Opinion
# 2016-045-502 Claim No. 118564
03-08-2016
AARON HOMER v. THE STATE OF NEW YORK
Law Offices of Eric H. Green By: Hiram Raldiris, Esq. Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
Negligence only claim by worker injured in bucket truck under the loop parkway bridge. Damages decision.
Case information
| UID: | 2016-045-502 |
| Claimant(s): | AARON HOMER |
| Claimant short name: | HOMER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118564 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Law Offices of Eric H. Green By: Hiram Raldiris, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 8, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Following a bifurcated trial concerning the issue of liability only this Court issued a Decision wherein defendant, State of New York, was found 100% liable for the happening of the accident. The underlying claim in this matter arose on December 3, 2008 at approximately 2:00 p.m. when claimant Aaron Homer, was caused to hit his head on the underside of the Loop Bridge over Long Creek near Jones Beach.
Thereafter, a trial was held concerning the issue of damages.
Claimant testified that he is employed as a project manager for Olsen Engineering and his job responsibilities include travel by car or plane to various job sites across the states. Claimant testified that on the day of his accident he worked until 3:00 p.m. and then drove home. On his ride home claimant began to experience mid and lower back pain which he described as pain shooting down his legs. Once he arrived home, he went to the emergency room at Overlook Hospital where he complained of a headache and back pain. He was also bleeding from his right knee. While there, the doctors bandaged his knee, took an X-ray of his back and a CT scan of his head. He was prescribed pain medication and was instructed to follow-up with his doctor. He saw Dr. Judith Tiongco who examined him and referred him to an orthopedist. Claimant testified that he missed a few days of work immediately after the accident.
On January 6, 2009, claimant went to see Dr. John W. King, an orthopedist, where he complained of back pain in both his mid and lower back. Claimant denied having any previous injuries to his back. Dr. King referred him for an MRI and prescribed physical therapy as well as painkillers. Claimant testified that he was prescribed Percocet for several months and then Vicodin. Claimant explained that although the Vicodin relieved his pain, it knocked him out and he could only take it before bedtime.
In January 2009, claimant began attending physical therapy 2 to 4 times per week which lasted until July 2009. By July 2009 claimant stated that he had achieved good decreases in his pain levels. He further testified that the physical therapists instructed him to continue doing the exercises he was taught at physical therapy. His physical therapy consisted of back massages, hot and cold compresses, electric stimulation of his back muscles and other exercises.
Claimant testified that on May 29, 2009 and June 18, 2009 he saw Dr. Eric Freeman, a pain management specialist, who gave him an epidural steroid injection in his back which was to alleviate his pain. Claimant stated that the injection was very painful and that it caused him more pain in his back for a few days and it then reverted to the pain he felt prior to receiving the injection.
Claimant credibly testified that before his accident he engaged in skiing, playing racquet ball, weightlifting and motorcycle riding. After his accident he can no longer engage in those activities or sit or stand for prolonged periods of time. He also testified that he experiences pain when sleeping, sneezing, dancing and driving long distances. However, claimant also testified that after his accident, he took a 5 hour plane ride to Ireland for his honeymoon. He also flew to Yellowstone National Park and took driving trips to New Hampshire and Vermont.
Claimant testified that on his August 25, 2009 visit to Dr. King that his overall pain level was a 3 out of 10 and that he was feeling moderately better. He explained that his back would hurt if he picked up any heavy object. On October 27, 2009, his last visit to Dr. King, claimant testified that his highest pain level was 3 out of 10. Dr. King instructed him not to play racquet ball, ski, ride his motorcycle or perform any auto mechanics. He was instructed to continue with his home exercises and the electric stimulation machine.
Claimant testified that he never went back to visit Dr. King and that he saw no other doctors for his back. Claimant testified that the physical therapy relieved some of his pain but not all of it. He explained that he feels pain in his lower and mid back everyday and on some days he feels shooting pains down his legs. He takes ibuprofen on a daily basis. He explained that at home he continues with the exercises he learned at physical therapy as well as electrical stimulations, hot and cold compresses and pain patches. Claimant states that he has to continue the exercises for the rest of his life and with the exercises his pain level is manageable. Since his accident, he has continued to drive far distances for work but must take breaks to stretch his back.
Dr. King, a board certified orthopedic surgeon, testified on behalf of claimant at trial. Dr. King testified that he treated claimant and that his file contained his own treatment notes as well as claimant's emergency room records, physical therapy records and the records from the Freeman Pain Institute.
Dr. King testified that he first saw claimant on January 6, 2009. At that appointment claimant explained how he received his injury and denied any prior history of neck or back problems. Claimant was then given a physical examination. Dr. King testified that the physical examination revealed that claimant had diminished range of motion in his neck with a rotation of approximately 75-80 degrees to the right and left as well as a decrease in extension. There was also tenderness in the mid section of his neck. With regard to claimants's back there was tenderness in the mid section of his back as well as fullness in the muscle which suggested spasm. Claimant also exhibited pain in his mid back when side bending and moving his shoulder blade.
Dr. King testified that his initial impression was that claimant had compression injuries to his cervical and thoracic spine. He prescribed him medication for inflammation and spasm. He explained that he was also concerned about disc herniation so he sent claimant for an MRI of his thoracic spine and then later for his lower lumbar spine.
Claimant next visited Dr. King on January 27, 2009 complaining of mid and lower back pain. He explained that the complaints of lower back pain, at this juncture were not unusual as it may take time to develop as a result of either disc protrusion or aggravation of a pre existing condition such as degenerative disease. Dr. King then sent claimant to physical therapy to improve his range of motion and to decrease some of the spasms and tension as well as prescribing medication to decrease the inflammation.
Dr. King testified that the January 9, 2009 MRI of claimant's thoracic spine or mid back revealed a protrusion or herniation at T5-T6 and a smaller one at T4-T5. He also testified that the March 11, 2009 MRI of the lumbar spine revealed a protrusion or herniation at L5-S1 as well as L4-L5 and L3-L4.
Dr. King testified that claimant's course of treatment also included narcotic pain medication and steroids when claimant had increased pain symptoms. Dr. King explained that when claimant's mid back spasms did not respond well to therapy he sent claimant to Dr. Freeman, a pain management specialist, to consider epidural steroid infection in his mid back. Dr. King testified that although claimant had 2 epidurals, claimant reported obtaining no relief from the injections and actually had worsening pain.
Dr. King testified that he last saw claimant for treatment in October 2009 and that by this visit claimant experienced some but not total pain relief from reduced inflammation and that everything improved as far as claimant's range of motion of his spine. However, Dr. King explained that claimant had more activity related pain and would continue to feel that pain. Dr. King set forth that claimant had reached maximum medical improvement and that at this time, he recommended that claimant continue with a home exercise program for stabilization and to take stress off the actual involved discs.
Dr. King opined with reasonable medical certainty that the cause of all of claimant's disc herniations were due to the injury he sustained on December 3, 2008 as that compression injury impacted his entire spine. He also opined that the degeneration he saw at L5-S1 was not the cause of that disc herniation as claimant had been asymptomatic prior to his accident. Dr. King stated that claimant was 26 years old at the time of the accident and that claimant's symptoms began to appear within a month of the accident. Dr. King credibly explained that claimant's complaints of back pain were consistent with the injury he sustained. Claimant's injury weakened the outer layer of the disc and the axial compression on that disc which led to the progression of the disc herniation. The disc herniation was evident on the MRI.
Dr. King also opined with a reasonable degree of medical certainty that claimant's disc herniations are permanent. He explained that once you have disc material herniate through the outer layer of the disc, it will never go back to the pre-injury state. There will be some healing but the lost disc material will lead to some progression of degeneration of the disc over time. Dr. King opined with a reasonable degree of medical certainty that the disc herniations will cause claimant pain for the rest of his life.
Dr. King also testified that he saw claimant on July 13, 2015. At his examination, claimant was still complaining of mid back pain which was consistent with the disc herniations at that level and lower back pain that would occasionally travel down his legs. However he also noted that there was no significant compression of the nerve. Dr. King testified that claimant's range of motion examination showed a 33% loss of range of motion with extension of his back. Dr. King opined that it was a permanent loss. Claimant had back pain while undergoing the Milgram test which was consistent with disc related pain. During his examination claimant also reported pain in the mid back where his T4-T5 and T5-T6 disc problems were located, especially when side bending and rotating his thoracic spine.
Dr. King testified that as of July 2015, claimant was not a surgical candidate and that he will have ongoing pain which will increase with activity level. Dr. King explained that claimant's limitations will be based upon his pain symptoms. Claimant will have more tightness and stiffness in the morning in which he will have to perform at home stretches and exercises to improve those conditions. Dr. King testified that over time, claimant will likely need more formalized treatment such as physical therapy and possible pain management. Dr. King opined that claimant's discs are more likely to deteriorate at a more rapid rate than if there was no injury.
Dr. Leon Sultan, a board certified orthopedic surgeon, testified on behalf of defendant that he reviewed claimant's medical records and examined claimant on July 30, 2013. Dr. Sultan testified that at the examination claimant had no range of motion limitations. He also testified that although claimant was only 25 or 26 years old when the MRI films were taken, the herniations or bulges shown on the MRI of claimant's thoracic spine are the result of premature degenerative changes. With regard to the lumbar spine, he testified that the MRI of the L5-S1 revealed an advanced degree of degenerative disc disease which would take years to develop. He explained that claimant had a Schmorl's node in his thoracic spine which can not be caused by an accident but by degenerative changes. Dr. Sultan opined with a reasonable degree of medical certainty that claimant was suffering from premature disc degeneration. He also opined that there was no casual connection between claimant's injuries and the December 3, 2008 accident. Dr. Sultan's explanation was that this premature disc degeneration was due to the fact the claimant was 40 pounds overweight at the time Dr. Sultan examined him in 2013. Additionally, Dr. Sultan testified that premature disc degeneration can be caused by heavy duty work such as athletics or weightlifting. However, Dr. Sultan provided no explanation, aside from this conclusory statement as to how claimant, 25-26 years old at the time of this accident could have such advanced premature disc degeneration.
The parties stipulated that medical bills were incurred and that the portion of the Workers Compensation lien attributable to this case was in the amount of $12,498.87.
The Court finds no merit to defendant's contention that Insurance Law § 5102 is applicable to this matter. In this case, both claimant and the operator were in the bucket attached to the articulated boom at the time of the accident. As such, the under bridge inspection bucket truck is not a motor vehicle for purposes of Insurance Law § 5102 (Mangra v China Airlines, Ltd., 7 Misc 3d 499 [Civ Ct, Queens County 2005]).
Based upon all of the foregoing, the Court finds that claimant has established by a preponderance of the credible evidence that his injuries were proximately caused by the accident he sustained on December 3, 2008. Claimant was 26 years old at the time of the accident and has a life expectancy of 49.2 years (1B NY PJI3d, Appendix A).
Additionally, based on all of the foregoing, the Court hereby awards claimant the amount of $65,000.00 for past pain and suffering and the amount of $105,000.00 for future pain and suffering. The Court also awards claimant the amount of $12,498.87, the full amount of the medical lien, asserted by Workers' Compensation, for past medical expenses. Thus, the Court finds claimant is entitled to the total amount of $182,498.87 together with interest from March 23, 2015, the date of this Court's Decision establishing liability in this matter (see Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657 [1995]; Love v State of New York, 78 NY2d 540 [1991]; CPLR § 5002).
Claimant has requested reimbursement for the entire Worker's Compensation lien in the amount of $45,961.87, of which the parties stipulated to $12,498.87 for past medical expenses. However, the Court was provided with no admissible evidence in regard to the remaining portion of the lien.
Lastly, pursuant to Court of Claims Act § 11-a (2) the Court awards claimant, as a taxable disbursement, the actual amount of any fee paid to file the claim.
Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter Judgment accordingly.
March 8, 2016
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims