[precedent info] Fibro What? A Jury Is Won Over

[Guest guest]

Note: This information was just posted to DISINISSUES,

I felt it was so important, as in for precedent purposes,

for many in their battles with insurance companies and employers -

that I am reposting it here -

[Disinissues Website: http://www.cfids-me.org/disinissues/]

http://www.lawnewsnetwork.com/stories/A19017-2000Mar17.html

Fibro What? A Jury Is Won Over

Lawyers score record verdict for disputed fibromyalgia ailment

By Margaret Cronin Fisk The National Law Journal March 20, 2000

A former ferry worker afflicted with a recently recognized and

oft-disputed chronic pain syndrome called fibromyalgia has won a

$2.37 million jury verdict -- the largest award ever to a plaintiff

claiming to suffer from the condition.

The plaintiff, Greenwood, contended that he was left in

constant pain after having an accident while carrying a load of sand

up a ladder on the M/V Quinault ferry, owned by the state of

Washington.

The state conceded that Greenwood was in pain but disputed liability

and the extent of his physical disability. But on March 1, a Seattle

jury found that the plaintiff was permanently disabled and that the

state was responsible. Greenwood v. State of Washington, No.

98-2-22537-8SEA (Super. Ct., King Co., Wash.).

The verdict was unusually large for a fibromyalgia case. Fibromyalgia

is a chronic pain syndrome that was not accepted as an actual

physical disorder until 1990, when it was recognized by the American

College of Rheumatology. However, the condition is frequently

dismissed by doctors, insurance carriers and government agencies,

said Lynne Matallana, executive director of the National Fibromyalgia

Awareness Campaign.

This lack of acceptance and the nature of the injuries mean that

these cases can be difficult to win, said Greenwood's counsel,

Seattle solo practitioner P. Krafchick. " You can't see pain, "

he said, and the defendants often claim either that the plaintiffs do

not have the condition or that the pain is psychological.

On April 28, 1996, Greenwood was climbing a ladder while carrying a

bag of sand when his foot slipped. His supervisor grabbed him to keep

him from falling, but Greenwood hurt his neck, back and shoulders,

said Krafchick. Greenwood continued to work for the next 21 months,

despite chronic pain, but in January 1998, Krafchick said, " he came

down with a bleeding ulcer. A rheumatologist diagnosed him in

February 1998 with fibromyalgia. " He has since been unable to return

to work.

Greenwood sued the state, charging that it was negligent in

permitting him to climb a ladder while carrying the sand " in

violation of Washington labor code, " which states that a worker can't

ascend or descend a ladder " without having both hands free, "

Krafchick said.

The state had four basic contentions, said Nicefaro Jr.,

assistant attorney general of Washington.

First, Greenwood himself was responsible for the accident. Second,

the slip was a minor event that resulted in a shoulder strain. It

would have resolved itself with appropriate physical therapy. Third,

whatever pain Greenwood had was not connected to this slip on the

ferry. " He worked 22 months after the incident, " Nicefaro said. And

fourth, the pain was psychological in origin.

To win, the plaintiff used extensive documentation, including medical

literature about fibromyalgia and how Greenwood's condition closely

reflected the standard diagnoses for the syndrome.

The plaintiff's team also relied heavily on experts in rheumatology

and pain, including a specialist in addiction and chronic pain, and a

psychiatrist. To connect the pain to the incident, Krafchick said,

the plaintiff " called people who knew -- his supervisor, his

girlfriend ... to establish that the pain started before January

1998. "

A turning point in the trial, he noted, was the cross-examination of

the defense pain expert, a rheumatologist from the University of

Washington, who wound up conceding the similarities between

Greenwood's symptoms and fibromyalgia diagnostic standards: " We used

him as a vehicle to get our points out again. " The state is filing

post-trial motions to set aside or reduce the verdict.

Copyright © 2000 ALM IP, LLC -- American Lawyer Media. All rights reserved.