Rossback Demand Letter Revised to Rossman - part ll
As 2020 went on, and as her neck, shoulder, and arm pain continued, and with the problems it was causing in both her professional and her private life, she was getting quite worn down. She was really struggling to adjust to the limits caused by her impairments, as they were impacting her overall functioning, not only physically, but also occupationally, socially, professionally, emotionally, and psychologically. At this point, it was her understanding that Dr. Bendiks had nothing further to offer aside from a potential surgical recommendation. She was understandably quite afraid of the idea of having surgery, so she decided to seek an evaluation by a pain management specialist, Dr. Myung Yoo.
She saw Dr. Yoo on August 12, 2020. Her neck pain at that point was noted to be at 3/10 level without her pain medication, and it was still radiating to the left shoulder and arm. It was noted to be a constant pain, worse with bearing weight, bending over, carrying, doing excessive work, head tilting, lifting even 6-10 lbs., lying down, pulling 6-10 lbs., pushing 6-10 lbs., or reaching. On exam, he noted a spasm and tenderness with tight muscle band and trigger points noted on both the sides. His impression was cervicalgia, and other spondylosis with myelopathy, cervical region. He suggested a medial branch block at C3,4,5,6 on the left and right with fluoroscopy. He also suggested nerve conduction studies of upper extremities, and he prescribed a trial of a Mobic/Norco compound cream. Unfortunately, Ms. Rossman did not have any health insurance at this point, so she had to hold off on further expensive treatment until she did get some insurance and found an orthopedic clinic that would accept it.
By February of 2021, Ms. Rossman’s pain had only worsened. She sought treatment at Peachtree Orthopaedic Clinic, where she was initially seen by physical medicine specialist Dr. Shevin Pollydore. Dr. Pollydore noted neck pain on the left, radiating down the left arm, aching, stabbing, and dull in nature. It was aggravated by looking up or down, lying down, or lifting. It got better only when she used the recliner. The pain was 6/10 when she presented to the office, but at its worst got up to 9/10. She had been taking Amitriptyline, Ibuprofen, Naprosyn, and Tramadol. On exam, she was noted to have numbness/tingling in the left upper extremity in multiple dermatomes, as well as mildly impaired coordination. There was some paraspinal tenderness to palpation of the cervical spine, and limited motion. He noted cervical MRI findings of herniation at C4-5 and C5-6, with a very large extrusion at C6-7, and also annular tears at C4-5 and C6-7 that he could see. He suggested one more cervical epidural injection, as well as ordering EMG/NCV studies. He noted that if things did not improve, she would be a candidate for ACDF surgery.
The March 20, 2020 EMG/NCV studies were interpreted as normal. Then, on March 13, 2021, Dr. Pollydore performed a cervical interlaminar epidural steroid injection at C5-6. The pre-op pain level was 4/10, and post-op it was 0/10. When she returned to the clinic on June 7, 2021, it was noted that the injections gave relief for a week or two, but the pain was now back to the same level as before. Therefore, Dr. Pollydore decided to go ahead and refer her to an orthopedic surgeon, also at Peachtree Orthopedic Clinic, Dr. Lee Kelley.
On June 30, 2021, Dr. Kelley noted the pathology in her cervical spine that was indicated on the MRI, as well as her persisting pain, the displacement of the discs, the radicular symptoms, and the limited range of motion. He ordered a CT Myelogram of the cervical spine, and that was done on July 20, 2021. This study confirmed the left central disc extrusion at C4-5, resulting in stenosis and abutting the ventral cord with mild cord remodeling. Mild stenosis was noted at C5-6 and C6-7. Dr. Kelley noted that he actually saw a protrusion a C5-6 on this study, as well as spondylosis at C6-7 with a spur and some neural foraminal stenosis at that level. He noted that she was continuing to complain of neck and predominately left upper extremity pain, though she also had occasional pain extending to the right trapezius and shoulder. She was describing weakness in the left arm and difficulty with grip strength in that arm. Based on all of the above, Dr. Kelley determined that she was a candidate for a three (3) level fusion.
Ultimately, on June 10, 2021, Dr. Lee Kelley performed an anterior cervical discectomy and fusion at C4-5, C5-6, C6-7 using K2M PEEK interbody implants with demineralized bone matrix and bio-D stem cell material, anterior plate fixation at C4-7 using K2M translational plate fixation. A total of eight (8) 4X14 mm screws were used, along with three (3) 9 mm cervical cages, and one (1) three level plate.
Our client followed up with Dr. Kelley on Sept. 8, 2021, and again on Sept. 26, 2021. She was reporting gradual improvement, but had some continuing pain and tenderness, as well as nausea induced by her pain medications having apparently caused an epigastric ulcer.
In August of 2021, Ms. Rossman began a course of physical therapy at Benchmark Rehab Partners, on orders of Dr. Kelley. She was still having moderate to severe pain in her neck and at the base of her skull on range of motion, as well as moderate to severe difficulty sleeping and weakness. She also reported intermittent headaches from the base of the neck. The radicular symptoms were noted to have resolved rather dramatically post-surgery. A plan of physical therapy was implemented which included various modalities, including joint and soft tissue mobilization, manual therapy, neuromuscular re-education, strengthening, therapeutic activities and exercises, ADL training, dry needling, fluidotherapy, hot pack/cold pack, iontophoresis, PROM, and ultrasound. As time went on, she did continue to report that activities of daily living, prolonged postures, driving, reading, and looking down all presented moderate difficulty. She was still unable to perform work activities. She continued with oxycodone and ice for pain.
By the time she saw Dr. Kelley again on Oct. 27, 2021, the stomach pain and nausea were improving, and she was taking her pain medication. He noted that her overall pain was much better than pre-surgery, but acknowledged some ongoing neck pain that was moderate in nature, with the left shoulder weakness being resolved. However, there was still some remaining left shoulder discomfort. The fusion was intact and starting to heal, per the new X-rays. He wanted her to keep working on neck motion in her therapy sessions, and he gave her restrictions of 20 lbs. lifting, as well as no overhead work.
The physical therapy sessions continued in September of 2021, and she was also compliant with a home exercise program during this period. She was making progress in terms of being less tender and slower to fatigue, though she did still have some pain and soreness, and she required the use of oxycodone and ice.
On September 15, 2021, Dr. Kelley provided a narrative summary of his treatment up to that point. He noted that, by the time he evaluated Ms. Rossman, he was of the opinion that she had persisting radiculopathy related to nerve compression at C4-5, C5-6, and C6-7, based on her clinical presentation and all the diagnostic workup that had been done to that point. He therefore recommended the three-level anterior cervical discectomy and fusion that was performed on June 17, 2021. He notes that in the course of that surgery, cervical disk herniations were identified at C4-5 and C5-6, with cervical spondylosis noted at C4-5, C5-6, and C6-7. He says Ms. Rossman reported immediate improvement in neck and left upper extremity symptoms postoperatively, and she had continued to show progressive improvement of her symptoms. He also states his opinion that, to a reasonable degree of medical certainty, the persistent neck pain and left upper extremity radicular symptoms were causally related to her June 8, 2019 motor vehicle accident. He explains that, while she did have some temporary improvement from both the chiropractic treatment and the physical therapy while initially under the care of Dr. Duckett, she did not ever resolve the neck and upper extremity symptoms to the extent that she returned to her pre-injury status. He says she sustained significant herniations at C4-5 and C5-6, with the C4-5 herniation noted by both the MRI and myelography to result in spinal cord compression. He also says it is rare that such a lesion resolves spontaneously due to spinal cord compression. There was nerve root compression from the disk herniation on the left side at C5-6, and there was nerve compression from bone spurs on the left at C6-7, which were aggravated by the motor vehicle accident. He noted that at that point she was continuing her recovery, and was still experiencing physical limitations related to her neck. She was working with restrictions, and she remained in active follow up.
Dr. Kelley saw our client again on October 14, 2021, at which time she was still complaining of neck pain of moderate severity, though it was improved. The P/T was helping. She was also still having some difficulty with cervical extension and turning her head to the left. She had 75% cervical flexion and 50% cervical extension, with 75% right and left lateral rotation. Spurling’s maneuver was positive on the left and right, producing neck pain. There was no radiating arm pain, and she had regained most of her strength in the left upper extremity. Certain work activities aggravated her pain, such as driving and using her arms for various activities. She was mostly taking over the counter medications, with occasional Tramadol. He gave her a prescription for more Tramadol and told her to keep working on the exercises to improve motion.
The physical therapy sessions at Benchmark Rehab Partners continued up through Ms. Rossman’s 20th and final session on December 10, 2022. At that point, it was noted that her activities of daily living were presenting minimal difficulties, but prolonged postures, driving, and reading/looking down all presented moderate difficulty. Work activities continued to cause moderate pain. It was noted that prior to this accident she had no limitations with regard to any of the above. She was continuing to take oxycodone and use ice for pain. The radicular symptoms had resolved since the surgery. She remained tender to palpation at the bilateral upper traps and cervical paraspinals. She was able to exercise with no change in pain, and she had made good progress in terms of tolerance. The ongoing impairments that were identified included pain, weakness, loss of motion, and headaches. Functional deficits were noted as well. These deficits included difficulty with driving, sleeping, prolonged postures, overhead reaching, work related tasks, and upper extremity activities of daily living.
On December 16, 2022, Dr. Kelley saw our client again. He noted ongoing mild posterior neck pain that was aggravated by lying down, as well as improving mobility. She described a recent episode of bilateral upper extremity tingling that occurred while doing some work at her home, but it had resolved after she stopped and rested. She had been taking more Tramadol in the past 3 weeks as a result of her recent increased activity level. She explained that she was now wearing a hard hat and other gear at work that tended to cause soreness at the base of her neck. She was still finding it hard to sleep, as she still could not lie flat and must be in a semi-reclined position. On exam, she had mild tenderness in the cervicothoracic junction, with 75% of cervical flexion, 50% cervical extension, and 75% lateral rotation to left and right. Spurling’s maneuver on the left and right still produced pain. There were no significant radiating upper extremity symptoms. The x-rays showed fixation intact at C4-7, and she March be fully healed at C5-6 and C6-7, and almost healed at C4-5. Dr. Kelley suggested she continue the home exercise program and use of over the counter anti-inflammatories, and instructed her to return in 3 months.
On March 18, 2022, Ms. Rossman saw Dr. Kelley yet again. She reported that the neck pain was improving and was mild, but it was aggravated by lying down. She still had neck pain with certain household activities, as well as difficulty sleeping. She was still having to use a recliner to sleep. She was taking Ibuprofen for relief as needed. On exam, she was mildly tender in the cervicothoracic junction, again with 75% cervical flexion, 50% cervical extension, and 75% left and right lateral rotation. Spurling’s maneuver was still positive on the left and right. The doctor noted that she was now 9 months post-op and continued to describe a “steady pain” in her neck, tending to increase at the end of the day. She has some difficulty with housecleaning and other physical activities that tend to increase neck pain. She also described a clicking sensation in her neck when she rotates it, especially when driving. She was still having difficulty lying flat, and she was taking Ibuprofen every night and continuing to work on her exercises. X-rays showed intact fixation and good healing response at all levels. He suggested continued home exercises and Ibuprofen. She was told to return in 4 months.
INCURRED MEDICAL EXPENSES:
As of this writing, our client’s total medical expenses for treatment related to injuries sustained in this accident stand at $181,503.17. An itemization of the charges is attached for your convenience, and the various invoices have been provided.
ANTICIPATED FUTURE MEDICAL EXPENSES:
Clearly, Rosanne Rossman sustained severe injuries, causing her to suffer from chronic neck pain and upper extremity pain, as well as the associated emotional turmoil and psychological distress associated with both her pain and her situation in general. At this point, based on our experience with other clients of a similar age who have experienced similar injuries, surgeries, and chronic permanent pain and functional limitations, we would estimate that Ms. Rossman is likely to incur future medical expenses that run well into six (6) figures, and perhaps even several hundred thousand dollars over the years, depending in part on whether she will end up requiring additional surgery(ies.) At this point, we do anticipate her physicians would testify that she is more likely than not to require additional invasive procedures as she ages and the levels of the cervical spine adjacent to the fusion continue to wear. Even if she ends up being fortunate and can avoid further surgery, she is certainly going to incur very substantial costs associated with her prescription medication refills, follow up doctor visits, future physical therapy, and potentially a home health aide in the last 4 or 5 years of her life (due to increased debility with aging, and separate from needs associated with normal aging.)
LOSS OF EARNINGS AND EARNING POTENTIAL:
Ms. Rossman has already provided deposition testimony relative to much of the particulars of her employment history, earnings, job titles, and duties performed. At the time of the accident, she was working as a construction inspector for the Jonesburg County Engineering Department. She had been employed by the county since 2012. Her hourly wage was $17.87, with overtime paid at 1 ½ times that amount. Per the documentation provided by the county, her average weekly wage at the time of the accident was $714.78. This would equate to $37,168.56 per annum. In addition, as a county employee, she received benefits with an estimated annual value of approximately $15,000.00 per year. As our client will never be able to return to the very physically demanding duties she had been performing in that position.
Ms. Rossman was unemployed from June 12, 2019 up until September 2019, when she was able to secure part-time employment on an as-needed basis with Murphy Alonge Associates, Inc. Her position with that company did not require any heavy lifting or as much physical activity as her job with the county, though it did require repetitive head movements that caused her pain to increase. That job paid $16.00 per hour. Then, a month or so later, she started with Moss Creek Environmental, also working on an as-needed basis, functioning as an environmental specialist with a focus on lead and asbestos inspections. Her job began in the office for training, but eventually she was released to do light duty field work. Upon completing her training and obtaining required certifications, she resigned from the position with Murphy Alonge and began conducting field inspections with Moss Creek. The Moss Creek job also paid $16.00 per hour. She stayed with Moss Creek up through June of 2020, around which time Dr. Bendiks gave her work restrictions that precluded her from performing her duties for that company. Following the job with Mill Creek, she was not working from July of 2020 up until September of 2021, though she was certainly attempting to find a position. However, her work restrictions at the time were such that it was proving virtually impossible to find any type of employment within her field of expertise. Finally, in September of 2021 she was able to secure her present position with Maritech. She is now working for that company as an Erosion Control Inspector, and she is paid a salary of $31,000.00 per year.
While, at this point, we have not calculated her past wage loss, inclusive of benefits, down to the penny, she obviously did lose her full wages and benefits for approximately 3 months in late 2019. She then suffered a complete loss of wages and benefits for approximately 15 more months between July 2015 and September 2021, when she was again unemployed. In addition, her earnings were reduced during the period of September, 2019 until July, 2020, as she was not earning as much in her as-needed jobs as she had earned with the county. Her earnings have also been reduced since she has been working with Maritech from September, 2021 until the present. Taking into consideration the amount of her average weekly wage at the time of the accident, the earnings loss (without including benefits) for the initial 3 months of unemployment plus the second period of 15 months unemployment totals approximately $55,752.00. Her earnings loss for the 10 months she has been working at Maritech amounts to another $5,140.00. We have not yet calculated her losses during the 8-month period in late 2019 and early 2020 when she was employed part time, but obviously that will add several more thousand dollars. Thus, we believe it is fair to say Ms. Rossman has already sustained wage losses as a result of this accident that are well in excess of $60,000.00, with additional losses of benefits that had a value in the range of $15,000-$20,000.
Even more significantly, Ms. Rossman’s post-injury earning capacity is no longer what it was prior to the June 8, 2019 motor vehicle accident. It is obvious that her injuries have rendered her with a permanent disability and functional limitations that are causing her to be more limited in terms of the amount of work and kind of work she can perform. She clearly has an occupational disability, and it is well established that, on average, such persons who are able to continue working will, on the average, earn less and also have a shorter work life expectancy than their non-disabled counterparts.
As noted above, our client is currently earning a salary of $31,000.00 per year with Maritech. As she explained in her deposition, the Maritech position is quite a bit less physically demanding that her old job with the county, and certain of her old duties are simply beyond her physical capabilities at this point. Thus, we believe it is more than reasonable to consider her present $31,000.00 per year salary as representing her full earning capacity at this point. This, again, is in comparison to her $37,168.59 per annum earnings with the county (based on the calculation of her average weekly wage X 52 weeks.) Therefore, we believe her loss of earnings going forward will amount to at least $6,168.59 per year for as many more years as she is able to work.
It is most reasonable to assume that, had she not gotten injured, Ms. Rossman might very well have been able to continue working until the typical retirement age of 67, or approximately 21 more years. However, even if we reduce her work life expectancy based upon the probabilities of living and working, the work life expectancy charts indicate she would have had a work life expectancy in the range of 12 ½ years if she had not gotten injured. But, at this point, given the injuries she sustained and the permanent impairment and functional limitations she must now endure, we would expect any competent vocational expert to opine that her work life expectancy has been significantly reduced, most likely by somewhere between 3-5 years. Thus, even if we perform our calculations based on an assumption she should retire from the workforce only 3 years prematurely, that still represents $111,505.77 of future lost earnings (based on $37,168.59 annual earnings X 3 years.) Then we still must add in the amount she will be losing over the 9 more years she does work, and that amounts to an additional $55,517.31 (based on 9 years X $6,168.59 per year difference between pre-accident earnings and current salary.)
Therefore, we believe even the most conservative calculation of Ms. Rossman’s future loss of earning capacity would be in the range of $167,000.00, and that number obviously does not include additional losses she will sustain due to loss of benefits, loss of bonuses, pay raises, and promotional opportunities due to not being physically capable of producing like she was able to do prior to the accident. When added to the over $60,000.00 loss of earnings she has already suffered to date, and once the additional components of benefits and loss of opportunities to increase earnings are taken into account, we believe it will be rather easy to establish that her past and present loss of earnings easily amounts to at least $300,000.00. In fact, based on prior experience with similar cases involving loss of earnings and future earning capacity, we would not be surprised at all if a competent expert were to opine that Ms. Rossman’s claim for lost earnings is actually significantly in excess of that amount.
EFFECTS ON LIFESTYLE:
The physical pain and inconvenience of this very serious injury to Ms. Rossman’s cervical spine should be rather obvious from a review of her medical records. Equally obvious is that the ongoing physical issues stemming from her injuries have taken a very real toll on her, both personally and professionally. What may be somewhat less apparent are some of the other effects the accident and resultant injuries have had.
For example, as she testified in her recent deposition, our client still has anxiety when in a vehicle. She does not like to drive, but she realizes she must do it. Riding as a passenger is even worse, because she feels she has no control at all. She finds herself avoiding particular intersections, as she knows she can’t turn her head well enough to check for approaching vehicles. For the same reasons, she also does her best to avoid driving in heavy traffic. In fact, unless it is absolutely necessary, she tries to avoid going any farther afield than the familiar streets and destinations near her home.
Another area in which her life has been significantly impacted is in terms of her personal confidence and self-esteem. She has always been a very confident, self-assured type of person. Her success in the military should provide enough evidence to support that assertion, but her continued success in her civilian profession offers further proof. Unfortunately, the injuries she suffered in the subject accident truly affected how she viewed herself. She found it very difficult to admit to how much pain she was having and to ask others for help. She was forced to apply for food stamps at one point during a period of extended unemployment following the accident. She had never dreamed that she would find herself in such a position, requiring public assistance, and she found it be a most humiliating feeling. She has been terribly frustrated by the ongoing pain and limitations. She has had to be constantly concerned with whether a particular wrong move of some sort could cause her to have more pain or perhaps make her underlying condition worse. Perhaps the most frustrating aspect of all is the fact that she had built up a nice career for herself by getting educated to do certain things that she had become very good at doing…but now she no longer has the physical capabilities to be able to utilize all her knowledge or to take full advantage of her experience.
Sleep issues have also been a major problem for Ms. Rossman. Since the accident, she has been sleeping in a recliner chair, because she finds that it is simply too painful to lie flat. She wakes up frequently due to poor positioning in the chair, but despite that, it remains the best solution she has found. She could not even wash her own hair at different points during the course of her treatment, as she simply couldn’t reach her arms up high enough. In fact, it was painful to even feel her hair hanging against her neck, so she cut it very short. Bathing and dressing were quite problematic for her as well, though she acknowledges this has been much better since the surgery.
As a result of her injuries and the pain she has experienced, Ms. Rossman found that she no longer had much desire to go anywhere or do anything, aside from whatever was truly necessary. She feels that her life for the past three years has been almost wholly consumed by doctor appointments, physical therapy and chiropractic sessions, epidural injections, surgery and recovery, home exercising, ice packs, constantly trying to get comfortable and changing sleeping positions in a recliner chair, and taking and refilling medications…all while having to push herself to function well enough to stay employed, or to seek employment during periods when she was unemployed.
The bottom line is that Ms. Rossman suffered greatly following the accident, and while the fusion procedure clearly benefitted her, her body still can no longer do all the things that she needs to be doing, or that she would like to be doing…at least not without making her pay a high price in terms of pain and discomfort while engaged in the activity, or shortly afterwards. Therefore, she does what she can, including the duties of her present job, while trying to avoid doing anything she knows will cause pain or that exceeds her capabilities.
LONG TERM INJURY IMPLICATIONS:
Based upon the nature of the injuries sustained by our client, some of the long-term implications include:
- Obvious susceptibility to future degenerative development in the cervical region, related in part to wear and tear to levels adjacent to the area that has been fused. This increases the likelihood of additional pain, loss of mobility, and even further decrease in function as she ages.
- The need for continued medical care in the future, including treatment that is supportive in nature and during periods of exacerbation of the injuries. This will obviously include ongoing prescription drug treatment, follow up visits to physicians, potential diagnostic workups, periodic physical therapy, and potentially even further surgical intervention.
- Changes in lifestyle, including the inability to engage in a number of necessary and/or enjoyable activities without pain. Ms. Rossman now lives with an understandable fear of further aggravating her injuries, and this is a fear that will likely remain with her forever.
- Ms. Rossman has obviously endured very significant pain, as well as functional limitations and very real quality of life issues. Unfortunately, despite all the physical therapy, chiropractic treatment, epidural steroid blocks, and the very significant 3 level fusion surgery, she will have to endure certain residual effects and a level of discomfort and physical limitation for the remainder of her life. She is presently only 45 years of age, meaning she has a life expectancy of approximately 38 years. That is obviously a very long time to have to live with such problems. We firmly believe that any prospective jury of her peers would attach a very significant value to this component of her damages.
As previously noted, it is clear that Mr. Pennington and Major Waste Services were negligent and were the sole cause of the subject motor vehicle accident. As such, liability rests completely with them, and they will be held wholly responsible for compensating our client for her injuries.
Given your clients’ clear liability, and considering the nature and extent of Ms. Rossman’s injuries, her current and anticipated medical expenses, her loss of earnings and earning capacity, the pain and suffering she continues to endure, her functional limitations, and her 38-year life expectancy, we have conservatively assessed this case as having a settlement value of $1.5 Million. Therefore, this is the amount that Ms. Rossman will accept at this time in full settlement of her bodily injury claim. In exchange, she will provide a full release of Clint Pennington and Major Waste Services Atlanta, LLC.
While no one would ever be able to state with certainty how much a potential jury might award in this or any other case, we do feel very confident in stating that any group of jurors would find our client to be an impressive person. She is someone who has clearly done her best to persevere under most difficult circumstances. She is the very model of a “solid citizen.” She served honorably in the armed forces, performed admirably for many years in her profession, and she has been the provider for her daughters and her mother in recent years. She has also helped care for her handicapped brother and looked after his place, as well as having tended to the needs of a sick uncle. The bottom line is that Ms. Rossman presents as a most credible person…and just as importantly, she is a very likeable person. We are convinced that any jury of her peers would appreciate the extent of her injuries and the huge impact those injuries have had on her life, and they would almost certainly empathize with her plight. Therefore, if this matter were to proceed to trial, we believe there is a very real likelihood of Ms. Rossman receiving an award for an amount substantially in excess of the value we have placed on the claim for settlement purposes at this point.
Please be advised that this settlement demand is conditioned on agreement between our firm and your company regarding the language of the final release. Also, please note that the demand is subject to change upon notice by the undersigned.
If you have any questions or wish to discuss this matter further prior to the expiration of my clients' demand, please feel free to call on me.
With best regards, I am
Very truly yours,
Casey W. Stevens