This case involved an underinsured motorist claim that arose from a motor vehicle accident that happened on May 23, 2002, when the underinsured motorist made a left turn in front of the claimant, who was proceeding straight through the intersection of E and 29th streets in downtown Sacramento. The claimant, a disabled U.S. Post Office vehicle mechanic, was 65 years old on the day of the accident. He claimed that as a result of the accident he sustained neck pain, right thumb pain and a significant right ankle injury. The discovery showed that the claimant had a long history of neck pain and right heel and ankle problems and suffered an ankle fracture in December 2002 when a car ran over his foot. The claimant admitted these problems, but claimed that before the subject accident he was able to walk 2-3 miles a day and that the foot and ankle injuries in the two accidents were different. His testimony in this regard was impeached with evidence tending to show that before the accident the claimant w as not able to walk more than a few blocks at a time and that his significant pain occurred after the December accident.
Paul Kisilewicz, DPM, the claimant’s treating Podiatrist, testified at the arbitration hearing that the claimant’s right ankle and foot condition was significantly aggravated by the subject accident, but on cross-examination admitted that the medical records within two weeks after the subject accident did not indicate any significant right foot or ankle injuries.
The medical bills totaled $10,198.00. The underlying insurer paid $25,000.00 to settle the third-party claim and the claimant’s insurer had paid $3,956.00 from medical payments coverage.
The last demand before the arbitration hearing was $75,000.00. No offer was ever made and it was asserted that the claimant had been fully compensated by the underlying settlement and the payments for medical payments coverage. The arbitrator ruled that the claimant had been fully compensated and the award was $0.