Opinion
Case No. 1:19-cv-803
2021-08-05
Calvin ADKINS, et al., Plaintiffs, v. UNITED STATES of America, Defendant
Thomas C. Stringer, Stringer, Stringer & Gasior, Avon, OH, for Plaintiffs. Karen E. Swanson-Haan, Sara E. DeCaro, Office of the U.S. Attorney, Cleveland, OH, for Defendant.
Thomas C. Stringer, Stringer, Stringer & Gasior, Avon, OH, for Plaintiffs.
Karen E. Swanson-Haan, Sara E. DeCaro, Office of the U.S. Attorney, Cleveland, OH, for Defendant.
MEMORANDUM OPINION AND ORDER
PAMELA A. BARKER, U. S. DISTRICT JUDGE
Currently pending are: (1) Plaintiff Calvin Adkins's Motion for Partial Summary Judgment (Doc. No. 37); and (2) Defendant United States of America's Motion for Partial Summary Judgment (Doc. No. 35). Briefs in Opposition were filed on July 12, 2021. (Doc. Nos. 38, 39.) Neither party filed a reply in support of their respective Motions. For the following reasons, Plaintiff Calvin Adkins's Motion is DENIED. Defendant United States of America's Motion is GRANTED.
I. Background
Plaintiff Calvin Adkins ("Adkins") brings this action against Defendant United States of America ("the Government") pursuant to the Federal Torts Claim Act ("FTCA"). Adkins's claim stems from a May 8, 2016 accident at the Akron, Ohio United States Postal Service ("USPS") facility. (See Memorandum Opinion and Order, Doc. No. 31, PageID# 836.) Adkins, a former contractor with the USPS, alleges that a USPS employee caused a stack of wire bins to knock into Adkins while he waited to receive a shipment of mail meant for delivery to Columbus, Ohio. (Id. ) According to Adkins, he suffered injuries as a result of the accident and was afflicted with severe pain throughout his back and leg. (Id. ) After the accident and before he filed his administrative claim, Adkins sought medical treatment for his pain from a variety of medical providers, including doctors, chiropractors, pain management specialists, and physical therapists. (See Doc. Nos. 36-1, 36-2, 37-3 – 37-12.)
On May 7, 2018, Adkins, through counsel, filed his administrative claim (commonly referred to as an "SF-95") with the USPS. (Doc. No. 37-1.) Adkins asserted a single personal injury claim for $250,000. (Id. ) The USPS denied Adkins's claim in January 2019, prompting Adkins to file his Complaint in the instant matter on April 11, 2019. (See Doc. No. 1.)
1. Adkins's Treatment between May 2016 and May 2018
On May 10, 2016, two days after his accident, Adkins underwent an initial evaluation by Dr. Robert Berkowitz, an orthopedic surgeon. (Doc. No. 37-3.) Dr. Berkowitz diagnosed Adkins as suffering from lumbar strain, degenerative lumbar disc, lumbar radiculopathy, and patellofemoral syndrome. (Id. ) He noted that Adkins was experiencing left leg radiculopathy and back pain. (Id. ) Dr. Berkowitz wrote the following note at the conclusion of his visit summary:
We will get him into our workman's comp specialty physician to take care of this. Then the patient can follow up with me if he is not progressing appropriately or needs any sort of surgical intervention or develops any neurologic symptoms or has any concerns I am always available. At some point he might need an MRI of his lumbar spine.
(Id. , emphasis added.)
On June 3, 2016, Adkins began receiving treatment through the Evergreen Pain Management and Rehabilitation Center from Dr. Brian Bennett, a chiropractor. (Doc. No. 36-1, PageID# 165-67.) At that time, Adkins reported that his lower back pain was at an 8 out of 10 and "reported intolerances with lifting, sitting, walking, general personal care, sleeping, traveling, and [engaging in] ... social activities." (Id. ) Dr. Bennett recommended that Adkins receive chiropractic manipulation of the lumbar spine three times a week, in addition to ultrasound, electrotherapy, and myofascial release procedures. (Id. ) Moreover, due to Adkins's high levels of pain, he recommended that Adkins consult with another doctor for medication management purposes. (Id. ) On July 7, 2016, Dr. Bennett ordered Adkins to undergo an MRI of his lumbar spine. (Id. at PageID# 1070.) Adkins's MRI revealed a disc herniation at the L3-4 vertebrae and a bulging disc at his L4-5 vertebrae, as well as underlying degenerative disc disease. (Id. )
Throughout the summer of 2016, Adkins's pain did not subside. On August 10, 2016, Dr. Bennett noted that Adkins "presented to this office today in obvious discomfort." (Id. at PageID# 1096.) At that time, Dr. Bennett wrote that he was "going to recommend that [Adkins] consult with Dr. Blades for a neurosurgical consultation/opinion ." (Id. at PageID# 1097, emphasis added.) On August 26, 2016, Dr. Bennett again noted that Adkins "was in obvious discomfort" and noted that Adkins "would be scheduled with Dr. Blades" as soon as possible. (Id. at PageID# 1104-05.)
On September 6, 2016, Adkins saw Dr. Deborah Blades for the first time. (Id. at PageID# 1108.) In her visit notes, Dr. Blades wrote that Adkins's "lumbar MRI does not demonstrate a disc herniation causing nerve root compression, therefore a surgical intervention is not warranted." (Id. ) Dr. Blades wrote that she believed that "he should be seen by pain management to undergo injection at the SI [sacroiliac] joint on the left." (Id. ) She wrote that "[t]his could be coupled with aquatic therapy then the introduction of land therapy to assist with pain management and improvement [sic] mobility." (Id. )
The following day, on September 7, 2016, Dr. Bennett noted that Adkins reported to him that Dr. Blades "discussed and recommended injections as well as aquatic therapy." (Id. at PageID# 1106-07.) In his assessment of Adkins's visit, Dr. Bennett wrote that he would "be in touch with Dr. Blades regarding her recommendations for aquatic therapy and injections." (Id. ) Dr. Bennett also noted that, "[t]oday, [Adkins] was having too much difficulty and pain to tolerate treatment." (Id. )
Adkins continued to receive chiropractic and other pain management treatment through fall 2016 and into winter 2017. (Id. at PageID# 1116-43.) On January 16, 2017, Adkins visited Dr. Bharat Shah at the Comprehensive Pain Care Center, Inc. to receive a sacroiliac joint injection of dexamethasone, intended to relieve inflammation in his joint. (Id. at PageID# 1142-43.) On January 26, 2017, Adkins reported to Dr. Shah that the injection did little to help alleviate his pain. (Id. at PageID# 1144-46.) At that time, Dr. Shah wrote the following recommendation:
left sacroiliac injection did not help he is still have lot of pain left side of the back and left hip when he sits he hears poping spounds and then he is having lot more pain he started water therapy i will schedule him for LEB at 15-s1 x2 2 weeks apart to control his pain. renew his meds orras is ok he understands that this is short term
(Id. at PageID# 1146, reproduced as in original.)
Adkins's pain did not decrease after the second injection either. On February 23, 2017, Dr. Bennett noted that Adkins had "not had much significant relief with two injections for his lumbar spine." (Id. at PageID# 1153.) He further wrote: "I'm not very optimistic that he will have any significant sustained relief with his third injection." (Id. ) Dr. Bennett noted that he and Adkins "discuss[ed] the possibility of nerve ablation." (Id. ) Adkins received a third injection, this time into his caudal joint, rather than his sacroiliac joint, in an attempt to better target his low back pain, on March 6, 2017. (Id. at PageID# 1155-57.)
On March 23, 2017, Dr. Bennett noted that Adkins had "not responded favorably with injection he has received." (Id. at PageID# 1160.) Dr. Bennett wrote the following instructions at the end of Adkins's March 23 visit:
At this time I am going to recommend that patient follow back up with Dr. Blades who is a neurosurgeon that recommended injections. Perhaps other treatment options or surgical intervention may be more appropriate at this time. I will request that patient be authorized for this consultation by way of C9. Patient in the meantime will continue with current Medco 14 physical restrictions.
(Id. at PageID# 1161, emphasis added.)
Adkins saw Dr. Blades against on May 4, 2017. (Id. at PageID# 1170.) At that time, Dr. Blades noted that Adkins continued to report low back pain. (Id. at PageID# 1172.) She requested that Dr. Shah consider performing another sacroiliac joint injection on Adkins to determine if Adkins was a candidate for radiofrequency nerve ablation. (Id. ) This visit summary contains no indication whether Dr. Blades believed Adkins was a suitable candidate for surgery at that time. (Id. ) However, on May 22, 2017, Dr. Bennett wrote in his visit summary that Adkins reported to him that Dr. Blades recommended Adkins undergo "an orthopedic consultation." (Id. at PageID# 1183.)
Adkins's back pain persisted into the fall of 2017. (Id. at PageID# 1194-95.) Adkins sought treatment from a different pain management doctor, Dr. Abdallah Kabbara, rather than Dr. Shah. (Id. at PageID# 1196-99.) Dr. Kabbara evaluated Adkins on October 23, 2017. At that time, Dr. Kabbara wrote the following recommendation for Adkins's treatment: "If the patient's conservative management did not achieved positive response and I would recommend trial of spinal cord stimulation if the patient does not surgical in nature." (Id. at PageID# 1199, reproduced as in original.) Dr. Kabbara's recommendations were accompanied by the following warning: "Please note this report has been produced using speech recognition software and may contain errors related to that system including grammar, punctuation and spelling as well as words and phrases that may be inappropriate. If there are questions or concerns, please feel free to contact me to clarify." (Id. )
On October 30, 2017, Dr. Bennett noted that Adkins reported to him that Adkins discussed the possibility of nerve ablation with Dr. Kabbara. (Id. at PageID# 1201.) Dr. Bennett wrote that nerve ablation "may certainly be of benefit" to Adkins, as he "has had limited relief with traditional epidural type injections that he has received in the past." (Id. )
In March 2018, Adkins began physical therapy. (Doc. No. 36-2, PageID# 1231.) However, the physical therapy did not relieve his pain. Instead, Adkins could only complete six of eight physical therapy sessions between March 27, 2018 and May 17, 2018, due to his high pain levels. (Id. at PageID# 1237.)
2. Adkins's Treatment Between May 2018 and September 2019
Adkins filed his administrative claim on May 7, 2018. (Doc. No. 36-1, PageID# 1203-04.) He received his final physical therapy treatment on May 17, 2018. (Doc. No. 36-2, PageID# 1237.) Adkins was discharged from physical therapy on July 7, 2018. (Id. ) At that time, Adkins's physical therapist noted that he "was referred back to MD and encouraged to see surgeon again 2 high pain levels." (Id. , reproduced as in original.) On April 9, 2019, Dr. Shah referred Adkins back to Dr. Berkowitz for an evaluation. (Id. at PageID# 1286.) On May 7, 2019, Dr. Berkowitz noted that Adkins had multiple bouts of pain management, as well as physical therapy, but that Adkins was "not getting any better." (Id. at PageID# 1287.) On June 14, 2019, Dr. Berkowitz and Adkins agreed that Dr. Berkowitz would perform an L4-5 laminectomy. (Id. at PageID# 1293.) Dr. Berkowitz performed the L4-5 laminectomy on September 9, 2019. (Id. at PageID# 1310.)
On July 7, 2018, two months after Adkins filed his administrative claim, his physical therapist wrote in her discharge summary that she advised Adkins to see a surgeon due to his severe and persistent pain. (See Doc. No. 36-2, PageID# 1237.) Despite his physical therapist's clear written recommendation that Adkins see a surgeon, Adkins did not attempt to amend his administrative claim to account for possible future surgical intervention. FTCA claimants may amend their claims "at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a)." 28 C.F.R. § 14.2. Thus, Adkins had the ability to amend his SF-95 up until the later of either January 19, 2019, when the USPS issued its administrative decision, or on April 11, 2019, when he filed the instant action, to take into account his physical therapist's recommendation that he see a surgeon, as well as his persistent pain throughout the summer and fall of 2018. However, Adkins did not do so.
The parties now seek summary judgment on a narrow issue: whether Adkins's damages in this matter are capped at $250,000, the amount Adkins initially sought on his SF-95 in May 2018, or whether Adkins may recover in excess of his SF-95 amount, including for the surgery Adkins underwent in September 2019. (Doc. Nos. 35, 37.)
II. Standard of Review
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party." Henderson v. Walled Lake Consol. Sch. , 469 F.3d 479, 487 (6th Cir. 2006). "Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’ " Cox v. Kentucky Dep't of Transp. , 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is "material" only "if its resolution might affect the outcome of the suit under the governing substantive law." Henderson , 469 F.3d at 487.
At the summary judgment stage, "[a] court should view the facts and draw all reasonable inferences in favor of the non-moving party." Pittman v. Experian Info. Solutions, Inc. , 901 F.3d 619, 628 (6th Cir. 2018). In addition, "the moving party bears the initial burden of showing that there is no genuine dispute of material fact." Ask Chems., LP v. Comput. Packages, Inc. , 593 F. App'x 506, 508 (6th Cir. 2014). The moving party may satisfy this initial burden by "identifying those parts of the record which demonstrate the absence of any genuine issue of material fact." Lindsey v. Whirlpool Corp. , 295 F. App'x 758, 764 (6th Cir. 2008). "[I]f the moving party seeks summary judgment on an issue for which it does not bear the burden of proof at trial," the moving party may also "meet its initial burden by showing that ‘there is an absence of evidence to support the nonmoving party's case.’ " Id. (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party satisfies its burden, "the burden shifts to the non-moving party who must then point to evidence that demonstrates that there is a genuine dispute of material fact for trial." Ask Chems. , 593 F. App'x at 508-09. "[T]he nonmoving party may not simply rely on its pleading, but must ‘produce evidence that results in a conflict of material fact to be solved by a jury.’ " MISC Berhad v. Advanced Polymer Coatings, Inc. , 101 F. Supp. 3d 731, 736 (N.D. Ohio 2015) (quoting Cox , 53 F.3d at 150 ).
III. Analysis
"The FTCA grants a limited waiver of sovereign immunity and allows tort claims against the United States ‘in the same manner and to the same extent as a private individual under like circumstances.’ " Chomic v. U.S. , 377 F.3d 607, 609 (6th Cir. 2004) (quoting 28 U.S.C. § 2674 ). According to the FTCA, before a plaintiff may file a suit against the United States, the plaintiff "shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a). Additionally, pursuant to the FTCA,
Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
§ 2675(b). In other words, generally, a personal injury action under the FTCA is limited to the amount sought in the administrative claim. See Kirk v. United States , No. 1:05-CV-112, 2006 WL 1459867, at *1 (W.D. Mich. May 25, 2006). The purpose of this "sum certain" requirement "is to ensure that federal agencies charged with making an initial attempt to settle tort claims against the United States are given full notice of the government's potential liability." Allgeier v. United States , 909 F.2d 869, 878 (6th Cir. 1990).
Whether a plaintiff may seek damages in excess of those sought in his administrative claim depends upon whether the plaintiff's subsequent condition and damages constitute either "newly discovered evidence not reasonably discoverable" when the plaintiff presented his administrative claim, or "proof of intervening facts, relating to the amount of the claim." 28 U.S.C. § 2675(b). As the court in Simpson v. United States explained,
A plaintiff bears the burden to show that the increased amount is justified by newly discovered evidence or intervening facts. Allgeier v. United States , 909 F.2d 869, 877 (6th Cir. 1990). "To meet this burden, a plaintiff must show that the new evidence or intervening fact was not reasonably capable of detection at the time the administrative claim was filed. The plaintiff is required to demonstrate that the new information could not have been discovered through the exercise of reasonable diligence." Norrell v. United States , No. 1:00-cv-303, 2002 WL 32060141, at *3 (E.D. Tenn. Aug. 1, 2002) ; Nationwide Mut. Ins. Co. v. United States , No. 1:05-cv-574, 2007 WL 782157, at *2 (S.D. Ohio Mar. 13, 2007) (quoting Norrell , 2002 WL 32060141, at *3 ).
The Sixth Circuit has adopted a strict interpretation of what constitutes an "intervening fact," requiring that it be unexpected or unfor[e]seen. Allgeier , 909 F.2d at 878. A strict interpretation ensures "that the federal agencies charged with making an initial attempt to settle tort claims against the United States are given full notice of the government's potential liability." Id. (quoting Low v. United States , 795 F.2d 466, 470–71 (5th Cir. 1986) ). Additionally, the Sixth Circuit's strict interpretation is consistent with the principle that there should be strict compliance with statutes waiving the United States’ sovereign immunity. Id.
Simpson v. United States , No. 2012-258, 2014 WL 3943610, at *3 (E.D. Ky. Aug. 12, 2014)
Information can be "newly discovered evidence or an intervening fact ‘if it sheds new light on the basic severity of the claimant's condition-that is, if it materially differs from the worst-case prognosis of which the claimant knew or could reasonably have known when the claim was filed.’ " Kirk , 2006 WL 1459867, at *2 (quoting Lebron v. United States , 279 F.3d 321, 330 (5th Cir. 2002) ).
For example, in Allgeier , the plaintiff's condition improved to the extent that additional surgery was no longer contemplated prior to filing her FTCA administrative claim. Allgeier , 909 F.2d at 878. However, after she filed her claim, the plaintiff's condition significantly deteriorated and additional surgery was required. Id. Thus, when the plaintiff's condition unexpectedly took a turn for the worse, the Sixth Circuit held that the need for the second operation and additional treatment was not reasonably foreseeable at the time she filed her administrative claim, and that the district court's allowance of an award that exceeded her administrative claim was not clearly erroneous. Id. at 879. See also, e.g. , Zurba v. United States , 318 F.3d 736, 740-41 (7th Cir. 2003) (the plaintiff's severe emotional injuries—which surfaced years after her accident—were unforeseeable because they materially differed "from the worst-case prognosis of which she knew or could reasonably have known when her claim was filed"); cf. Reilly v. United States , 863 F.2d 149, 171 (1st Cir. 1988) ("[I]ntelligence which serves only to bear out earlier suspicions cannot unlock the FTCA's narrow escape hatch. Diagnoses which are no more than cumulative and confirmatory of earlier diagnoses are neither ‘newly discovered evidence’ nor ‘intervening facts’ for the purposes of § 2675(b).").
Conversely, the court in Kirk v. United States concluded that a patient's eventual decision to pursue surgical treatment after previous conservative nonsurgical treatment failed did not constitute an intervening fact. Kirk , 2006 WL 1459867, at *3. In Kirk , the plaintiff filed an administrative claim with the United States Army, pursuant to the FTCA, seeking damages for injuries she sustained in a car accident. Id. at *1. Initially, the plaintiff opted for conservative, nonsurgical treatment. Id. In her administrative claim, the plaintiff only sought damages for this initial nonsurgical treatment. Id. However, the nonsurgical treatment did not alleviate the plaintiff's injuries and she underwent surgery to treat her lingering injuries. Id. In her lawsuit, the plaintiff argued that she should be permitted to seek additional damages related to her surgery because her surgery "was not foreseeable at the time the administrative claim was filed." Id. The court rejected the plaintiff's argument that her surgery was unforeseeable and concluded that it was clear from the evidence "that before the filing of her administrative claim Plaintiff's treatment options included surgery." Id. at *3. According to the court, the plaintiff "opted to first try nonsurgical therapies," but was aware that such therapies succeeded in only half of all cases. Id. Moreover, at least two doctors told the plaintiff that, should her more conservative course of treatment be unsuccessful, surgery was a possible treatment option. Id. The court concluded that her "eventual decision to change her course of treatment and to try a surgical option was not unforeseeable," and "was within a reasonable worst-case prognosis at the time she filed her administrative claim." Id. Thus, the court concluded that the plaintiff's surgery did "not constitute an intervening fact" that supported a claim in excess of her administrative claim. Id.
Similarly, in Simpson v. United States , the court denied the plaintiffs’ motion for leave to amend their complaint in which the plaintiffs sought to recover nearly three times the amount in damages that they sought during their administrative proceedings. Simpson , 2014 WL 3943610, at *1. Like in Kirk , the Simpson court concluded that the plaintiff's "need for surgery was reasonably foreseeable at the time the administrative claim was filed" in light of a report in which the plaintiff's orthopedic surgeon wrote that he "[did] not anticipate surgery at this point in time, but it certainly may be a consideration depending upon how [the plaintiff] responds to these more conservative treatments." Id. at *3.
In this case, Adkins contends that he could not have reasonably foreseen that he would need back surgery when he filed his administrative claim. (Doc. No. 37, PageID# 1324.) The Government argues that it was foreseeable that Adkins would need more aggressive treatment, up to and including back surgery, since Adkins's back pain never improved or abated, but instead grew worse, prior to the filing of his administrative claim. (Doc. No. 35-1, PageID# 868-69.)
Having reviewed the record, the Court concludes that, prior to the filing of his May 7, 2018 administrative claim, it was reasonably foreseeable that Adkins's treatment options included surgery. The record in this case demonstrates that Adkins was put on notice that surgical intervention was a possibility as early as May 10, 2016, and that other care providers told Adkins multiple times between May 2016 and May 2018 that he may need surgery on his back. (See Doc. Nos. 36-1, 37-3.) Moreover, the record is clear that Adkins's condition did not improve with treatment prior to the filing of his administrative claim. (Id. ) Because surgery was within a reasonable worst-case prognosis at the time that Adkins filed his administrative claim, Adkins's September 2019 laminectomy does not constitute an intervening fact or newly discovered evidence that would support a claim in excess of his administrative claim.
Adkins's case is similar to Simpson and Kirk . In both Simpson and the instant case, medical providers indicated at the outset of treatment that surgery was a possibility, depending on the patient's progress. See Simpson , 2014 WL 3943610, at *3. The Simpson court concluded that the plaintiff's surgeon's note that surgery "may be a consideration" rendered surgery reasonably foreseeable and thus, not an intervening fact or newly discovered evidence. Id. Likewise, in Kirk , the court concluded that surgery was reasonably foreseeable because the plaintiff's doctors had explained to her, prior to the filing of her administrative claim, that surgical treatment was an option if nonsurgical therapies failed. Kirk , 2006 WL 1459867, at *3-4. Here, Dr. Berkowitz informed Adkins on May 10, 2016 that if Adkins was "not progressing appropriately or need[ed] any sort of surgical intervention," he should follow up with Dr. Berkowitz. (Doc. No. 37-3.) Moreover, Dr. Bennett told Adkins in August 2016 and March 2017 that he believed Adkins likely needed surgical intervention. (See Doc. No. 36-1, PageID# 1097, 1161.) Even if Dr. Blades initially disagreed that Adkins required surgery in September 2016, she appears to have changed her assessment in May 2017, as Adkins reported to Dr. Bennett that Dr. Blades recommended Adkins obtain an orthopedics consult. (Id. at PageID# 1112, 1183.) Thus, the Court is persuaded that Adkins was aware by the time that he filed his administrative claim that surgery fell within the reasonable worst-case prognosis. The Court is not persuaded by Adkins's argument that his case is similar to Allgeier , Zurba , and Michels . Allgeier is easily distinguishable because the plaintiff's condition initially improved prior to the filing of her administrative claim, and then significantly and unexpectedly declined afterward. Allgeier , 909 F.2d at 878-79. This is not the case here. The record is abundantly clear that Adkins's condition did not improve with treatment between May 2016 and May 2018. (See Doc. Nos. 36-1, 36-2.) For example, on June 26, 2016, Dr. Bennett noted that Adkins rated his pain as an 8 and exhibited muscle spasms in his lower back. (Doc. No. 36-1, PageID# 1068.) On April 24, 2017, Dr. Bennett noted that Adkins still rated his pain as an 8 and exhibited muscle spasms in his lumbar spine. (Id. at PageID# 1168.) In January and February 2018, Adkins received additional (unsuccessful) injections to treat his persistent back and leg pain. (Doc. No. 36-2, PageID# 1205-07.) The Simpson court rejected an identical argument for the same reason: the plaintiff "presented no evidence that [his] condition improved before the administrative claim was filed or that his condition significantly worsened at a later point in time." Simpson , 2014 WL 3943610, at *5.
The Court is not persuaded by the Government's arguments with respect to Dr. Shah's and Dr. Kabbara's notes. (See Doc. No. 35, PageID# 868, 871.) The Government takes Dr. Shah's comment about Adkins understanding "that this is short term" entirely out of context. In its full context, Dr. Shah's note reads: "i will schedule him for LEB at 15-s1 x2 2 weeks apart to control his pain. renew his meds orras is ok he understands that this is short term" (Doc. No. 36-1, PageID# 1146, reproduced as in original.) This note is nearly indecipherable, but one reading is that Adkins understood that Dr. Shah's renewal of his pain medications—not Adkins's receipt of joint injections—was only temporary. Similarly, Dr. Kabbara's note is also nearly indecipherable, likely due to his use of speech recognition software. (Id. at PageID# 1199.) The Court is unable to determine what Dr. Kabbara meant by "If the patient's conservation management did not achieved positive response and I would recommend trial of spinal cord stimulation if the patient does not surgical in nature." (Id. , reproduced as in original.) Accordingly, the Court declines to rely on either statement in its conclusion.
Likewise, Zurba is also distinguishable. In Zurba , the court concluded that the plaintiff's emotional damages "materially" differed from the worst-case prognosis she knew or could reasonably have known at the time she filed her claim for physical injuries related to a car accident. Zurba , 318 F.3d at 740-41. Here, Adkins's surgery was a continuation of the treatment he received for the physical injuries sustained in the May 8, 2016 USPS accident. In other words, Adkins's surgery treated injuries that he was already aware he had at the time he filed his administrative claim.
Michels is also distinguishable. In Michels , the court concluded that the plaintiff could seek additional damages related to his arthritis and stiffness in his joints because these conditions developed more severely and rapidly than thought possible. Michels v. United States , 31 F.3d 686, 688 (8th Cir. 1994). The court concluded that, if convincingly proved, "an unforeseen worsening of a known injury" may qualify as newly discovered evidence or intervening facts under § 2675(b). Id. Here, Adkins has presented no evidence that his condition worsened in an unforeseen way. To the contrary, the medical records demonstrate that Adkins experienced a high and consistent rate of back and leg pain beginning in May 2016, and no amount of physical therapy, chiropractic manipulation, or epidural pain relief injections relieved this pain. (See Doc. Nos. 36-1, 36-2.)
The Court concludes that Adkins has not shown that his need for the September 2019 laminectomy was not reasonably discoverable or foreseeable at the time he filed his administrative claim. See Simpson , 2014 WL 3943610, at *5. Thus, Adkins does not meet his burden of demonstrating that there is adequate newly discovered evidence or sufficient intervening facts under the FTCA to justify damages in excess of his administrative claim. Accordingly, Adkins's damages are limited to the amount sought in his administrative claim, or $250,000.
IV. Conclusion
For the reasons set forth above, Plaintiff's Motion for Partial Summary Judgment is DENIED. Defendant's Motion for Partial Summary Judgment is GRANTED.