Opinion
CV176073869
03-07-2019
Denise PETTINICCHI v. SAFECO INSURANCE COMPANY
UNPUBLISHED OPINION
OPINION
Thomas Corradino, J.T.R.
On July 5, 2016 and prior to that date the plaintiff had an automobile insurance contract with Safeco. Under the terms of the policy coverage was provided for underinsured and uninsured motorist benefits. On said date Dung Huynh, insured by Safeco, was the operator of a motor vehicle, which had a collision with the plaintiff’s vehicle.
In its answer to the amended complaint, Safeco admits Mr. Huynh "failed to keep his vehicle under proper and reasonable control and thus any injuries were caused by his negligence." Paragraph 13 of the amended complaint states that any insurance policy of Mr. Huynh was inadequate to fully compensate the plaintiff for her injuries. A court trial was held to determine what if any injuries were caused to the plaintiff as a result of this accident. Paragraph 8 of the amended complaint claims the following injuries were suffered by the plaintiff (a) neck pain (b) right hand pain (c) right elbow pain (d) headaches (e) lower back pain (f) aggravation of pre-existing cervical spine strain (g) aggravation of pre-existing lumbar spine strain.
I.
The court will first briefly discuss the impact between the two vehicles involved, that of Mr. Huynh and the vehicle driven by the plaintiff in which her mother was a passenger and the relevance of the impact to the claims made. It will briefly refer to the police report. The main focus of this section of the decision will focus on the plaintiff’s injury claims made at trial.
(a)
The plaintiff claims she was jolted by the accident and she twisted her body quickly to get out of the car. The plaintiff’s chiropractor said when a vehicle is hit from behind, as was the case with the plaintiff’s vehicle, the force of the impact "will push the car forward against you"— "the seat will flatten the lower back curve— the neck flexes forward and "the cervical spine will bend forward and back." As defense counsel pointed out the chiropractor was not a biomechanical engineer but he is a chiropractor and can testify as to the type of movements that might cause the injury that he testified about.
In any event the plaintiff’s testimony did cause an impact to her vehicle but certainly there is no claim that a major collision occurred. Photos of the plaintiff’s vehicle show only minor damage and it was not towed from the scene. The police report indicates there was "minor damage" to the plaintiff’s car. What weight should be attached to this factor?
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 car, 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 translate 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 police report also says that the plaintiff was not transported from the scene for medical treatment, and as to "injury status" said "C" which is "possible injury."
(b)
The court will now discuss the plaintiff’s alleged injuries and the effect this accident has had on her present condition.
Mrs. Pettinicchi testified that when she left the accident scene she had a severe headache and she could not move her neck— she could barely turn it. She did not seek immediate medical attention because she wanted to go to her parents’ house to make sure her mother, who was a passenger in the car at the time of the accident, was okay. She then rested and "took a lot of Aleve."
When she awoke the next morning her whole body ached. She went for treatment over the course of the next several months and at trial discussed her present condition, pain and suffering and limitations on her activities which she says resulted from this automobile accident.
The court will first discuss the plaintiff’s testimony at trial.
As a result of this accident the plaintiff testified she has had constant pain and stiffness in her neck. Of her neck she said: "I totally can’t move it 100%." Pain in her legs got progressively worse. Pain would go down from her back and into her legs. Her lower back bothered her. She told Dr. O’Connor in August 2016 she had to put a camera in her car because she could not turn her neck. Then her lower back "really started" and what "really got me" was when the pain went to her legs. Since the accident she has gotten epidural injections which help but when it wears off "I cannot walk," her legs feel tight. She received injections to her spine and neck to relieve her pain, she also went to physical therapy sessions.
She suffered two falls before the 2016 accident in 2013 and 2014. When asked about her activities before this 2016 accident she told her attorney she could not do as much as she did after the falls even with the shots— she could take care of her house and her elderly mother. Now when she does not get an epidural shot she cannot do anything.
Prior to the first 2013 fall she really did not have much in the way of neck problems unless she did "something to create it, like lifting something heavy." After the two falls but before the accident she had back and neck problems and she went for treatment but she never had constant pain like she experienced after this auto accident. She was able to bounce back she said, also she has enjoyed walking on the beach over the years and used to go to the gym and she did so after the two earlier falls in 2013 and 2014 but she has not been able to do so since this automobile accident.
The accident also caused injury to the thumb of the dominant right hand and she simply does not do things that aggravate it. The thumb still bothers her and she cannot do things like peel vegetables or open cans. She cares for her elderly mother but cannot now wash her mother’s hair or adjust her bed; she has to call in aides to do this. Certain activities cause her pain such as cleaning her pool, lawn mowing or vacuuming the house. As noted Epidural injections only give temporary relief and then their effect wears off.
(2)
A difficulty in this case is presented by the fact that prior to this accident and its resulting claim for economic and non-economic damages the plaintiff had chronic conditions dating back many years; two past motor vehicle accidents, and falls in 2013 and 2014. The question becomes are the limitations, pain and suffering the plaintiff claims to have suffered as a result of this motor vehicle accident merely a continuation of her long-term medical problems and conditions. Even if her past condition was exacerbated by this accident how long could it be said any such exacerbation would continue, could that be determined by the evidence presented given the underlying problems that have plagued this woman for years. Perhaps more to the point, what evidence is there, standing alone, of any exacerbation even if a wrong doer is required to take a victim as he finds her.
Or. to put it another way, the rubric that a tortfeasor must take the victim as he finds her will not overcome the relevance of chronic physical problems which would have caused pain and suffering whether or not tortious activity has occurred.
To address this problem the court will discuss relevant portions of her medical treatment for this accident and the 2013 and 2014 accidents. The discussion will be necessarily repetitious given the meaning of chronic as will the court’s conclusions where it addresses the issue of damages and also examines the salient points of past medical treatment and discussions of the plaintiff’s condition and prognosis in those treatment records as well as possible contradictions made by the plaintiff in her trial testimony compared to her statements in the medical records.
(a)
The court will first discuss her medical treatment after this current accident. She went to see her chiropractor, Dr. Nardecchia, on July 6, 2016, the day after this accident, and the doctor prepared a report on that date which notes that the plaintiff complained of headache pain, hip pain and numbness in the right thigh. She discussed with the doctor limitations placed upon her as a result of this accident. She said that the low back pain radiates into her buttocks and thighs and this pain radiates to her knees. The neck pain radiates into her right shoulder "and right hand no specific fingers." "She noted that she had neck and back pain after a motor vehicle accident three years previously but that pain was "manageable."
She went to the chiropractor for several visits up to July 27, 2016 where she received physical therapy.
Then the plaintiff went to see an orthopedist not returning to Dr. Nardecchia until April 18, 2017 with pain and limitations in the same areas as previously discussed. Interestingly a Dr. Nardecchia report dated April 24, 2017 indicates that an MRI done on the plaintiff revealed multilevel degeneration, disc protrusions and stenosis. She was discharged from the chiropractic doctor’s care on April 24, 2017 but returned in September; the "plan" was to see the plaintiff "a few days a week" for two weeks. She did not return until November 21, 2017 with a two-day a week plan for two weeks but she did not return until May 11, 2018 with the same "plan" but no further visits were noted— the later visits noted neck and lower back problems.
Her first visit with Connecticut Orthopedic Specialists was on August 17, 2016. This report refers to neck pain for six months— moderate to severe. But this would mean the neck pain went on for several months before the July 6, 2016 accident. Interestingly she complained of neck pain and right shoulder pain but there was no mention of lower back pain which she reported to the chiropractor before on a consistent basis. She engaged in physical therapy at this visit and all following visits at Connecticut Orthopedic Specialists.
The report notes severe arthritic changes in the neck region.
An August 29, 2016 Orthopedic report indicates she complained of impaired sleep, reaching, turning of the head, difficulty driving and lifting. But this report indicates she is "active, exercising regularly." Her goals were to "return to yoga and the gym at the level prior to the accident."
At trial the plaintiff said since the accident she could no longer go to the gym at all.
On October 13, 2016 at a visit she reports problems with her neck and shoulder but again there is no mention of the lower back for the first time she reports pain in her right hand to the orthopedist.
On November 2, 2016 she reported pain in the neck and shoulder regions with no mention of the lower back. This report is confusing in that it says "she is normally active and goes to the gym" but in the "subjective goals" of patient section it says her goal is "go back to the gym." This report indicates lists similar problems she is having as the August 29, 2016 report.
The January 10, 2017 report notes the plaintiff complains of pain under the right thumb, and this is noted in a March 2, 2017 report where she tells the physical therapist that at the time of the accident she was holding the steering wheel, and since the accident the pain has gotten worse implying the pain was there before the accident. In technical language this report seems to state that arthritis and inflammation can cause problems with the thumb which can be addressed by physical therapy, injections, and splints.
In a March 16, 2017 report the plaintiff tells the therapist that the right hand pain at the base of her thumb commenced shortly after the accident.
The final report is dated April 6, 2017 and it notes continued pain and discomfort in the right thumb. The report notes no improvement with her osteoarthritis condition.
There are also reports in the plaintiff’s exhibits from Diagnostic Imaging of Milford. An MRI of the cervical spine was performed which as noted referred to disc space narrowing, stenosis at some levels and in general degenerative disc disease. At a May 15, 2018 visit she complained of lower back pain which is worse than the neck pain and an MRI of the lumbar spine was recommended. That was done on May 29, 2018 and spinal stenosis was found as well as "other degenerative disc disease." In the final report of October 2, 2018 the reason for the visit and exam is stated to be neck pain. An Epidural injection is mentioned. There is no mention of the lower back.
The Plaintiff’s various medical reports raise some questions about her testimony concerning not only her present medical condition and what aspects of her condition can be attributed to this motor vehicle accident. To sum up what has been noted in the foregoing discussion (1) The plaintiff told Connecticut Orthopedic Specialist on August 17, 2016 that she had been having moderate to severe neck pain for six months but this would predate the July 5, 2016 accident which the complaint and her testimony claimed was the cause of her neck pain (2) she doesn’t mention lower back problems to Connecticut Orthopedic Specialist although this was a constant theme in her first set of visits with Dr. Nardecchici’s practice. (3) An August 29, 2016 visit to Connecticut Orthopedic Specialist indicates the plaintiff is "active, exercising regularly" and at least goes to the gym some of the time all of which contradicts her trial testimony. (4) The plaintiff does not report pain in her right hand to Connecticut Orthopedic Specialist until October 13, 2016 and only on January 10, 2017 narrows the complaint to her right thumb. But in a March 17, 2017 report she says right thumb pain commenced right after the accident. (5) She went to Diagnostic Imaging and complained of lower back pain worse than her neck pain— the pain in the lower back had not been mentioned to treaters for many months. But an October 2, 2018 report mentions only neck pain with no reference to the lower back.
(b)
(i)
At least to some extent, the appropriate ambit of the plaintiff’s present claim for damages is also open to question by some of the exhibits introduced by the defendant regarding the plaintiff’s treatment for injuries she suffered in separate falls in 2013 and 2014. Some of the injuries are to the same areas of the body which are now the subject of this plaintiff’s claim.
On June 3, 2013 the plaintiff fell because of a gap in the sidewalk outside the Milford Mall. Defense Exhibit A contains the records of her chiropractic treatment by Back Care Centers LLC by Dr. Nardecchia who was also her chiropractor for treatment of her present injuries. About two weeks after the fall she reported severe headaches and a "secondary complaint in her cervical, right cervical dorsal and right posterior shoulder region." On a scale of 1 to 10 the pain was described at a 6 at worst and present 100% of the time. She also had a complaint of lumbar and right hip pain rated as 7 in a 1 to 10 assessment scale and this pain was present 80% of the time. The pain, according to Ms. Pettinicchi was "aggravated by bending, driving walking, working, taking care of her mom and dad and grandchildren." The discomfort was "described as aching, throbbing, stiffness, sharp and sore." She told the doctor she had neck and back pain ten to twenty years ago. Interestingly although the injuries are described as related to the fall, the report states "this injury may have caused an aggravation, activation and or precipitation of a prior existing condition which was asymptomatic and manageable prior to this accident." Two treatment reports are attached indicating neck and low back pain for which therapy was provided.
She went to Connecticut Orthopedic Specialist for treatment for low back injury after first going to the chiropractor and received injections on June 21, 2013 she visited the office again on June 28, 2013 and the report said she has ongoing chronic cervical and lower back pain. Her symptoms were said to be worsened by a fall she sustained ten days previously. Mild tenderness was noted in the third digit of the right hand. She brought in x-rays taken at Milford Hospital— they showed marked disc degeneration of the cervical spine. The "impression section of the report said "Chronic lower back pain secondary to facet joint orthopathy as well as spondyloelsthesis (and) chronic cervical pain secondary to osteoarthritis of the hands." But pain in the right hand was located in the middle finger.
She returned to Connecticut Orthopedic August 1, 2013 for "surgery" which was for an injection to her lower back. She went to see another doctor, Dr. John O’Brien on August 29, 2013 for neck pain. The report issued said of the neck pain: "This condition occurred following a specific injury (MVA 30 years ago, another 15 years ago), Arthritis as well since their, fall on June 3rd). Ms. Pettinicchi described the neck pain symptoms as moderate to severe which are exacerbated when she turns her head. She received a Botox injection August 26, 2013 with "excellent result and alleviation of post neck, back and thoracic area pain."
(ii)
The next incident prior to this accident was a fall that occurred in the bathroom of her Macy’s workplace which occurred on January 11, 2014. She returned to Dr. Nardecchica and reported on January 13, 2014 that she had neck, low back, right hip, right arm and hand pain from the fall. Out of 1 to 10 she rates her pain as 8 or 9 for all areas and it occurs in "100% of her daily routine. She reported trouble sleeping, bending standing sitting, during showering, dressing and working since the fall." She returned to the office two days later feeling the same and examination revealed spasms in the neck and back. Her prognosis was "guarded and uncertain." She was to return for chiropractic care three times a week for four weeks.
The doctor recommended to her employer that she not return to work until April 1, 2014 and suggested limitations on her work schedule as late as August 2014.
A January 17, 2014 visit noted loss of motion in all planes for the neck and lumbar spine. She noted 8 out of 10 pain in the neck, right hip and upper back and 10 out 10 in the lower back a January 20, 2014 report noted constant pain with less pain after treatment "but her symptoms came back with severity."
Numerous visits to Dr. Nardecchia were made by the plaintiff after January 13, 2014 through April 2014 with two January 2015 visits, four April 2015 visits and a May 2015 visit.
The 2014 report prepared by the doctor indicate there were complaints of pain in the neck, right hip, lower back upper back, and right elbow. The January 24, 2015 report indicates that except for the right elbow other areas as just described indicate the constancy of the pain runs from 70% to 90% of the time. A January 27, 2014 report also said that the plaintiff complained of sleeping poorly. In a January 29, 2014 report it says the hip pain was 5 in a 1 to 10 scale, 60% of the time with neck pain as an intensity of pain at 8 "approximately 100% of the time. Upper and lower back pain had a rating of 5 out of 10 with discomfort 60% of the time. The doctor also noted loss of range of motion in the cervical and lumbar spine.
The February 18, 2014 report says the plaintiff was improving slowly but she told the doctor pain in the neck, upper and lower back and right hip was "sharp, stiff, stabbing and sore"— she awakes at night tossing and turning a February 26, 2014 report describes severe pain in the low back ranked as 8 out of 10 with 7 out of 10 pain in the right trapezius. Movement increased the pain. The doctor noted muscle spasms in neck, upper and lower back. A March 3, 2014 report indicates the plaintiff reported neck and low back pain were down to 5 out of 10 on a 1 to 10 scale. The doctor noted spasms.
In a March 17, 2014 letter to Macy’s Department Store the doctor noted the plaintiff was under his care for a workers’ comp injury as a result of this second fall. He also says "it has come to my attention that she has had a prior injury to her hand. I understand that this fall down injury may have caused an exacerbation or reactivation of her prior condition. I am aware that she just underwent surgery on her hand. I am not sure how the hand recovery is going at this time."
In a March 31, 2014 report the plaintiff states her neck is doing better "and the shots are helping." Her lower back pain causes frequent aching and discomfort with pain rated as a 7 out of 10 "approximately 100% of the time."
Two visits in April 2014 show the plaintiff telling Dr. Nardecchia her neck is improved but one visit talks of pain across the shoulders and low back pain 100% of the time with 4 out of 10 on a scale of pain. The assessment given by the doctor for the April 9, 2014 visit reads "Denise’s prognosis is better. But every visit before then read: "Denise’s prognosis is guarded and uncertain at this time."
The April 29, 2015 report tells of fairly severe low back pain 100% of the time. It states she is working 15 hours a week but feels pain when working. There was loss of motion in neck and lumbar spine but this improved after treatment. The doctor again said the prognosis is better "though she is still having problems with her daily routine."
In an August 26, 2014 note the doctor gave Ms. Pettinicchi a 5% permanent rating to the cervical spine and a 5% rating to the lumbar spine— solely due to the injury on January 11, 2014.
There are no reports until January 2015. On January 7, 2015 she reports for 80% of the time she has 8 out of 10 pain in the low back which has become worse since her last visit. She gives a 10 out of 10 rating for pain in the upper back; she has difficulty standing walking and bending which increase her pain she has difficulties with house work. Interestingly these complaints are quite similar to her trial testimony about the effect of the auto accident now before the court. The report also indicates loss of neck and low back motion. The prognosis reads "she has flared up. She needs to use heat at home." A report three weeks later talks of serious low back pain 100% of the time and aching discomfort in the right neck and right shoulder blade giving it a 10 rating 50% of the time. She reported leg pain in both legs and buttocks. The prognosis is only fair. The April 15, 2015 report mentions serious pain in the low back which is made worse with movement 100% of the time. She also reported pain in the upper back; neck pain comes and goes. The prognosis is "fair, she has flared up."
An April 17, 2015 report is similar to the previous one. It also says she is mentally unstable and is crying. There is a loss of neck on rotation as well as lumbar flexion. Dr. Nardecchia said he was working on referrals to an orthopedist and psychiatrist.
In an April 22, 2015 report she said standing and walking make her worse. Pain is worse in the lower back but less in the leg, the neck is "ok." She is going through emotional stress because of the injury and asked for a referral. Confusingly the prognosis states "Fair, she left feeling much better."
The final Dr. Nardecchia report states, contrary to the April 22, 2014 report her neck is tight and achy. Low back pain is 6 on a scale up to 10, 80% of the time. Walking twenty minutes makes her feel "Severely worse" and if she stands over an hour she feels severe pain. She can sit longer but when she stands up she feels more pain. The prognosis on this May 4, 2015 report is "fair," all of this just over a year before the auto accident now before the court.
Other medical reports by other medical providers present a similar picture. She went to the West Haven Medical Group. She only complained of neck pain on a February 10, 2014 visit contradicting her complaints to Dr. Nardecchia. Dr. O’Brien who generated the report gave the plaintiff a 5% permanent disability to the neck— of that 50% is related to her prior motor vehicle accidents.
A report from the Milford Hospital Walk in Center was prepared on January 14, 2014. Her chief complaint was injury to her hand with wrist pain radiating to her middle finger. An examination of the right hand states that "Multiple interphalangreal joints demonstrate osteo arthritis area, additionally similar changes are seen at the piece of the thumb."
She went to Connecticut Orthopedic Specialist, P.C. shortly after the January 11, 2014 fall at Macy’s. The January 22, 2014 report indicates injections to relieve lumbar problems were planned. A letter the following day indicates she had injections for lumbar problems. Lidocaine injections gave her dramatic relief of lower back pain for two days. Botox injections and cortisone had adverse reactions, surgery was noted as a possibility for right middle finger problems. In a February 12, 2014 report it talks of the problem she was having with her right middle finger. Interestingly it notes: "she has arthritic changes in the other digits but nothing as significant as this "(i.e.— right middle finger problems).
A December 30, 2014 letter which is defense exhibit D, was prepared by Dr. Luchini of Orthopedic Surgeons. The plaintiff had questions regarding her lower back and neck injuries sustained in her January 11, 2014 fall. The doctor says "I have reviewed her history. She does have a history of lower back pain from chronic lumbar spondylelisthesis and degenerative disc disease. I reviewed this with the patient. She admits to having this pain for several years." Dr. Luchini went on to review injections she received in June 2013. He does note that the records he examined showed her neck pain had resolved which was indicated in a September 3, 2013 follow up visit with Dr. O’Brien. The doctor then mentions the January 2014 fall which caused twisting of her neck and back. The doctor’s impression was "Persistent neck and particularly low back pain following strain type injuries with preexisting degenerative disease of the lumbar spine."
The court has reviewed the medical records. It will now try to set forth the conclusions it has reached as a result of these records and compare findings in the medical records with her present claims of injury caused by this accident. It will also discuss the trial testimony of Dr. Nardecchia and its bearing on the issues before the court. Then the court will render its decision on the damage claim made in this case.
(3)
A review of these medical records belies any claims that despite the two previous falls she had largely recovered from their effects on her life several months before this automobile accident which is the subject of the present suit. The following discussion is necessarily somewhat repetitive.
As noted, over seven months after the January 14, 2014 fall Dr. Nardecchia gave the plaintiff a 5% permanent disability rating to the cervical spine and a 5% permanent disability rating to the lumbar spine. It is true that the treatment record with Dr. Nardecchia has its ups and downs. As an example on April 22, 2015 over a year after the January 2014 fall she said her neck was okay although standing and walking make it worse as far as pain is concerned in the lower back. But on May 4, 2015, note even two weeks later she told the doctor that her neck was tight and achy. On this report she ranks her low back pain as 6 out of 10 but then she states walking twenty minutes makes it severely worse. In fact, the gravity of the January 2014 fall appears to be underlined in the reports of April 17 and 22, 2015. They state she is emotionally unstable and has emotional distress because of the injuries she suffered in the January 2014 fall which occurred some fifteen months earlier. In the May 4, 2015 report Dr. Nardecchia gives his prognosis of her condition saying it is only "fair." Almost a year after the January 2014 fall Dr. Luchini made an interesting observation previously quoted saying he "reviewed her history and noted the plaintiff had chronic low back pain from lumbar spondylolisthesis and disc degeneration." The plaintiff is quoted as saying she has had this pain "for several years." Also the doctor refers to persistent neck pain after the January 2014 fall.
The chronic nature of the plaintiff’s complaints about neck and lower back pain coupled with difficulties in bending, standing, moving and sitting is even underlined by an examination of the medical reports submitted regarding treatment she received after her June 3, 2013 fall at the Milford Mall. The court has reviewed these reports previously. The first one about two weeks after the fall indicates complaints of neck and lower back pain which was aggravated by movement. She told Dr. Nardecchia she had pain in these areas ten to twenty years ago and the doctor noted the June 2013 fall down may have aggravated a preexisting condition, which was a symptomatic. A later report said plaintiff had chronic cervical and lower back pain. The x-rays she took revealed these areas of pain were secondary to disc degeneration of the lower spine and lower back pain secondary to facet joint arthropaty as well as spandylolisthesis. Injections were recommended. She complained of chronic pain in the middle finger of the right hand but the report notes generally she had osteoarthritis of the hands. In August 2013 she went to an orthopedist for surgery and injection to her lower back. An August 29, 2013 report by Dr. O’Brien said the neck pain she had occurred 30 years ago following a motor vehicle accident followed by another one 15 years ago. The doctor notes the plaintiff has had arthritis since then. She received a botox injection on August 26, 2013 with "excellent results."
The medical reports submitted indicate the plaintiff had chronic pain and discomfort in her cervical and neck region. Also x-rays taken in connection with the falls indicate she had severe disc degeneration and her problems were "secondary" to this disc degeneration. Dr. O’Brien noted neck pain was caused by accidents 30 and 15 years before.
It is difficult to credit the plaintiff’s testimony that when she suffered the previous falls she always "bounced back." Dr. Nardecchia’s records indicate she first went to see him on January 13, 2014, two days after her fall. She continued to see him until the end of April 2014 then resumed seeing this doctor in January 2015 for several months. This was accompanied by visits to other medical providers for therapy and injections to relieve her pain.
It is interesting to note that Dr. Nardecchia gave the plaintiff 5% permanent disability rating to her cervical and lumbar spine in August 2014 over seven months after the January 2014 fall. There are no records or testimony about the present permanency ratings to these areas which are central aspects of her present injury claim as a result of this automobile accident. The plaintiff suggests this accident exacerbated her condition previous to this accident but the previous review of her medical records indicating a chronic condition contradicts the assertion. Dr. Nardecchia also testified her previous condition which consisted of disc degeneration, injuries suffered 30 years ago in motor vehicle accidents, and two recent falls was exacerbated by this accident but the simple way of asserting this would have been to give a new permanency rating showing the exacerbation and the doctor did not and perhaps could not make this calculation— is the court to do this by conjecture.
Dr. Nardecchia’s testimony on the exacerbation issue, at least to the court is not concerning. He made general remarks that her condition after this auto accident was worse than it had been when he last treated her for the January 4, 2014 fall. He described in general terms someone with disc degeneration and previous injury could have her condition worsened by a rear end type of accident. In the plaintiff’s case he said the auto accident increased her pain levels and decreased her quality of life.
But when asked on cross examination whether increase in pain could have been caused by natural progression of her severe degenerative condition he answered in part: "A There could be a percentage from it. It’s hard to tell." On her April 22, 2015 visit to Dr. Nardecchia for treatment of injuries from the January 2014 fall she reported pain was worse in her lower back, standing and walking make it worse still. He also reported that her back stiff, sharp, and stabbing with bending sitting, walking and moving from sitting to standing. Her neck was okay but she is going through emotional stress because of this fall and she asked the doctor to refer her to someone. The May 4, 2015 report states her neck is now tight and achy, standing and moving from a sitting to standing position she feels more pain. She does say she did better after her last visit but this observation seems confined to the low back which registered 6 out of 10 80% the time on the pain scale. The doctor on May 4, 2015 said the plaintiff’s prognosis was only "fair" the "plan" section described the therapy regimen that was to be implemented. The plaintiff was advised "to stretch and use heat and ice at home." This report was prepared a little over a year before the auto accident which is the subject of this suit and involved someone with admitted chronic neck and lower back pain who suffered from a condition of severe disc degeneration.
Furthermore, during cross examination Dr. Nardecchia indicated range of motion testing, done to establish the seriousness of an injury by examining the effect on the patient, was done twice before the range of motion testing done by the doctor on July 6, 2016 which was a day after the auto accident. Defense counsel opined the 2016 testing seemed to indicate better range of motion results than the one done by Dr. Nardecchia on June 19, 2013 sixteen days after the June 3, 2013 fall down. The court examined the two range of motion sections of the two reports and the 2016 report appears to show range of motion better or similar to the 2013 testing. The doctor at trial did not directly contradict this observation but seemed to say other factors enter into a comparison analysis such as muscle spasms, positive orthopedic findings (not explained) and the way she presented (not explained). But the 2013 report indicates palpitation induced spasms in the neck and areas of the back. No comparison analysis was offered. In the medical records of Dr. Nardecchia for treatment of the injuries suffered as a result of the 2013 and 2014 falls many of them indicate spasms were induced on a regular basis as result of his palpitations of the plaintiff’s neck and back.
The court cannot conclude in light of her chronic condition and injuries caused by four previous accidents and falls and the degenerative disc disease of her spine from the neck downwards that this auto accident caused anything more than a short-term aggravation of preexisting conditions if that. After this auto accident Dr. Nardecchia started treating her from July 6, 2016 onward for five visits. In each of the five visits at the end it says: "I instructed the patient to watch her activities aggravate her conditions." In an April 15, 2015 visit over a year after the January 2014 fall and over a year before this auto accident he notes her complaints of severe pain in the neck and low back saying she had to do a lot of lifting and stair climbing. The doctor wrote her prognosis "fair." She had "flared up." If Dr. Nardecchia’s medical reports are examined for the 2013 and 2014 falls and for this auto accident there is continuous pattern of slight improvement followed by complaints of severe stabbing pain. Dr. Nardecchia’s advice about her daily activities— not falls or auto accidents— as aggravating her condition is instructive.
(4)
The court will address two other matters which in certain respects underlines difficulties with the plaintiff’s position regarding her present physical condition which she claims resulted from this auto accident.
She now claims that as a result of this accident she suffers a great deal of pain in the thumb of her right hand. Her right hand is her dominant hand. She claims because of her thumb condition she cannot do simple things like open cans or trim vegetables.
(a)
But this is not the plaintiff’s first complaint of problems with the fingers of her right hand. On June 28, 2013, shortly after her fall at the Milford Plaza, she went to Connecticut Orthopedic Specialist when her right hand was examined. Mild redness was noted and she had pain with movement of the third digit. The report issued as a result of this visit noted: "osteoarthristis of the hands ." (Emphasis by court.) On January 14, 2014, three days after her fall at work, she went to the Milford Hospital Walk-in Center. She was concerned about her wrist and hand and pain radiating to her middle finger of the right hand. She revisited the Connecticut Orthopedic Specialists on February 12, 2014 after the January fall where the plaintiff said she had pain in her right middle digit "for quite some time." Any attempt to move this finger "causes exquisite discomfort" and she has swelling around the finger. The report goes on to say: "She has arthritic changes of the other digits but nothing as significant as this."
She went to see Dr. Nardecchia after this auto accident the first visit being on July 6, 2016. After several visits she stopped seeing the doctor for several months. In an April 18, 2017 visit to the doctor’s office she first mentions her right thumb pain. At an October 13, 2016 visit with Connecticut Orthopedic Specialists she reported pain in her periscapular region on the right hand side. On January 10, 2017 there is the first complaint that she had pain in her right thumb. In a March 2, 2017 report it says that: "after review of her your (sic) notes, it appears she did not notice any pain or relating pain of the thumb until January of this year" (2017). This is some six months after the auto accident. But earlier in the report it says that the plaintiff was holding the steering wheel at the time of the July auto accident and "has pain and discomfort in her dominant right thumb that has gotten worse. She has difficulty gripping objects and the pain radiates to the elbow." A March 17, 2017 report states that shortly after the auto accident she began to develop right hand pain at the base of the thumb which has worsened on recent past couple of months. Which is it? A final report dated April 6, 2017 states that: "Since last seen there has been minimal improvement of the right thumb pain. There is continued discomfort with right thumb use and there has been no improvement from the interventions tried thus far with continued pain." In the inspection part of the report, however, it does not refer to this accident in relation to problems with her right thumb.
Hand
Inspection/palpitation: no tenderness, ecchymosis swelling, pain, bruising, malnotation or deformity
Range of motion: good ROM
Strength: good muscle strength
at the end of the report under "pain" it says
Impression: Persistent right thumb CMC M8 1P osteoarthritis.
"Plan, unfortunately, the osteoarthritis has not improved from the measures employed thus far. I explained the options of treatment including observation, cortisone, synvisc or surgery. I offered a cortisone injection, but understanding the risks, alternatives, and benefits, declines. At this point she wants to closer legal case and will call back if she becomes symptomatic enough to work treatment."
Against the foregoing background the testimony of Dr. Nardecchia on cross examination is quite relevant. The following occurred:
Q. Okay. Now would— now based on your experience would somebody with a traumatic injury to say their thumb, would they feel pain immediately?
A. Not always because it depends on the— the inflammatory response takes a day to kind of come into existence.
Q. So maybe within a week or so later?
A. Usually within three to four days ...
Later in the testimony it becomes slightly more confusing:
Q. Okay. But you would have expected to see pain specifically in the thumb within, say, two to three weeks of the motor vehicle accident if it was caused by inflammation due to the accident?
A. Usually.
The plaintiff on direct, said her thumb became swollen right after the accident, she put some ice on it. But her first visit to Dr. Nardecchia on July 6, 2016 indicates she did not mention the thumb specifically. She stated her neck pain radiated to the right shoulder and into the right hand no specific fingers were mentioned according to Dr. Nardecchia. A "radiating" pain was noted not something proceeding from the thumb itself. Neither was there any mention that the thumb was swollen the night of the accident.
But as noted she did not mention pain in her thumb to Dr. Nardecchia until April 28, 2017, nine and a half months after the July 5, 2016 auto accident. A Connecticut Orthopedic Specialist report of March 2, 2017 states "she did not notice any pain or relating pain of the thumb until January of this year" (i.e. 2017) five and a half months after the accident. This is well outside the bounds of Dr. Nardecchia’s testimony or from another perspective, given the arthritic condition of the entire right hand noted in one medical report, common sense would seem to indicate any pain and lack of free movement in the thumb would not appear to be the result of this auto accident but of a degenerative progressive arthritic condition. This is especially so in light of her contrary statements to treaters as to when pain in the right thumb first was noticed.
(b)
In this case there is also a claim that the auto accident caused the plaintiff to develop great pain in her legs. At trial the plaintiff testified as follows:
Q. What about your back? Is it any different than after the fall?
A. Yes, it’s the legs. The legs. I never had problems with my legs.
Q. You didn’t have those symptoms after the two falls?
A. Not— No not like I do— not what’s happened now.
Q. And how often do your legs bother you?
A. They were bothering me all the time until I started getting the epidurals.
In her visit with Dr. Nardecchia the day after the auto accident no specific mention of leg pain is noted but the plaintiff did say she had right hip pain. Her lower back pain radiates to her thigh and the pain stops at her knees. She had four more visits with Dr. Nardecchia in July of 2016 and there is no mention of complaints, testing or treatment of leg pain or pain in the thigh. She returned to Dr. Nardecchia for three visits in April 2016 and again there is no mention of leg or thigh pain. In a September 27, 2017 visit over a year and a half after the auto accident she complained of radiating pain to the right thigh and sometimes to both thighs (emphasis by court). This from a person diagnosed with severe spinal disc degeneration. On November 27, 2017 for the first time it reports lower back pain is radiating down both legs— the pain is there on a daily basis often switching sides. A final Dr. Nardecchia report only mentions "increased pain in her neck and lower back."
She went to Connecticut Orthopedic Specialists from August 16, 2016 and had further visits on August 29, 2016, September 14, 2016, October 13, 2016, November 2, 2016, January 10, 2017, January 31, 2017, March 2, 2017, March 16, 2017, March 28, 2017 and April 6, 2017. None of these reports mention leg pain.
What is perhaps even more relevant to the leg pain claim being made besides the fact that little or no mention of it was made for months after this accident is the fact that the plaintiff experienced severe leg pain in the past having nothing to do with the auto accident. She fell while at work on January 11, 2014 and went to Dr. Nardecchia several times. In a January 21, 2015 report she complained of leg pain in both her legs. In an April 15, 2015 visit the plaintiff complained of continuous sharp discomfort in the left thigh. On a scale of 1 to 10 she described the pain as a 10 and indicated the discomfort occurred approximately 100% of the time. She made a similar complaint on an April 17, 2015 visit. On April 22, 2015 the plaintiff told the doctor her leg pain is "much less."
Conclusion and Judgment
In light of the foregoing the court cannot make an award for future pain and suffering as a result of this accident based on her life expectancy. Her condition is chronic and the plaintiff suffers from several chronic physical conditions that entail real limitations on her activities and joy in doing them. But for the court to go beyond an award involving compensation for a short-term exacerbation of her unfortunate condition would be based on conjecture not supported by the record. Similarly, the court cannot for example, award damages for the cost of future medical treatment. The record is replete going back several years of complaints and suffering for various areas of the body which are the basis of the claims in this case— conditions which often ameliorate then "flare up" again. Also she has an uncontested degenerative arthritic condition affecting over the years her spine and even her hands.
The court does believe that there is grounds to accept some degree of exacerbation as a result of this accident— this visited on a woman with severe underlying medical problems. Also the court concludes she should be awarded medical expenses for the visits in July 2016 to Dr. Nardecchia and the costs of treatment by Connecticut Orthopedic Specialists through the end of 2016 where she went after the few visits with Dr. Nardecchia in July 2016. The court’s acceptance of at least some decree of exacerbation is based on her testimony, and that of Dr. Nardecchia. Also she had been treating with the doctor as result of her January 2014 fall and general condition but with a last visit on May 4, 2015. There is no record of treatment from this May date until this accident. In addition the court believes she should be compensated for payment to repair her vehicle damaged as a result of this accident to the extent she has not been compensated by insurance.
Economic Damages:
Andrade Motor Car Inc.
$ 500.00
Back Care Centers
$ 1, 240.00
Conn. Ortho. Specialists
$ 1, 721.00
$ 3, 461.00
Non-Economic Damages:
$ 17, 500.00
Total: $ 20, 961.00