This article originally appeared in the Journal of Civil Litigation, Vol. 30, No. 2 (Summer 2018), a publication of the Virginia Association of Defense Attorneys. It appears here with permission.
By Helen D. Neighbors, Principal, Franklin & Prokopik
On July 10, 2018, Franklin & Prokopik attorney Ciara Malone received a favorable opinion on a permanent partial disability issue in Mirna Rivera v. Kohl’s Department Stores, Inc. and New Hampshire Insurance Company. The case was argued at the Virginia Court of Appeals before a three judge panel.
The issue in this case was whether the claimant could prove she suffered a permanent partial left leg disability within the statutory time limitation. The claimant, Rivera, sustained a compensable back injury while working for the defendant. She claimed this back injury created a permanent partial disability in her left leg. The claimant submitted a doctor’s evaluation which supported causation between the back injury and the left leg disability and which opined that she suffered a 60% loss-of-use in her left leg. The issue was whether the left leg disability began within the thirty-six month time limitations of VA Code § 65.2-708.
Franklin & Prokopik’s argument before the Commission and before the Court of Appeals was that the claimant failed to present evidence of a permanent left leg disability that existed within the three year period following her injury. The Deputy Commissioner found that there was “simply nothing in the medical records or testimony” that supported Rivera’s disability claim, and the claim was denied at both the Commission levels. The claimant unsuccessfully appealed to the Court of Appeals. It was Rivera’s burden to prove she suffered the left leg disability due to a workplace injury within the time limitations. The Commission did not err in finding she failed to meet her burden and correctly denied her left leg disability claim. As such, the Court of Appeals affirmed the Commission’s denial of permanent partial disability benefits.
When we defend trucking companies, in the context of civil litigation, we are expected to deal with the facts and the law in any given case. Juries are always instructed as to impartiality in consideration, that they should decide the case fairly and impartially without prejudice or bias. This instruction notwithstanding, in addition to the facts and the law, we often find ourselves having to deal with a preconceived negative bias against trucking companies and their drivers. Often the bias is deliberate, but sometimes it’s also unconscious. People feel threatened by the size, weight and speed of trucks. They form their opinion of trucking companies and truck drivers based on an individual bad experience on the highway, e.g. fast truck passing slow car in the rain. Compounding this negative bias, the news media almost exclusively portrays trucking companies in a negative context when there is a serious accident. Unfortunately, trucking companies and truck drivers don’t get enough credit for their invaluable contribution. Simply put, society as we know it would grind to halt within a few days but for the service provided by trucking companies. Everything you eat, wear and use was touched by a truck at one point during delivery. A full 80% of all U.S. communities depend solely on trucking. ATA and other industry organization try to combat those unfair perceptions through campaigns such as “Good stuff. Trucks Bring It” and “Trucking Moves America Forward.”
At the Trucking Industry Defense Association (TIDA), one of the ways we seek to address this problem is through the “Hero of the Highway Award.” Since 2010, TIDA has recognized a truck driver for his or her heroic behavior and/or extraordinary public service demonstrated in the preceding year. We honor the Hero of the Highway at the TIDA Annual Conference where they receive a plaque together with a check for $2,500.00. At the 2018 TIDA Annual conference we will honor one of the following nominees:
Arian Taylor (Ballard Trucking) out of Bardstown, KY, saved a 19-year-old woman from prostitution at a Compton, CA, truck stop. At around 4:00 am, Arian received a knock on his cab door only to find a 19-year old young woman standing outside his truck. As he spoke with her, he learned that her friend’s older boyfriend was trying to force her into prostitution. After she had refused and argued with him, he dumped her in the parking lot and sped off. She was cold, exhausted, had no money, no identification, was carrying everything she owned in her arms and was desperate to get back home to Las Vegas. At that point, Arian told her, “I will find a way to get you home.” After getting her warm and giving her water to drink, Arian looked at one of two Truckers Against Trafficking (TAT) stickers prominently displayed on his windows (which the victim had been eye-level with when she knocked on his door) and called the National Human Trafficking Hotline. TAT worked with him to secure the woman shelter for the night, a pre-paid cab ride to get her to that shelter and a chaperoned train ride back to Las Vegas the next day, where she was reunited with a family member. Arian took care of the young woman until she was placed in the cab, and even gave her his personal cell phone number in case she needed anything else.
Fernandez Garner, Jr. (Dupre Logistics, LLC) out of Lafayette, LA, skillfully avoided an accident that happened right in front of him and then stopped to render aid and assistance to the victims of the accident. Fernandez was on l-45N near Buffalo, TX following a burgundy van when a tanker passed and jumped in front of him so close that he had to immediately back off to gain a safe following distance. While creating this following distance, he saw the van lose control, flip over and shoot down a hill at a high rate of speed into a tree. The tanker then stopped quickly, and Fernandez was forced to take immediate evasive action to a collision. As he passed the tanker he saw a little girl in the middle of the roadway about 20 ft in front of him. He quickly pulled on to the left shoulder of the roadway to avoid killing her while putting himself and his rig at significant risk of a roll over. Fernandez then jumped out of his truck and started to provide aid and assistance to the occupants of the van. He found a baby with a 4-inch cut on its head and used bandages from a first aid kit to stop the bleeding while simultaneously calming the baby’s mother down.
Robert “Bob” Jurek (Ward Trucking) out of Buffalo, NY, noticed a fellow patron choking, and took it upon himself to perform the Heimlich maneuver. Bob was eating at Ang’s Family Restaurant, when he noticed a fellow patron starting to choke. Bob got up and asked him if he was OK and the man excused himself to the restroom. A few minutes later, the man busted through the men’s room door choking and pointing to this throat. Bob jumped up spun the man around and started performing the Heimlich maneuver which successfully dislodged the food from his throat. A few minutes later, the man stood up and thanked Bob whose quick actions most likely saved his life.
Roy Gillespie (USF Holland, Inc.) out of St. Louis, MO, is a two-million-mile linehaul driver who has leveraged his driving experience to consistently help his immediate community and beyond. Sometimes referred to as “the Master of Disaster,” Roy works with the Teamsters Union, American Red Cross, and corporate partners like Holland to collect donations and coordinate trucks to deliver aid after disasters strike. In 2017 Roy organized a group of 210 volunteer truck drivers, mechanics, doctors and nurses to respond to the devastation of Hurricane Maria in Puerto Rico. Just weeks earlier, Roy spent three weeks in Houston, TX leading efforts to collect supplies in his community and bring them to Houston after Hurricane Harvey. For the past decade Roy has been busy helping communities with various charity efforts. Roy assisted in four separate disaster relief efforts in 2016. He spearheaded our St. Louis terminal’s efforts to bring clean drinking water to the people of Flint, MI, by organizing, packing and delivering four 53-foot trailers loaded to capacity with 200,000 bottles of clean water. After historic floods devastated the Baton Rouge, LA region, he brought Team Holland together to lend a hand. Jointly with local Teamsters and other organizations, Team Holland delivered five full 53-foot trailers filled with necessities and flood cleanup supplies to Baton Rouge. Roy also helped bring relief in Raleigh, NC after Hurricane Matthew hit and in Tennessee after major flooding in July. In addition to helping after natural disasters, Roy co-founded the Chris How Group to collect food and clothing for the poor throughout the year. Their Christmas toy drive involves dozens of volunteers, corporate donations, and countless hours to deliver over 100,000 new toys to children that otherwise would never have Christmas. Roy also works with H.E.R.O.E.S Care—a non-profit organization dedicated to supporting service members and their families. In total, Roy helped to deliver 18 trailers full of donated toys to ten different military bases across the Holland footprint.
John Weston (Challenger Motor Freight) out of Ontario, Canada, stopped to render assistance following a tragic accident just east of Cambridge Ontario last October. A ten-year veteran for Challenger, John was bobtailing back after completing his last run of the week when he came across an horrific accident scene. John safely pulled over before any emergency vehicles had arrived and was the first to render assistance. He approached the wreckage of the last tractor where he was barely able to see the top of the driver’s head. He persistently called out and eventually the driver responded, and John learned his name. John said to the driver, “Would you mind if I put my hand on your head, so you know that I’m with you?” With the driver’s agreement, John placed his hand on the driver’s head reassuring him that someone was with him. It was a simple but profound act of kindness. Eventually the driver became unresponsive and tragically, trapped, he succumbed to his injuries. As a result of John’s act of kindness, the driver did not die alone.
We would like to heartily congratulate all of the 2018 nominees for their incredible contribution, acts of bravery and heroics. We look forward to the Annual Conference where the winner of the 2018 “Hero of the Highway” award will be announced.
