Neoplan USA Corp. v. ICAO, 02CA2074 (July 24, 2003) (NSFP): Claimant sustained an injury to her upper extremities with bilateral cubital tunnel syndrome and bilateral upper trapezius strains. The treating physician placed claimant at MMI and assigned a 10% impairment rating of each upper extremity for nerve entrapment at the elbows which converted to a 12% whole person impairment. The DIME physician assigned a 15% rating for each upper extremity which converted to a 17% whole person rating. The DIME physician also stated that claimant's bilateral upper trapezius strains were not ratable under the

AMA Guides. Employer admitted liability based upon the DIME's scheduled extremity ratings. Claimant applied for a hearing and requested whole person medical impairment benefits.
  The ALJ credited claimant's testimony of pain in the upper extremities, shoulders, neck and head. The ALJ found that the situs of claimant's functional impairment was outside the schedule of disabilities and awarded claimant benefits based upon the 17% whole person rating instead of scheduled benefits.
  The court of appeals affirmed. The court held that the determination of the situs of

functional impairment need not be supported only by medical evidence, but rather an ALJ can rely on the claimant's testimony. The DIME's opinion on the causation of the neck/trapezius problem was not binding on the ALJ because the only issue at hearing was whether claimant's impairment was on the schedule. The court stated that whether there is ratable impairment beyond the extremities is relevant but not dispositive. The fact that the DIME physician here found that claimant's ratable impairment was limited to the elbows did not preclude the ALJ from finding functional impairment elsewhere.

Pfantz v. Kmart Corp., 02CA388 (July 31, 2003): Pfantz was injured when he sat down on a bench in Kmart that had been manufactured by codefendant Waymar Industries. Kmart employees substantially destroyed the bench, so Waymar sought sanctions against Kmart for spoliation of evidence. The trial court found that Kmart's actions were either intentional or reckless, but did not find that Kmart had willfully destroyed the bench. As sanctions, it instructed the jury that the bench was presumed to be defective, and that Kmart was presumed to be the cause

of the defective condition. The jury found Kmart 100% negligent and awarded damages, including $30,000 to Pfantz for future medical expenses. Kmart unsuccessfully moved for judgment notwithstanding the verdict on the future medical expense award.
  The court of appeals affirmed. The court rejected Kmart's argument that the trial court erred in imposing sanctions and in denying Kmart's motion for judgment notwithstanding the verdict. The court held that the record supported the finding that Kmart's conduct was reckless and grossly

negligent, and that plaintiffs were not required to prove intentional spoliation of evidence. The trial court did not abuse its discretion in instructing the jury that Kmart was the cause of the defective condition of the bench, and that the bench was presumed to be defective. The trial court also was not required to hold a hearing on the sanctions motion. The court of appeals also concluded that the amount awarded by the jury for future medical expenses was not grossly and manifestly excessive, or the result of passion and prejudice.

Smith v. Vincent, 02CA1650 (August 14, 2003): Plaintiff's minor daughter was killed in an automobile accident involving plaintiff's then-wife and defendant. Plaintiff and his wife divorced, and plaintiff filed a wrongful death action against his former wife and defendant, who both admitted negligence. Plaintiff settled with his former wife's insurance company for $25,000, and she was dismissed from the suit. Plaintiff elected to recover a solatium award of $50,000 under CR.S. § 13-21-203.5, in lieu of economic damages. As an alternative to establishing noneconomic damages, § 13-21-203.5 gives wrongful-death plaintiffs the option of electing a $50,000 solatium award upon a finding or admission of the defendant's liability. Def-

endant demanded a setoff of the $25,000 amount received from the settlement with the ex-wife's insurance company. The trial court held that defendant was not entitled to a setoff.
  The court of appeals affirmed. The court held that a solatium award is intended as an ultimate award not subject to further reduction, regardless of the fault of other tortfeasors. Defendant and plaintiff's former wife were not required to share equitably in the responsibility of paying the solatium award. Also, the court of appeals held that because the settlement payment was not a collateral source, the collateral source rule did not apply and no setoff was required.