Underinsured Motorist Arbitration – Fibromyalgia Claimed

James Miller headshotIn this matter the claimant had preexisting fibromyalgia. She was involved in a motor vehicle accident that resulted in an exacerbation of the fibromyalgia complaint and severe foot pain. The claimant ultimately had surgery on her foot three years after the accident. The doctor who performed the surgery, a renowned orthopedic surgeon from the San Francisco area, testified that the claimant would need additional treatment. He also testified that based on the information given to him by the claimant’s attorney about the claimant’s history he would relate the need for surgery to the subject accident.

Jim Miller represented the respondent and retained a qualified podiatrist to review the medical records and x-rays. The podiatrist opined that the claimant did not injure her foot in the subject accident, but she had a degenerative problem with her foot which was pre-existing and somewhat overshadowed by the claimant’s fibromyalgia complaint. He pointed to x-rays taken before the subject incident and the treatment of the claimant with a podiatrist before the incident.

Before commencing with the arbitration hearing, the claimant’s attorney refused to accept anything less than the net residual limit of $485,000. The last offer to the claimant’s attorney was $165,000.

The claimant asserted that he was entitled to $35,901.75 in medical expenses. He also asked for $600,000 in general damages for a total request of $635,901.75. The uninsured motorist limit was $500,000.

During closing, Jim argued that only $17,916.38 of the economic damages was related to treatment for injuries sustained in the incident and that $50,000 in general damages was appropriate. Jim therefore asked for a total award of $67,916.38.

The arbitrator awarded the claimant $78,521.99. Since the claimant had received $15,000 from the underlying tortfeasor and $5,000 under the med pay portion of her policy, the net award was $58,521.99.

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