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Removing Driver


In the early morning hours of January 1, 2000, local police officer Jeffrey Smith¹was investigating a motor vehicle accident. Upon arrival at the scene, Officer Smith found the defendant, Jackie Daniel, passed out in her vehicle. When woken, Ms. Daniel became upset and Officer Smith noticed a very strong odor of alcohol. She informed Officer Smith and the other officers that she wanted to die. Cuts on her arms were observed and another officer on the scene secured a large knife from Ms. Daniel. Ms. Daniel became combative when Officer Smith attempted to remove her from the vehicle to place her under arrest. Officer Smith was able to handcuff her left hand as he held the other cuff with his right hand. Ms. Daniel continued to resist being removed from the car and then braced herself with her legs against the interior of the car as she pulled back, yanking Officer Smith's right arm in the process. Officer Smith experienced a popping sound in his right shoulder and immediate pain, numbness and tingling from his right shoulder down his right arm and into his fingers.

Ms. Daniel was eventually removed from the vehicle and placed under arrest for Operating Under the Influence. Having failed the Breathalyzer test, Ms. Daniel was fortunate to only receive a disposition of Continued Without A Finding with regard to the Operating Under the Influence charge. In the civil case, she testified to consuming a bottle of vodka before the accident after an argument with her boyfriend. She stated she became very intoxicated and had no memory of the incident with Officer Smith because of her intoxication.

A few hours after the incident, Officer Smith was examined at the local emergency room where his arm was placed in a sling. He was subsequently referred to a local orthopedic surgeon, who believed it could be a rotator cuff injury. The doctor prescribed Percocet for the pain and discomfort and totally disabled Officer Smith from work. Due to persistent shoulder pain, an MRI of the right shoulder was done revealing damage to the shoulder consistent with tendinitis. After injections into his shoulder failed to bring any relief, the orthopedic surgeon referred him for physical therapy, which he underwent for three months. Four months after the incident, Officer Smith was finally cleared to return to work, although he was still complaining of pain in the right shoulder.

Over the next year Officer Smith continued to experience pain and discomfort in the right shoulder. His condition was aggravated at work, particularly with the repetitive arm movements associated with directing traffic. He also had to be very careful when arresting someone or when he was involved in an altercation. He slept with a pillow under his shoulder, which helped relieve his symptoms.
In the eleven months since he was cleared to return to work by his orthopedic surgeon, Officer Smith had not sustained any new injuries nor had he received any treatment for his shoulder injury. Due to the continuing pain and discomfort, he returned to his orthopedic surgeon, who recommended surgery.

Fifteen months following the incident, in April 2001, Officer Smith underwent surgery on his shoulder leaving a four inch surgical scar. His town agreed to treat it as an injury on duty dating back to the January 1, 2000 incident with Ms. Daniel. The post-operative diagnosis was right shoulder impingement syndrome with rotator cuff tendinitis and internal derangement of the right acromioclavicular joint. A second course of physical therapy to rehabilitate and strenghten the shoulder was prescribed and lasted almost eight months until December, 2001.

Officer Smith' medical expenses exceeded $30,000.00 which were paid by the Town for which he worked. Between the time Officer Smith was out of work immediately following the incident and the time he was out while recuperating from his surgery, he was disabled from work for about 52 weeks, during which time he only received his base wages from the Town for injury on duty pay. During this time, Officer Smith lost substantial sums which he would have earned from working valuable overtime and details. Although Officer Smith had returned to full duty after his rehabilitation from surgery, he continued to favor his right arm for fear of re-injury when directing traffic and especially in scuffles with suspects.

The case was made difficult due to the fact that Officer Smith had injured the same shoulder just two months prior to the January 1, 2000 incident with Ms. Daniel; however, Officer Smith never treated for that injury. The Defense contended this was the primary cause of his injury and not his struggle with Ms. Daniel. Daniel's attorney also argued the much larger Officer Smith could not have been injured by the female Defendant Daniel, who weighed in at just over 105 pounds. As many experienced officers can verify, once intoxicated by drugs and/or alcohol, a smaller defendant, who feels no pain due to the effects of the intoxication, can put up enough of a struggle to challenge and even injure an officer twice their size. Also, given the eleven month gap in his medical treatment prior to returning for surgery, the defense argued any further problems he had with his shoulder were not related back to the original injury with the Defendant Daniel on January 1, 2000, but must have been caused by some intervening incident.

After depositions were taken in the civil case by Attorney Richard Miller of Ballin & Associates, a mediation was conducted. At the mediation, the issues in the case were extensively reviewed and the defense arguments were countered by Attorney Miller. Officer Smith then agreed to settle his claim against the Defendant Daniel for $127,500.00.

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. The decision when to return to work rests, as it should, with the officer and his or her doctor.

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 and or related statutes.
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. ¹ The officer’s name has been changed to protect his privacy. He has consented to having the facts of his case written about to help educate other officers about their rights. The name of the Defendant has also been changed. The similarity between the officer’s and or the defendant’s names with real persons living or deceased is merely coincidental and not intended.


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