REAR END COLLISION, ADMITTED LIABILITY

    This matter came before me as arbitrator pursuant to ORS 36.400 et seq.  Plaintiff appeared personally, and with his attorney.  Plaintiff and his wife appeared as witnesses on plaintiff’s behalf and were subject to direct and cross examination.  Defendant appeared through his attorney but did not appear personally.  Plaintiff’s exhibits 1 to 5 (including 4A, 4B, 4C and 4D), and defendant’s exhibits 101 to 106 were offered and received.  Defendant made a motion to dismiss at the close of plaintiff’s case pursuant to ORCP 54B(2), which motion I denied.  Defendant made a similar motion at the close of all of the evidence which I treat as argument in support of a judgment of dismissal based on failure of proof.

    There was a rear end auto collision on Highway 26 westbound.  Plaintiff was driving an almost new pickup truck pulling a brand new unloaded trailer.  Defendant was driving a small auto.  Traffic came to a stop.  Defendant rear ended the trailer.   There was serious damage to the car and to the trailer, and some damage to the truck.  This case does not involve the damage to the vehicles, and I was not provided with sufficient evidence about the motion of the vehicles or the damage to them from which I can draw any inferences about the claimed personal injuries.  I do find that the impact was sufficient to cause the injuries which I find to have occurred discussed below.

    Eventually, plaintiff filed an action for damages for personal injuries.  Defendant denied the complaint (and amended complaint) other than admitting that there was an ‘accident.’  At the arbitration, defendant admitted liability ‘for purposes of the arbitration.’  So, this hearing is about whether plaintiff is entitled to any damages and if so, how much.

    The witnesses were generally credible.  Plaintiff gilded the lily a bit about the extent of the impact of his injuries on his physical activities both at work and at home, but not so much that I find him not credible.

    For instance, it is not clear that Plaintiff gave up that much jet skiing, and it is not clear that he suffered as a consequence of his decision not to carry the boxes to the various employee awards functions, even if that was a change consequent upon this injury.

    I found Plaintiff’s wife credible.

    At the time of the accident Plaintiff was 59.  He was generally healthy and had not had any serious recent back or neck injuries since being a teenager.  He had a sedentary job and led a relatively sedentary lifestyle with work around the house and occasional athletic endeavors such as skiing.  He took over the counter analgesics from time to time.

    The accident occurred on a Friday evening.  At the time of the accident, Plaintiff was a resident of Southern California.  He was in Oregon visiting his relatives.  He intended to return to California in the truck the next day.  When the accident occurred, Plaintiff had no immediate symptoms. He did not complain of any symptoms that evening.  Plaintiff and his wife took two days to drive to Southern California, towing a car.  It is not clear what day they returned to California, I assume either Sunday or Monday.

    The morning after the accident (i.e., Saturday) Plaintiff had some aches and stiffness.  It proceeded to get worse.  This was in his neck and upper back (between the shoulder blades).

    On Wednesday, Plaintiff saw a physician at Kaiser in his area.  He reported the reason for his visit to be this motor vehicle accident.  The records themselves report headaches, nosebleeds, stiff neck.  He says he told the doctor he had back pain too.  He was prescribed various medications.

    He never missed any work and there were no economic losses related to employment.  His explanation is that he didn’t want to lose his unused sick pay which would be a part of his retirement package.  Notwithstanding a high threshold of pain and those desires, not missing any work does factor into my assessment of the subjective level of discomfort that Plaintiff suffered.

    He also avoided certain physical behaviors which he feared would cause him injury, but it is undisputed that he still did certain work around the home and recently he was able to do concrete flatwork which I personally know from experience within the last month is physically demanding on the back.

    Plaintiff took the medication.  It caused him to get drowsy, maybe more.  Between pain and the medication, Plaintiff ended up sleeping a lot more in the evenings than before.  He had to do exercises and stretching on a daily basis to avoid or relieve pain.  Sometimes he had to shut his office door and rest during the day.

    Eventually, about six months after the accident, the neck pain subsided, but the back pain between the shoulder blades continued.  Eventually, Plaintiff attended at a chiropractor thirteen times.  Except for $65, the actual cost of the chiropractic treatment is not sought as damages.  Plaintiff enjoyed the chiropractic treatment.  It is not proved by a preponderance that the chiropractic treatment resulted in Plaintiff’s improvement, but over the period of time that Plaintiff attended at the chiropractor, his back condition improved sufficiently that he stopped attending and has since generally relied upon over the counter analgesics and risk avoidance.  He got authorization to go to physical therapy, but didn’t go.   Part of the reason he stopped attending the chiropractor and did not go to physical therapy was competing time demands.  I also infer that part of the reason was that his condition had substantially improved.

    The injury was never diagnosed as permanent, and in fact, was substantially resolved in about a year.  There are no recent alternative sources of the injuries suggested.

    I reviewed all of the exhibits including the statements regarding cause in Exhibit 104.

    I have considered the argument made by defendant that there is inadequate medical testimony to support plaintiff’s claims under the cases of Cleland v. Wilcox and Pinkerton v. Tri-Met.  I also reviewed quickly numerous cases which have cited the seminal case of Uris v. State Compensation Department. [Some of the cases are [with names as captioned on Casemaker], besides those mentioned above, In re Ackerman, 47 Or App 93, In re Madewell, 49 Or App 713, Davis v. SAIF, 63 Or App 245; In re Westmoreland, 70 Or App 642, In re Gafke, 152 Or 367, Moreno v. Menlo Logistics, 171 Or App 675, Hudjohn v. S & G Machinery, 114 P3d 1141, Howerton v. Pfaff, 246 Or 341, Myers v. Dunscombe, 64 Or App 722, Chouinard v. Ventures, 179 Or App 507, In re Barnett, 122 Or App 279, Pea v. State Comp. Dept., 248 Or 487, Austin v. Sisters of Charity of Providence, 256 Or 179, Fisher v. Consolidated Freightways, 12 Or App 417, Volk v. Birdseye Division, 16 Or App 349, Lee v. SAIF, 17 Or App 247, Seriganis v. Fleming, 20 Or App 659, Andrus v. Homer Wainwright Logging, 35 Or App 325, Jacobson v. SAIF, 36 Or App 789.]  Without lining the cases up on one side or the other of the line, it is my conclusion that plaintiff’s evidence was sufficient to defeat the ORCP 54 mid trial motion and that plaintiff’s evidence is sufficient to warrant a judgment.

    Given that the complaint is of neck and back pain arising from a rear end collision, which I believe can arise from an accident of this nature, I conclude that the ‘injuries complained of are of such character as’ not ‘to required skilled and professional persons to determine the cause and extent thereof.’  As to the other Uris factors, which have been used as a checklist in some of the cases:

-    This is an ‘uncomplicated situation.’ 
-    Symptoms appeared the next day and certainly by the time of reporting to Kaiser less than five days later. 
-    There was no supervisor (other than Plaintiff’s wife) to report to.  A consultation with Kaiser the Wednesday following an out of state car accident qualifies as prompt. 
    -    Finally, I find that the plaintiff was previous to the accident in good health and I don’t believe, after reading the cases, that a teenage back injury and occasional aches and pains disqualify Plaintiff from having been ‘free from any disability of the kind involved.’

    Therefore, I find by a preponderance of the evidence that the neck pain and the back pain that Plaintiff complained of for a year from the date of this collision were caused by the collision and the fault of Defendant.

    I find that the cost of the treatment at Kaiser ($202 claimed) and the co-payments for medication ($45) were caused by the collision and the fault of Defendant.

    Perhaps medical testimony may be required to prove the medical necessity of chiropractic treatment beginning seven months after the accident.  I can avoid that issue by simply failing to award the $65 in damages sought for this service.  That should not detract from my finding that the pain that Plaintiff had for the first year was caused by the collision.

    The most difficult part of my task is to put a monetary value on the ‘paid and suffering’.

    Plaintiff’s lawyer said, “$7500 to 10,000.”  Defendant’s lawyer said “1,500 at the most.”  I think Plaintiff’s back hurt quite a bit for a while.  Defendant admits that it is his fault.  I think Plaintiff had to sleep a lot more when his back hurt and it had a modest and temporary effect on his quality of life at work and at home.  I think he had to take medications to assuage the pain which certainly made him drowsy and he would not have had to take medications but for this collision.  I think he changed his behavior to avoid the risk of more pain but this is not a case where the changes in behavior have resulted in a substantially less enjoyable life. 

    I can’t measure the damage by what Plaintiff would take to have it happen all over again.

    I personally am aware of tax issues, delay issues, contractual attorney fee issues, issues related to fee shifting if there is an appeal, the cost of litigation going forward (if any), and similar factors that I cannot legally take into consideration.  I know that there are ‘rules of thumb’ where non-economic damages are valued at multiples of economic damages.  Those ‘rules’ penalize stoic people and overvalue cases of plaintiffs who manipulate the system.  Those ‘rules’ are also often applied to the total economic damages and not the plaintiff’s out of pocket co-pays.

    At the end of the day, I have to pick a number out of a hat, hopefully not different than a jury would award.

    I award total damages, economic and non-economic, of $7,747.

    I direct plaintiff to immediately submit a cost bill including any properly collectible costs.  At first blush, it appears to me that those are the filing fee, fee for service, the plaintiff’s share of the arbitrator’s fee for which I will submit an itemized bill, and any statutory prevailing fee.  Of course, that should be served on the defendant.

    As soon as I receive the cost bill, I will prepare a separate award, serve it on the parties, and notify the parties when I sign and file it with the court.