Back in 1999, when Aleksander Janda was hired by ABC Construction Corp. as an asbestos removal worker, he was a Polish immigrant in the U.S. on an expired tourist visa.
Under federal law, the Immigration Reform and Control Act of 1986 ("IRCA"), it’s illegal to hire someone who’s not legally authorized to work in the U.S. and employers are required to verify the identify and work authorization status of each newly hired employee.
On October 6, 2005, while working as a laborer for ABC at a third-party’s warehouse, then 37 year old Aleksander fell through the roof to the floor 12 feet below and sustained back injuries.
Roof work is dangerous, especially when there is a collapse.
Janda sued the building owner for his physical injuries, medical expenses and loss of earnings, claiming he’s totally disabled from the accident. He was granted summary judgment as to liability and a trial addressed only the issue of damages.
The defense argued that:
- the claim of total disability was bogus
- the lost earnings claim was barred in any event under IRCA because Aleksander submitted false documents when he was hired
From the scene of the accident, Aleksander was rushed to the hospital where he was diagnosed with a thoracic spine fracture – an acute burst comminuted fracture at the T12 vertebrae.
Here is the entire spinal cord. The 12th thoracic vertebrae is just above the lumbar spine.
After five days in the hospital, Janda was discharged with a full back brace. He returned to the hospital two weeks later and was sent to a pain management specialist with whom he treated ever since. Within two years, Janda was diagnosed with an additional back injury – a herniated disc at L5-S1 with sciatica.
In his lawsuit, the jury heard evidence that Janda had given his employer a false Social Security number but no other evidence as to his citizenship or right to work here. Therefore, the defense claimed, IRCA barred any recovery for lost earnings.
New York appellate cases construing IRCA, such as Balbuena v. IDR Realty LLC (Court of Appeals 2006) and Coque v. Wildflower Estates Developers, Inc. (2d Dept. 2008), have held that undocumented workers who submit false documents to their employers when hired will not be precluded from recovering lost earnings in later work-related injury lawsuits unless the employer was duped into believing the worker was "legal."
The jury accepted plaintiff’s argument that his lost earnings claim should not be barred in view of evidence that his employer knew or should have known of his undocumented status and failed to meet its own verification obligations under the statute.
They then awarded plaintiff approximately $2,710,000, as follows:
- $300,000 for pain and suffering ($100,000 past – 2 years, $200,000 future – 25 years)
- $355,000 for past and future medical expenses
- $2,055,000 for past and future lost earnings (including 25 years future)
This week, in Janda v. Michael Rienzi Trust (2d Dept. 2010), the appellate judges affirmed the jury’s finding that Janda may recover his lost earnings; however, they ordered a $614,000 reduction (mainly because of wage rate calculation errors). Thus, the affirmed award now stands at $2,088,000.
The $300,000 jury award for pain and suffering was affirmed. Given the significance of the back injuries and the lost earnings award, the pain and suffering award appears modest. While Janda had yet to undergo any surgery for his injuries, there was evidence that he had permanent back pain leaving him totally disabled and that he needs two operations:
- thoracic fusion at T12 with multiple rods and screws (needed in 10-15 years)
- laminectomy at L5-S1 (needed now)
Here is what a lumbar vertebrae looks like before and after a laminectomy:
- The summary judgment order as to liability was made on May 28,2008 with the result that plaintiff is now entitled to 9% interest on his award from that date (about $200,000 a year for well over two years now).
- Each side attacked the other’s medical experts at trial. Plaintiff derided defense orthopedist Wayne Kerness, M.D. who’s been testifying for 30 years and whose sole source of income is defense work in personal injury litigation; while the defense argued that Shan Nagendra, M.D., plaintiff’s neurologist and pain management specialist, ran a medical mill and over-treated his patients.
- The defendant had surveillance video taken to see if the plaintiff was active. A five minute video showed Janda walking about seven blocks from his home to and from some stores. Defense counsel contended in his summation that the video showed plaintiff "working" and therefore he was not disabled and is entitled to nothing.
- A few months after the verdict, while waiting for a decision on defendant’s post-trial motion seeking to set aside the verdict and/or have a new trial, Janda was arrested on charges related to using someone else’s Social Secutiy number. Brett Nomberg, Janda’s lawyer, claimed that the arrest was engineered by the insurance carrier liable to pay the judgment hoping that Janda would be deported and unavailable for a new trial. With Nomberg’s win this week, there will be no new trial.