Slip and Fall at work - Discovery of harm Rule?

[jdepronio]

What is the name of your state (only U.S. law)? NEW YORK

Hello, I had a slip and fall down a flight of stairs in 2008 while at work I was taken by EMT to a local hospital where limited xrays were taken - I was released within hours to do a follow up at a local facility at which time no further xrays or tests were conducted- was released with PCS and told symptoms would subside in a few weeks to months which they did - no forward to 2011 out of the blue I started to experience severe and debilitating occipital headaches (this is the region of my head that was struck during fall) I was ordered MRI's and was discovered to have severe damage to C-3/4 C-5/6 C-6/7 - BOTH my doctor and the IME for the insurance carrier agreed 100% casually related to the 2008 incident - I had a 4 level surgical surgery in 2012 2 fused/two replaced and have had injections for the on going headaches.
Now today since this type of nerve damage and cervical damage may not show up until months or years later does the "discovery of harm " rule apply?

 

[Ladyback1]

What is the name of your state (only U.S. law)? NEW YORK

Hello, I had a slip and fall down a flight of stairs in 2008 while at work I was taken by EMT to a local hospital where limited xrays were taken - I was released within hours to do a follow up at a local facility at which time no further xrays or tests were conducted- was released with PCS and told symptoms would subside in a few weeks to months which they did - no forward to 2011 out of the blue I started to experience severe and debilitating occipital headaches (this is the region of my head that was struck during fall) I was ordered MRI's and was discovered to have severe damage to C-3/4 C-5/6 C-6/7 - BOTH my doctor and the IME for the insurance carrier agreed 100% casually related to the 2008 incident - I had a 4 level surgical surgery in 2012 2 fused/two replaced and have had injections for the on going headaches.
Now today since this type of nerve damage and cervical damage may not show up until months or years later does the "discovery of harm " rule apply?

What end result are you looking for?

 

[OHRoadwarrior]

You have no proof unless you can document this was caused by the WC issue. Theories are not actionable.

 

[tranquility]

If you're talking about tolling the statute of limitations, no. You knew you were hurt, just not to what extent.

 

[justalayman]

I was released within hours to do a follow up at a local facility at which time no further xrays or tests were conducted- was released with PCS and told symptoms would subside in a few weeks to months which they did -

and was discovered to have severe damage to C-3/4 C-5/6 C-6/7

You will have to reconcile those extremely differing test results such that you can prove the damage was existing at the time of the initial injury. It sounds like that is not going to be possible. The doctors statements are easily defeated by: so, if the damage was there, especially considering it is currently classified as "severe", why is it not shown in the examinations and tests from 2008?

Now today since this type of nerve damage and cervical damage may not show up until months or years later does the "discovery of harm " rule apply?

such cervical damage does not lay hidden for years. Severe damage is severe damage. If there was a degradation of the tissues due to the original injury is a different issue but that is not what you stated.

given there was ~3 years between the first injury and the later discovery of cervical damage, you will be fighting an extremely difficult fight attempting to prove your claims.

of course that and the fact you have likely lost any rights due to the passage of time

 

[Sloop John D]

Now today since this type of nerve damage and cervical damage may not show up until months or years later does the "discovery of harm " rule apply?

Generally, the time for the statute of limitations does not begin accruing until the discovery of the injury. If your injury was not discovered by doctors until 2011, then you may still have time to file.

You should contact an attorney as soon as possible to make sure there's time to have your case filed before your time does expire.

 

[tranquility]

Generally, the time for the statute of limitations does not begin accruing until the discovery of the injury. If your injury was not discovered by doctors until 2011, then you may still have time to file.

You should contact an attorney as soon as possible to make sure there's time to have your case filed before your time does expire.

The injury was discovered. It was the extent that was not. Each separate injured cell of the body is not a separate injury.

 

[jdepronio]

Slip and fall 2008

Thanks all - yes I realize that after the slip and fall in 2008 the "cervical" injury should have presented signs - if further testing was done - this is not the issue as the insurance carrier has taken liability regarding the 2008 slip and fall yes three years later they agree my injuries are 100% causally related - so surgery and testing and bi-weekly payments are no the issue -

Here's my reason for writing this I suffered Occipital neuralgia which is nerve damage to the Occipital Nerves where I struck my head in 2008, the thing is this injury is unable to be detected or diagnosed until it presents signs - which would be extreme headaches which didn't present itself until Sept. 2011 at which time the MRIs were performed and the cervical damage was discovered along with the Occipital nerve damage.

So lets forget the cervical for a moment -

If the nerve damage could not be detected (research supports the inability to detect such trauma) until signs presented it self - then wouldn't the 2011 date constitute "Discovery of Harm" ?

 

[Ladyback1]

Thanks all - yes I realize that after the slip and fall in 2008 the "cervical" injury should have presented signs - if further testing was done - this is not the issue as the insurance carrier has taken liability regarding the 2008 slip and fall yes three years later they agree my injuries are 100% causally related - so surgery and testing and bi-weekly payments are no the issue -

Excuse me for being slow this morning----what are you hoping to accomplish with determining a specific date for "Discovery of Harm"?

 

[tranquility]

Excuse me for being slow this morning----what are you hoping to accomplish with determining a specific date for "Discovery of Harm"?

They are either trying to extend the statute of limitations or, with this new theory, have this newly discovered damage be proximately related to the fall.

Again, no.

The main extension for something like this is a instrument left in the body that later causes harm. Not a drug that later causes cancer or an asbestos inhalation that later causes asbestosis or childhood abuse where the trauma later surfaces.

The discovery rule will not apply to the OP's situation.

 

[Ladyback1]

They are either trying to extend the statute of limitations or, with this new theory, have this newly discovered damage be proximately related to the fall.

Again, no.

The main extension for something like this is a instrument left in the body that later causes harm. Not a drug that later causes cancer or an asbestos inhalation that later causes asbestosis or childhood abuse where the trauma later surfaces.

The discovery rule will not apply to the OP's situation.

Thank you....and if this "new" issue has been accepted as related to the original slip and fall, then it would seem to me that the OP has not suffered any damages that would warrant much in the way of a further lawsuit.

There was no malpractice or malfeasance on the part of the medical providers.

 

[tranquility]

While older, see also:
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1251&context=ulj

 

[jdepronio]

Slip and Fall 2008

Yes true that in 2008 that if further testing was performed the cervical issues I sustained could have been treated - but since that is not the issue here it's the Head Injury and concussion that I suffered the concussion was diagnosed right away but the onset of the nerve damage in the Occipital region of my head was not an injury that could be diagnosed since the symptoms did not present them self's to years later - the insurance carrier is not disputing the cervical or occipital nerve damage as all treatment have been covered since 2011 when medically I was treated.

With occipital neuralgia injuries there is no way to no or diagnose at time of initial injury if this occurred since it can take years to manifest symptoms

SO THE QUESTION IS ONLY IN REGARDS TO THE NERVE DAMAGE WHICH WOULD OPE UP THE POSSIBILTY OF FURTHER LIABILTY DOES THE "DISCOVERY OF HARM" RULE APPLY -

There are many cases now presented in the courts regarding concussions (NFL, NHL ect.) that raise the question that many medical issues do not present themselves at the initial onset and in return an individual could not have know the injuries extent

 

[tranquility]

Yes true that in 2008 that if further testing was performed the cervical issues I sustained could have been treated - but since that is not the issue here it's the Head Injury and concussion that I suffered the concussion was diagnosed right away but the onset of the nerve damage in the Occipital region of my head was not an injury that could be diagnosed since the symptoms did not present them self's to years later - the insurance carrier is not disputing the cervical or occipital nerve damage as all treatment have been covered since 2011 when medically I was treated.

With occipital neuralgia injuries there is no way to no or diagnose at time of initial injury if this occurred since it can take years to manifest symptoms

SO THE QUESTION IS ONLY IN REGARDS TO THE NERVE DAMAGE WHICH WOULD OPE UP THE POSSIBILTY OF FURTHER LIABILTY DOES THE "DISCOVERY OF HARM" RULE APPLY -

There are many cases now presented in the courts regarding concussions (NFL, NHL ect.) that raise the question that many medical issues do not present themselves at the initial onset and in return an individual could not have know the injuries extent

I understand. I get it. I got it from the start.

No.

As to those "cases", how many are being tried in New York?

 

[Ladyback1]

Yes true that in 2008 that if further testing was performed the cervical issues I sustained could have been treated - but since that is not the issue here it's the Head Injury and concussion that I suffered the concussion was diagnosed right away but the onset of the nerve damage in the Occipital region of my head was not an injury that could be diagnosed since the symptoms did not present them self's to years later - the insurance carrier is not disputing the cervical or occipital nerve damage as all treatment have been covered since 2011 when medically I was treated.

With occipital neuralgia injuries there is no way to no or diagnose at time of initial injury if this occurred since it can take years to manifest symptoms

SO THE QUESTION IS ONLY IN REGARDS TO THE NERVE DAMAGE WHICH WOULD OPE UP THE POSSIBILTY OF FURTHER LIABILTY DOES THE "DISCOVERY OF HARM" RULE APPLY -

There are many cases now presented in the courts regarding concussions (NFL, NHL ect.) that raise the question that many medical issues do not present themselves at the initial onset and in return an individual could not have know the injuries extent

What further liability? Work Comp is covering EVERYTHING!
Furthermore--even if further testing had been done in 2008, you may not have severe damage that required surgery. It appears that the 2008 injury may have escalated degeneration, or caused minor damage with got progressively worse OVER TIME.
Seems to me, you're looking to play the lawsuit lottery...