Injury Lawyer

Milwaukee, Wisconsin

Workers Compensation Settlement

$1.1 Million Settlement Goes to Injured Worker

By Tony Anderson Wisconsin Opinions Staff

A Brown County man in his early 20s who severed his right hand on a table saw received a $1.1 million settlement from the saws previous owner.

Nowadays, he is receiving retraining as a graphic artist, having taught himself how to draw with his left hand.

Joshua Maloney was operating a Whirlwind table saw at a pallet shop in Suamico, when his hand slid under the safety guard that was set too high above the wood he was cutting. Maloney had slipped and, in the process, set the machine in motion. Before he was able to respond, the machine had severed much of his right hand.

Injury Lawyers, Willard P. Techmeier and David J. McCormick, of Techmeier and Van Grunsven S.C. in Milwaukee, represented Maloney in the case. They said the accident would not have happened if the table saws safety guard had been adjusted to the proper height. The saws previous owner, Thunder Corp., which did business as Northland Thunder, had modified the saw by cutting off the height adjustment knob.

James P. Brennan, Of the Milwaukee firm Brennan & Collins, represented Thunder Corp. and was the only one of the defendants to go through the six-day trial. Brennan said that, even though the knob had been modified, the safety guard could still be adjusted.

Maloney brought the Brown County suit against the saw manufacturer, Whirlwind Inc, Thunder Corp. and its insurer, Pennsylvania Lumbermans Insurance, and the workers compensation carrier, Regent Insurance Co. The case settled on the last day of the trial.

One of the main contentions in the case was that Maloneys accident was the result of improper safety measurers on the saw. The safety guard was set 6 inches above the table, and the knob to change that height was missing. The manufactures warning, printed on that knob, indicated the guard should have been adjusted to with 1/4 inch of the wood being cut.

"The height adjustment knob had been removed before the employer bought the saw, " Techmeier said. "They did not even know that is was adjustable because the knob had been cut off. The knob, itself, had some directions on it saying you were supposed to lower the height to within 1/4 inch of the work piece."

After failing to reach an agreement through mediation, the case went to a trial.

Self-infliction, design safety, training

Techmeier and McCormick credit several factors with helping them reach a settlement with the previous owner and its insurance company. Primarily, they noted, the plaintiff made a good impression on the jury.

"Our plaintiff made a very excellent presentation on his own behalf," Techmeier said, "It was very difficult for him to testify about the event. He was still suffering from shock. He presented himself as an 'every boy'."

The plaintiffs position was further strengthened by the testimony of the surgeon who reattached Maloneys four fingers and the psychologist who was helping him cope with the situation, Techmeier continued.

The doctors testimony was particularly helpful when the workers compensation carrier brought forth hearsay evidence that Maloney may have intentionally inflicted the wound, McCormick noted.

Maloney had a relative who had suffered a disabling injury as a young worker, and had lived the rest of his life off of the disability pension, Brennan explained. He presented hearsay statements collected by the workers compensation carrier that Maloney had made statements about cutting off his own hand.

"An independent psychologist said that the scenario fit the character of a person who would do this, even though his own psychologist and his own surgeon said he did not fit the character of a person who would do this," Brennan said.

However, those statements were challenged by the testimony of Maloneys psychologist, Brad K. Grunert, and surgeon Hani S. Matloub. They testified that Maloney did not fit the profile of someone who had inflicted the wound on himself.

"The good thing for us was that the treating psychologist and the hand surgeon operate as a team," McCormick said of the doctors who served as expert witnesses. "They have vast experience with self-infliction. They said, based on their experience, anyone who suffers from post-traumatic stress disorder is not a self-inflicter. "

Statements from jurors after the trial indicated they did not believe anyone would have cut their hand off to get disability pay, Brennan acknowledged. The case was further strengthened, Techmeier said, by the engineer who inspected the saw.

"Our engineering expert testified that if the height adjustment knob had been on there, the accident would not have happened," McCormick said, noting that Maloney and other workers might have realized the guard could be adjusted. "Our client stated that he did not know it was adjustable. During the three months he worked there, he never saw it adjusted,"

However, Brennan also had an engineer who testified that the machine could still be operated in a safe fashion. "We had an engineer who told us that even though the guard knob on the saw had been altered, it was still adjustable and therefore was not any different than when it was manufactured," Brennan said.

Although Maloney had worked at the pallet shop for a few months, he had not worked on the saw during that time. Instead, he worked as a wood stacker. On the day of the accident, he filled in for one of the saw operators.

Maloneys lack of training and experience was one of the challenges to the lawsuit. Since he was not a seasoned table saw operator and had not undergone extensive training, there was a question of who bore responsibility.

Despite Maloneys lack of experience on that particular saw, Techmeier and McCormick noted that he had worked on different types of saws at different jobs. In each situation, the training was similar.

"We were able to establish through Mr. Maloney that, while he was not familiar with this saw, he had a lot of past experience working with other saws," Techmeier said. "The jury got the impression that what this employer did wasnt anything different than what most people would do in training an employee to use a dangerous saw."

The corporate defense, damages, ADR

Thunder Corp. also stated that Maloney had brought the action against the wrong corporate entity. The holding company said the case should have been against its subsidiary, Northland, which had been dissolved since 1987.

The plaintiffs attorneys maintained that the two companies were one and the same: "This subsidiary was a subsidiary in name only," McCormick said.

Both sides agreed that the officers of both corporations were the same, and president of Thunder Corporation took part in running Northland. The judge said there was a question as to whether they had waived their status as a separate corporation.

Brennan also questioned the decision to subject Maloney to more than a dozen different surgeries, costing about $220,000. When all was said and done, he noted, Maloneys hand was still deformed and had limited use.

"We argued that they should not have reattached the hand, and once they found our it wasnt going to work they should have taken it off and put on a prosthetic device that would have been more functional," Brennan said, noting the cost would only have been $20,000.

Maloneys doctors, however, testified to the psychological importance of keeping the reattached hand, even if it had limited functioning.

Prior to taking the case to court, the parties had attempted to settle the dispute through mediation.

Although it proved unsuccessful, Techmeier noted it can be a valuable tool. "Weve had some very good results with mediation," he said.

Before the case made it to trial, two settlement offers were presented for $200,000 and $500,000. Brennan said he felt the mediation was effective in laying the groundwork for the settlement that was finally reached. In cases like this, he noted, mediation is a very important tool.

"Where theres a very large injury and very large damages, the mediator will get the parties talking as to how much they would really be willing to settle for," Brennan said. "Frequently, in large cases you cant get the parties talking. Each one is dancing around playing chess, and you cant really get them talking until you get them into mediation."

Prior to the trial, Maloney received $40,000 from Whirlwind, the saw distributor and its insurer.

The case of Maloney v. Whirlwind, et al., case #95-CV-535.

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