Workers Comp Zone


Sometimes there is a great divide between what an injured work can receive in the workers’ comp system and in the civil justice system.

Being a no fault system, workers’ comp was not designed to “make workers whole”. Although workers’ comp benefits are payable regardless of who was at fault in causing the injury, those benefits do not fully compensate for wage losses, pain and suffering, loss of enjoyment in life and other such measures of damages.

Workers injured due to the negligence of “third parties” of due to defunctive products can pursue lawsuits in civil court to seek full compensation.

So it was in a case handled by two of my trial lawyer colleagues at Boxer & Gerson LLP in Oakland, Gary Roth and John Anton.

On May 12, 2012 it took a jury in federal court (U.S. District Court in San Francisco, Hon. Maxine Chesney presiding) just 10 hours of deliberation to return a unanimous verdict and award a Brentwood man and his wife $11.4 million for injuries sustained in a vehicle accident caused by defects on a Volvo garbage truck he was driving.

The $11.4 million award includes approximately $2.4 million for future medical expenses and loss of earning capacity, $7.5 million for pain and suffering and $1.5 million for his wife’s loss of consortium.

The worker was a Teamster driver operating a garbage truck for Waste Management in Livermore, Ca. when the right front hub of the truck fractured and the right front wheel fell off. The worker’s injury required 3 surgeries to date and perhaps more in the future.

The lawsuit filed by Boxer & Gerson alleged that the front hub was defective and that the garbage truck manufacturer, Volvo, and the components parts manufacturer were negligent, were aware of safety issues with the aluminum hubs, and did not warn users of the danger. In addition to Volvo, which built the cab and chassis, the complaint named Consolidated Metco, the manufacturer of the aluminum front hubs, and Wittke Manufacturing, an entity that modified the truck.

At trial, the 3 defendants alleged that the worker’s employer was at fault for overloading the trucks and for not noticing cracks in the hubs. But after hearing expert testimony, the jury allocated only 6% of fault to Waste Management, the worker’s employer.

62% of fault was assigned to Consoldiated Metco, 30% to Volvo Truck, and 12% to Wittke. 27 witnesses testified.

Thousands of such hubs are in service in trucks across the United States.
During the trial, Attorneys Roth and Anton argued that in spite of knowledge that the hubs were unsafe, the defendants had not sought to recall the aluminum hubs or notify users of the risk of failure during use.

Tort cases like this are an extra dimension that good lawyers can pursue to help some injured workers.

The case serves as a reminder that when an accident occurs, there may be a deeper story that needs to be explored.

Why did the accident occur? Are there design failures in the tools and equipment? Were items modified or remanufactured?

In some cases looking into these things may make a huge difference to a worker who has suffered a career ending injury, a worker who might otherwise receive a pitiful workers’ comp recovery under a strict AMA Guides system.

That’s the great divide. Kudos to Gary Roth and John Anton for helping span the great divide in this case.

Julius Young

Category: Understanding the CA WC system