Opinion
UWYCV166032995
12-04-2018
Ka’mel Riddick VASQUEZ v. Paul A. PAPP
UNPUBLISHED OPINION
OPINION
Terence A. Zemetis, J.
On December 23, 2014 at approximately 5:52 a.m. Paul A. Papp negligently caused a two-vehicle collision on Thomaston Avenue, at its intersection with the West Main Street, in Waterbury, Connecticut. Both vehicles were proceeding westerly when the plaintiff’s vehicle stopped, the second vehicle in line, for a red overhead traffic signal. Papp drove his 1995 Ford into the rear of Anthony Vasquez’s 2010 Chevrolet Blazer causing moderate damage to the SUV and injuring Ka’mel Riddick Vasquez a right front seat passenger in the Blazer.
Ms. Riddick Vasquez described a hard and unexpected collision causing her an altered state of consciousness, dizziness, disorientation, and pain. She needed emergency personnel assistance exiting her vehicle as she was hurt, afraid, and dizzy.
Paul A. Papp admitted responsibility for causing the collision, but disputes the nature and extent of the harm proximately caused by the collision.
Ka’mel Riddick Vasquez, KRV, was a 35-year-old woman who has worked at Tauck World Discovery, aka Tauck Tours, as a travel agent for several years before this event. She testified in a forthright manner, though at times she was confused as to the chronology of medical treatment and complaints made to her medical care providers, describing her complicated history prior and later accidents affecting her health, occupational duties, the medical care related to this collision, and the adverse effects of her injuries on her activities of daily living and her mental health.
She described a heavy and unexpected impact and complained to the investigating police officer of neck and back injury at the scene and sought immediate medical care. She was transported by ambulance to Saint Mary’s Hospital, SMH, in Waterbury seeking care with complaints of cervical and lumbar spine pain. X-rays ruled out fractures or dislocations. She was discharged, with muscle relaxer and pain medication, to follow up with her primary care physician.
In early January 2015 she sought care from Westside Medical Group complaining of muscle aches causing pain in the head, neck, back, arms and legs. She related a history of a slip on ice in the previous year and the December 2014 motor vehicle collision. The working diagnosis was cervical and lumbar strain and sprain secondary to the motor vehicle collision, mvc, and necessitating physical therapy treatment.
In March 2015 she returned, reported progress, and continued therapy was recommended.
She was next seen by Westside Medical on January 11, 2016 describing cervical pain interfering with sleep and work duties, limited cervical motion, and numbness in her right arm. She confessed she stopped physical therapy because she could not afford to pay for the care, and was taking Aleve and ibuprofen with little benefit.
She returned to Westside Medical on January 28, 2016 with continuing complaints of cervical pain.
On January 29, 2016 she was involved in another motor vehicle collision causing injury. She was transported from the scene by ambulance to SMH with complaints of neck and low back pain. She was not x-rayed, not given prescription medication, and discharged after examination only.
She returned to the SHM ER on February 1, 2016 complaining of neck pain and was prescribed a muscle relaxer and pain medication. She advised the SMH she had numbness in her right arm due to the December 23, 2014 mvc, but no worsening due to the 1/29/16 mvc and she’d been scheduled for a cervical MRI.
She does not appear to have received any further treatment related to the 1/29/16 mvc than the two ER visits to SMH.
On 2/4/16 a cervical MRI revealed a C5-6 disc herniation.
On 3/7/16 she continued care with Westside Medical reporting continuing discomfort with cervical motion and pain and numbness radiating to the right arm and hand. She was referred by Westside to Neurosurgery Orthopaedics and Spine Specialists, P.C. where she came under the care of Dr. David Forshaw, M.D., neurosurgeon.
On 4/6/16 Dr. Forshaw, Dr. F, took her medical history, examined her, and reviewed the MRI concluding she was suffering from C6 radiculopathy referable to a C5-6 disk herniation. He prescribed a medrol dose pack, a powerful anti-inflammatory and steroid seeking to lessen her symptoms. He concluded if conservative modalities of treatment failed to provide relief and allow her to perform work and home duties she was a good surgical candidate.
On 4/29/16 she reported progress with medication and therapy, Dr. F continued the conservative treatment recommendations and scheduled a follow up visit.
On 6/22/16 she reported increased pain upon resumption of her former schedule of life’s activities. Dr. F recommended injection therapy, but discussed the risks, benefits, and alternatives to operative decompression.
On 8/18/16 Dr. Tamer Ghaly, M.D. explained the risks, benefits and alternatives of an epidural injection, and on 9/08/16 she underwent a C5-6 interlaminar epidural steroid injection.
On 9/29/16 she reported partial relief of cervical and arm symptoms following the injection. Further physical therapy was prescribed.
On 8/11/17 she returned to Dr. F reporting intolerable pain and numbness in the neck and right arm/hand. Further testing was prescribed.
On 8/16/17 Dr. Ghaly recommended a second cervical epidural injection.
On 8/18/17 KRV underwent an electro diagnostic evaluation EMG interpreted as normal. KRV reported this was a painful test procedure.
On 9/28/17 she underwent a second cervical epidural injection. Unfortunately this procedure provided no significant lasting relief. She returned to work and accommodated the limited range of cervical motion, the pain, and the right arm/hand numbness for months hoping these symptoms would lessen. The symptoms did not lessen.
On 4/24/18 Dr. F examined KRV again, reviewed the objective evidence of injury consistent with her complaints of impact on her activities of daily life, concluding though she is a good surgical candidate for a cervical disc decompression and fusion she chose not yet to undergo the cervical surgery. He assigned 19% whole person impairment as a consequence of the cervical abnormality and its impact on her and recommended she seek acupuncture as a source of potential relief. She followed his acupuncture recommendation.
On 7/24/18 Dr. Mark Mashia, DC., MS., saw KRV on referral from Dr. F diagnosing chronic cervical pain and providing, over the next month, 5 session of acupuncture treatments. The treatments provided relief of some symptoms and reportedly improved the quality of her life.
KRV paid or incurred medical expense of $18, 115.06 for care caused by the 12/23/14 mvc.
She described her daily neck and right arm/hand pain and numbness is activity dependent-worsening when work, home, or child care obligations necessitate movement that aggravates her symptoms. She noted the pain and numbness have depressed her and made her very cautious. She described lessened ability to care for herself, her children, her home, and her work obligations. She noted, her social, recreational, and even religious life is affected by the limitations she imposes on herself to avoid aggravating her neck and arm symptoms. She expressed her worry and concerns about the cervical fusion surgery that Dr. F graphically described for her as he detailed the risks, benefits, and alternatives to the anterior cervical discectomy and fusion surgery that he projects. She is trying to delay the surgery though she described it as "inevitable."
During an effective and thorough cross examination KRV admitted she reported intermittent numbness in the right hand to her medical care providers during a March 2014 visit for the work related injury suffered in 12/17/2013. She acknowledged her physician’s diagnosed cervical radiculopathy (pain radiating from the neck to the arm) and diagnosed a cervical strain. She remembered Dr. Duffy injected medicine into her right shoulder as a consequence. She also remembered her employer, Tauck, made ergonomic adjustments to her work station to accommodate her injuries.
Jocelyn Bonilla, KRV’s friend, testified about the differences she’d observed in KRV’s appearance, activities, and emotional state following the collision. Ms. Bonilla is a longtime friend of KRV testifying in support of her friend, but she was unable to distinguish between KRV’s status after the various traumatic events of December 2013, December 2014, and January 2016. Though she meant well, her testimony proved to be unhelpful.
Dr. F opined the 12/23/14 collision was a substantial factor causing KRV’s neck and shoulder symptoms and concluded she may require a surgical decompression and stabilization of the cervical spine. He testified, Ex. 13, page 32, Lines 1-8, he believes "it would be reasonable to believe that at some point in this woman’s life she’s going to undergo the surgery that I’m recommending. It will come to the point when she’s tired of living with the persistent symptoms she’s had for in essence four years now and that would come in the form of a decompression and fusion surgery." Talismanic or formulaic words "are not essential when an expert renders an opinion as long as it is clear that the opinion of the expert is expressed in terms of probabilities." Shegog v. Zabrecky, 36 Conn.App. 737, 746, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). He concluded though the surgery should ameliorate some of her symptoms, it will not eliminate all the neck pain or numbness in her hand. He found her complaints of pain, limitation, and interference with life’s activities to be consistent with reports of other similarly situated patients.
The defense did not offer medical evidence contradicting Dr. F’s opinions on diagnosis, reasonableness and necessity of past treatment, prognosis-including the need for multi-level cervical spine fusion, the assigned permanent impairment rating, nor the causal connection or relationship between the subject collision and the conditions diagnosed, treated, and projected. The defense proved KRV experienced a cervical strain and radicular symptoms from cervical to right arm following the December 2013 work related fall, but the treating physician, Dr. Duffy, reported KRV symptom free with no need for further cervical spine or right arm/hand treatment by September 2014-several months before the subject mvc. Though Dr. Duffy assigned a 3% permanent impairment of the lumber spine, low back, he assigned no permanent impairment to KRV’s cervical spine.
"A plaintiff who has a dormant, asymptomatic arthritic condition that is subsequently aggravated by an injury caused by the defendant’s negligence is entitled to recover full compensation for the resulting disability, even though her resulting disability is greater than if she had not suffered from the arthritic condition. See Boland v. Vanderbilt, 140 Conn. 520, 524, 102 A.2d 362 (1953); Mourison v. Hansen, 128 Conn. 62, 64-65, 20 A.2d 84 (1941); 2 Restatement (Second) Torts § 461 (1965)." Tuite v. Stop & Shop Companies, Inc., 45 Conn.App. 305, 310-11 (1997).
"It is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities. Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956). Consequently, as we stated in Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971), as to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Indeed, we expressly reaffirmed this principle in Seymour v. Carcia, supra, 221 Conn. at 481, 604 A.2d 1304. The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses; id., at 479, 604 A.2d 1304; "[i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date ... when there is also a degree of medical certainty that future medical expenses will be necessary." (Emphasis added; internal quotation marks omitted.) Id., at 478-79, 604 A.2d 1304." Marchetti v. Ramirez, 240 Conn. 49, 55 (1997).
The defense offered medical evidence of injuries KRV sustained on 12/17/13 when she slipped on fell on ice landing on her back and right side while in the course and scope of her work. She was treated conservatively at Concentra for several months before being referred to Dr. Patrick Duffy, M.D., orthopedic surgeon. As of March 4, 2014 Dr. Duffy noted her cervical spine had no muscle spasm, good range of motion, and reports of some discomfort in the right trapezius. He continued to see her throughout the summer of 2014. On 9/24/14 he last saw her before the 12/23/14 mvc noting "she has no complaints with respect to the neck or low back." His cervical spine examination notes: "(T)here is no spasm. Range of motion is good in all planes. Spurling’s is negative." "Upper extremities-Motor and sensory exams are intact. Reflexes are symmetrical."
The medical evidence establishes KRV’s cervical spine was injured by the December 23, 2014 collision. The court agrees with Dr. F, the December 2014 collision, caused by the defendant’s admitted negligence, precipitated KRV’s pain and need for medical care including the reasonable probability of future multi-level ACDF surgery.
The plaintiff is entitled to fair, just, and reasonable compensation for injuries and losses, past and future, proximately caused by the defendant’s admitted negligence, and "damages are an essential element of a plaintiff’s proof and must be proved with reasonable certainty." Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982).
KRV offered evidence of a reasonable estimate of the cost of future orthopedic surgical care, Dr. F’s testimony, Ex. 13, page 33-34, lines 24-1, "as to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities(.)" Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971). The court will award damages for future medical care under these circumstances.
KRV seeks compensation for a permanent harm to her cervical spine as Dr. F assigned a ratable impairment using the AMA Guide to the Assessment of Permanent Impairment. KRV’s persistent and consistent complaints of pain and limitation, coupled with objective evidence of abnormality of MRI and medical testimony diagnosing that abnormality as harm needing surgery to correct and clinical examination results confirmatory of the MR scan are the basis for this claim of compensation for permanent harm. KRV’s statistical life expectancy exceeds 35 years." ‘A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency.’ Royston v. Factor, 1 Conn.App. 576, 577, 474 A.2d 108 (per curium), cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984)." Dibble v. Ferguson, 15 Conn.App. 97, 99, 543 A.2d 294 (1988)." Niles v. Evitts, 16 Conn.App. 696, 698-99 (1988).
Inferentially the cervical fusion surgery, if performed and successful, may eliminate or minimize the persistent neck and right arm pain and numbness, limited range of motion and attendant pain, and alter the present claim for permanent harm. Dr. F testified surgery would not be recommended or undertaken without reasonable prospect of success minimizing and/or eliminating some of KRV’s symptoms, but Dr. F testified KRV’s signs and symptoms would be lessened but the range of motion of her cervical spine forever limited by the fusion of two vertebrae. KRV now has neck and right arm pain and limitation and, perhaps, post-surgery, if successful, the pain and limitation will be less, but the defendant’s negligence has placed KRV in an unenviable position: she must live with pain and limitation or chose to endure the known risks of surgery including the attendant painful recovery and perhaps the inability to work/earn for an uncertain period.
KRV is entitled to fair, just, and reasonable compensation for damages, economic and noneconomic, for past and future proximately caused harmful consequences of the defendant’s negligence including the post-traumatic headaches, upper back and cervical tissue strain and sprain, and the right shoulder injury. These sums include compensation for past economic loss, $18, 115.06 for medical expense incurred, reasonably probable future medical expenses, reasonably estimated as $100, 000.00 for future orthopedic surgical fees and associated hosptial/surgical center fees, discounted for the possibility of no surgical intervention is performed, and compensation for past and future non-economic damages including physical pain, interference with the activities of daily living at home, work, and elsewhere, and mental suffering, including the anxiety, worry, apprehension, concern and mental stress associated with the need for future surgery and the risks attendant thereto or a decision to live with the chronic limitations of motion and functionality of the neck and master arm as KRV has described.
Wherefore, the court finds the plaintiff has proved by a fair preponderance of the evidence she is entitled to, and awards, the following fair, just, and reasonable compensation for injuries and losses proximately resulting from the defendant’s negligence:
Economic damages:
PAST AND FUTURE
$ 68, 115.06
Non-Economic damages:
PAST AND FUTURE
$100, 000.00
Total of All Damages:
$168, 115.06