With the stroke of her pen on November 3rd, Pennsylvania Workers’ Compensation Judge Sarah C. Makin ended, in part, our client’s decade-long ordeal that began with his paralysis due to a workplace injury and was compounded by his insurance company, Liberty Mutual, attempting to avoid paying for his medical care.
But every step of the way, Pond Lehocky Giordano LLP founding partner Jerry Lehocky and his team were there to support James and successfully fend off Liberty Mutual’s attempts to shirk its legal obligations to pay for his medical care. As a result, Jerry was able to secure a total of $5,600,000 in settlements for James and his family that went into effect when Judge Makin signed her November 3rd order approving the final $2,100,000 of the total settlement.
A Life-Changing Injury
December 12, 2012, started out like most days for James Burgess, a then-49-year-old drilling rigger. James lived in Tyler, Texas, but was assigned to work at a rigging site near Scranton. While on the job site that fateful day, a light fixture broke off its bracket nine stories above him and fell straight down on his head.
Although James was wearing a hard hat, the blow caused a traumatic brain injury and fractured his cervical spine at multiple levels. In the blink of an eye, James was now a tetraplegic.
James received immediate surgical care in Pennsylvania, and was then transferred back to Texas for rehabilitation. He became an inpatient at Tyler Hospital while his first home (a double-wide trailer) was modified to accommodate his wheelchair needs.
Soon after returning home, James developed pneumonia and a chronic respiratory condition that resulted in a tracheotomy with permanent mechanical ventilation.
Between January 2013 and June 2015, James was admitted to several different hospital facilities for surgeries to address skin breakdown, ulcers, cellulitis, infections, chronic obstructive pulmonary disease, flap procedures, neurogenic bowel and bladder, UTI, and hypoxemic respiratory failure, among other serious medical conditions resulting from his work injuries.
In June 2015, James returned to Tyler Hospital for round-the-clock medical care. His care required a team of doctors and nurses to administer it. The cost of James’ medical care at Tyler was $300,000 per month.
A Protracted Legal Battle
Liberty Mutual, James’ workers compensation insurer, was not happy about the cost of James’ care. Soon after James’ return to Tyler Hospital, Liberty Mutual sought to remove him from the facility by seeking a Utilization Review of the location of James’ treatment, but not the treatment itself.
Liberty Mutual viewed the monthly cost to keep James alive as too expensive, so it wanted to get him transferred to a cheaper facility with less medical equipment and staff.
In December 2016, a Utilization Review Determination concluded that the treatment James was receiving at Tyler was “reasonable and necessary.” Liberty Mutual appealed that determination.
In April 2018, a Pennsylvania Workers’ Compensation Judge concluded that James’ treatment could be administered in a “skilled nursing facility” as opposed to the “Long Term Acute Care” (LTAC) hospital where he was a patient, thereby giving Liberty Mutual permission to stop paying for the treatment James was receiving at Tyler Hospital.
According to James’ treating physicians, the Judge’s decision was a death sentence.
While James’ appeal was pending, Liberty Mutual stopped paying for the care Tyler Hospital was providing James, thereby forcing him and his family to pay for his lifesaving care out of their pockets.
Shockingly, the Pennsylvania Workers’ Compensation Appeal Board affirmed the Judge’s decision. Again, James appealed, this time to the Commonwealth Court of Pennsylvania.
In the meantime, in late 2019, James settled his third-party personal injury lawsuit against various defendants, with James paying $6,640,000 back to Liberty Mutual for its subrogation lien.
In May 2020, the Commonwealth Court vacated and remanded the WCAB’s Order and directed the Pa. Workers’ Compensation Bureau to refer the matter to a new Utilization Review to address whether James’ presence at Tyler Hospital was reasonable and necessary.
Two Settlements That Ensure Life-Long Medical Care Will Be Provided
While this second Utilization Review was pending, in April 2021 James and Jerry finalized a first settlement with Liberty Mutual in which the insurer would pay back James and the hospital for the $3,500,000 that James and his family spent to that point for the ongoing care he received at Tyler and to cover additional unpaid bills of the hospital.
After the settlement, James and his family purchased a tract of land upon which to build a medically compatible home for him to live in with the necessary equipment and full time staff to take care of him. This saved James’ wife, Kaye, the 200-mile round trip drive she took, incredibly, every day for the more than five years James was an inpatient at Tyler to be at his bedside. With this new home, James and his family incurred just shy of $675,000 in construction, modification, and medical equipment costs, as well as unpaid medical bills.
In 2021, James and Jerry filed a Penalty Petition against Liberty Mutual for its refusal to reimburse James and his family for the costs they incurred modifying the home, as well as for medical bill costs. They also filed petitions to expand the accepted injuries to include specific losses of both of James’ arms and legs, as well as the scarring caused by the cervical spine surgeries and the tracheostomy tube permanently placed in James’ lower neck.
Finally, in early November 2022, James and Jerry reached a second settlement with Liberty Mutual that settled those petitions for $2,100,000. After almost a decade of battling one of the largest insurance companies in the world at every turn, Jerry and his team at Pond Lehocky Giordano LLP recovered a total of $5,600,000 for James and his family. And, today, Liberty Mutual remains responsible for all of James’ ongoing medical care.
“Every lawyer has a handful of cases they look back on over their careers that were particularly hard-fought and that literally changed the lives of their clients,” said Jerry. “This case was one of them. What happened to James was tragic, but Liberty Mutual’s treatment of James and his family was unconscionable. I hope this case sends a loud message to Liberty Mutual and other insurers that there will be consequences for failing to honor their legal obligations, particularly where the only thing a client did wrong is having the bad luck of being injured while working on a job site.”