Opinion
CV166060120S
09-05-2019
Bertha Oertel v. Michael Rocchio et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Corradino, Thomas J., J.T.R.
MEMORANDUM OF DECISION
Corradino, Judge
This case arises out of an automobile accident that happened on February 24, 2014. The accident took place on Dixwell Avenue in Hamden. The plaintiff was driving a pick-up truck and brought it to a stop in order to make a left hand turn into Thompson Street. Her vehicle was then rear-ended by the defendant’s vehicle. As a result of the collision, the plaintiff’s vehicle was propelled into a bus going in the opposite direction on Dixwell Avenue. Pictures of the plaintiff’s vehicle were introduced into evidence. They show a dent in the rear of the pick-up truck and rather heavy damage to the front of the pick-up truck caused by the collision with the bus into which her vehicle was propelled as a result of being hit by Mr. Rocchio’s car. Liability is admitted and the issue before the court is the claim by Mrs. Oertel for economic and noneconomic damages. The defendant did not object at trial to the foregoing version of how the accident happened which was offered by the plaintiff. The trial took place on April 18, 2019.
The court will first discuss the plaintiff’s trial testimony concerning the physical injuries she claims to have suffered as a result of this accident and her pain and suffering as a result of these injuries. It will also discuss how these injuries have affected her life activities according to her testimony. As to these matters the court will also review the testimony of the plaintiff’s daughter, Karen Peckham who also testified.
After this discussion, the court will review the medical reports and treatment records and physical therapy reports in an effort to evaluate her claim of injuries and the effect she says they had on her life activities.
I
Before examining the testimony offered by the plaintiff as to her injuries, the court will address another non-testimonial matter which may have a bearing on the plaintiff’s claims of injury in this case. The court has noted the damages caused to the plaintiff’s pick-up truck as a result of this accident.
There is a Delaware case, Davis v. Maute, 770 A.2d 36, 40 (Del. 2001) that holds: "As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such expert testimony, any inference by the jury that minimal damage to the plaintiff’s car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation." Our state explicitly rejects this position. In Berndston v. Annino, 177 Conn. 41, 44 (1979) the court noted the division of authority on this issue but said: "even though liability is fully admitted, evidence of speed, physical impact, and the like is admissible as to the probable extent of personal injuries," see also Flores v. Jenison, 37 Conn.L.Rptr. 328 (Frazzini, J. 2004).
The plaintiff testified that she was taken from the scene of the accident by ambulance to the ER of Yale New Haven Hospital. She was treated for abrasions to her left arm and leg and for a headache which she described as terrible.
In her testimony the plaintiff said the accident caused severe injury to her hands. She had to take antibiotics and according to her testimony it took two or three months for her hands to heal. During this time the hand injuries caused serious limitations on her ordinary life activities. Even washing dishes or pans was painful, she had to put on gloves to be able to do this. The plaintiff said that she "tried to avoid everything." She had great difficulty trying to lift anything which meant, for example, that she could not go grocery shopping. She did not do anything that might aggravate her hand injury. As the plaintiff testified, "there are so many things you do with your hands."
The plaintiff also testified that she injured her left shoulder because of the accident. But she went for physical therapy after seeing Dr. Luchini a few weeks after the accident and her shoulder complaints resolved within a few months. She could not take pain medication for any injuries she suffered and the pain they caused because she said she is "allergic to all pain medicines." In addition to the physical therapy for the left shoulder injury she used a heating pad at home which helped with her left shoulder problems.
During the visit with Dr. Luchini a few weeks after the accident she also complained about injury to her neck, middle back, and right foot. Mrs. Oertel testified about the injury to her neck. Prior to the accident she never treated with any doctor for neck discomfort. But immediately following the accident she developed serious neck discomfort and she initially rated her neck pain on a scale from 1 to 10 as 10. Dr. Luchini recommended physical therapy for her neck problem and she went several times a week for physical therapy until October 2014. She described the treatment at physical therapy sessions. The plaintiff testified she had headaches that were associated with and she believed were related to the problems with her neck. At the time of trial her neck still bothered her in terms of the pain she has. The headache comes with the neck pain. She said she "had a headache for about a year" and "it was really strong." She had a headache every day. The headaches interfered with what she normally did in that she had to be careful with her neck. She limited turning her neck and when her neck went forward or back it was "extremely painful." After a year, however, the headaches were described as a "low grade headache." At trial she described the frequency of headaches. Mrs. Oertel testified that the frequency of headaches "depends upon how active I am." But she was told to use a heating pad on her neck when she has these headaches and she was shown exercises to do and physical therapy helped her with better head movement "to avoid the occurrence of pain." She uses a heating pad or a hot wet cloth on her neck two or three times a week. At trial she said she had a headache two days before and "a little headache yesterday."
The plaintiff also testified that she still has problems with her mid-back as a result of the accident. She never treated with a doctor for mid-back pain before this accident. After the accident she initially had intense back pain. Her back condition caused her to have trouble bending and her hardest problem was the bending resulting from getting into bed. Physical therapy helped with this. But she had trouble flexing her back. The pain lessened after two or two and a half years. Now she tries not to lift or engage in strenuous activity. At times she has back pain but "nothing like in the beginning." As long as she does not do anything to bother or aggravate her back she has no back pain. Should she do something that brings on her mid-back pain she said "I get out the heating pad."
She testified one of her biggest problems after the accident was right foot pain. She had her right foot on the brake when the accident happened. Prior to the accident she never had right foot problems. The accident caused her right foot to swell and it was bruised, especially the bottom. At one point her foot gave out while climbing stairs and the doctor prescribed a boot for her to wear to prevent her from falling. The foot condition interfered with her walking due to the pain. She had this walking problem for three years or more.
She treated for the condition with physical therapy and was taught exercises that could help her. The pain in her foot has lessened in severity since the accident. The plaintiff testified that when she is on her feet a long time the pain can revisit her. But when asked how the foot condition interferes with her day to day activity she only mentioned driving. It limits her driving if she does so for "a period of time." It all depends on how many times she has to apply the brake; when it occurs she has to stop the car. She talked of taking her shoe off and massaging it when she pulls the car over. This driving problem happens four or five times a month, "sometimes more often." All of this causes her to have a fear of driving.
In the last part of the direct, the plaintiff described her very busy day to activities before the accident from taking care of her disabled husband to doing housework and yardwork. After the accident she got some assistance from her children and her husband’s child. With time she agreed the severity of her physical problems and discomfort due to the accident has lessened. She agreed that presently she has gotten to be self-sufficient again attending to her needs and household requirements.
Karen Peckham, the plaintiff’s oldest daughter also testified. She described her mother’s physical abilities before the accident and said the plaintiff was always active with a tenacity to do things herself in her house and outside. She was also active in all the lives and events of her family.
After the accident she went to her mother’s house more frequently and described the plaintiff as being "very limited." She had to take her mother and father to different appointments. She assisted her mother with cooking.
After the initial period of limitation she did get back to some activity but "she didn’t have the same drive or that same certainty in her steps moving forward." Her yard activity was more limited. Ms. Peckham says as far as cooking and "things like that" she still does that for her mother.
II
The court will now focus on the medial and physical therapy reports introduced into evidence to try to determine what impact they have on her claims for pain and suffering and loss of the enjoyment of life activities.
(a)
Ambulance personnel came to the scene of the accident soon after the accident took place. She told the ambulance personnel that her left hand hurt, that she had neck pain and pain in her left shoulder. She also complained of hand pain. There is no mention of foot pain. Overall on a 1 to 10 scale, pain was listed as 4. This information could only have come from the plaintiff. The report also indicates the plaintiff was ambulatory at the scene. She was then transported to the hospital emergency room.
At the emergency room a bruise to the left hand was noted with mild pain. The patient complaint section notes "my hand and leg hurt also some neck pain." The emergency room noted as to the neck there was a normal range of motion and the neck was supple. There was also tenderness in the left shoulder. There is no mention of pain or injury to the foot. The emergency room report also says that the plaintiff was not ambulatory at the accident scene.
Dr. Sun is the plaintiff’s primary care physician. The accident happened on February 24, 2014 and she went to see Dr. Sun on March 3, 2014, seven days after the accident. The "review of symptoms section" of the report says "negative" as to headaches, but back pain, and neck pain were noted. On further examination the neck showed tenderness on palpitation with a reduced range of motion. An abrasion on the left hand was noted. The lumbar spine was described as normal as was the thoracic spine. But tenderness was noted as to the left shoulder and neck. No mention of a foot condition or problems noted in this March 3, 2014 report.
An October 24, 2014 report indicates she went to see Dr. Sun for a cold and fever, joint aches and headaches were noted. There is no reference to the motor vehicle accident. On November 24, 2014, nine months after the accident neck pain is noted in a "problem list" but opposite this notation it says "onset date"- October 27, 2014 and as to "chronic" it says "N." In the "review of systems" section under "neuro" it says "negative" for headaches. Under "MS" which evidently stands for musculoskeletal it does say "positive for back pain and "has discomfort since MVA on and off."
A physical exam section says palpitation normal for neck but tenderness is noted in thoracic spine. The cervical spine is said to be normal. It should be noted that this report was written a little over seven weeks after the plaintiff stopped going for physical therapy on October 1, 2014.
There are a series of reports from Dr. Sun and his office through the remainder of 2015 which in many respects are similar. Two of them for May 12, 2015 and November 30, 2015 refer to ongoing neck pain with the phrase "onset 10/27/14." The November 30, 2015 report says the plaintiff has chronic neck pain and has chronic headaches. It also says chronic right foot pain which is post MVA and for which she sees Dr. Tomak. For the neck and presumably the headaches issue she sees Dr. Luchini. All of this is confusing since in other portions of this and other reports it says negative for headaches and neck pain "onset" followed by the date 10/27/14. There is a report by Dr. Sun dated December 5, 2015, which does mention ongoing neck pain but has this observation in the "Lifestyle" section "vigorous activity level, exercise includes walking, exercises daily, hobbies include taking care of husband, yard work." This same observation is repeated in a report by an APRN, Ms. D. Silva, in Dr. Sun’s office. APRN stands, for via google, Advanced Practice Registered Nurse; "An APRN is a nurse who has obtained at least a master’s degree in nursing"- again via google. Ms. D. Silva’s report is dated December 16, 2015. Elsewhere in this December 16, 2015 report on the first page it refers to the plaintiff’s chronic neck and middle back pain. In the "review of systems" section it says "negative" for headaches and confusingly enough "negative" for back pain contrary to the initial observation. Dr. Sun referred the plaintiff to Dr. Hasbani for a neurological evaluation. In a December 20, 2015 letter to Dr. Sun it says one of the referrals was for headaches the plaintiff had been experiencing since the February 24, 2014 auto accident. Dr. Hasbani notes the plaintiff had surgery for left lung cancer in 2012. His neurological examination did not attribute the causation of the headaches to the accident; in fact, all he said on the subject was that: "Chronic headaches on a patient with prior history of lung CA must exclude cerebral metastasis."
Dr. Luchini was the orthopaedic doctor the plaintiff went to. His reports are in Exhibit 8. The first report is dated March 11, 2014, two and a half weeks after the accident but it is difficult to read and, at least to the court, almost illegible. The first written report is dated March 13, 2014. The report recommend that the plaintiff start physical therapy. It refers to the February 24, 2014 accident saying as a result of the injury incurred thereby she experienced pain in the cervical, lumbar area and left shoulder and injury to her right foot and left hand. The doctor noted there was no evidence of fracture to her spine or left hand but degenerative changes were noted at C4-C7. The doctor then noted stiffness with cervical range of motion and lumbosacral spine "with associated headache." She also had stiffness with range of motion and left shoulder pain in the area of the rotator cuff. There were "healing abrasions" of the dorsal left hand and tenderness to palpitation in the forefoot of the right foot but "without swelling." The report goes on to say that as a direct result of the auto accident the plaintiff suffered cervical and lumbosacral muscular ligament sprain, sprain of the rotator cuff and of the right foot and abrasions to the left hand. No mention of causation as to any headaches is mentioned.
The next report is dated April 3, 2014, only six weeks after the accident. It says the date of injury was February 24, 2014. It then says cervical lumbar symptoms improving as is her left shoulder pain but range of motion in left shoulder is still restricted. The plaintiff is said to "still" be experiencing headaches. She is also "experiencing severe midfoot pain consistent with a sprain of the midfoot with underlying midtarsal arthritis." The report indicates the plaintiff should continue with physical therapy which she began on March 19, 2014.
A May 1, 2014 report notes the plaintiff has had some improvements with physical therapy. She has cervical, lumbar and left shoulder pain. She was said to have right hip problems with stiffness and pain with internal and external rotation. The doctor advised that she had underlying osteoarthritis of the right hip which has been "aggravated by this recent motor vehicle accident."
A June 10, 2014 letter recommended she continue with physical therapy "until her symptoms improve." The letter says there was gradual improvement in the left shoulder area and the lumbar pain has also improved. She still has stiffness in the cervical area and the dorsal thoracic spine. But the plaintiff experiences pain in her foot and right hip but range of motion is improved for the cervical area. She was still symptomatic with rotation of her right hip.
An August 11, 2014 letter indicates her symptoms have improved in her cervical dorsal spine and left shoulder. She still has stiffness and range of motion as to the neck and thoracic spine but range of motion in left shoulder is almost complete. She also has crepitus in cervical area "in the region of the cervical arthritis." Physical therapy should be continued.
Crepitus is defined in www.medicainet.com as "A clinical sign in medicine that is characterized by a peculiar crackling, crinkly, or grating feeling or sound under the skin, around the lungs, or in the joints ... Crepitus a joint can indicate cartilage wear in the joint space."
A December 23, 2014 letter talks of improvement in cervical and thoracic pain, shoulder symptoms have almost completely resolved. But "she still experiences symptoms of post-traumatic arthritis of the midfoot of the right foot." The report goes on to say that range of motion "is not particularly restricted" for the cervical spine but she has crepitus and pain in the base of the cervical spine and some pain with palpitation in the dorsal region of the thoracic area. Range of motion of the left shoulder is not restricted.
The report, oddly enough, concluded that the plaintiff should continue physical therapy for six weeks- she stopped going for physical therapy on October 1, 2014, almost three months before the December 23, 2014 letter.
A final report from Dr. Luchini is dated July 2, 2015 which appears to have a different tone from the series of reports just discussed. The report says the plaintiff is still symptomatic with pain and stiffness in the cervical and thoracic spine and the right foot and ankle. She is said to have been symptomatic since her February 24, 2014 motor vehicle accident and "she has altered her activity and is less active lifting or bending maneuvers or housework because of her symptoms." It then goes on to say she has 50% reduction of rotation and lateral bending of her cervical spine. The plaintiff also has 45% of forward flexion at approximately 10-15% of extension of cervical spine. She has dorsal back pain with palpitation with limitation with forward bending and extension. The right foot was examined and it showed stiffness of the midfoot with pain to palpitation with difficulty walking. One sentence is hard to decipher; it says: "X-ray examination didn’t thoracic spine shows marked arthritic changes without evidence of fracture." The next sentence: "She is advised she has symptoms of chronic musculoligamentous sprain of the cervical and thoracic spine with underlying osteoarthritis and sprain of the right foot with underlying osteoarthritis." The report concludes that intermittent physical therapy may be of benefit when her symptoms exacerbate. She was advised to return if she desires additional treatment. The letter concludes by saying the plaintiff has reached her maximum medical improvement and that she has a 10% impairment of the function of her cervical spine and a 10% impairment of the thoracic spine and a 10% impairment of the function of her right foot "as a result of a combination of injuries sustained in a motor vehicle accident February 24, 2014 and the preexisting arthritis. The impairment of function rating should be equally divided between the injury sustained in the motor vehicle accident February 24, 2014 and the preexisting arthritis." The impairment ratings were said to be based on the American Medical Association guide to Evaluation of Permanent Impairment, 6th Edition. Interestingly although the beginning of the July 2, 2015 Dr. Luchini letter states the plaintiff is still symptomatic with pain and stiffness in the cervical and thoracic spine, he gives no impairment rating for the thoracic spine. There is no indication the plaintiff returned to receive additional treatment from Dr. Luchini.
Soon after the accident Dr. Luchini recommended the plaintiff see Dr. Tomak, an orthopaedist for her right foot problem. She saw the doctor on April 8, 2014 and the report filed reflects that she told him that since the accident she has had increasing right foot pain and ankle pain. The pain is dull, moderate to severe and constant. It wakes her at night and is worse with prolonged weight bearing. The doctor examined the plaintiff and noted diffuse tenderness in the ankle and foot region with moderate swelling in the right ankle joint. The doctor’s "impression" was chronic right foot and ankle pain status post-motor vehicle accident. She recommended an MRI be done. A report of the MRI findings on April 11, 2014 said the findings were compatible with Morton neuroma which was not further defined by counsel or the doctor. Scattered degenerative change was also noted. In a May 11, 2016 report Dr. Tomak ruled out neuroma as causally related to the accident. The letter notes that she last saw the plaintiff on December 8, 2015. Exhibit 11 does not contain a report for this date.
The May 11, 2016 letter goes on to give a 7% disability rating for the right foot and ankle and a 5% disability to the right lower extremity.
(b)
The court will finally discuss the physical therapy reports created after each of her 37 physical therapy sessions from March 19 to October 1, 2014. During this period the plaintiff did not go to physical therapy from the middle of June to August 1, 2014 and for a month between August 9 and September 10, 2014. She said she had other medical issues she had to deal with in these two periods.
Physical therapy reports are helpful in an effort to evaluate trial testimony about any injury, its severity, or any claim of continuing nature of injuries. There are in this case thirty-seven physical therapy reports covering treatment over a six and a half-month time period. What is said or not said to the therapist by plaintiff can be informative if not controlling in deciding injury claims. It would be obvious to any person going for therapy that what she tells the therapist will determine the mode of therapy to deal with and hopefully overcome physical complaints actually existing.
In certain respects the physical therapy reports created after each treatment session, which numbered, thirty-seven, raise at least questions as to her injury claims. For one thing the therapy sessions were scheduled for three times a week. She began the therapy on March 19, 2014 less than a month after the accident. But the plaintiff did not go to therapy for a month and a half from the middle of June to August 1, 2014. She told the therapist she had other medical problems and had to have cataract surgery. She also missed therapy from August 9 through September 10, 2014. Her last therapy session was on October 1, 2019 although the last sentence of that report said the patient was to continue to attend PT (i.e., physical therapy) three times a week to improve her functional limitations, progress HEP (apparently home exercise program), and achieve LTGs (long-term goals).
To return to specifics, the plaintiff only complained four times to the therapist she was having foot problems March 19, March 21, March 25, and September 11, 2004. On the other hand it was noted on March 16, 2014 that she had an ankle brace and on three occasions, September 11, 12 and 18 the therapist provided dorsiflexion to the ankle which per Webster’s International Dictionary seems to be a type of manual therapy. At this point and as an aside to confining the discussion to the physical therapy reports, it is helpful to refer again to Dr. Tomak’s and Dr. Luchini’s comments on the foot and/or ankle condition. Dr. Tomak’s letter of May 16, 2016 notes the plaintiff was referred to Tomak’s office by Dr. Luchini "due to chronic right foot pain after a double impact motor vehicle crash." The May 2016 letter says she was last seen in Dr. Tomak’s office on December 8, 2015 and she reported continued right foot and ankle pain. Dr. Tomak concluded the plaintiff had a "ratable" right foot and ankle injury. Based on palpatory findings and mild motion loss, Dr. Tomak, as noted, gave the plaintiff a 7% rating for "the right foot and ankle" and a 5% disability to the right lower extremity. Also Dr. Luchini’s July 2, 2015 letter is confusing on this point. He states: "The patient is still symptomatic with pain and stiffness in the cervical, thoracic spine, and right foot and ankle . She has been symptomatic with neck dorsal thoracic pain and right foot pain since her motor vehicle accident of February 24, 2015." (Emphasis by court.) Later in the letter he says: "Examination of the right foot shows stiffness of the midfoot with pain to palpitation and difficulty with walking." He then, in effect, gives the plaintiff a 5% disability and impairment of function of 10% with 5% attributable to arthritis; however, to her right foot. In making this "impairment of function" analysis, the ankle condition, mentioned in the letter’s first sentence is not even alluded to by the doctor.
Returning to the physical therapy reports and another subject of complaints, at trial the plaintiff made reference to headaches she was having after the accident which were associated with neck pain. They continued to the time of trial but were less severe. Physical therapy reports present a slightly different picture. Headaches were mentioned only four times in the 37 physical therapy visits, March 25, 2014, April 7, April 16 and 28 of 2014. The first visit was the only occasion where the report seems to associate neck problems with the headaches. The last mention of headaches on April 28, 2014 was five months before the plaintiff’s last visit; there was no reference to headaches after that date.
The thoracic spine is in the area of the upper back. The physical therapy reports indicate that there were often references to back pain; pain in the thoracic area of the spine were referred to specifically only in five April 2014 visits and four September 2014 visits.
Neck problems are mentioned constantly throughout the physical therapy reports with the plaintiff complaining on numerous visits of cervical pain and stiffness. The condition varied with improvements noted from one prior physical therapy session but then a relapse occurs with the neck pain going from moderate to severe. Two April visits and a May visit note the plaintiff’s pain when she tries to turn her head while driving. An August 1, 2014 physical therapy report noted improved neck range of motion which made it easier to drive safely and perform light reaching tasks. The report states the plaintiff should reach full cervical range of motion with manual therapy and home exercise. Cervical stability had improved- the plaintiff could sit fifteen minutes, unsupported, without increased pain. The August 6, 2014 report noted even decreased symptoms. But the August 9, 2014 and two reports in early September note neck problems which continue to be reported throughout several later September reports. It is interesting to note, with reference to the comments made in the first part of this subsection (b), that she missed therapy sessions between August 9th and September 10th and after September 10 to her last visit on October 1, 2014 the neck problems were reported by the plaintiff to be a serious matter. Then she stopped going for physical therapy altogether- so how does one weigh her subjective complaints? If she in fact had these complaints after missing physical therapy for a month, when just previously thereto things seemed to be improving, why stop going to physical therapy so abruptly?
(III)
Damages are difficult to decide in this case since as discussed there are many contradictions between the plaintiff’s testimony and especially the physical therapy reports. There are constants. She testified about injury to her left shoulder and hands as a result of this accident; the hand injury especially interfered with her daily routine of living. These conditions though, cleared up after a few months. Another constant theme of the doctor reports and especially the physical therapy reports indicate the accident caused her to have problems with her neck and neck movement, also she had foot pain; both can be attributed to the accident. But the court has expressed its problems with the foot and ankle injury claim as a result of an examination of the physical therapy reports, and medical reports. As to the neck problems she has the chief difficulty when she drives her car and has to turn her head. But at times she told the physical therapist she had problems with her neck when she tried to lift things. Her testimony at the time of trial, five years and two months after the accident is that she has returned to being self-sufficient. But her daughter indicated at trial the plaintiff does not have the same energy and drive as she had before the accident. But again difficulties present themselves. As noted in a December 5, 2015, report less than two years after the accident an APRN in Dr. Sun’s office says in the "Lifestyle Section": "vigorous activity level, exercise includes walking, exercises daily, hobbies include taking care of husband, yard work":- why on earth would the APRN invent this statement which would only result from a conversation with the plaintiff.
Another difficulty for the court at least, is Dr. Luchini’s permanency findings based on "maximum medical improvement" (See July 2, 2015 letter to Attorney Lettick). She testified that physical therapy helped deal with her back problems but she missed two and a half months during the March 19, 2014 - October 1, 2014 physical therapy schedule. She did not continue physical therapy after the October 1, 2014 date with no explanation given for the decision not to continue with physical therapy although the last physical therapy report assumed she would be returning three times a week for apparently the indefinite future. This cannot advance her claim when coupled with the fact that her complaints of neck, back, foot and ankle problems as a result of the accident and resulting disability ratings have to rely on her subjective claims to the doctors. More to the point, if she had the serious problems she claimed to have at trial why did she stop going for therapy when at points she said that therapy had helped her.
The court awards damages as follows:
Economic Damages (Medical Expenses) $15,508.64 Non-Economic Damages $40,000.00 Total $55,508.64
The defendant took issue with Exhibit 10, Dr. Hasbani’s report since it did not establish a causal connection between the accident and the plaintiff’s complaints as to headaches. But Dr. Sun referred her to Dr. Hasbani to ascertain the cause of the post-accident headaches so this reflected medical attempts to treat her condition and symptoms as a result of the accident. The court believes this expense should be recovered by the plaintiff.