Opinion
No. 107497.
2012-06-19
Timothy QUACKENBUSH, Claimant, v. STATE of New York, Defendant.
Brian Chapin York, Esq., for Claimant. Hon. Eric T. Schneiderman, Attorney General of the State of New York by Thomas G. Ramsay, Esq., Assistant Attorney General, for Defendant.
Brian Chapin York, Esq., for Claimant. Hon. Eric T. Schneiderman, Attorney General of the State of New York by Thomas G. Ramsay, Esq., Assistant Attorney General, for Defendant.
PHILIP J. PATTI, J.
The trial of this claim was bifurcated, and Defendant was previously adjudged fully responsible for certain injuries that Claimant accrued on July 2, 1999 when he fell while exiting the back of a prison van at Groveland Correctional Facility (“Groveland”), while shackled, and with correction officers negligently employing a plastic crate as a stepping stool for inmates exiting the van ( see Quackenbush v. State of New York, UID # 2010–013–506, [Ct Cl, Patti, J., Sept. 27, 2010] ). This Decision deals solely with issues affecting damages.
FACTS:
Claimant's description of the fall was consistent with what he testified to at the trial on liability. Essentially, while his leg irons had been removed prior to exiting the van, his hands were still cuffed and attached to a waist chain. There was a plastic crate placed below the rear bumper as he stepped down. As Claimant's foot came in contact with the crate, it tipped forward and then moved back toward the van, causing him to fall backward, half in and half out of the van. His back and upper extremities snapped back and his left elbow hit the bumper; Claimant stated that he felt pain immediately, particularly in the cervical spine, although he could not say exactly what was wrong because his whole body was in pain. As he lay on the ground, he was advised not to move, and eventually he was assisted to his feet and brought into the infirmary.
When Claimant arrived at the infirmary, he advised them of the various pains that he felt following the fall, with a particular focus on his left knee, which was swollen and he thought might be broken. An x-ray was ordered for the left knee, Claimant was given ice to put on the knee, and he was prescribed Motrin for the pain ( see Exhibit 22, Section 15, at page 26). Claimant was placed on bed rest, which restricted him to his dorm as much as possible, and told to keep his leg raised. He was also placed on “feed up”, which meant that his meals would be served to him at the dorm so that he would not have to traverse stairs to get fed. With respect to his other injuries, Claimant testified that the Groveland staff “didn't pay attention to” his elbow, which was sore (Trial Recording of March 6, 2012, at 9:45:15 a.m.). He did testify, however, that he was provided naproxen in response to his complaints of pain in his elbow.
For several weeks after his accident, Claimant had difficulty walking due to his injured knee, and mostly stayed in bed and kept ice on the knee. Claimant testified that the knee did get better over time, although he started to experience increased pain in his back and left arm. He also believed that the symptoms in his elbow were getting increasingly worse, and he noticed something that felt like a “lima bean” moving around in the elbow (Trial Recording of March 6, 2012, at 9:47:17 a.m.). The elbow felt very painful and would snap when he moved it back and forth, although Claimant continued to receive only over-the-counter medications for his complaints of pain. Approximately three or four months after the accident, Claimant's elbow was x-rayed, and a “foreign body” was detected that required surgical removal. The elbow surgery occurred several months after the “foreign body” was detected, and Claimant said that he continued to experience pain up until the time of surgery, particularly when he made contact with the “lima bean” in his elbow; he described it as similar to the sensation of striking the funny bone. Claimant regained movement of the elbow about 10–14 days following the surgery, and the total healing time took several months. He testified that the elbow feels “pretty good” now, and the only issue he notices is that, on occasion, it will crack when he moves his arm, similar to cracking knuckles.
Claimant testified that, during this period of time following his accident, he also began to experience symptoms in his lower back, which at first merely felt stiff and sore but got worse as time went on. The soreness was slightly to the left of the spine and radiated down his legs to just above the knee, causing burning, tingling, and numbness in his thighs, as well as a constant throbbing sensation in his hips. As he had not had any prior issues with his legs and back, Claimant believed that the pain in his lower back was related to the issues he was experiencing with his legs. Claimant testified that the pain, numbness, burning, and tingling in his legs has been constant since his fall, up to the present day.
Claimant's neck pain in the wake of his fall first manifested as soreness but got progressively worse over time. He testified that the pain got so bad in the month after the accident that he would have to carry his left arm with his right arm, was unable to lift his head, tried not to move his neck, and caused him to tear up. The facility nurses continued to give him ibuprofen and Ben Gay for his pain, which he did not believe was sufficient to deal with the pain. Claimant testified that the pain in his neck was excruciating, as if someone stuck a knife in his back, and that the pain at one point got so bad that he was paralyzed on his bunk, unable to move. The pain was constant, regardless of whether he did or did not move. He associated the pain in his left arm with the pain in his neck.
On August 6, 1999, the pain in Claimant's neck caused him to fall to the floor while walking to the bathroom. He believed that the cause of his fall was the excruciating pain in his back, which caused him to be unable to see. After Claimant fell, correction officers (“C.O.s”) came to his aid and called for a supervisor to report to the scene. The C.O.s attempted to put ice underneath Claimant's back, but he was still in pain. After what Claimant testified was approximately one hour, he was rolled onto a small stretcher and carried out of the dorm to a crew van, where he was placed in the back and driven to the main facility . Once he arrived at the infirmary, Claimant described his fall to the staff. He testified that he was given ibuprofen for the pain, placed into a private room, examined by the nurse on duty, and then left alone. Claimant testified that he saw a Dr. Morgan two days later, who examined his neck and arm and prescribed more ibuprofen for the pain, even though Claimant requested something stronger because the ibuprofen was not working to ease his pain. Dr. Morgan allegedly told Claimant that he could not provide him with anything stronger, and that there was nothing more that could be done for him at that time. Claimant estimates that he spent 10 days in the hospital room, during which time he had no visitors, no television, and no contact other than the trustee who dropped off his meals and the nurses who checked in on him. Claimant considered this time spent in the hospital room to be “deprivation” (Trial Recording of March 6, 2012, at 10:10:17 a.m.). After 10 days, Claimant was seen by a Dr. Howard, who examined Claimant's arm and neck, prescribed Vicodin for the pain, and ordered an MRI for Claimant's neck. Dr. Howard also allowed Claimant to be returned to his dorm room at the Annex, where he remained on bed rest and continued to have his meals delivered to the dorm. Claimant testified that this was how things remained for most of the duration of his time in prison, although sometimes he was taken off of bed rest.
Groveland Correctional Facility is divided into two parts—the “main” facility and the Groveland Annex. Claimant was housed in the Annex at the time of the events described above.
Claimant testified that, during this time, he felt both neglected by the facility staff and scared because he felt vulnerable to attack by other inmates. Friends would send him commissary, such as food, cassette tapes, and other items, which he could use to purchase protection and help him feel secure when he was off of bed rest. When he was confined on bed rest, there was no television or radio to use for entertainment. He could read a book but it was difficult to do so because he could not hold his hands up.
An MRI was performed of Claimant's cervical spine in September 1999, which revealed that Claimant had disc herniation at the C5/6 and C6/7 levels. He was referred to neurologist Dr. Seth Zeidman at Strong Memorial Hospital (“Strong”) for treatment of his neck. Dr. Zeidman performed some testing on Claimant's hands and feet and immediately ordered nerve conduction studies for his arms and legs. Claimant also believed that Dr. Zeidman reviewed the MRI of his cervical spine, as Dr. Zeidman diagnosed Claimant with a herniated disc that was pressing on the spinal cord and causing the pain in his left arm. An anterior cervical discectomy and fusion (“ACDF”) was recommended and, after Claimant was apprised of the risks and benefits of such procedure, he opted to have the surgery performed. During the interim period, before the surgery was performed, Claimant testified that the staff at Groveland did “basically nothing” for him (Trial Recording of March 6, 2012 at 10:39:20 a.m.), aside from providing both codeine for his pain, and Neurontin, which is a nerve blocker, and getting mental health treatment for depression.
The surgery took place on May 5, 2000 at Strong and was performed by Dr. Zeidman. Claimant remained at Strong for approximately three days before he was returned to Groveland, where he spent one night in the infirmary before being placed back into population. Claimant remained on bed rest and feed ups until his release from prison, which was on May 21, 2000. The surgery relieved the stabbing pains that Claimant had experienced, although he was sore while recovering. He had a collar to restrict movement of his neck, but overall he believed that he had more movement and no longer had pain shooting down his arms. Claimant testified that the fusion surgery alleviated his pain, and that he felt better every day after his return from Strong. His lower back, however, still had pain, numbness, and tingling at the time he was discharged from Groveland.
Claimant continued to treat with Dr. Zeidman after he left prison, and continued to follow-up with him until 2003, when Claimant moved out of New York State. Approximately one year after the surgery, Dr. Zeidman released Claimant to perform any activities that he felt capable of performing, including work and recreational activities, although Dr. Zeidman advised him to avoid any activities that caused him to experience the symptoms of pain, soreness, and stiffness, all of which were occasionally present. Claimant testified that he felt much better, and that his symptoms were not nearly as bad as they were before he had the fusion surgery. He did not recall having had any other diagnostic tests in the several years following the fusion surgery, aside from a discogram on the lower back in 2002. Claimant testified that he twisted his lower back at work in November 2002 after slipping on some shingles covered with snow, which added pain to his existing pain and numbness, but that the discogram preceded that accident.
On two occasions in 2001, Claimant also treated for his cervical spine issues with Brooke Kelly, D.O., who prescribed physical therapy for him, which Claimant did not find helpful, as well as the use of a transcutaneous electrical nerve stimulation unit (“TENS unit”) to stimulate the muscles around the affected area in his cervical spine. Claimant also testified that Dr. Kelly administered trigger point injections to the spine on at least two occasions, but there does not appear to be any reference to that in Dr. Kelly's medical records ( see Exhibit 22, Section 14). Claimant still uses a TENS unit, as it does afford him some relief when it is in operation, but he believes that he would benefit from a stronger version of that device.
In 2003, after Claimant moved to Maryland to be with his then-girlfriend, Barbara Orlitzky, he sought further treatment for his injuries, although it took approximately four to six months to get coverage, as Cool Risk Management, New York State's no-fault adjuster, had closed his case. After his case was re-opened, he treated first at a place called ImmediaCare, where a doctor ordered an MRI. Claimant was then referred to Dr. Gary Pushkin, an orthopaedic specialist, who prescribed home therapy and medications for his cervical spine issues. Claimant said the home therapy provided no relief and served only to make him sore after about three weeks of trying it.
Claimant testified that he was then referred to Bernhard Zünkeler, M.D., a neurosurgeon in the Baltimore area. After reviewing MRIs, as well as the treatment records from Drs. Pushkin and Zeidman, Dr. Zünkeler ordered strength tests for Claimant's hands as well as another MRI. Claimant testified that Dr. Zünkeler started administering CT-guided epidural injections to his spine to deaden the nerves in his neck, a process that Claimant described as painful in his neck, head, and arm, but one that typically provided some relief to him for a period of time. Claimant estimated that he had 10 to 12 total epidural injections over 2 to 3 years of treatment with Dr. Zünkeler, and the time in between each injection varied based on the level of relief that the injection provided. He received his last epidural injection within the last year, some time before he stopped seeing Dr. Zünkeler and his move back to Jamestown, New York. Claimant testified that, beginning in 2008, he returned to treatment with Dr. Zeidman, because he preferred the treatment with Dr. Zeidman, but that both doctors provided him care for a time while he still lived in Maryland.
Claimant testified that Dr. Zeidman was concerned with his overall condition because he still had numbness in his left hand, pain in his neck that went down his back, and occasional dizzy spells. Because of this, Dr. Zeidman ordered a myelogram, a test in which a dye is injected into the patient's spine and the patient's body is then tilted to allow the dye to run up to the affected area. This allows for an excellent view of the affected area, although it can be fairly painful. Claimant testified that the myelogram was an excruciatingly painful procedure that gave him a headache of “indescribable” pain (Trial Recording of March 6, 2012, at 11:48:18 a.m.). The myelogram revealed that Claimant had bone spurs through his neck. Claimant testified that there was no change in his treatment as a result of the myelogram. Claimant had a second myelogram after returning to New York State, after which Dr. Zeidman recommended that he pursue a course of pain management for the time being instead of resorting to a second surgery on the cervical spine. Claimant testified that he is currently receiving Neurontin, was prescribed a stronger TENS unit, and still receives epidural injections, although the latter apparently provide no relief to him.
Claimant testified that he no longer really experiences any problems with his left knee, although it can get stiff if he fails to move it for a long period of time. He does not receive any treatment for his left knee. His left elbow occasionally gets a twinge or stiffness, and he uses Aleve, Ben Gay, or Tiger Balm on the occasions when the elbow bothers him.
With respect to his lower back and legs, Claimant testified that these areas are very uncomfortable and can get sore or experience jabbing pain. He often has to move around while sitting or driving a car, and he finds that the burning, tingling, and numbness can be aggravated depending on how exactly he sits. Claimant testified that these conditions have not changed significantly since the fall in 1999.
With respect to the conditions in the cervical spine and left arm, Claimant testified that the neck can hurt from sitting down, because of the pressure on his spine, but that he also gets pain from movement. He also gets dizzy when both standing up or sitting down. Claimant experiences numbness, burning, and tingling in his left hand that requires him to shake out his hand and move his fingers around, and he also testified that he is beginning to experience similar symptoms in his right shoulder and right hand, although not to the same degree as on the left side. Overall, Claimant testified that his symptoms, which got much better following the fusion surgery, have gotten much worse over time—far more prominent and frequent now than in the past.
After his release from prison, and upon being cleared to return to work by Dr. Zeidman, Claimant undertook a series of jobs, almost all of which were manual labor positions, until he ceased working altogether in 2011. His first job was as a lumberyard associate at Chautauqua Brick in Jamestown, New York, where he started out earning around $5.25 or $5.50 per hour. This job involved using a fork lift to load trucks and stack pallets, among other things. Claimant testified that the employers at Chautauqua Brick accommodated his neck issues during the year or so that he worked there, although his neck and back symptoms varied depending on what he did at work day-to-day. He used Ben Gay and ThermaCare wraps to help with his lower back and, consequently, he was able to keep working, aside from the injury he sustained when he slipped on snow-covered shingles, as referenced earlier in this Decision.
After moving to Maryland, and experiencing approximately one year of unemployment, Claimant took a job with Giant Foods, which involved stocking shelves and paid approximately $5.50 or $6.00 per hour. This work required Claimant to work in the freezer, as well as bend and kneel, all of which aggravated his symptoms. He remained at Giant for only one or two months before taking a job at Blue Point Crab House, where his tasks involved cooking, bussing, and front of house work. There was constant bending in this job, which was difficult, and so Claimant remained there approximately two months. Claimant testified that he was not comfortable with either of these jobs, and only worked at those places because he needed the money.
Claimant's next job was with Snavely Forest Products, and was similar to his job with Chautauqua Brick in that he primarily loaded and unloaded lumber on to and off of trucks using a large fork lift. This job was a full time job that paid him up to $12.50 per hour due to his certification as a heavy equipment operator. Claimant worked there for approximately nine months, although he testified that it made his spinal issues worse as he first experienced occasional soreness that turned into constant pain. Claimant testified that, as his symptoms progressed, depending on what his work entailed on a given day, he would sometimes have to bring aspirin to work or, occasionally, he would have to call into work because he could not get out of bed.
After leaving Snavely, Claimant took a job with Universal Forest Products, a company that builds roof trusses. Claimant testified that it was similar work and hours compared to what he did at Snavely—40 or more hours per week loading trucks with a large diesel fork lift—but it paid approximately $13.00 per hour. He did not stay with Universal very long, as he continued to experience symptoms in his neck and back from the heavy manual labor he performed, again, depending on the work performed in a given day and also depending on the weather. Claimant testified that he noticed that the symptoms in his neck got worse as a result of physical activity, and he limited himself in movement and activity around this time.
Claimant also testified to a number of other jobs he held while in Maryland, without any particular chronology. For approximately eight months, Claimant worked at Reisterstown Lumber, earning approximately $12.50 per hour. This work was similar to several of the other jobs referenced above—loading cars and trucks with a fork lift.
Claimant also obtained a job with Shire Pharmaceuticals through the temporary employment agency Manpower, and he worked there for approximately three months as a chemical mixer, earning $13.00 per hour. This job ended when Claimant injured his lower back in a slip-and-fall accident, causing him to sustain a strain at the L3 level of the lumbar spine. A Workers' Compensation claim resulted from this injury. Claimant testified that he was taken out of work and given “work hardening” therapy before he was cleared to return to work at full duty. Claimant also testified that this injury had no effect on his pre-existing back pain, but rather added additional symptoms on top of the existing symptoms.
Claimant next obtained a job with Terminal Corporation, through Aerotech Staffing, which again involved him using a large diesel fork lift to load and unload flatbed trucks, and paid approximately $13.00 per hour. Claimant remained in this job for approximately eight months. Another fork lift-based job was at Roof Lifters, which paid approximately $13.00 per hour and was obtained through Anchor Staffing. Claimant testified that he would use hydraulics to lift roofs. He was there approximately one month before twisting his back while on top of a pallet, again affecting the disc at the L3 level of his lumbar spine. Claimant filed a Workers' Compensation claim in conjunction with this injury, but he testified that the claim was denied due to a pre-existing injury. Claimant testified that he used Flexeril to treat the injury, but he did not undergo a full course of treatment because Workers' Compensation would not pay for it. He returned to work shortly thereafter.
Claimant's next job was with Cinder and Concrete Block, again performing fork lift loading as well as customer service. The job paid from $12.50 to $12.75 per hour. Claimant testified that he was there for approximately three months before he got into yet another work-related accident. This accident occurred as Claimant stood atop a wall attempting to pull a plastic cover off of a pile of sand. As he went to pull the cover, Claimant tripped, fell backwards, and broke his left shoulder in three places. This resulted in yet another Workers' Compensation claim because, although he was able to return to work at medium duty, the shoulder later required surgery because a bone spur was wearing on his rotator cuff. Claimant testified that this injury did not in any way aggravate his pre-existing neck and lower back symptoms.
Claimant obtained a job with General Dynamics through a staffing agency, at which he worked as a shipping and receiving clerk. He stayed in this job for approximately one month because he found it difficult to perform the job, which required some heavy lifting. This job paid approximately $11.00 per hour. Claimant obtained similar employment in a mailroom, through Manpower, which paid approximately $10.00 per hour. He testified that his doctor removed him from this job after approximately one month because he could not handle the work. Claimant also worked for a short time in the garden section at Home Depot, loading customer vehicles. He testified that it hurt to perform this job.
Claimant also worked as a flagman for Safe Zone Highway Solutions, another job that resulted in a Workers' Compensation claim. The injury here occurred when Claimant was asked to pull a light tower over to a bumper hitch and, when he did, he felt a snap in his right arm, which turned out to be the tendon snapping from the bone. This injury was repaired surgically and has caused him no problems since then. Claimant testified that there was no effect on his pre-existing injuries.
Claimant's last job in Maryland was with Atlantic Concrete, which he obtained through an employment agency. This job was similar to many others listed above, in that he worked loading concrete with fork lifts and front-end loaders, amongst other manual labor activities. Claimant testified that he was there for approximately one month and, on his last day, he was drilling holes into concrete when his arm and hand went numb and he felt pain in his neck. He called Dr. Zünkeler, who immediately restricted him from that sort of heavy labor. Claimant also spoke with Dr. Zeidman, who also restricted him from performing heavy labor. Claimant left this job in August 2011 and has not worked since.
Outside of work, Claimant testified that his life has changed dramatically as a result of the injuries he sustained in the July 2, 1999 fall. He no longer rides bikes or motorcycles, fishes, or has the ability to sit down long enough to watch a movie or drive a long distance. Riding a motorcycle, for example, causes pain and numbness in his neck, back, and legs that is too much to bear. Claimant testified that he was an avid fisherman from childhood, but cannot do so anymore because he has great difficulty casting the line. He also used to ride bikes with Orlitzky two or three times a week, but just could no longer do so because of his injuries. Additionally, Claimant testified that he can only sleep for approximately 60 to 90 minutes at a time because of the pain and discomfort from his injuries, so he is unable to establish any sleep pattern.
Claimant also testified that the injuries accrued in the July 2, 1999 fall affected, and ultimately ended, his relationship with Orlitzky. Claimant testified that he felt demeaned because he could not carry grocery bags from the car to the house and, instead, Orlitzky had to do so. Additionally, the pain from his injuries causes him to have a terrible attitude towards other people, including Orlitzky, at whom he would snap on occasion. Claimant further testified that his injuries eventually also caused a deterioration in their sexual relations. In essence, Claimant testified that his personal life is ruined in all aspects, and he is afraid for what life holds for him—will he be able to work again, will he be alone for the rest of his life, and will he be in pain for the rest of his life.
Claimant testified that he is still treating because of his constant pain, and that he follows the recommendations of his treating doctors. Currently, Claimant takes Neurontin to deaden nerve pain, Effexor to deal with depression, codeine for his back pain, and a rotation of naproxen, ibuprofen, and acetaminophen for pain. Claimant also takes acid reflux medications, which he believes are necessary due to the amount of anti-inflammatories that he takes, and also uses ThermaCare patches for his neck and back. Claimant estimates that he spends approximately $70.00 to $100.00 per month on prescription drugs, $35.00 per month on over-the-counter medications, and $15.00 to $20.00 per month on ThermaCare products.
On cross-examination, Claimant testified that, prior to prison, he had a number of different jobs, including bartending, factory work, fork lift operation, and apartment management, as well as his own business called Quackenbush Computers. Claimant acknowledged that, at deposition, he testified that Quackenbush Computers brought in anywhere from $400.00 to $1,000.00 per week, but testified at trial that he did not know how much money it brought in. Claimant also testified to injuries he sustained prior to prison, including being stabbed in the abdomen and chest, as well as a 1978 motorcycle accident in which he broke his left wrist. Claimant also grudgingly acknowledged that he was sent to prison on the basis of a felony conviction for driving while intoxicated, and that he had a prior conviction for assault in the third degree.
Claimant was then asked about several job applications that he had submitted during his periods of employment following his return to work following his time in prison and his fusion surgery. His job application at Giant Foods indicated that he operated Quackenbush Computers from March 1993 until August 1995, earning $1,200 per month. Claimant indicated that he did not type up the application, and that he might have signed it. The application also indicated that Claimant did not have any felony convictions, which he testified was just a “deception.” (Trial Recording of March 6, 2012, at 2:27:18 p.m.).
The application for Universal Forest Products indicated that Claimant was the owner of Quackenbush Computers from January 1991 until May 1996, earning $18.00 to $25.00 per hour repairing and selling computers. Claimant indicated that he could perform all of the functions of the job, and that he had never been convicted of a crime. Claimant's brief explanation for the latter statement was simply that he “[n]eeded a job” (Trial Recording of March 6, 2012, at 2:29:56 p.m.).
A job application for Salvage Direct again indicated that Claimant had never been convicted of a felony, to which Claimant responded that he “wouldn't have gotten a job otherwise” (Trial Recording of March 6, 2012 at 2:39:45 p.m.). The application also indicated that he worked for Quackenbush Computers from June 1992 until September 1998, performing sales, service, troubleshooting, billing, accounts, and customer service.
Claimant was also asked about his multiple Workers' Compensation claims from his time in Maryland. His first claim followed his August 8, 2005 injury while working at Shire Pharmaceuticals, and alleged injuries to the lumbar and thoracic spine. Claimant was out of work on disability for approximately six months and was assessed with a 52% permanent partial disability of the lumbar spine as a result of the accident. The claim was settled for $70,000. Claimant indicated that he had no hindrance in returning to work following a period of treatment.
Claimant's second Workers' Compensation claim followed his July 6, 2007 injury at Cinder and Concrete, where he broke his left shoulder in three places and had a period of disability of approximately one year. Claimant acknowledged that he treated with a Dr. Riederman for the injury, and that Dr. Riederman advised him that he could no longer work with a fork lift as a result of the injury. The claim was eventually settled for $52,500, and Claimant testified that he was returned to work at full duty. During his recovery from this shoulder injury, Claimant acknowledged that he applied to Best Buy's “Geek Squad”, which deals with, among other things, services and repairs on computers.
Claimant's third Workers' Compensation claim followed his October 7, 2009 injury at Safe Zone Highway Solutions, when he tore the tendon in his right arm. Claimant was assessed with a 40% permanent partial disability of the upper right arm as a result of the accident, and the claim was eventually settled for $27,500.
Claimant had two Workers' Compensation claims resulting from his employment with Anchor Staffing, although Claimant testified that one of those claims was made in error. The first claim was based on a July 6, 2010 injury where Claimant was struck by a beam. Claimant testified that, although he hurt his back in that incident, he did not report the accident, was not treated for it, and did not intend to file any claim for it—basically, he believed that a secretary for his attorney filed the claim by accident. The second claim, for a July 10, 2010 injury, alleged that Claimant hurt his lower back while pulling a pallet. Following a period of disability, and after a hearing, this claim settled for $6,500. Claimant was confronted with his hearing testimony related to this claim ( see Exhibit X). At that hearing, Claimant testified that his neck surgery followed an automobile accident, and that he did not sustain any back injury in that accident. In fact, Claimant testified at the hearing that he had not sustained any back injuries prior to 2005 and that his neck, while sore and painful at times, was basically okay and did not prevent him from working.
Claimant also acknowledged that Dr. Zeidman recommended that he go to New York State's Vocational and Educational Services for Individuals with Disabilities (“VESID”), but that he did not want to do so because he was employed at the time.
On redirect examination, Claimant clarified that his neck pain did not prevent him from working, because he was careful about his neck when working. Claimant also testified that, while he did run Quackenbush Computers for several years in the 1990s, he no longer felt qualified to work as a computer consultant because the technology had changed drastically since then.
Claimant also testified that he returned to work at full duty after each of his Workers' Compensation injuries, and that his only current hindrance to working is solely as a result of his injuries in the July 2, 1999 fall and not because of any of the Workers' Compensation injuries.
Barbara Orlitzky, Claimant's ex-girlfriend, testified about her relationship with Claimant from 2003 until their breakup in November 2011. Orlitzky testified that, initially, they had a very active relationship, including lots of hiking, bicycling, and walking, as well as a very active sex life. She noticed changes, however, as time went by. Their sex life became almost non-existent over time due to Claimant's persistent pain, and he was also unable to continue to engage or participate in physical activities that they both enjoyed. Orlitzky testified that Claimant was always very strong and fit, but was now unable to pick up even a bag of groceries, which he found demeaning because it meant that she had to carry groceries into her apartment. She also believed that Claimant developed attitude problems over time, often getting “snippy” with other people, including her. Claimant's ability to recover and recuperate also lessened during their time together, and he complained frequently of pain. Orlitzky testified that things were good in her relationship with Claimant until 2011, at which time things deteriorated to the point where she could no longer deal with Claimant and the relationship ended.
Claimant's next witness was Thomas Rick, his vocational rehabilitation expert, who performed a vocational evaluation of Claimant on November 23, 2011. Rick testified that he reviewed medical records and reports from Dr. Zeidman, Dr. Zünkeler, and Defendant's expert medical witness Dr. P. William Haake, as well as the discogram of Claimant's lumbar spine, deposition transcripts, the vocational assessment prepared by Defendant's vocational expert Peter Capotosto, the economic report prepared by Defendant's economic expert Michael Wolkoff, and vocational rehabilitation agency records relating to Claimant.
The vocational evaluation of Claimant consisted of a series of tests, record review, an interview with Claimant, and then the application of the test results to forensic protocols with regard to a person's transferable skills and ability to return to work. Rick administered a number of vocational and physical tests: whole body range of motion, upper extremity range of motion, 20–minute standing test, dynamic physical capacities test, and dynamometer strength test, as well as two written tests: an eight-part aptitude test, and an independent problem solving test. The evaluation protocol used sterilized work samples that replicated real, simulated work; anything less than that would turn the evaluation into an assessment, which is a lesser process than a work evaluation, according to Rick. Rick also explained that his evaluation does not compare individuals to other people of the same age and gender, but rather measures them by their own function and physical ability to work. The entire evaluation takes six hours, and includes his own clinical observation of a person's work behavior, traits, and physical functioning with regard to various movements.
Prior to the testing, Claimant made complaints of mild-to-moderate pain in the cervical and lumbar spine, but no acute distress, although he noted that Claimant had difficulty sitting for the 75–minute interview and often shifted in the chair. Rick took an opinion survey of Claimant's work values and concluded that Claimant is a practical individual who values clear-cut activities, likes to work without direct supervision, and likes to see the concrete results of his work. Rick stated that these work values are consistent with Claimant's work history, and relate to the field of “skill technology”, that is, working with his hands, which comprises the majority of his work history.
The first physical test, whole body range of motion, lasted 21 minutes and involved simulation of a light duty job, including forward reaching, bending, and reaching for items overhead. Rick noted that Claimant avoided looking up and, instead, kept his head in a neutral position. Claimant could bend at the waist for short periods of time, and stood on his toes to limit the extent to which he needed to forward reach. Claimant's score met or exceeded the industrial standards, although he reported increased pain in the cervical and lumbar spine, as well as numbness and tingling in his hands. The cervical and lumbar complaints increased while reaching overhead, and decreased with work below waist level.
The second physical test, upper extremity range of motion, lasted 30 minutes and involved both standing at a workstation and bending forward at the waist. Rick testified that Claimant would support himself on the table with the hand not in use, and he occasionally paused to arch his back and neck, although he maintained an erect posture most of the time. Claimant continued to report pain in the neck and lower back that reached a severe level, as well as continued numbness, tingling, and a burning sensation in his hands. Claimant was below the industrial standards for this test.
Rick explained the concept behind a person being at, above, or below the industrial standards by noting that MTM norms measure how long it takes an average person to do an average job and meet the standards for accuracy and time. In Claimant's evaluation, he met or exceeded the standard for the first test, but was below the standard on the second. Rick testified that Claimant began to show a pattern of decreased work tolerance over the course of the evaluation.
While Rick did not explain this acronym during his testimony, “MTM” appears to refer to “methods-time measurement”.
The third physical test, the 20–minute standing test, again resulted in Claimant scoring below the industrial standard. Rick testified that Claimant typically kept a balanced posture but occasionally had to shift to his left leg, which is a typical pain behavior sign in body posturing. The test also required cervical flexion, and Claimant occasionally looked up, another typical pain behavior sign. After standing, Claimant had the same complaints of pain as before, as well as soreness in his left knee. Rick measured Claimant's work output at five-minute intervals as a validity check, and noted that Claimant had a slight and expected increase in productivity. Rick feels that the test was a valid representation of Claimant's future employability.
The next test was the eight-part aptitude test, with each part timed for five minutes. The scores were compared to people with similar educational levels; Claimant has a General Education Diploma (“GED”), and so he was scored against other high school graduates. Claimant had five average to above average scores and three below average scores, placing him at the 40th percentile. Rick testified that this showed an average vocational aptitude. Claimant's strengths include mechanical reasoning, while his weaknesses include perception speed and accuracy, which relates to clerical work. Claimant also reported pain after use of his right hand for 45 minutes.
The next test was independent problem solving, which is a data analysis test that was performed in a seated position. Claimant demonstrated average learning in this test, and was able to sit for 15 to 18 minutes without movement. Claimant's decision-making skills were somewhat slow. Rick testified that Claimant became irritated by increasing numbness in his right hand. Overall, Claimant had below standard results in this test.
The next test was the dynamic physical capacities test, which tested both static and dynamic lifting. Claimant completed three-minute strength tests lifting 5 to 10 pound bins and 15 to 20 pound bins, and met the industrial standard. Claimant exhibited full range of motion in this work, and his body movements were spontaneous. He was able to both stoop and crouch, and his gait was at a normal pace. The 20–minute endurance test, however, caused increased complaints of pain. In demonstrating proper lifting techniques, Claimant held weight close to him at times and also held his breath at times. He passed both tests, however, but continued to report cervical and lumbar complaints as well as burning in his right hand. Claimant also passed tests measuring both cardio and work output.
The final test, dynamometer strength testing, involved testing grip strength, lift strength, and pushing and pulling. With regard to grip strength, Claimant was 25% weaker in his left hand than his right hand, and was in the 50th percentile for right hand strength and 25th percentile for left hand strength, as compared to other men his age. Rick noted that the decreased grip strength was consistent with notations in the medical records. He also noted that there is typically a 10% variation for the dominant side, and that is built into the data. The difference here is consistent with what is noted in the medical records, but Rick could not ascribe a particular cause. With regard to lift strength, Claimant was able and willing to apply lifting strength at the knees and above, although the trials were followed by complaints of increased pain. Claimant also mentioned continuing numbness and tingling in his hand, as well as lightheadedness for the first time. Rick testified that this was also consistent with the doctor's notes on how Claimant is affected by neck movements. During the pushing part of this final test, Rick noted that he could hear an audible popping sound in Claimant's left elbow.
Rick also performed a validity check as part of the evaluation, and testified that Claimant passed 19 of 24 consistency markers, that is, 19 of 24 were in acceptable range of variation, so Claimant's validity rate for the testing was about 80%.
Rick's conclusion from the testing was that Claimant has functional, positional, and durational limitations as a worker. Claimant can meet industrial standards for short periods of time, but over a prolonged basis and when shifting into different positions, his functional status will begin to decrease. Additionally, Claimant has problems staying seated for more than 30 minutes at a time. Rick concluded that Claimant has the tolerance to perform some light duty work for a brief period of time, but not all of his work will be at the industrial standard. Claimant is specifically precluded from heavy or medium duty work.
Rick continued and testified that Claimant is limited in the types of jobs he can access now. Prior to the July 2, 1999 injury, Claimant's transferable skills would have provided him access to 75 job titles. In limiting that list to light duty jobs, only 20 possible job titles remain, the majority of which are in the construction industry, steel industry, and forestry, which are ambitious work environments that preclude Claimant entirely because of his disabilities. Rick testified that Claimant is basically at the level of an unskilled worker who can access any job that does not require training or experience. Claimant is not suited for clerical work because he is a hands-on worker who does not value working at an office or a desk; Rick testified that such a position would cause problems for Claimant. Moreover, Rick testified that the conventional wisdom is that Claimant is at an “advanced age” at 51 years old, with his employability linked to his prior work experience, jobs that Claimant can no longer perform. Claimant has the functional capacity to do modified light duty work, but he cannot be expected to take a job that requires him to stand for eight hours a day. Additionally, any job with frequent movement would be difficult for Claimant because of the issues in moving his neck and back, as well as the feelings Claimant experiences in his extremities.
With respect to Claimant's position in the job market, Rick went on to explain that workers at Claimant's age have reduced employment rates, particularly after an absence from the job market, and also that individuals with permanent, partial disabilities and individuals over 50 years old face longer periods of unemployment. Rick also testified that people in Claimant's situation often end up being offered part-time, not full-time, employment. It was an advisable move for Claimant to seek work through staffing agencies, as he did in Baltimore, as such opportunities assist in reentering the job market and can often lead to an offer of permanent employment. Claimant, however, has a GED and average aptitudes, and would not be well-suited to attend college because he has no intrinsic motivation to read books or study. Given Claimant's age, background, and work personality, Rick would not support the decision for Claimant to go to college. Rick testified that Claimant could learn new skills, but it was not likely. Because Claimant's existing skill set in heavy industry is depleted due to his injuries, he has essentially no transferable skills. Rick came up with a total of eight job titles in which Claimant is employable: light office cleaner, maintenance helper, machine operator, light driver, salesperson, parking lot attendant, hand packer, and order filler. The entry level wage estimates for those seven jobs titles in Western New York is $8.30 per hour, which Rick testified is Claimant's post-injury wage earning capacity.
With regard to Claimant's work life expectancy, Rick testified that there was no reason to think that Claimant could not continue working until age 67, and also that Claimant will likely need to work longer than most people because he has no pension or union benefits to help him into retirement. Rick also testified, however, that he believed that Claimant would be active in the job market until age 64. Within this work life time frame, Claimant could be expected to a 66 2/3% vocational impairment rating, meaning that he has a work disability that will prevent him from engaging in the job market for more than one-third of the next 13 years. Rick testified that, because the jobs that will be available to Claimant will be largely part-time jobs, Claimant may only have 4.25 years of full labor market participation out of the next 13 years, even if he works for 8.5 of those 13 years. Rick attributed this partially to Claimant, and partially to the job market; if Claimant were younger, better educated, had transferable skills, had a correctable disability, and no progressive condition, Rick's opinion would be different. Rick noted that Claimants pre-incarceration work history was sporadic, so even then you may not expect Claimant to be fully engaged in the job market going forward. Claimant, however, addressed his mental health problems in prison, which would increase his employability and participation in the job market. Rick testified that Claimant would likely have a similar level of labor force participation anyway, irrespective of the injury. Rick estimated that Claimant's pre-injury wage earning capacity was $15.38 hour in the job titles within which he worked, based on 2011 wages.
In conclusion, Rick testified that Claimant's ability to gain and retain employment has been negatively affected by his injuries sustained in the July 2, 1999 accident.
Rick also testified with regard to Peter Capotosto's report. Initially, Rick noted that Capotosto performed a vocational assessment, not a vocational evaluation, and so his report includes no functional capacity or work testing. Rick did not believe that Capotosto gave full credit to the opinions of Claimant's treating doctors, and was of the opinion that Capotosto's report had glaring forensic deficits, in that there was no transferable skill analysis and no foundation to find jobs that are similar or consistent with Claimant's functional skill levels. Rick noted that Claimant has always returned to the same types of jobs he has always had, even with his injuries, and he should be expected to continue that way in the future because Claimant's habits will not change. Additionally, the jobs that Capotosto came up with include some medium and heavy duty jobs, which Claimant is not permitted to do. Rick noted that one of the jobs listed in Capotosto's report would require one or two years of training, and that others are not available in sufficient quantities. While he conceded that it is possible that Claimant could access and perform well in these jobs, it is not likely. With regard specifically to the computer technology field, Rick believed that Claimant could be taught basic aspects of the field but that he would struggle functionally. Overall, Rick opined that Capotosto's report was based on an optimistic view that people can be retrained when, in reality, the success rate for retraining individuals is only 20%.
Finally, Rick testified that he researched the cost of a possible future anterior or posterior neck fusion, which is between $16,600 and $24,400 at Strong, or between $19,100 and $42,600 at Rochester General Hospital ( see Exhibit 28, at 3).
On cross-examination, Rick testified that he was aware of Claimant's various injuries subsequent to the July 2, 1999 accident, but was not aware of Claimant's lower back injury at Chautauqua Brick in 2002. Crucially, Rick stated that he cannot parse the effect of each subsequent injury on Claimant's current function as he is not qualified to ascribe limitations to each of those subsequent injuries.
Rick testified that he considered Claimant's status as a convicted felon in coming to his conclusions, and stated that the presence of a felony on his record would not reduce Claimant's ability to work, although it does limit the types of jobs that would be available to him; Claimant would not get hired as a banker, for example. Rick also analyzed Claimant's work history prior to prison and noted that he did have a sporadic work history, but also that Claimant never showed any interest in going to college or working in an office. The jobs that Claimant held prior to his incarceration were almost exclusively hands-on jobs. With regard to Claimant's wage earning capacity, Rick acknowledged that none of Claimant's pre-incarceration jobs reached $15.00 per hour, but noted that was over 12 years ago. As far as Claimant's post-incarceration/post-accident jobs, he earned as much as approximately $13.00 per hour, which Rick believed to be comparable to $15.00 per hour now, based on wage statistics compiled by the Department of Labor.
Rick testified that he did not make any presumptions with regard to Claimant's truthfulness in the answers that he gave at the evaluation; rather, he measured for consistency and found that Claimant met the standards for consistency as compared to the records he reviewed.
Claimant's next witness was his retained economic expert, Ronald Reiber, Ph.D, who testified about Claimant's past and future economic losses. The information cited by Dr. Reiber was provided to him by Claimant's counsel, and included Claimant's date of birth, the date of the injury, his income earned since being released from prison, and the results of Rick's evaluation. Dr. Reiber calculated a period of past lost wages from Claimant's release from prison on July 6, 2000, a time at which Claimant was still recovering from his fusion surgery, until November 2001, when Claimant went to work at Chautauqua Brick. The total economic loss for that period was calculated to be $16,864, using an hourly wage of $6.50 per hour, which was Claimant's wage when he went back to work in November 2001. The total figure also included a reduction of 6% to account for possible unemployment during that period of time. Dr. Reiber testified that Claimant sustained no economic loss from November 2001 until September 2011 because he was working during that period of time, with an approximate hourly wage of $12.50. Claimant then sustained another period of past economic loss from September 2011 until the present time, and Dr. Reiber calculated that loss to be $7,031, for a total past economic loss of $23,895.
Using numbers gleaned from Rick's report, Dr. Reiber testified that Claimant's future hourly wage if not injured would have been $15.38 per hour. He believed that this number was reliable because it did not rely upon Claimant's income earned while injured. In determining Claimant's future economic loss, Dr. Reiber also relied upon the residual wage earning capacity of $8.30 per hour that Rick included in his report, as well as Rick's conclusion that Claimant would lose two-thirds of his future work life as a result of the July 2, 1999 injury. Assuming 2.5% inflation of the $15.38 figure, and also including a reduction of 6% for potential periods of unemployment, Dr. Reiber concluded that Claimant would lose future wages of $326,820 if he worked until age 62, $507,379 if he worked until age 67, and $626,912 if he worked until age 70.
Dr. Reiber also testified as to Claimant's expected future medical expenses, which he based entirely on information provided by Claimant's counsel. He did not independently verify any of the information provided to him. Claimant is currently 51 years old, and Dr. Reiber assumed a life expectancy to 77 years old, an inflation rate of 4% for medical costs, based on the Consumer Price Index (“CPI”), and an inflation rate of 2.5% for Claimant's over-the-counter medicines, also based on the CPI. The total estimate for Claimant's future medical expenses is $582,930. Dr. Reiber additionally noted that his analysis is laid out in an item-by-item manner, so that any future medical expenses that are not testified to can be stricken from his conclusion.
On cross-examination, Dr. Reiber testified that, if any of Claimant's economic loss or future medical expenses can be attributed to other injuries, it would not change his calculations in any way and would merely suggest that the losses should possibly be chalked up, in whole or in part, to those other injuries. Upon my own questioning, Dr. Reiber testified that it would be difficult to parse out certain costs from his future medical expense analysis if those expenses were made unnecessary, by surgery or for any other reason.
Seth M. Zeidman, M.D., who is one of Claimant's treating physicians, testified that he first saw Claimant on December 23, 1999 at the neurosurgery clinic at Strong. He did not recall receiving any history of the accident from Claimant at that first visit, but testified that Claimant complained of left arm and hand pain, weakness, and numbness that began in July 1999. The pain was described as severe and was exacerbated when Claimant moved his neck. Dr. Zeidman also noted numbness in the C6 distribution and weakness in the C6/7 distribution, which comes from the root of the neck and down the arm to parts of the hand. Dr. Zeidman's physical examination revealed some slight weakness of the left biceps and triceps muscles. Claimant's symptoms were consistent with either compression of or injury to a nerve in the spine, and Dr. Zeidman concluded that Claimant had disc herniation at the C5/6 and C6/7 levels. There is no indication in his report if he reviewed any diagnostic studies prior to making this conclusion, but he believed that his conclusion was based in part on Claimant's MRI of September 18, 1999. Dr. Zeidman concluded that Claimant required ACDF surgery at the C5/6 and C6/7 levels. That surgery was performed on May 5, 2000. The discs at C5/6 and C6/7 were removed, a bone spacer was placed in that area, and a metal plate installed in front. Dr. Zeidman testified that Claimant lost some flexibility in the neck as a result of the surgery, and also that fusion surgery would place additional stress on the levels adjacent to the fused area.
Dr. Zeidman's testimony was taken on December 15, 2011, prior to trial. A DVD of Dr. Zeidman's testimony was viewed and admitted into evidence as Exhibit 23, and a transcript of Dr. Zeidman's testimony was admitted into evidence as Exhibit 24.
Dr. Zeidman next saw Claimant in July 2000, at which time he found that Claimant's radiculopathy had resolved and the numbness was in decline. He believed that he also ordered x-rays at the time, and the results of the subsequent July 31, 2000 study showed satisfactory findings post-surgery.
Dr. Zeidman saw Claimant for a second follow-up on November 2, 2000, at which time he found that Claimant had no left arm pain and his numbness was resolving, although Claimant reported some posterior neck pain radiating down the right arm to his elbow and anterior pain radiating to the third, fourth, and fifth digits on the right hand. Dr. Zeidman testified that those symptoms could indicate “a number of things” (Exhibit 24, page 22, lines 22–23). Dr. Zeidman also ordered additional diagnostic studies, which he testified showed “excellent fusion” (Exhibit 24, page 23, lines 2–6).
Claimant's next follow-up visit was on February 1, 2001. Dr. Zeidman testified that Claimant was doing well, with none of his pre-operative pain, renewed hand strength, and a steady gait. The only issue reported was some numbness in the fourth and fifth digits in Claimant's right hand. Other than that, however, there were no findings of any significance. Dr. Zeidman testified that, because he was still in the healing process, Claimant was restricted to no lifting greater than eight pounds, and no bending or pulling. A subsequent x-ray, taken on May 3, 2001, showed that Claimant was having a regular recovery from the fusion surgery.
Claimant's next follow-up visit was on September 11, 2001, at which time he reported aching pain between his shoulder blades, some numbness and tingling in his right small finger, no weakness, and, for the first time, he reported some lower back pain. Dr. Zeidman also noted some decrease in Claimant's range of motion, which he testified is usual in this type of surgery. Claimant's lower back pain was described as “constant aching pain across the low back [that], radiates into the buttocks” (Exhibit 24, page 26, lines 3–4). Dr. Zeidman testified that it could indicate damage to the lumbar spine, but not necessarily. The distribution of numbness and burning reported by Claimant with regard to his lower back pain was confined to upper parts of the legs, above the knees. Dr. Zeidman testified that these symptoms could indicate some nerve involvement, so he ordered x-rays of the lumbar spine as well as an MRI. The findings of those studies appeared to show a tear in the L5/S1 disc. Dr. Zeidman was concerned about new radicular symptoms, so he recommended that Claimant have both an EMG and nerve conduction studies. Dr. Zeidman did not have the results of those studies indicated in his notes.
Claimant's next follow-up visit was on November 13, 2001, at which time he reported pain in the upper thoracic spine. Dr. Zeidman cleared him to return to work at this visit, as Claimant reported no significant pain and was off of all of his pain medications.
Dr. Zeidman next saw Claimant on February 21, 2002, at which time he reviewed an MRI from January 2002 that showed disc protrusion at L5/S1 with an annular tear and multiple right paracentral disc protrusions in the thoracic spine. He testified that an annular tear could have caused the symptoms that Claimant described in the September 11, 2001 visit, but that it was not necessarily consistent with the symptoms that Claimant reported. As Dr. Zeidman did not receive a history of the accident from Claimant during the course of treating Claimant, Claimant's counsel then asked, using a hypothetical question, if the annular tear could have been caused by a fall matching in great part the description of the July 2, 1999 accident. Dr. Zeidman responded that “anything could cause an annular tear of the disc”, including the type of fall described to him in the hypothetical question (Exhibit 24, page 29, lines 6–7). With regard to the herniated discs in Claimant's cervical spine, and again posing the question in the form of a hypothetical, Dr. Zeidman testified that, if Claimant had none of those symptoms in his neck prior to the fall described by Claimant's counsel, that fall could be the cause of the herniated discs in his neck. He hedged in his answer, however, saying that “it's sort of like a tautology because it says that if you assume that this is the only thing, it's the only thing, I guess I could say yes” (Exhibit 24, page 32, lines 23–25). Dr. Zeidman went on to say that the fall, as described to him by Claimant's counsel, certainly could cause a man of Claimant's size to experience herniated discs in the cervical spine. Ultimately, however, Dr. Zeidman testified that he could not form an opinion if the described fall was a substantial cause of Claimant's herniated discs based on the hypothetical given by Claimant's counsel, because it was not the history that he received from Claimant. Dr. Zeidman went on to say that he did not know if he could say that, had Claimant provided the history that Claimant's counsel described as a hypothetical, he could form an opinion on whether that fall was a substantial cause of Claimant's herniated discs.
Dr. Zeidman next saw Claimant in January 2008, at which time Claimant reported some pain in his neck, but had good strength and sensation. Claimant also displayed some spondylosis at the C3/4, C5/6, and C6/7 levels of the cervical spine, which indicates deterioration of the condition of the neck. Dr. Zeidman explained that, while arthritis is common in areas immediately above and below a fusion, the arthritis here is in other places as well. He ordered a CT myelogram of the cervical spine, which involves a puncture in the thecal sac in the lumbar spine, injecting dye, and running it up the neck. Dr. Zeidman testified that this procedure can be painful to a patient, and the dye could be irritating for a day or two. The myelogram revealed a little bit of bone spurring, but the fusion looked great and otherwise excellent.
Claimant's next visit was on August 18, 2011, at which time he was still having some trouble with pain in the cervical spine, some pain going into his hand, some weakness and loss of grip strength in the right hand, limited range of motion in his neck, and reported back pain and pain and weakness into the back of his thighs. Claimant told Dr. Zeidman that his work with heavy machinery and using fork lifts aggravated his pain. He also reported anxiety, depression, and sleep pattern disturbance, which Dr. Zeidman stated is not necessarily common with the types of injuries sustained by Claimant. Objectively, Claimant displayed moderately limited range of motion in the neck, and decreased sensation to light touch and pinprick in the anterior portion of his bilateral thighs. Dr. Zeidman testified that it was unlikely that these symptoms had anything to do with the annular tear and disc protrusion; rather, they could be caused by “a number of things” (Exhibit 24, page 45, lines 11–12). Claimant also walked with a slightly antalgic gait, which indicates some pain in walking or walking with pain. Dr. Zeidman recommended no lifting over 20 pounds, and for Claimant to limit lifting, bending, twisting to no more than 20 minutes at a time. They also discussed vocational retraining at this time because Claimant's job at that time was exacerbating his pain.
Claimant's last visit with Dr. Zeidman was on October 6, 2011, at which time Claimant reported increasing pain, as well as numbness in the anterior portion of his thighs.
Claimant's counsel once again posed a lengthy hypothetical based in sum and substance on the July 2, 1999 accident and, assuming that hypothetical as true, Dr. Zeidman opined to a reasonable degree of medical certainty that it was a substantial contributing factor in bringing about the cervical spine condition with which Claimant presented to him on December 23, 1999. Assuming that Claimant had no prior symptoms involving the lumbar spine, Dr. Zeidman's opinion was that the same hypothetical fall was also a substantial contributing factor of Claimant's lumbar spine injury. The arthritic changes in Claimant's neck, however, were not likely related because they are located in areas of the cervical spine away from the fusion. Dr. Zeidman testified that the symptomology in Claimant's cervical spine has worsened over time, and there is a 25% chance over ten years that Claimant will require additional cervical spinal surgery. Whether Claimant needs further surgery will be determined by the extent of weakness and neurological defects and, to some extent, Claimant's pain tolerance. While Dr. Zeidman testified that Claimant needs continuing treatment at this time, he failed to specify what treatment Claimant requires. Dr. Zeidman was not specifically aware of the treatment that Claimant received while living in Maryland; he was advised briefly that Claimant received epidural injections, which can be an appropriate treatment for this kind of condition to decrease pain. He did not refer Claimant for pain management and was not aware that Claimant was receiving epidural injections at Strong. Dr. Zeidman testified that he had not prescribed Claimant any medications and was not aware of any medications that Claimant was prescribed while living in Maryland. He further testified that a TENS unit can sometimes be an appropriate treatment for Claimant's cervical spine condition.
With respect to the lumbar spine, Dr. Zeidman testified that the injury to that area is not the type of injury that would make Claimant more susceptible to future injury. Anti-pain medications are not ideal, but they may be helpful for that condition if a person is in pain. Overall, however, he testified that continuous, conservative treatment is preferable.
On cross-examination, Dr. Zeidman testified that he told Claimant to quit smoking at the time that he scheduled the fusion surgery, because quitting smoking would facilitate the healing process. In any event, Claimant had a “fairly uneventful recovery” after the fusion (Exhibit 24, page 66, lines 18–19). Dr. Zeidman did not follow-up with Claimant's treatment while he lived in Maryland, and he did not believe that he was aware of Claimant's subsequent accidents after he was released from prison.
With respect to his August 18, 2011 discussion with Claimant about pursuing VESID retraining, Dr. Zeidman testified that Claimant appeared to be uninterested in pursuing VESID retraining because he was happy with the job that he had at that time. He believes, however, that Claimant would benefit from VESID retraining and that it would be in Claimant's best interest to pursue VESID retraining.
Dr. Zeidman also testified that his recommendation for a lifting restriction of 20 pounds was a general recommendation for someone with disc degeneration in the cervical and lumbar spine, and it was not specific to Claimant. He would defer to a vocational expert's opinion with respect to any restrictions.
Finally, Dr. Zeidman conceded that he could not say with any reasonable degree of medical certainty as to what caused Claimant's injuries to the cervical and lumbar spine.
Defendant's first witness was Peter Capotosto, its retained vocational rehabilitation expert. Capotosto performed a vocational evaluation of Claimant on January 19, 2012. In preparation for the evaluation, he reviewed medical records, independent medical examination reports, Workers' Compensation reports, Social Security Administration reports, employment records, income tax records, deposition transcripts, Rick's report, and Dr. Reiber's report. The evaluation took approximately four hours. Capotosto's report was admitted into evidence as Exhibit D.
Capotosto received an educational history from Claimant, which included the facts that his last completed year of school was 10th grade, but he successfully achieved his GED on his first attempt. Claimant's employment history, both before and after prison, consisted primarily of manual labor jobs; lots of fork lift operation, factory work, stock clerk, construction labor, bartending, food prep, and similar jobs. Claimant was also self-employed for three years, performing computer installation and repair services, and billing and accounting services. Claimant's criminal history included a felony assault conviction in the early 1980s, his felony DWI conviction in 1998, which led to his incarceration at Groveland, and other, shorter periods of incarceration as well. Claimant's current disability was also discussed, including the persistent pain in his neck that goes down his left arm, persistent pain in his lower back that travels to both knees, vertigo, and intermittent numbness and tingling in his hands, primarily on the left side.
Capotosto administered two tests to Claimant: the Wide Range Achievement Test (“WRAT”), which measures a subject's current academic achievement level in four core areas—word reading, sentence comprehension, spelling, and math computation; and the World of Work Inventory (“WOWI”), which covers three areas—vocational interest, vocational training potential, and job satisfaction indicators.
With respect to vocational interest, the results indicated that Claimant's primary interests are consistent with the manual labor tasks that he did throughout much of his employment history to this point.
With respect to vocational training, Capotosto testified that the testing covers a number of areas pertaining to vocational aptitudes and gives an indication of an individual's training potential. Those scores are then compared to others of similar age and similar level of formal education. Claimant's verbal ability score was in the low average range, as compared to others with 12 years education, and consistent with his language-based scores from the WRAT, which showed a word reading grade level equivalence of 11.9, 9 .6 for spelling, and reading comprehension of above 12.9. This says to him that, while Claimant had a low average score, Claimant is very close to the 12th grade level for reading, sentence comprehension, and language. Capotosto testified that this is a good indication for Claimant to improve his language-based skills with some remedial training.
The vocational training portion of the WOWI also measured overall reasoning abilities, meaning Claimant's ability to do sophisticated problem solving. This provides a good indication of someone's ability to learn new information from formal classroom training as well as more concrete information through on-the-job training. Claimant scored in the high average range on this portion of the test, which indicates that he has a very good aptitude for innate reasoning skills, information processing ability, and problem solving ability. Capotosto testified that this suggests that Claimant has a higher than average capacity to figure things out and learn new information both from formal instruction and on-the-job training.
The WOWI also includes spatial form testing, which measures a person's aptitude to visualize objects in three dimensions; that is, their ability to approach a task and visualize in their mind how it should look and how to complete the project. Claimant again had a high average score, which indicates that he has good aptitude for his ability to do tasks that require a good eye and to form a three dimensional picture.
Capotosto also tested Claimant's mechanical and electrical task aptitude, which measures a person's aptitude for comprehending concepts that are mechanical and technical in nature. Once again, Claimant scored in the high average range, indicating that he has higher than average aptitude to be able to understand and comprehend mechanically-oriented concepts. Capotosto testified that, in concert with the other scores, Claimant showed very good indication for favorable vocational training potential.
The third area of the WOWI, job satisfaction indicators, involves an individual identifying worker traits that they would value in describing their own nature as a worker. Capotosto testified that Claimant's responses indicated that he would prefer a job where he has a good and clear understanding of his duties, and that the duties are consistent from day-to-day, although he would not mind some variety on occasion. Claimant dislikes working under direct supervision and values autonomy in carrying out his duties. He enjoys working independently and using his own intuition in deciding how best to carry out his job duties, and is willing to accept responsibility for things that go or don't go well. Capotosto testified that Claimant scored neutral with respect to having a job with or around other people, meaning he has no preference for a job involving constant interaction with others or a job where he is primarily alone.
Capotosto testified that he did not employ simulated work exercises as part of his evaluation, and that he relied upon the information in the medical records to derive information on Claimant's physical and functional abilities.
In Capotosto's professional opinion, and based on the records he reviewed, the vocational evaluation, and his own professional experience as a vocational rehabilitation counselor, Claimant is employable on a full-time basis in jobs that are sedentary, light duty, or limited medium duty. Claimant can enhance his employment prospects through vocational rehabilitation or making use of other available employment services. Claimant's felony conviction could affect his job prospects, but should not preclude him from employment. Capotosto testified that there are ways to soften the impact of a felony conviction, such as a Certificate of Relief from Disabilities that Claimant can apply for, or agencies that are specifically developed to assist ex-offenders in reentering the workplace.
In addition to the above manual labor, Capotosto opined that Claimant is also capable of performing non-manual labor intensive jobs dealing with information and data. This would necessitate getting involved with some sort of continuing educational training and/or taking courses on record keeping, customer service, math, business procedures, or computers. Capotosto noted that Claimant had previously expressed interest in pursuing computer technology training, and that he would be a good candidate for that type of work. Capotosto also noted that Claimant had previously applied for jobs in customer service. Additionally, Capotosto noted that numerous sources, including adult education and community college courses, were available to Claimant to assist him in finding less strenuous work.
As part of his report, Capotosto generated a list of jobs in which Claimant could be employable: electronics assembly, soldering technician, service vehicle dispatcher, packing machine operator, computer, numerically controlled-operator, medical equipment preparer, dental lab technician, shipping/receiving clerk, billing clerk, procurement clerk, order clerk, and courier. Capotosto also testified that, if Claimant was interested in pursuing computer technology training, he could do that as well. Capotosto calculated the entry level wage earning capacity for these jobs categories in Baltimore County, where Claimant lived at the time, at $12.79 per hour, with a potential of increasing to $18.60 per hour once Claimant gained experience or established himself in one of those jobs.
Capotosto disagreed with Rick's report and the residual earning capacity of $8.60 per hour, on the basis that he believes Claimant to be a bright and capable individual who is capable of performing work and acquiring skills to perform work that goes beyond minimum wage, entry level work.
Capotosto also testified that his opinion is based on how Claimant presents today, and he did not parse out the effects of Claimant's subsequent accidents on his overall condition.
On cross-examination, Capotosto testified that the success rate for people who go through vocational retraining was 35%, not 20%, but that even the former number failed to take into account the fact that many people are compelled to enter such programs for various reasons, and that the success rate is higher for those who take an active role in the vocational rehabilitation process. He stated that motivation is the number one factor in successful vocational rehabilitation or retraining.
Capotosto disagreed that Claimant's aptitudes were limited to manual labor, despite the fact that his work history was primarily limited to manual labor. The fact that Claimant completed a one-year independent study program to receive his fork lift operator certification, which involved reading and comprehension, showed that he could perform academically-oriented work. Also, Claimant's test results show that he has good aptitude for computer testing. Capotosto referred specifically to his reading and math scores, which were high enough to suggest computer training was possible. Capotosto also referred to Claimant's abstraction score, because it specifically addresses an individual's ability to think in logical, sequential terms, which is consistent with aptitude applicable to computer training.
Capotosto conceded that a medium duty job could include jobs that required an employee to lift up to 50 pounds occasionally, but that this was a general range, not a requirement specific to every job within the category. There are other jobs in the medium duty category that may not require such lifting, and Capotosto testified that he performed a job search in Baltimore County that revealed many such jobs available within Claimant's limitations. Capotosto continued that job descriptions are accurate to a point, but that it is not possible to create one standard description that covers every possible job within a job title; the scope and breadth of jobs within a general category can vary.
With respect to the numbness in Claimant's hands and fingers, Capotosto testified that he did not consider those within Claimant's impairments because there was no reference to any such issue in the medical records.
Defendant's next witness was its retained medical expert, P. William Haake, M.D. Dr. Haake is an orthopaedic surgeon who specializes in spine surgery; he performed an independent medical examination of Claimant on June 20, 2011. As part of the examination, Dr. Haake reviewed Claimant's medical records from both before and after the accident, as well as a number of diagnostic films. Dr. Haake was also aware of Claimant's multiple subsequent injuries. At the examination, Dr. Haake took a history of Claimant's injuries and the July 2, 1999 accident at Groveland. Claimant complained at that time of “soreness in the back, but no real back pain” (Trial Recording of March 8, 2012, at 11:55:50 a.m.). Dr. Haake testified that Claimant informed him that he has lower back symptoms that were not related to the 1999 injury, and that the only related injuries were his neck, left arm, and knee.
Dr. Haake performed a review of Claimant's body symptoms, which revealed some gastrointestinal symptoms, as well as the fact that Claimant occasionally has severe headaches. Claimant also acknowledged that he still smoked at least one-half of a pack of cigarettes every day. The physical examination of Claimant revealed that he had limited range of motion in the cervical spine with complaints of pain in the base of the neck. Claimant's range of motion in the shoulders was normal, although he complained of some back pain upon forward elevation. Claimant also exhibited full range of motion in the elbows and knees, and almost completely full range of motion in the lumbar spine with only minor complaints of pain and soreness. Sensation in the upper extremities was within normal limits at the shoulder and upper arm, but there was hypesthesia in the left thumb, long finger, and ring finger, as well as the right little finger. Claimant also reported burning in the left little finger. Dr. Haake also noted hypesthesia in both thighs from below the inguinal ligament to above the knees.
Dr. Haake opined, to a reasonable degree of medical certainty, that Claimant's lower back problems are unrelated to the July 2, 1999 accident. Claimant made no complaints of any lower back issues until more than a year after the accident, and there are multiple places in the record where Claimant avers that his lower back issues were not related to the accident. Dr. Haake further opined that Claimant's erectile dysfunction, lumbar spondylosis, and left shoulder injury are all unrelated to the July 2, 1999 accident.
Dr. Haake further opined, to a reasonable degree of medical certainty, that the July 2, 1999 accident caused Claimant to sustain a mild disability of the neck, that Claimant is capable of performing work that does not involve lifting of more than approximately 25 to 35 pounds, and that the progression of the disease to the adjacent levels of the cervical spine will require further care and may someday require further surgery. Dr. Haake also opined that Claimant's left ulnar neuropathy is related to the July 2, 1999 accident, and that Claimant may have carotid artery instability related to the fusion surgery, but that confirmation of that would require further studies by a vascular surgeon.
On cross-examination, Dr. Haake explained that the numbness in Claimant's thighs is caused by the lateral femoral cutaneous nerve, which comes out below the inguinal ligament at the anterior superior iliac spine in the front of the pelvis and serves the anterior part of the thighs down to the knees. Upon further questioning from Claimant's counsel, Dr. Haake disagreed with the proposition that, if Claimant had not experienced these symptoms prior to the fall but began to experience them after the fall, then the fall was the most probable cause of those symptoms. Dr. Haake's basis for this opinion is that the lateral femoral cutaneous nerve is an anterior-directed nerve that comes out of the solar plexus, and so striking his back and head would not cause injury to that nerve. Even assuming that Claimant was struck in the mid-back, Dr. Haake testified that the symptoms in Claimant's thighs involve an anterior nerve protected by the abdominal area, so it was difficult for him to understand how that accident could cause the particular injury. Dr. Haake testified that anything is possible, but it was not probable in this instance; he put the odds at a little more than unlikely. Dr. Haake did eventually concede, however, that it was plausible that the fall could have caused the condition to become symptomatic if it was previously asymptomatic.
With respect to any possible cartoid artery instability, Dr. Haake testified that it could have been caused by the anterior approach to the cervical fusion, but it could also be caused by atherosclerosis, which is the common cause for that problem. Additional studies would be required, although if Claimant was asymptomatic before the surgery, it would have to have presented right after surgery for it to be associated.
With respect to any adjacent level deterioration in the cervical spine, Dr. Haake testified that it is normal after a spinal fusion but not always present. Here, there is no accelerated deterioration above the C4/5 level, and a film that showed possible deterioration at the C7/T1 level was not adjacent level deterioration but, rather, simply degenerative change. Upon my questioning, Dr. Haake testified that adjacent level deterioration could require further surgery, but there would need to be further studies to determine if the condition was progressive and causing harm to Claimant.
With respect to the hypesthesia of the upper extremities, Dr. Haake testified that it was not necessarily caused by the injury to Claimant's cervical spine and, rather, the little and ring finger are tied to the ulnar nerve in the elbow, and the thumb and index finger are tied to the medial nerve, meaning that Claimant's issues in the left hand could indicate the presence of carpal tunnel syndrome. Dr. Haake did concede, however, that the hypesthesia could be related to the cervical spine injury. He also conceded that Claimant's left elbow surgery may or may not have caused the issues in the left small finger.
Defendant's final witness was Michael J. Wolkoff, Ph.D., who was retained as Defendant's expert economic witness. In preparing his report, Dr. Wolkoff reviewed the reports from Rick, Capotosto, and Dr. Reiber.
Dr. Wolkoff gave no opinion on Claimant's past economic losses, as he believed that the document records were too incomplete to permit him to make a scientific determination.
With respect to Claimant's future economic loss after February 1, 2012, Dr. Wolkoff used the average wage for material handlers in Western New York to set Claimant's pre-injury wage earning capacity at $13.77 per hour, and compared that to Capotosto's determination that Claimant's residual wage earning capacity was $12.79 per hour. Assuming full-time employment until age 63, a working age taken from New York's Pattern Jury Instructions (“PJI”), annual raises of 2.5%, and a 6.4% credit for fringe benefits based on employer FICA contributions, Dr. Wolkoff determined that Claimant would have earned $417,090 if not injured, and $387,406 in his current, injured situation. Accordingly, Dr. Wolkoff determined that Claimant's future economic loss would be $29,684.
On cross-examination, Dr. Wolkoff testified that the $13.77 per hour figure was based simply on one job that Claimant could have performed if he was not injured, and that he was aware that other jobs may pay more money than $13.77 per hour. He agreed that using different jobs with different wages would have changed his calculations. He also testified that he used the numbers provided in Capotosto's report because he did not have Rick's report available to him, only Rick's expert disclosure. He agreed that using Rick's figure for residual wage earning capacity would also change his calculations.
ANALYSIS:
Upon consideration of the testimony presented at trial and the exhibits admitted into evidence, I find that Claimant sustained three compensable injuries in the July 2, 1999 accident at Groveland: an injury to the cervical spine, which later required him to undergo ACDF surgery and causes Claimant pain in his neck and down his left arm; an injury to the left elbow, which also required surgical intervention but has otherwise posed Claimant no significant problems since the surgery; and an injury to the left knee, which appears to have resolved without any surgical intervention and also does not pose Claimant any significant problems. Claimant presented sufficient credible evidence of these three injuries, and he will be entitled to an award of damages for those injuries.
With respect to the alleged lumbar spine injury, however, Claimant failed to provide credible evidence that his current lower back injury and associated symptoms are connected to the July 2, 1999 accident. While Claimant testified that he began to experience symptoms in his lower back, reaching down to his bilateral thighs above the knees, in the wake of his fall out of the prison van, there is nothing in the medical records indicating that he made any complaints or sought any treatment for his lower back until a September 11, 2001 visit with Dr. Zeidman, approximately 27 months after the accident (Exhibit 22, Section 1, at 16). The July 19, 1999 entry from Claimant's medical records at Groveland indicating numbness in both thighs is hardly sufficient to prove that he injured the lumbar spine in the July 2, 1999 accident (Exhibit 22, Section 15, at 25), and other, general complaints of back pain from July and August of 1999 are not specific to the lower back (Exhibit 22, Section 15, at 23, 26).
More crucial to my determination, however, is the fact that not only did Claimant disavow suffering any back injury in the July 2, 1999 accident or at any time prior to 2005 in his own sworn testimony before the Maryland Workers' Compensation Commission on May 18, 2011 (Exhibit X, at 19–20), but his own treating physician and expert medical witness, Dr. Zeidman, could not state with any certainty that Claimant's lumbar spine issues were caused by the July 2, 1999 accident. Rather, because he never actually received a history of the injury from Claimant, Dr. Zeidman equivocated and testified that “anything” could have caused the annular tear at the L5/S1 level of Claimant's spine. Dr. Zeidman even stated on cross-examination that he could not state to a reasonable degree of medical certainty what caused Claimant's lumbar spine injury. Additionally, Dr. Haake, whose testimony I found to be straightforward and exceedingly credible, both testified at trial and noted in his report that Claimant told him that his lower back problems were not caused by the July 2, 1999 accident. Dr. Haake also testified convincingly with respect to the fact that it was highly unlikely that, even if Claimant was struck in the mid-back when he fell from the prison van, such impact could have caused the nerve-related issues in his bilateral thighs down to his knees. Accordingly, I find that Claimant is not entitled to any award for damages for the alleged injury to his lumbar spine.
Thus, having determined the injuries for which Claimant is entitled to compensation, the question now turns to the specific losses that Claimant has suffered. I will start with Claimant's alleged past and future economic losses. With respect to past economic loss, the only evidence offered was that of Claimant's expert witness, Dr. Reiber, who testified that Claimant sustained two periods of past economic loss. The first period was from July 6, 2000, the date that Claimant was released from prison, until he returned to work in November 2001. It was during this time period that Claimant was recovering from his cervical spine fusion, and Dr. Reiber concluded that Claimant lost $16,864 in wages during that period. The second period was from September 2011 until the present time, and Dr. Reiber calculated that loss to be $7,031. As Defendant did not offer any rebuttal to these calculations, and Dr. Reiber's report appears credible on this portion of Claimant's damages, Claimant is awarded a total of $23,895 for his past economic loss.
The question of future economic loss, however, presents a much more difficult proposition. As noted above, subsequent to his July 2, 1999 accident at Groveland, Claimant sustained at least five additional significant injuries that kept him out of work for various amounts of time. While Claimant testified that he was able to return to work at full duty after each of those injuries, and he may well have done so, it does not mean that he did not suffer impairments as a result of each injury. In 2007, Claimant's treating physician found him to have a 52% permanent impairment of the lumbar spine as a result of his work-related accident at Shire Pharmaceuticals (Exhibit J, at 75). In 2008, Claimant's treating physician found him to have a 39% permanent impairment of the left shoulder as a result of his work-related accident at Cinder and Concrete Block (Exhibit K, at 23). In 2009, Claimant's treating physician found him to have a 40% permanent impairment of the right upper extremity as a result of his work-related accident at Safe Zone Highway Solutions. Thomas Rick, whose wage earning capacity calculations provided the basis for Dr. Reiber's determination with respect to Claimant's future economic loss, testified that he did not, and was not qualified to, parse out the effect of those permanent impairments on Claimant's current functional level. Dr. Reiber also testified that, if any of Claimant's future economic loss can be attributed to other injuries, it would not change his calculations in any way but would merely suggest that the losses should possibly be chalked up, in whole or in part, to those other injuries.
In light of the above and for other reasons that will be set forth below, I am not willing to accept Claimant's estimate of his future economic loss. Claimant's retained experts readily admitted at trial that his subsequent injuries were not considered in their analyses. Consequently, I am left with expert reports that attribute all of Claimant's future economic loss to his fall from the prison van at Groveland, despite evidence of subsequent permanent impairments, and no means to calculate what portion of any future economic losses are attributable solely to the subject injury in this claim. Moreover, I find that Thomas Rick's report is overly pessimistic with respect to Claimant's future worklife and employment opportunities, and underestimate Claimant's residual wage earning capacity, which was used as the basis of Dr. Reiber's estimates of Claimant's future economic loss. While Rick suggests that Claimant will only be able to pursue one of a possible seven job titles in the future, is not a good candidate for VESID or other career retraining, and will likely lose two-thirds of his future worklife expectancy, I find that Peter Capotosto's report more accurately reflects Claimant's possibilities for retraining and future employment. Yes, Claimant is 51 years old, a convicted felon, and carrying multiple injuries that will likely prove a hindrance to continuing the sort of heavy, manual labor employment that he has so often sought out. However, I agree with Capotosto's assessment that Claimant is a bright, capable individual who is a good candidate for retraining once he decides to pursue it, and that there are avenues for Claimant to improve his job prospects with respect to his felony conviction. Accordingly, the Court finds that the reports of Capotosto and Dr. Wolkoff paint a far more likely picture of Claimant's future worklife and economic loss than the reports of Rick and Dr. Reiber, and so Claimant is awarded a total of $29,684 for his future economic loss attributable to the injuries sustained in the July 2, 1999 accident.
There is no evidence offered regarding past medical expenses, but Claimant does make a claim for future medical expenses. Dr. Reiber, again relying only upon information provided to him by Claimant's counsel, concluded that Claimant's future medical expenses over the next 26 years would total $582,930. This amount encompasses yearly expenditures for CT spinal ($322,767), follow-ups with a neurosurgeon ($16,838), MRI ($42,096), CT scan ($26,676), myelogram ($36,779), injection ($14,091), x-ray ($22,377), oxycodone ($31,272), Neurontin ($17,080), and over-the-counter medications ($52,954) ( see Exhibit 35, at 4). This analysis did not include the additional cost of a potential future cervical fusion surgery, which Rick estimated to cost between $16,600 and $24,400 at Strong, or between $19,100 and $42,600 at Rochester General Hospital. Defendant did not offer any of its own evidence with regard to the cost of future medical expenses.
Of course, the Court is not bound to accept in its entirety expert testimony that it finds incredible, although uncontradicted ( see Ares v. State of New York, 176 A.D.2d 203,affd80 N.Y.2d 959). The problem here for Claimant is that the record is bereft of any evidence with respect to future medical necessity, aside from the possibility of a future cervical fusion. Claimant's own expert medical witness, Dr. Zeidman, testified that there is a 25% chance over ten years that Claimant will require additional cervical spinal surgery, but otherwise offered nothing with respect to any other medical necessities. Dr. Haake agreed that it is likely, although not definite, that Claimant could require a second cervical fusion. While Dr. Zeidman testified that Claimant requires continuing treatment at this time, he failed to specify what sort of treatment Claimant requires. Dr. Zeidman testified that he was aware that Claimant had received epidural injections, he did not testify that Claimant required these in the future. Dr. Zeidman also testified that he had not prescribed Claimant any medications at this time, and was not aware of any medications that Claimant was prescribed while living in Maryland. There is no testimony that Claimant will require any of the above listed expenses on a yearly basis at the present time or for the next 26 years. Claimant's own testimony with regard to his current medical regimen is not sufficient proof to justify an award of future medical expenses. Accordingly, I find that Claimant is entitled to an award of future medical expenses of $37,500 for the only item for which there was any testimony of medical necessity: potential future cervical fusion surgery.
Finally, I am left with the task of ascribing a dollar value to Claimant's past conscious pain and suffering from the date of the accident through the date of the damages trial, as well as damages for future pain and suffering.
The pain and suffering, both past and future, experienced by Claimant with respect to his left knee and left elbow injuries, appears to be relatively straightforward. Claimant testified that, in the immediate wake of the accident, his knee swelled up and he believed it to be broken. The knee was, in fact, his immediate concern. For weeks after the accident, he had difficulty walking, was placed on bed rest, kept ice on the knee, and took Motrin for the pain. The knee got better over time, and now the only problem Claimant experiences is occasional stiffness if he fails to move it for a long period of time. With regard to the elbow, Claimant experienced pain when touching or moving the elbow, and he eventually had to have surgery to remove a foreign body that was approximately the size of a lima bean. After healing, however, the elbow has mostly been fine, with only the occasional twinge or stiffness. Claimant does not get treatment for either his elbow or his knee, and any problems he might have he addresses with over-the-counter medicines or balms. Claimant's testimony about these comparatively minor injuries is basically supported by his medical records.
The past and future pain and suffering with respect to Claimant's cervical spine injury, however, is a bit more complicated. There is no reason for me to doubt that Claimant's cervical spine injury caused him to experience severe pain in the months following the accident up until the time he had the ACDF surgery performed in May 2000, and that he spent approximately 18 months recovering from that surgery, with his pain and symptomology decreasing all the while, before Dr. Zeidman cleared him to return to work in November 2001. There is also no reason for me to doubt that Claimant had feelings of anxiousness and fear while in prison before the surgery was performed, as someone with such significant pain could be potentially vulnerable to other inmates.
The difficulty here is determining the measure of Claimant's pain and suffering from November 2001 until the time of trial and into the future because, frankly, Claimant is not a particularly credible witness. The record before the Court, as well as Claimant's trial testimony, appears to indicate that Claimant will say whatever is necessary to get whatever it is that he is after. When presented with his job application from Giant Foods, which indicated that he did not have any felony convictions, Claimant stated that he did not type the application, that he might have signed it, and that the indication of no felony convictions was a “deception.” The same indication of no felony convictions on two other job applications was explained away by saying that he “[n]eeded a job”, and that he “wouldn't have gotten a job otherwise.” As noted above, in sworn testimony before the Maryland Workers' Compensation Commission in May 2011 regarding an alleged lower back injury, Claimant testified that he had not sustained any back injuries prior to 2005 and, in particular, he did not injure his back in the subject accident here. Mind you, this damages trial, in which Claimant alleges an injury to his lower back, was pending at the time he testified before the Workers' Compensation Commission. Claimant was also evasive and combative with Defense counsel at times during cross-examination. When Defense counsel asked Claimant if he was convicted of felony DWI in 1998, which is without dispute, Claimant responded by saying “that's what the paper says.”
Clearly he had to know or should have known that the history he created would follow him into the trial of this matter and negatively impact his credibility.
Additionally, it must be taken into account that Claimant contributed to any ongoing pain and suffering that he experienced in the past. Dr. Zeidman testified that, prior to the cervical fusion surgery, he told Claimant that he needed to quit smoking because it would facilitate the healing process. Claimant never stopped smoking, however, and a November 10, 2011 entry from Dr. Zünkeler indicates that Claimant was still being advised of the need to quit smoking because of the adverse effects of smoking on spinal health and bone healing (Exhibit 22, Section 2, at 82).
Also, in determining Claimant's past pain and suffering, his job history after November 2001 must also be considered. Despite the ongoing and progressive pain that Claimant experienced in his neck and down into his left arm, he continued to seek employment performing heavy manual labor, work that he acknowledged would regularly cause him pain and soreness in his neck. He also never bothered to seek out retraining or vocational rehabilitation, even when it was recommended to him by his own treating physician, Dr. Zeidman, because of the toll that heavy duty manual labor took on Claimant's cervical spine.
Despite all of that, however, it is clear to me that Claimant did sustain a significant, progressive, and permanent injury to the cervical spine in his fall on July 2, 1999, and he has experienced a great degree of pain and suffering as a result. The testimony at trial certainly indicates that he was not totally hindered in either his professional or personal life for that entire period of time. Barbara Orlitzky testified that, when she reconnected with Claimant in 2003, they initially had a very active relationship, and did a lot of hiking, bicycling, and walking, as well as a very active sex life. Her testimony suggested that Claimant's physical and mental condition did deteriorate over the course of the following eight years, however, and that this deterioration eventually caused their breakup in November 2011. I have no doubt that Claimant's condition worsened over time, and both Dr. Zeidman and Dr. Haake testified that a cervical fusion was a permanent condition that can and will likely cause deterioration at the adjacent levels, potentially requiring further fusion surgery. Claimant was 51 years old at the time of trial, and the future he faces with regard to his injuries, his employment, and his personal life is quite uncertain, but I do not believe it to be nearly as bleak as it was presented at trial. His life expectancy, pursuant to the PJI, is 25 years. Accordingly, I award Claimant $154,750 for his past pain and suffering. For Claimant's life expectancy of 25 years, I award him the sum of $467,250 for his future pain and suffering.
In making this award for past and future pain and suffering, I must note that Claimant's reliance on three of my own prior decisions is misplaced ( see Schmidt v. State of New York, UID # 2009–013–505, [Ct Cl, Patti, J., Aug. 19, 2009]; Quackenbush v. State of New York, UID # 2003–013–502, [Ct Cl, Patti, J., April 11, 2003]; Montclair v. State of New York, UID # 2001–013–511, [Ct Cl, Patti, J., Oct. 18, 2001] ). While the claimants in each of those three cases did indeed receive far greater awards for their past and future pain and suffering, they also presented to the Court as credible witnesses at their respective trials, and they gave me no reason to doubt their veracity. In the case presently before me, as demonstrated ably by counsel for the Defendant, Claimant's credibility became a critical factor. Clearly the injury to Claimant's neck, left elbow and left knee are direct consequences of his fall on July 2, 1999. The additional injuries he claims are not supported by a fair preponderance of the credible medical evidence before me. Claimant's post imprisonment work record is replete with statements in various forums, and under oath, which are contrary to his testimony before me. Moreover, his attempts to explain his reasoning for these conflicting statements were patently self-serving and vacuous. Additionally, the above-referenced cases were supported by expert medical testimony and evidence that was clear, concise, and complementary to the evidence of pain and suffering offered by the claimants contrary to the record before me.
In summary, based upon a fair preponderance of the credible evidence, the Court finds that Claimant suffered damages on his Claim as follows:
Future Medical costs and expenses: $37,500
Past pain and suffering: $154,750
Future pain and suffering: $467,250
Past lost income: $23,895
Future lost income: $29,684
Total $713,079
Accordingly, Claimant is awarded the sum of $713,079. Claimant is entitled to interest at the rate of 9% per annum from September 27, 2010, the date of the liability decision herein, with interest tolled from September 30, 2011 until March 6, 2012, in accordance with this Court's October 13, 2011 Order. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11–a (2).
Since the amount of future damages exceeds $250,000.00, a structured judgment is required and judgment will be held in abeyance pending a hearing pursuant to CPLR article 50–B. The parties are urged to consult and agree upon the discount rate to be applied and to formulate a structured settlement of their own (CPLR5041[f] ). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, conforming to the requirements of CPLR article 50–B within 45 days of the service of a file-stamped copy of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.
Any and all motions on which the Court may have previously reserved, or which were not previously determined, are hereby denied.