in December 2007 D’Amico made an offer of compromise to settle Yeager’s case for the liability policy limits of $300,000. At that early stage of the case, defense attorney Vehslage and his clients’ insurer were not convinced Yeager’s new injuries were severe. The defense, therefore, did not accept the offer before the brief time limit expired.

However, Vehslage later learned that Yeager had undergone serious spinal disc surgeries the previous August. If the insurer had known that, Vehslage said, it would have accepted the offer of compromise and wrapped up the case.

In 2008, Vehslage filed a motion to extend his time to accept the offer. Alternatively, he moved to strike the offer of compromise, on grounds that significant new facts had not been disclosed in a timely manner. In an unusual remedy, Waterbury Superior Court Judge Robert Brunetti ruled the offer of compromise stricken. That meant that the defendant would not have to pay interest on the difference between the $300,000 offer of compromise and any later higher trial verdict.

Liability in this rear-end collision was admitted from the start, so the five-day trial, which ended June 4, focused purely on damages. D’Amico won $396,242 in economic damages and $983,998 in non-economic damages, for a total of $1,380,240.

In totaling the economic damages, D’Amico factored in his client’s previous injuries. He asked the jury to compensate all of Yeager’s neck treatment, 50 percent of her lower back treatments, and 75 percent of physical therapy treatments. Vehslage gave credit to his opponent: “He had a logical way to present it to the jury, and I think a smart way.”

Vehslage used video deposition testimony from Yeager’s two treating physicians – orthopedist Robert E. Kennon of Middlebury, and Dr. Jarob N. Mushaweh of Southbury. They said Yeager’s pre-existing lower back injuries were not worsened by the accident.

Because the jury decreased D’Amico’s original economic damages request of $577,000 by about a third, Vehslage concluded that he “must have made some headway.” Using treating physicians as witnesses is preferable to bringing in a “hired gun,” he said.

The defendants are a husband and wife who own a small used car business. Vehslage said he doesn’t believe the $1.38 million award is collectable against his clients beyond the $300,000 insurance policy, with one exception.

D’Amico is appealing the 2008 ruling to strike his offer of judgment. If it is reversed, D’Amico could seek more than $200,000 in pre-judgment interest on the verdict amount, payable by the liability carrier, above and beyond any coverage amounts.

D’Amico is pursuing that appeal through attorney Karen Dowd, of Hartford’s Horton, Shields & Knox. Vehslage, in post-verdict motions, has requested a reduction in the jury award.