On 3/24/18, Allen Charles, a Metro-North Commuter Railroad Structural Welder, was assigned to work on a job that involved installation of two steel walkways on top of a wall alongside the elevated tracks just outside the mouth of the Park Avenue tunnel. The pre-fabricated walkways were loaded onto a high rail boom truck and brought to the work site. Charles was told to use his torch to prepare the wall where the walkways would be installed.
While Charles had his back to the boom truck and was using his gas and acetylene burning torch to cut out old steel on the wall, one of the new steel walkways fell from the boom truck because someone had prematurely loosened the straps holding the steel walkway. A co-worker yelled out a warning and Charles attempted to duck under the boom truck, but he struck his head on the side of the boom truck, knocking off his hard hat and gashing his head. As he fell, Charles attempted to avoid contact with the third rail, but his back was struck by the steel walkway.
Charles was taken to a Manhattan hospital where he was admitted for 5 days. He was diagnosed with 4 fractured vertebrae in his lower back, a large laceration of his scalp, and multiple spine injuries including 3 herniated discs. In addition to requiring extensive and lengthy physical therapy and pain management, it was also necessary for Charles to undergo two spine surgeries consisting of a fusion of his lower spine to his pelvis and a fusion of his neck.
Shortly after his accident, Charles hired FELA lawyer, Ira Maurer from the Maurer Law Firm in Fishkill, N.Y. to bring a lawsuit against Metro-North. From the beginning, Maurer explained the entire litigation process to Charles so that he could understand it and also explained the tactics Metro-North typically uses to defend itself. Maurer quickly filed a lawsuit and was able to develop evidence that forced Metro-North to accept total responsibility for the accident. Due to the severity and complexity of Charles’ spine injuries, time was needed for him to obtain the treatment he required. When the federal judge attempted to speed up completion of the lawsuit, Maurer convinced the railroad’s attorney to have a federal Magistrate Judge take over the case. This allowed Charles enough time to get fully treated and undergo his two spine surgeries before the case was scheduled for trial.
When Charles was told by his surgeon, Dr. John Shiau that he was permanently disabled from his structural welder job and had permanent physical restrictions, Maurer counseled Charles to seek alternative work at Metro-North to avoid losing his job and benefits. However, through pre-trial discovery demands and deposition testimony, Maurer proved there were no jobs available for Charles. Maurer then had Charles go through a vocational assessment by Peter Capotosto, a vocational rehabilitation expert. With Maurer’s guidance, Charles looked for employment on his own and also went to AccesVR, a New York State agency that provides free vocational rehabilitation services, to assist Charles in his efforts to return to work. Charles was placed by Access-VR in a school for computer training and the cost was covered entirely by New York State.
To assess how much money Charles’ injuries would cost him in lost pay and fringe benefits, Maurer hired Kristin Kucsma, an economist experienced in assessing monetary damages in FELA injury claims. Maurer provided Kucsma with an estimate he obtained from the U.S. Railroad Retirement Board concerning the projected pension Charles would have received had he worked at the railroad until full retirement age. Maurer also provided the economist with information regarding the MTA Defined Benefit Pension Plan and the annual cost to Metro-North to provide the fringe benefits Charles was entitled to receive pursuant to the Collective Bargaining Agreement between Charles’ union, Teamsters Local 808 and Metro-North.
Metro-North’s defense included hiring 4 experts. Dr. Paul Kuflik, an orthopedic surgeon, claimed that Charles was “neurologically intact” and that “there is no objective causally related indication of an injury to the cervical, thoracic and/or lumbar spines.” Kuflik also claimed Charles could participate in unrestricted activities of work and daily living and did not need further treatment for his spine.
Metro-North hired a radiologist, Dr. Lewis Rothman to review all of Charles’ diagnostic tests. Even though Charles had to undergo two separate fusion surgeries on his neck and lower back, Rothman found “no evidence on these X-Rays or MRI scans for surgical treatment of either the cervical or lumbar spine as a consequence of the injuries of 3/24/18.”
Metro-North also hired a vocational expert, Joseph Pessalano to evaluate Charles and determine what kind of work he could perform. Pessalano determined that Charles could perform a number of jobs including a bench carpenter and a bench welder (despite his significant lifting restrictions from his spine surgeon), and a jewelry assembler (even though he had no experience in the field) with starting salaries ranging between $47,420 and $55,120. These starting salaries were supposedly available during the Covid 19 pandemic when unemployment reached levels not seen since the Great Depression.
The case was scheduled to commence trial in April 2021. The parties agreed to go to private mediation beforehand to see if the case could be settled. Ira Maurer’s four decades of handling FELA injury claims combined with his twenty years’ of experience as a federal court mediator helped him to win Charles a settlement of $2.5 million.
