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MILLARD v. UNITED STATES

October 23, 1992

RICHARD F. MILLARD, PLAINTIFF v UNITED STATES OF AMERICA, DEFENDANT


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 October 23, 1992

 BACKGROUND

 Plaintiff Richard F. Millard filed this action against the United States government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 - 2680, *fn1" seeking damages for injuries to his back allegedly sustained on February 6, 1988 while he was unloading mail from a tractor-trailer truck docked at the Harrisburg, Pennsylvania post office. *fn2" At the time of the accident, Millard was employed as a truck driver by Lucas Trucking ("Lucas") of Jersey Shore, Pennsylvania.

 Lucas had a contract with the United States Postal Service ("U.S.P.S.") to transport mail in bulk from Detroit to Philadelphia. Millard was assigned by Lucas to the Jersey Shore-Philadelphia leg of the route, which included a stop at the Harrisburg post office to unload and take on mail.

 When Millard arrived at Harrisburg, his first stop on the run, he backed the trailer into the dock he was assigned (Dock No. 36) and began unloading it himself because no postal service employee was free to assist him. As he was doing so, he was struck in the back by one of the all purpose carriers or "APC's" which the postal service uses to transport mail. The impact knocked him to his knees. It took him a few minutes to regain his composure. After he did so, he called out to postal workers nearby for assistance, and with the assistance of a postal worker, finished unloading and loading the truck.

 After telling a postal employee about the incident, Millard left for his next stop and completed his route. Millard experienced increasing back pain over the next several days, and left word for his wife to make a doctor's appointment for him.

 On his next day off, Thursday February 11, 1988, he went to Dwight R. Miller, D.C., chiropractor, complaining of pain in his lower back radiating into his legs. Dr. Miller had plaintiff go to Jersey Shore Hospital for an x-ray of his lumbar spine. *fn4" Dr. Miller diagnosed the problem as back strain and had plaintiff return for a series of manipulations of his spine. *fn5"

 While he was undergoing treatment with Dr. Miller, plaintiff was also attending physical therapy sessions at Divine Providence Hospital in Williamsport, Pennsylvania, under the supervision of Dr. Midmore. He attended sessions regularly for one month.

 In mid-March, 1988, plaintiff's condition worsened and he consulted Dr. Hani Tuffaha, a neurosurgeon with offices in Williamsport, Pennsylvania. Dr. Tuffaha had plaintiff undergo an MRI *fn6" from which Dr. Tuffaha concluded that he had a herniated disc at the L-5/S-1 level requiring surgical intervention. *fn7" On April 7, 1988, Dr. Tuffaha performed a L-5/S-1 laminectomy *fn8" and a discectomy to correct the problem. Dr. Tuffaha tracked plaintiff's post-operative progress over the next several months, and observed that he appeared to be recovering well from the surgery. In July of 1988, plaintiff's condition took a turn for the worse after he slipped and fell on wet grass. Dr. Tuffaha had him undergo a second MRI, which revealed that he had a fractured facet and a herniated disc at the L-4/L-5 level. Dr. Tuffaha performed back surgery on plaintiff in August 25, 1988 to correct that condition.

 Unfortunately, plaintiff's condition did not improve and he remained unable to work. In December, 1988, he underwent another MRI which revealed nothing abnormal about the condition of his spine.

 On July 5, 1989, plaintiff was examined by Dr. Maurice Romy, a neurosurgeon, with offices in Philadelphia, Pennsyvlania, who found him profoundly disabled and recommended that he undergo further treatment.

 The multiple back surgeries and the various complications have left plaintiff totally disabled. He has not worked since February 10, 1988. He walks with difficulty and is in severe to moderate pain much of the time. The physicians who have examined him or reviewed his records agree that he is a victim of failed back syndrome, meaning that his recovery has not been what would have been anticipated, that he is not a good candidate for any further surgery, and that is there is essentially nothing that can be done to improve his condition.

 Plaintiff filed this action against the United States alleging that the negligence of the U.S.P.S. is responsible for his current condition. Plaintiff alleges that: (1) postal workers' negligence, either in failing to set the brake on the APC or in failing to red-tag it if the brake was defective, is responsible for the APC striking him on February 6, 1988; (2) that accident caused him to suffer a herniated disc at the L-5/S-1 level; and (3) that herniated disc and complications from the procedures which he had to undergo to have it corrected have left him profoundly disabled, rendering the United States liable for all damages caused by the chronic back problems he has experienced since February 6, 1988. Plaintiff seeks to recover (1) the medical expenses incurred for treatments and surgery on his back and for the treatment of a pre-existing psoriasis condition which was allegedly exacerbated by the stress caused by his back injuries; (2) past and future lost wages as a truck driver; and (3) compensation for pain and suffering.

 The United States disputes both negligence and causation. It argues that plaintiff has failed to prove negligence on the part of postal workers or agents of the Postal Service and has failed to carry his burden of proving by a preponderance of the evidence that his herniated disc was caused by the February 6, 1988 accident. Defendant argues that plaintiff has failed to refute expert testimony that there is no causal link between the accident and plaintiff's herniated disc diagnosed March 23, 1988 or any of the problems from which he suffered thereafter.

 A non-jury trial was held March 16, 17 and 18, 1992. The fact witnesses who testified on plaintiff's behalf included the plaintiff, his wife, and several former co-workers of plaintiff's from Lucas Trucking. Dr. Maurice Romy testified by videotape deposition *fn9" as plaintiff's medical expert on the issues of causation and medical expenses. Richard Millard was plaintiff's sole rebuttal witness.

 The defendant called as fact witnesses Ray Kerwin, the Expeditor on duty at the Harrisburg Post Office the day of plaintiff's accident; Charles Daley, a Postal Service supervisor, Dorothy Musheno, the Manager of safety and Health for the Harrisburg division of the Postal Service; and Brian Shellhaese, an Inspector for the Postal Service. Dr. Sandra Shuman testified by videotape deposition *fn10" as defendant's medical expert. Defendant did not present any surrebuttal testimony.

 Upon conclusion of the testimony, the court allowed additional time for the submission of supplemental proposed findings of fact.

 Based on the evidence presented at trial we find that: (1) Postal Service employees or Postal Service agents were negligent in failing either to red tag, or to set the brake, on the APC which struck plaintiff on February 6, 1988; (2) plaintiff sustained a lumbosacral sprain or strain as a result of the February 6, 1988 accident, a condition which did not require surgery and from which he substantially recovered one month after the accident; and (3) plaintiff has not established by a preponderance of the evidence that the herniated disc *fn11" at the L5/S-1 level diagnosed by Dr. Tuffaha based on the March 23, 1988 MRI, and for which surgery was performed on April 6, 1988, was caused by the February 6, 1988 accident with the APC. *fn12"

 Plaintiff is, therefore, entitled to recover only the medical expenses and lost wages incurred in connection with the lumbosacral sprain and the one-month recovery period it required, as well as the pain and suffering associated with that injury. Plaintiff will be awarded medical expenses of $ 3,042.35, $ 3,303.08 in lost wages (calculated as $ 825.77 x 4 weeks) and $ 2,500.00 for pain and suffering, for a total of $ 8,845.43.

 Findings of Fact

 Based on the evidence introduced at trial, we make the following findings of fact:

 1. Plaintiff Richard J. Millard was born March 9, 1938. He was forty nine years-of-age on February 6, 1988.

 2. On Saturday, February 6, 1988, plaintiff was employed by Lucas Trucking, Inc. as a truck driver.

 3. Lucas contracted with the United States Postal Service to transport United States mail in bulk.

 4. Millard was assigned the Jersey Shore-Philadelphia route. It was his job to pick up a trailer loaded with United States mail at Lucas' Jersey Shore, Pennsylvania terminal, stop at the Postal Center at Harrisburg to unload and take on mail, drive to Philadelphia's Thirtieth Street Station, unload the mail there, make another stop at Langhorne, Pennsylvania, then return to Jersey Shore. Millard drove this route three times a week from Saturday through Wednesday.

 5. February 6, 1988 was a Saturday, the start of Millard's work week.

 6. On that date, he picked up a sealed trailer at Lucas' Jersey Shore terminal, and drove to Harrisburg, his first stop on the route. The trailer was sealed by a Postal Service employee named R.W. Holmes in Cleveland and had begun its journey in Detroit, Michigan with a stop-over in Cleveland to unload and take on mail.

 7. When Millard picked up the trailer in Jersey Shore, it had on board 23 all-purpose carriers or "APC's". The U.S.P.S. uses APC's to transport mail in bulk. An APC is a wheeled cart 42" long; 29" wide; and 69" high. APC's have a horizontal bar or handle on the side which protrudes one inch from the cart's lateral surface and is approximately 41 and 1/2 and 43 and 1/2 inches off the ground. Unloaded, an APC weighs 235 pounds. A fully-loaded APC weighs about 1500 pounds.

 9. Upon arrival at the Postal Service Center in Harrisburg, Millard backed the trailer into the loading dock assigned to him, Dock No. 36. Six APC's were to be unloaded from Millard's trailer at Harrisburg and several others taken on.

 10. Dock No. 36 is on a slight incline such that the front end of a trailer docked there is slightly higher than the back.

 11. After docking his trailer, Millard informed a postal employee of his arrival and waited for a Postal Service employee known as an Expeditor to break the seal on the trailer.

 12. At the Harrisburg Post Office, Lucas drivers customarily assisted with the loading and unloading of trailers even though Lucas' contract with the U.S.P.S. specified that the route was not a "job assist" one, meaning that drivers were not required to assist with loading or unloading the mail. Lucas drivers assisted with loading and unloading with the knowledge and acquiescence of Postal Service employees.

 13. After the seal on his trailer was broken, Millard looked around, and seeing no postal workers free to assist with loading and unloading, began the task by himself.

 14. The six APC's to be dropped off at the Harrisburg Post Office were all fully loaded. As plaintiff was unloading the APC's he came upon one with a broken wheel, which made it difficult to move. He got behind that APC, finding it easier to push than to pull, and began pushing it off of the trailer, bending over slightly so that his body weight was against the APC.

 15. While he was so engaged, another APC rolled toward him, without warning, striking him in the back at waist level, and knocking him to his knees. It took him several minutes to regain his composure and stand upright.

 16. After he recovered from the impact, he called out to postal employees for assistance in finishing the unloading and loading. Plaintiff continued pushing APC's off of the trailer. At some point while he was working, a Postal Service employee came to help him finish the job.

 17. Before departing for his next stop on the route, plaintiff informed the Expeditor on duty, Ray Kerwin, of the incident with APC. Kerwin did not file a report on the incident.

 18. The APC which struck plaintiff would not have rolled forward if the brake were working properly and had been set before the truck left the stop where it was loaded. A Postal Service employee or U.S.P.S. agent was responsible for loading the APC onto the truck and ensuring that the brake was set or, if it was defective, for red-tagging it to alert others coming in contact with it of the defect. U.S.P.S. regulations require defective APC's to be marked with a red tag so that they can be sidelined for repairs at the first opportunity.

 19. The APC which struck plaintiff did not have a red tag.

 20. When plaintiff's truck was loaded, the Expeditor sealed the trailer, and plaintiff continued on his route, going next to Philadelphia, then to Langhorne, then returning to Jersey Shore.

 21. Plaintiff experienced back pain as the trip wore on, which pain continued over the next several days.

 22. Plaintiff completed his work week, completing two more Jersey Shore-Philadelphia runs. Millard felt he had an obligation to his employer to finish his work week even though he was in pain. Between trips, he left word for his wife to make an appointment with a chiropractor, Dr. Miller.

 Medical treatment

 23. At the end of the work week, on February 11, 1988, Millard had an appointment with Dr. Miller. Dr. Miller referred him to the Jersey Shore Hospital for an x-ray of his spine.

 24. The 2/11/88 x-ray of plaintiff's lumbar spine revealed no abnormality. A herniated disc would not, ...


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