OPINION ISSUED APRIL 2, 1992
JAMES MICHAEL MCKINLEY AND MRS. JAMES MICHAEL
MCKINLEY, HIS WIFE
DIVISION OF HIGHWAYS
Larry E. Losch, Attorney at Law, for claimant.
James D. Terry, Attorney at Law, for respondent.
Claimant was driving his Ford Pinto east on State Route 41 in Nicholas county, West Virginia, on
or about June 16, 1985, when the right front wheel crossed a hole within the paved portion of the
right lane, causing momentary loss of control, during which time claimant was thrown against the
steering wheel. This Court determined the issue of liability in favor of the claimants in an opinion
issued on April 29, 1991. The issue of damages was entertained by the Court in a subsequent
Claimant James Michael McKinney alleges that he sustained personal injury as a result of this
accident. He sought medical assistance several hours after the accident. He drove himself to the
Summersville Memorial Hospital and he was admitted for observation of potential back injuries. He
was released on June 20, 1985. Claimant alleges severe back injuries, and other injuries, and that as
a proximate result of said injury he has been permanently disabled from gainful employment. The
claimant's wife alleges loss of consortium. Property damage to claimants' Ford Pinto was alleged in
the amount of $2,000.00.
Mr. McKinney testified that prior to his car accident he had been gainfully employed by Fayette
Block Company, earning the prevailing minimum wage. This employment began in 1980 and
appeared to be seasonal employment from June to November of each year. Mr. McKinney stated that
Fayette Block could not make blocks in the wintertime, and he would be laid off accordingly.
However, Mr. Keith Kiser, who coordinates unemployment and welfare benefits for the West
Virginia Department of Health and Human Resources serving the community in which the claimants
reside, testified that Department records reflect that Mr. McKinney had discontinued this work due
to illness in October of 1984. Mr. Kiser's testimony thus indicated that the claimant had stopped
working at Fayette Block eight months before the automobile accident. The claimant's initial
testimony was that he was working for Fayette Block at the time of the accident. The claimant
subsequently changed this testimony under cross examination and stated that he was laid off from
Fayette Block when the accident occurred, "because it was wintertime." The automobile accident
occurred in June of 1985, summertime. It appears that the claimant was not employed by Fayette
Block when the automobile accident occurred. Accordingly, estimates of the claimant's loss of
earnings based upon projected employment with Fayette Block cannot and will not be considered
by the Court.
Furthermore, the Court is concerned that the claimant's alleged inability to work as a result of the
alleged injuries sustained in the automobile accident may have been the result of a pre-existing
physical injury or impairment, unrelated and not aggravated by the automobile accident which is the
subject of this claim. Mrs. McKinney testified that her husband had complained about back pain
while he worked as a janitor at the Nettie Grade School. The claimant testified that he did not have
a prior history of back pain before the automobile accident. However, Mr. Kiser, the representative
of the State welfare programs, testified that Department of Health and Human Resources records
verify that the claimant was employed as the custodian of the Nettie Grade School after leaving
Fayette Block in 1984. Therefore, it is apparent that claimant's back pain was observed by his wife
when he worked as a janitor which was prior to the automobile accident in 1985.
Claimant's physicians testified that he had a congenital back defect. A degenerative disc and arthritis
were also observed, both of which were suggested by physicians to be preexisting and unrelated to
the accident complained of. When the claimant was seen by Dr. J. Stephen Shank at the
Summersville Memorial Hospital, the doctor noted in the outpatient record that the claimant had "an
acute muscle strain, peptic ulcer, and arthritis." Dr. Andrew E. Landis, an orthopedic surgeon, who
evaluated the claimant for the respondent, testified that the claimant probably sustained a minor
strain/sprain type of injury to his low back as a result of the automobile accident described. Dr.
Landis qualified this observation by stating that in his opinion the claimant's subjective complaints
far outweighed the objective findings, and the complaints may have been made for purposes of
secondary gain. Dr. Landis notes that the claimant's previous medical records evidence that he hurt
his back in a logging industry accident in 1987, two years after the car accident. The court is not
unmindful of the claimant's testimony when asked under oath, "Were you ever hurt on the job
anywhere with your back?" and the claimant replied, "No, never was."
The claimant testified that his earnings per year approximated $7,000.00 to $9,000.00. Estimates of
the claimant's lost earnings resulting from the inability to work were then premised upon those
amounts. The claimant was unable to substantiate these earnings with income tax returns as the
unavailable. However, the respondent provided the Court with a Social Security Administration
statement of claimant's reported earnings. This document indicates that claimant's prior
representation of gross earnings were exaggerated. Upon review of the exhibit, Dr. William E. Cobb,
an economist, testified that the claimants' actual reported earnings were significantly less than as
represented to him, and were probably between $1,000.00 to $1,500.00 per/year from 1971 to 1985.
The Court will not consider income which claimant earned for odd jobs, but he did not report this
income to State and Federal authorities in tax returns.
The claimant has additionally alleged that his vehicle was damaged in the accident. Again the Court
must note the inconsistency of the claimant's testimony. The claimant's testimony in the transcript
dated September 27l, 1990, was that the front right tire had not been punctured when it crossed the
hole in the road. Asked a second time whether he was sure the tire had not been damaged, he replied,
"No, it didn't leak." However, when asked again during the hearing December 6, 1991, the claimant
repled that, "the right tire went flat." The claimant further testified that he had to change the tire. As
no estimate of repair was entered into evidence, the Court will not speculate as to what damage
No testimony was received from Mrs. McKinney suggesting a loss of consortium. Although this
issue was pleased, it has not been established by the evidence.
The Court is of the opinion that the facts in this claim fail to support an award for damages for the
automobile accident which occurred on June 16, 1985. Accordingly, the Court is of the opinion to
and does this claim for damages.