Opinion
CV186079517S
11-21-2019
Katerina Rivera v. Safeco Insurance Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Corradino, Thomas J., J.T.R.
MEMORANDUM OF DECISION
Corradino, Judge.
On October 4, 2016 the plaintiff was involved in an automobile accident in New Haven. Edwin Gonzalez negligently drove into the plaintiff’s travel lane causing her to collide with his car and causing her injury. The vehicle owned by Gonzalez was uninsured. The vehicle operated by the plaintiff was insured under a Safeco Insurance policy which provided coverage in the amount of $50,000 per person and $100,000 per accident. The complaint claims the plaintiff is entitled to recover uninsured motorist benefits under the terms of the policy.
The complaint alleges as a result of the accident, the plaintiff suffered strain and pain to the cervical thoracic lumbar, left shoulder and left wrist area of her body. It also alleges a contusion to the left lateral thigh.
As a result of these injuries the complaint alleges the plaintiff suffered extreme pain, loss of appetite and sleep, anxiety and mental anguish and has been stiff, lame, sick, sore and disabled and unable to continue with her normal daily activities. She continues to have pain from her injuries and most likely will continue to do so for the rest of her life according to the complaint. The complaint also alleges that the plaintiff incurred substantial medical expenses for medical care and "most likely, will continue to do so for the rest of her life."
The insurance policy issued by Safeco provided it would pay the plaintiff all damages that she suffered because of her bodily injuries after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted. The complaint argues the plaintiff is entitled to recover uninsured motorist benefits pursuant to the policy of insurance.
A court trial on this claim for damages was held on September 17, 2019. The court will first discuss and weigh the trial testimony of the plaintiff on direct and upon cross examination. It will then review the medical records comparing them to the trial testimony.
I.
At the time of the incident the plaintiff was working at a car wash and had a side business working with animals; she walked and fed dogs; gave them medication, and gave them company for the owners. Presently she works as a dog groomer for show dogs; taking care of them and walking them.
The plaintiff testified that the Gonzalez vehicle struck the left side of her Jeep Liberty, the driver’s side. She said her car was totaled as a result of the accident. The plaintiff had her seatbelt on and she said the impact "jerked me around" and she "went forward." That is when she said she hit her hand on the steering wheel and her leg hit the door of the car. The day of the accident she had pictures taken which showed swelling on her left arm and leg and swelling of her left hand. She was asked how she felt "immediately" after the accident. She responded my adrenalin was going so I didn’t feel the total feeling of what happened. The next day she went to the doctors and was told she sprained her back a "little bit" and her neck was "a little messed up." She was given a sling and her hand was wrapped. The sling went over the plaintiff’s left shoulder and according to Ms. Rivera it "keeps it stable."
The police who came to the accident scene observed heavy front end damage to the Gonzalez vehicle of the plaintiff’s car. Both vehicles were towed from the scene. The officer noted that the plaintiff’s airbag did not deploy but Ms. Rivera "reported pain to her left wrist." An ambulance arrived at the accident scene to evaluate Ms. Rivera but she told the ambulance personnel she would go to the hospital "on her own time." In the police report there is an injury status section; as to the plaintiff it said "C" which means "possible injury" and the report noted "disabling" damage to the Rivera vehicle. She wore the sling for a week or two according to her testimony.
The day after the accident she went to the Yale Health Center where her primary care doctor was located. The reports will be discussed in more detail but Ms. Rivera noted Yale Health took x-rays including her arms because that is where the "majority of the pain" was. She then went for chiropractic treatment.
By the time chiropractic treatment was terminated she said each day she went for it she would feel a little better "then I feel sore at the same time."
She did not go to work for a week at the car wash because of the accident. For a period of two months she could not do cleaning of lower parts of the cars at the car wash. Her boss at the "dog place" made it easier for her, someone would come to help her; walking the dogs was a little hard.
She was asked by her attorney whether she still had problems with any parts of her body as a result of the accident.
Ms. Rivera said she "sometimes" gets a shooting pain in her left hand; her left hand hit the steering wheel as a result of the accident. When asked how frequently this is occurring, she said it happens whenever she lifts heavy things. The pain, at first, was intense and she had to put ice on her hand. She did not say how long she had this level of pain. Now it is a weird feeling and her fingers feel numb and tingly and then it goes away.
She testified her neck pain was bad on the left side after the accident but after a while it’s only a problem "if I stay on a certain way and then it starts stiffening." But she then agreed with her lawyer’s comment that "your neck is pretty much resolved after this accident."
Ms. Rivera said her back still bothers her some three years after the accident. It was bad at first. She could not lay down in a certain way because she felt like she was "getting stuck" and she could not move. The condition has started, however, to calm down a little bit but then said "I still feel those weird sticky things where I just can’t move when I’m laying down. It just hurts a lot." When asked if her back condition prevents her from working or doing anything she responded: "A. It’s just bending over for a long time doing like dogs or anything, or grooming dogs, I have to bend down and shave them and stuff. Sometimes I have to stand up and get myself back."
The cross examination was effective in this case which contradicted much of her testimony and claims on direct.
On cross Ms. Rivera said she did not lose any time at her car wash job. And her bending and back problems which prompted her to ask other workers to clean the lower parts of vehicles only lasted for a week. Then she was back to normal duties at her 38-hour-a-week job, seven days a week.
She went for chiropractic treatment for about six and a half weeks and after that said she had no neck problems. She said she was still having back problems as she described on direct but at her February 19, 2019 deposition it was brought out that when asked if after her chiropractic treatment she was having any pain or any symptoms, she answered "No." In defense interrogatories Question 13 it was asked "(13) on what date were you fully recovered from the injuries or conditions alleged in your complaint" the Answer was "Shortly after treatment concluded." Question 14 asked "(14) if you claim you are not fully recovered, state precisely from what injuries or conditions you are presently suffering." In light of the response to Question 13 the answer to Question 14 was "N/A." But the complaint alleged cervical thoracic lumbar, left shoulder, left wrist "strain and sprain with pain in the left wrist."
The recurrent back pain at trial was seemingly dealt with in another response to a question at the deposition. It was asked if back pain she was having after the accident went away shortly after she stopped treatment- chiropractic treatment ended November 23, 2016- the answer was yes- she agreed no more back pain after treatment stopped.
On cross the plaintiff also seemed to qualify her claims as to problems with her left hand- she now said it’s just a tingling pain in her fingers which lasts for under two seconds. After these episodes she can fully open and close her hand, use her fingers, and is not prevented from doing anything. She also admitted that she has not treated since November 2016, and is not on any pain medication.
II.
The medical records include Yale Health Center and chiropractic reports. As noted she went to Yale Health Center the day after the accident. Page 2 of the report states: "She reported some left hand and index finger pain at the scene, this has improved but still painful. Now with wrist and left elbow pain. Ecchymosis to left upper arm, abrasion to left side of neck. She denies headache, neck or back pain, chest pain, shortness of breath, numbness, tingling or weakness. She took an over the counter pain reliever last night for discomfort."
There were eleven chiropractic treatments from October 6, 2016 through November 23, 2016 with a three-week absence of treatment from October 25, 2016 to November 16, 2016. The October 6, 2016 visit occurred only two days after the accident and one day after going to the Yale Health Center. But the October 6, 2016 report is entirely different from what she told the Yale Health Center the day before. There is consistency in complaints about abrasions and left wrist and hand. She told the treating chiropractor she also had "pain in the neck going across the shoulders, pain down the left arm and lower back going to the left lateral thigh." At the time of the visit, the patient states "the pain had gotten increasingly worse." Cervical range of motion was painful and tenderness was noted in the just mentioned areas. Minor spasms were noted in the cervical thoracic region- the only objective finding it should be noted. Treatment reports for each of the treatment dates show continuing low back and neck pain with tenderness on palpitation.
The last visit is of interest. There was no change in neck and low back pain since the last visit (a constant theme in all the reports). Palpitation revealed tenderness and tightness of cervical and lumbar muscles and range of motion remained unchanged since last visit. These are largely subjective complaints.
And more to the point much of the plaintiff’s testimony on direct and cross contradict these assertions. She completely stopped chiropractic treatment after only eleven sessions and went back to a fairly rigorous car wash job at her normal work place within a week of the accident. In any event, if we accept the proposition that physical impairment and limitations can develop within days after an accident the fact remains that as her testimony indicates most if not all of her complaints resolved with the completion of chiropractic care, which terminated only a month and nineteen days after the accident.
This allows the court to have some question about the validity of her subjective complaints to the chiropractic treater.
CONCLUSION
The plaintiff did suffer some injury as a result of this accident. For one thing the impact and resulting damage to her vehicle were fairly serious and in Berndston v. Annino, 177 Conn. 41, 44 (1979), the court noted the division of authority on the issue but said: "evidence of speed, physical impact and the like is admissible as to the probable extent of personal injuries" even without expert testimony, see also Flores v. Jenison, 37 Conn.L.Rptr. 328 (Frazzini, J., 2004). But in this case the court cannot ignore the contradictions between (1) what she told care providers (2) her testimony and interrogatory responses, and (3) her testimony and deposition responses and (4) her direct and cross examination testimony.
Therefore, the court awards damages as follows:
Economic Damages: Medical Bills $3,804.00
Non-Economic Damages: $3,500.00
Total Damages: $7,304.00