HomeMy WebLinkAboutR-83-1110J-83-1050
11/23/83
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RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO PEARLINE MCFADDEN THE SUM
OF ThIRTEEN THOUSAND DOLLARS ($13,000.00)
WITHOUT THE AUMISSION OF LIABILITY, IN FULL
AND COMPLETE SETTLEMENT OF ALL BODILY INJURY,
PERSONAL INJURY PROTECTIONS LIENS, WORKER'S
COMPENSATION LIENS, CLAIMS AND DEMANDS
AGAINST THE CITY OF MIAMI AND EDDIE SIMMONS
AND UPON EXECUTION OF A RELEASE RELEASING THE
CITY OF MIAMI AND EDDIE SIMMONS FROM ALL
CLAIMS AND DEMANDS.
WHEREAS, Pearline McFadden, through T.G. Anagnost, Esq. of
Preddy, Kutner & hardy, P.A., her attorneys, filed a claim
against the City of Miami and Eddie Simmons, for alleged bodily
injury, personal injury protection liens, worker's compensation
liens and other claims and demands resulting from a motor vehicle
accident wherein Pearline McFadden was a passenger in a motor
vehicle involved in a collision with a City of Miami Solid Waste
vehicle on May 28, 1980 on Northwest 20th at or near its
intersection with Northwest 12th Avenue, Miami, Dade County,
Florida; and
WHEREAS, the above claim has been investigated by the Torts
Division of the City Attorney's Office in accordance with
Ordinance No. 8417, which created the City of Miami's Self -
Insurance Program, the said office recommends that these claims
be settled without the admission of liability, for the sum of
Thirteen Thousand Dollars ($13,000.00);
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized
to pay to Pearline McFadden the sum of Thirteen Thousand Dollars
($13,000.00) without the admission of liability, in full and
complete settlement of all bodily injury, personal injury
protection liens, worker's compensation liens, claims and demands
against the City of Miami and Eddie Simmons, upon the execution
of a release releasing the City of Miami and Eddie Simmons from
all bodily injury, personal injury protection liens, worker's
CITY COMMISSION
S3� I 1 0
RFC 8 1983
compensation liens and claims and demands.
PASSED AND ADOPTED this 8th day of I)ecember , 1983.
Maurice A. l-erre
MAURICE A. FERRE
MAYOR
ATTEST:
RA G. ONGIE
City Clerk
PREPARED AND APPROVED BY:
/Zt!L"t�-
LIA J. ROBERTS
Assistant City Attorney
APPROVED AS TO FORM AND CORRECTNESS:
;?4 &44"
`
SE R. GARCIA-PEDRO A
ity Attorney
JJR/wpc/pb/452
-2- 83--1110
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CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
f
° Honorable Mayor and Members
DATE November 24,
1983 FILE
VC-80-92 &
of the City Commission
L-83-40
SUBJECT. Pearline McFadden
vs.
City of Miami
& Eddie
Simmons
Circuit Court
Case No
83-6836 (2
FROM
REFERENCES.
D/A: May 28,
1980
Jose R. Garcia -Pedrosa
L/I: NW 20th
St. & NW 12th Ave.
City Attorney
ENCLOSURES Miami,
Florida
Plaintiff Pearline McFadden filed a claim against the City
of Miami and City of Miami employee Eddie Simmons, through her
attorney, T.G. Anagnost, of Preddy, Kutner and Hardy, P.A. to
recover for personal injuries received by Pearline McFadden from
a motor vehicle accident involving a City of Miami Solid Waste
vehicle driven by Eddie Simmons and a Liberty City Jitney.
The accident occurred on May 28, 1980 in the morning on
Northwest 20th Street at or near its intersection with Northwest
12th Avenue. The Liberty City Jitney in which Mrs. McFadden was
a passenger made a left hand turn from Northwest 12th Avenue onto
Northwest 20th Street. The Solid Waste motor vehicle driven by
City of Miami employee Eddie Simmons was close behind the
Liberty City Jitney. After the turn was completed, the right
front bumper of the City of Miami Solid Waste vehicle came into
contact with the left rear bumper of the Liberty City Jitney,
causing an impact which pushed the Liberty City Jitney forward
suddenly. Under Florida Statutes, Section 768.28, responsibility
for any negligence of a City of Miami employee while in the
course and scope of his employment rests with the City of Miami.
Pearline McFadden was 52 years old at the time of this
accident. She sustained an injury to her neck and lower back.
Mrs. McFadden was treated at the emergency room at Jackson
Memorial Hospital on the day of the accident and returned again
two days later when her back and neck pains failed to subside.
She was, referred to Dr. Raymond Walker who treated her for
several months with physical therapy, exercises and medication.
Her injury, evidenced by muscle spasms and severe stiffness and
soreness, initially responded to treatment. After several months
of treatment, she still had a restricted range of movement and
significant episodes of pain in the lower back with occasional
episodes of pain in the neck accompanied by headaches. Dr. Walker
left his practice and referred her to Dr. Alan Shnapier who
specializes in orthopedic surgery. Dr. Shnapier treated her from
February of 1981 until April of 1982 with an exercise program
designed to strengthen the back and mild analgesic and anti-
83-111p
4
Honorable Mayor and Members
of the Citv Commission
IF
November 24, 1983
Page 3
of business in December of 1981 so Mrs. McFadden obtained
employment with Burdines in downtown Miami. In that job, she was
required to do extensive standing and lifting as a security
checker. She was working approximately 30 hours a week at an
increased salary from her previous job but found herself unable
to manage the work due to increasing back pain. She asked for a
transfer and received a transfer in March of 1983 to the position
of salesgirl. Again, she received a wage increase but due to the
extensive standing and bending necessary in that job, her back
pains prevent her from working more than 20 hours a week. This
has resulted in approximately a $20.00 a week loss in wages in
comparison to the amount she was making at S.H. Kresse prior to
the 1980 accident.
All of the medical expenses and other damages have been
verified as to correctness. The original demand that the
plaintiff presented was for the $50,000.00 limit established
under Florida Statutes, Section 768.28. This was later reduced
to a demand of $35,000.00. After extensive discussions and
negotiations, this matter can now be settled for $13,000.00.
This claim has been investigated by the City Attorney's
Office in accordance with Ordinance No. 8417, which created the
City's self insurance program. The City Attorney's Office
recommends that the City of Miami pay $13,000 in settlement of
this claim.
O0x
JGP/JJR/pb/458
cc: City Manager
City Clerk
83-1110
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Honorable Mayor and Members
of the Citv Commission
11
November 24, 1983
Page 2
inflammatory medication such as Tylenol. He discharged her in
April of 1982, having found that she had reached maximum medical
improvement. At that time, Mrs. McFadden still had a decreased
range of movement in the back and moderate pain which required
almost constant over-the-counter medication. The pain in her
back was aggravated by long periods of standing or sitting,
lifting heavy objects, and bending or stretching motions. Dr.
Shnapier had examined a set of X-rays still existing from
treatment Mrs. McFadden had required after a 1969 accident.
These X-rays of the lower back indicated a normal low back spine
in 1970. X-rays taken immediately after this accident of May,
1980 revealed degenerative changes in the lower back. X-rays
taken by Dr. Shnapier prior to discharge in 1982 noted further
degenerative changes in the back, evidenced by a narrowing of the
disc space at the S-1 level. As plaintiff was asymptomatic from
the 1969 accident for at least five years prior to the 1980
accident, Dr. Shnapier found it medically probable that the
current degeneration in the back was caused by the 1980 accident.
At the time of her last examination, Dr. Shnapier found no
neurological involvement that indicated a neurological deficit
but he thought that neurological deterioration in the future was
possible and that if that occurred, Mrs. McFadden would need
further treatment and possibly even surgery. Dr. Shnapier gave
Mrs. McFadden a 5% permanent impairment rating based on the
injuries received from the 1980 accident.
The City of Miami had Mrs. McFadden examined by orthopedic
surgeon Robert L. Kincheloe on November 4, 1983. Dr. Kincheloe
basically confirmed that Mrs. McFadden's complaints were con-
sistent with a severe degenerative disc disease at the L-5/S-1
level with mild degenerative changes throughout the rest of the
spine. Dr. Kincheloe found it probable that the 1980 accident
aggravated degenerative changes plaintiff may have had in her
back prior to the 1980 accident. He did not think further
treatment was indicated at the time of the examination, nor did
he feel that Mrs. McFadden had sustained any permanent disability
from the 1980 automobile accident.
Mrs. McFadden's medical bills relating to this accident
totaled approximately $1,938.00.
In addition to her medical bills, Mrs. McFadden lost two
weeks from work immediately after the accident. At the time of
the accident she was working 40 hours a week at S.H. Kresse and
was making approximately $110.00 per week. S.H. Kresse went out
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