Officer Receives $140,000 After Old Shoulder Injury Is Aggravated During A Booking
The case described below of Officer Brown provides several valuable lessons to Massachusetts police officers. First, even injuries which occur inside the station during a scuffle to restrain a person detained or arrested can be compensated. Second, that if the part of the body injured while on duty was weak due to a prior injury or condition, it does not disqualify the injured officer from receiving valuable compensation for his or her losses. Third, the legal system in Massachusetts is set up so that an injured officer does not have to just settle for statutory injury on duty benefits when he or she suffers the financial and, at times, lasting painful consequences of injuries on duty. Finally, the persistent efforts of a knowledgeable law firm experienced and skilled at representing injured police officers can bring about a successful resolution to such cases, even when the Defendant’s insurance company initially refuses to cover the incident. Such was the case involving Officer Brown. (In order to protect the privacy of the injured officer, all names and dates have been changed. Any resemblance to names of real persons, past or present, is merely coincidental and not intended. Officer Brown was glad to share his story with fellow officers in order to educate them about their rights when injured on duty.)
Officer Brown was injured as a result of Joe Resisting’s attempts to resist arrest and confinement while being booked in the police department. On the date of the incident, Officer Brown had observed Joe Resisting drinking in public, in a public parking lot, and noted that it appeared as though Joe Resisting had urinated in public. Officer Brown approached Joe Resisting and began questioning him. Officer Brown then confiscated Joe Resisting’s alcoholic beverages and advised him that it was illegal to drink in public. At this time, Officer Brown indicated that Joe Resisting was free to go. Joe Resisting responded rudely to Officer Brown and then reached out and flattened Officer Brown’s shoulder insignia to look at it, and then pulled on his jacket badge. It was at this point that Officer Brown placed Joe Resisting under arrest.
After placing Joe Resisting in custody, Officer Brown transported him to the police department. While in the booking area, Joe Resisting was acting erratically and was obviously intoxicated. He refused to follow simple instructions and repeatedly attempted to question Officer Brown. Joe Resisting got off of the booking bench and approached Officer Brown putting the security of Officer Brown and others nearby in jeopardy. Officer Brown, with the help of another officer, handcuffed Joe Resisting to the booking bar.
As he began the booking process, Officer Brown noticed that Joe Resisting was not firmly secured by the handcuffs. When Joe Resisting was approached so that the handcuffs could be adjusted, Joe Resisting began violently resisting the two officers. He continued to ignore verbal commands to stop resisting arrest and, during the struggle to subdue him, Officer Brown fell over a table in the booking office. While attempting to brace himself from this fall, Officer Brown injured his shoulder. The same shoulder, which had been surgically repaired after a dislocation during his teenage years, was now injured in the same place and, again, would require surgery to stabilize it. In addition to the original charges brought against him, Joe Resisting was charged with “Resisting Arrest” as opposed to “Assault and Battery on a Police Officer”, often referred to as “A&BPO.” It was significant to the progress of this case that the charge of Resisting Arrest does not carry the element of intentionally causing harm to another, but rather the intent to evade or otherwise escape arrest. Insurance companies frequently rely upon the charge of A&BPO to decline covering an incident, invoking an exclusion found in most insurance policies, which frees the insurance company from covering incidents where the insured intended or expected harm to result to another.
During the incident, Officer Brown landed on and injured his right shoulder, which subsequently required surgery to repair. Officer Brown was taken to the emergency room where he was diagnosed with a dislocation of the right shoulder. Officer Brown was instructed to keep his arm in a sling until he was seen by an orthopedist and was prescribed Vicodin. X-rays taken showed the surgical staple in his right shoulder, which had been surgically implanted at the age of 16, as a result of a shoulder dislocation. Officer Brown’s orthopedist recommended stabilizing surgery to prevent further instability and dislocation and, as a result, Officer Brown was not permitted to return to work. Officer Brown underwent an open arthroscopy, the incision was closed with staples and Officer Brown’s arm was stabilized in a sling, which he wore for about four weeks following the surgery. He was left with a six- inch surgical scar. Thereafter, Officer Brown underwent physical therapy and finally returned to work four and a half months after the incident took place. His medical bills were all paid by his employer as this was an injury on duty. He also received injury on duty benefits for the 18 weeks he was out of work.
After a prolonged effort, Attorney Richard Miller, a principal of Ballin & Associates with whom I have practiced since 1992, finally located an insurance policy which insured Joe Resisting at the time of the incident. The insurance company initially refused to cover the incident claiming that Joe Resisting had intentionally caused an injury to Officer Brown. The company relied upon the exclusion in its insurance policy which exempted it from liability when the insured intends or expects his actions to result in injury to another. By focusing on Joe Resisting’s intoxicated state, his intent to resist being arrested rather than cause harm to Officer Brown, and relevant prior case law reported in the Massachusetts Appellate Courts, Attorney Miller finally convinced the insurance company to consider covering the incident, without resorting to litigating through the Courts the issue of whether it had to extend coverage for this incident.
Attorney Miller also navigated around another significant hurdle involving the prior shoulder condition and negotiated a settlement with the insurance company without ever having to file a lawsuit in Court. The insurance company insisted that Joe Resisting was not responsible for the shoulder injury and surgery, as Officer Brown had a serious pre-existing shoulder condition dating back to the age of 16. Attorney Miller presented long-established Massachusetts precedent which confirmed negligent actors, like Joe Resisting, were liable for aggravations of pre-existing conditions, regardless of how significant the prior condition of his shoulder. The insurance company finally agreed with us and settled Officer Brown’s claim. In the end, Officer Brown received the gross sum of $140,000 for his financial losses, pain and suffering, and surgical scar, two and a half years after the date of the costly and disabling injury which occurred in the booking room with Joe Resisting.
Although he returned to work, Officer Brown continues to be concerned with re-injury to his right shoulder. He has played softball only once since his accident two and a half years ago and is hesitant to try it again. He is also hesitant when working on his house, such as painting ceilings or any overhead work. When he wears soft body armor at work, the edge of the vest can rest on the scar causing discomfort. During shotgun training, the butt of the gun lays against the scar on his right shoulder also causing discomfort.
An injured officer should always consider seeking a free consultation to determine his or her rights, benefits, and the probability of making a successful claim. I am always available by telephone, email or a personal meeting. Once I evaluate the case and the officer’s chances of success, the decision whether to go forward rests with the officer. If the injured officer is out of work, the decision when to return to work rests, as it should, with the officer and his or her doctor. Unlike other attorneys, we do not believe in, nor do we have any interest in, keeping officers out injured any longer than necessary to heal from their injuries. As it is, many of our injured officers never miss a day of work and are still able to receive substantial compensation for their injuries which continue to nag at them during long hours spent behind the wheel of a cruiser and/or standing on a road job.
As with all claims involving an officer's injury on duty, there are no guarantees. Many police injury cases involve sophisticated legal issues, problems of proof, technical insurance policy coverage disputes, and issues that arise under Massachusetts General Laws c. 41, §100 and §111F, Chapter 152 and or other related laws.
When we work on these cases, we work on a contingent fee basis. That means the injured officer pays nothing up front and while the case is pending. He or she only need pay for legal services and expenses at the end of the case, if we successfully collect money on the claim. We typically will receive one-third of the money collected. In the off-chance we are unable to collect money for the injured officer, the officer owes nothing for our legal services.
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