Broken Back Broken Record

October 31, 2011

In what plaintiffs’ lawyers are calling the largest pre-trial personal injury settlement in Connecticut history, a man rendered a paraplegic following a construction site accident stands to receive as much as $23.35 million.

The worker, then 29, was severely injured when he fell from a forklift that was carrying him to the roof of an under-construction building.

“We’ve settled cases after verdicts that have been for more [money] than this, but I’ve never seen a pre-trial settlement of a case for this amount of money in Connecticut,” said the plaintiff’s attorney, Joel Faxon, of Stratton Faxon in New Haven. “The reason that amount of money was paid is because the injury was so severe and there’s a massive amount of future medical expenses in the eight figures.”

On St. Patrick’s Day of March 2006, Benjamin Wohlfert was at the construction site of a Super Stop & Shop grocery store in Canaan.

According to the plaintiff, Gerald Bates, of Orleans, Mass., was the job foreman and ordered Wohlfert and another man, Jean Kennedy, to go up onto the roof to retrieve some equipment. Bates instructed the men to get in a makeshift trash box placed on a Caterpillar forklift and ride up to the roof to obtain a tool that Bates claimed needed to be stored away in case of inclement weather.

Faxon said the rationale for the trip to the roof was confusing because the weather forecast did not include any rain.

Nevertheless, Wohlfert, who had no prior construction experience and was employed by a subcontractor as a temporary worker, was assured by Bates that riding in the box was safe. Bates was lifting the men, with the forklift’s arm at full extension, when suddenly the box broke and fell apart. The other employee, Kennedy, was able to step off onto the roof to avoid a fall, but Wohlfert wasn’t so lucky.

Wohlfert plunged some 25 feet down to the ground. The impact was so severe that, according to Faxon, the vertebrae in Wohlfert’s back severed his spinal cord.

The injury rendered Wohlfert a paraplegic. He endured spinal fusion surgery, two months of hospitalization, and was transferred to a Colorado rehabilitation facility for “several more months,” according to federal court documents.

Faxon said Wohlfert’s doctor, a well-respected orthopedic surgeon, claimed it was “one of the worst spinal injuries he’d ever seen in over 3,500 spine surgeries.”

After returning to Connecticut, he suffered from infections and had to be hospitalized again. During the second hospital stay, he contracted the drug-resistant bacterial infection known as MRSA, and had to have a substantial portion of his hip removed.

OSHA Violations

Numerous fines and penalties were levied against the general contractor, Pyramid, of Providence, R.I. OSHA rules indicate that manufacturer-approved steel cages are the only acceptable method to elevate workers. This particular forklift used by Bates, however, was not approved for lifting humans, regardless of the type of box utilized.

Faxon said Bates testified at a deposition that he was told by his supervisor with Pyramid not to lift people up with this machine. He said Bates admitted that he went ahead and did it anyway.

“I think Bates was more interested in getting to the liquor store than getting the job done properly and safely,” said Faxon. “Now my client, a man still in his prime and father of two girls, has to live with the consequences of Bates’ stupidity every day for the rest of his life.”

Bates hired an expert who opined that although Bates was knowingly violating safety rules when he lifted the men, he experienced temporary insanity at the time and should be held not liable for that reason. Faxon says he doubts that argument helped the defense’s case.

As an employee of a temp agency, Wohlfert actually had an easier time pursing a large settlement than a full-time worker in the same situation.

Because Wohlfert was hired by Torrington-based Alternative Employment Inc., Pyramid did not get the benefit of the workers’ compensation “bar” to a civil suit. In other words, Wohlfert was able to collect workers’ comp payments without jeopardizing his ability to sue Pyramid, which wasn’t his actual employer.

In 2009, Wohlfert settled with Pyramid for $11.35 million. Pyramid’s lawyer, James G. Geanuracos, of West Hartford’s Malliet & Geanuracos, confirmed the settlement but said a confidentiality agreement did not permit him to comment further.

This was just the first half of settling Wohlfert’s claim.

Bates, too, was hired for the job by a temp agency, Spec Personnel, a national firm that provides staffing for construction sites. AIG Inc. was Spec Personnel’s insurance carrier. Wohlfert brought a claim against Bates and Spec Personnel.

Earlier this month, after a jury was picked but before the trial began, Wohlfert settled with AIG for $6 million. But that’s not the end of it. The plaintiffs say the defendants have a second policy that should pay $6 million more. The dispute is set to go to arbitration, probably early next year but Faxon expects a favorable ruling.

In the end, Wohlfert stands to receive between $17.35 million and $23.35 million in pre-trial settlement money.

The trial lawyer for AIG, Harold J. Friedman, of Friedman, Gaythwaite, Wolf & Leavitt in Portland, Maine, did not respond to an interview request last week. He also is licensed to practice in Connecticut.

Rotted Skin

Faxon explained that being a paraplegic, Wohlfert likely needs $10 million worth of care for the remainder of his life expectancy. He said his client needs to be closely monitored; with no feeling in his legs, Wohlfert is especially prone to skin ulcers.

“He’s had multiple times he’s had to go into the hospital for debridement for rotted skin to cut it out and clean it out,” said Faxon, noting that such infections can become fatal if not treated.

With the settlement money, Wohlfert, a Canaan resident, has bought a house that is being renovated to make it completely wheelchair accessible.

Faxon said the injury has been tough on his client’s family. He said after the accident, Wohlfert’s then 2-year-old daughter was afraid of him. Faxon said previously he was a “vibrant guy” who was also a guitarist in a band.

“It really took a major toll on his kids,” said Faxon. “That was really the thing that disturbed him the most. It’s still difficult for them to have a parent in a wheelchair. You can’t play ball with them, go for bike rides. You have trouble picking them up. It impacts everything you do with your children.”