Opinion
# 2015-031-505 Claim No. 117112
04-23-2015
VIRGINIA A. WADE v. THE STATE OF NEW YORK
BRESSLER & KUNZE, ATTORNEYS AT LAW BY: MELVIN BRESSLER, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General
Synopsis
Claimant adequately demonstrated that she sustained serious injuries in motor vehicle accident. Claimant awarded $200,000.00.
Case information
| UID: | 2015-031-505 |
| Claimant(s): | VIRGINIA A. WADE |
| Claimant short name: | WADE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117112 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | RENÉE FORGENSI MINARIK |
| Claimant's attorney: | BRESSLER & KUNZE, ATTORNEYS AT LAW BY: MELVIN BRESSLER, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 23, 2015 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On May 7, 2009, the motor vehicle Claimant, Virginia A. Wade, was driving was struck from behind by a New York State vehicle, operated by a State employee. Claimant filed claim number 117112 on July 13, 2009, followed by an amended claim filed on February 8, 2010, alleging negligence on Defendant's part relating to that accident. I previously granted Claimant's motion for summary judgment, in part, on the issue of negligence, leaving the issue of serious injury as defined by section 5102 of the New York State Insurance Law, as well as the issue of damages, to be determined after trial.
Decision and Order filed October 17, 2013 (M-83342 and CM-83365).
I held the trial in this matter on November 6 and 7, 2014 in Rochester, New York.
Decision
In her direct case, Claimant testified that, at the time of the accident, she was stopped at a traffic light on Brooks Avenue, across from the Rochester International Airport. It was approximately 5:30 p.m. on May 7, 2009 and Claimant was waiting for a car two cars ahead of her to merge into her lane. While she was at a standstill, she was looking forward and, therefore, was unaware of what was happening behind her vehicle until she felt an impact. At impact, her body pitched forward. Ms. Wade was wearing a seat belt and, according to her medical history, she was wearing a shoulder harness as well (exhibit B). Ms. Wade could not recall whether she hit her legs or any other body part on any part of the car in the accident. She could not recall if she suffered any bruising after the accident either. She did recall that the vehicle she was driving had a headrest on the driver's seat.
After impact, Claimant looked in her rearview mirror and observed the vehicle that hit her for the first time. She was able to get out of her car and exchange insurance information with the driver of that vehicle. The other driver called 911 and an officer soon arrived and took a report. Claimant then proceeded on to Roberts Wesleyan College, where she was enrolled in a night course.
Claimant testified she felt no pain as she left the scene of the accident. However, as she continued driving, she began to feel discomfort. She had a presentation to give to her class and was able to complete it, but then her back started to hurt. The next morning, she called her primary doctor, Richard Abbott, M.D., told him about the accident and her back pain. She was given an appointment to see him that day.
Claimant drove to the appointment herself. She experienced pain in her neck as she was driving. She described the pain as being in the upper part of her neck, on the right side, and she also experienced a "tingling" in her right arm. She described her body as "stiff." Dr. Abbott prescribed physical therapy and instructed her to take ibuprofen. She testified that although she was able to move her body, it caused her pain in her arm and upper body and she felt stiff.
Ms. Wade's physical therapy program lasted eight weeks and she treated with the therapist two times each week. Her program involved weight-bearing exercises and strength training exercises for her right arm and right leg. In addition, the therapist used a device to stretch her neck and spine twice a week. During this time, Claimant went to work on a daily basis. Some days she left work early because she was in too much pain. Other days, she experienced so much pain, she could not get out of bed to even go to work. She was taking approximately 600 mg of ibuprofen per day at this time. She felt less pain when she was not engaging in physical activity.
Once the physical therapy program ended, Claimant reported to Dr. Abbott that her pain level remained the same. Dr. Abbott then referred her to Roger Ng, M.D., a neurologist. Dr. Ng conducted a physical examination that measured range of motion, as well as analyzed the way she walked and stood. Dr. Ng spoke to her about back surgery, emphasizing that there were no guarantees surgery would resolve her issues, but that it might help. Claimant testified that she understood something was pressing on a nerve which explained the pain she experienced. Claimant opted not to have surgery.
In June of 2009, Dr. Ng referred Claimant to Clifford James Ameduri, M.D. for pain management. Dr. Ameduri recommended she attempt physical therapy again. This time, the physical therapist used a TENS (Transcutaneous Electrical Nerve Stimulation) unit on her neck and back. Each physical therapy session was approximately 45 minutes long. In a normal session, Ms. Wade received TENS treatment for 10 - 15 minutes, followed by heat packs and, finally, weight training for her arms. Ms. Wade engaged in this round of physical therapy for six to eight weeks, twice each week. Ms. Wade experienced no relief with this session of physical therapy, not even temporarily. In addition to physical therapy, Dr. Ameduri also tried several new prescription pain medications, which provided some mild relief if she was not active. However, doing data entry, moving around the office at work, and cleaning her house caused "excruciating" pain that made these activities "unbearable."
Ms. Wade's employer purchased seating with lumbar support and arm rests as an accommodation to Claimant, but even then, she experienced "shooting pain" and "neck pops" often, typically when she turned her head from side to side. She stated she both heard and felt the "pop" in her neck. If she sat still, did nothing, and took ibuprofen, the intense pain subsided.
Six months after the accident, Claimant's situation changed for the worse. She awakened to find herself unable to sit up straight or hold her head up. A soft neck brace helped ease her pain, but to this day, she is unable to sit on her sofa without constantly changing position. She also could no longer wear shoes with heels because of pain in her right leg. If she was in her car for long periods of time, she would have difficulty exiting the car. She testified that she "feels like an 80 year old lady" having to move one leg at a time out of the car, then hold onto the seat to exit. At times, she experiences numbness in her arms, so she is also unable to use both her arms, making any movement that much more difficult.
Ms. Wade described how the pain she feels as a result of the accident affects her daily life. Claimant resides in an eight room, ranch style home. She is widowed with adult children. The washer and dryer are in the basement. She stated that it is painful to lift her arm to wash her hands and face. She continues to experience difficulty dressing. She cannot hold a pen in her right hand and drops things in the kitchen making cooking difficult and less enjoyable. She admits she is able to rely on her left hand for many things, like opening doors and writing, and she even taught herself to brush her teeth with her left arm. However, she notices and is frustrated by the small things she is no longer able to do, like opening a new jar on her own.
Ms. Wade stopped taking ibuprofen approximately two years ago and now uses a prescription called Gabapentin, which she indicated was an improvement over ibuprofen for the pain. The doctor prescribed 1200 mg (four pills) per day, and she has found it easier to function on a daily basis when she takes this medicine.
Claimant next treated with Dr. Donald Smith, a chiropractor, for about six to eight months in 2010. He stretched her back on a device in an attempt to "realign" her spine. She experienced minimal relief. When Claimant completed her course of treatment with Dr. Smith, she noticed no improvement and still experienced stiffness and pain. She continued to treat with the pain management specialist during this time.
Ms. Wade then treated with a second neurologist, Allen D. Pettee, M.D. Claimant described this treatment as nerve conduction on her neck, back, arms and legs. She testified that she was literally incapacitated for days after this treatment. This treatment required that more pressure be applied to her body than what she experienced with TENS treatments. She only did this once and Dr. Pettee did not diagnose nerve damage.
As she sat at trial, Ms. Wade stated that even now, she is "never pain free." She experiences good days, when she is not active. She continues to take her prescribed medication. She described the pain level she experienced while testifying as a two on a one-to-ten scale. During her testimony, she stated that her right arm was throbbing and tingling. She believes she has suffered nerve damage to her upper neck and back which affects her right arm and right leg.
Ms. Wade testified that the quality of her life has diminished since the accident because she has difficulty doing all the things she used to enjoy doing, such as decorating, painting and even cleaning her home. She used to love to dance, but it causes her too much pain now. She testified: "I'm in the prime of my life - I should be enjoying life."
On cross-examination, Claimant discussed another possible recommended treatment that she declined. Dr. Ng had discussed injections for pain management as well as acupuncture. She explained that the acupuncture health care deductible was unaffordable and that she is very fearful of needles. Ms. Wade did agree to a third round of physical therapy in 2012, but she has not treated with Dr. Ng since then.
Also on cross-examination, Claimant discussed a prior car accident that occurred in November 2008. A driver hit her vehicle, rendering it undrivable. That evening she experienced neck and back pain and "tingling." She admits that the pain from the November 2008 accident continued, to a certain degree, until the subject accident. The 2008 accident had an impact on her lower back and maybe a slight impact on the neck, arm and shoulder. She stated, however, that the pain in her low back had gone away before this accident occurred. She stated that the pain from the 2009 impact is different from the pain she experienced from the 2008 accident.
Claimant called as her expert her treating physician, Clifford James Ameduri, M.D. As stated previously, Claimant began treating with Dr. Ameduri in 2009. Dr. Ameduri has practiced at Rochester Brain and Spine since June 2012. Prior to that position, he practiced at New York Physical Medicine Center, LLC. His specialty is physical medicine and rehabilitation. The parties stipulated to Dr. Ameduri's qualifications as an expert in this field (exhibit 1). Dr. Ameduri testified that he first treated Claimant in 2009, after the accident, while he was at New York Physical Medicine Center, LLC. The note from that visit was not in his medical chart from Rochester Brain and Spine, so he could not testify to the particulars of that first visit. He continues to treat Claimant to this day.
Dr. Ameduri acknowledged that Claimant also complained of shoulder pain, which he attributed to her neck injury, as well as hand and leg pain. In his opinion, the injuries were consistent with the accident as Claimant described it. Dr. Ameduri admits pain is a subjective and personal experience and based on his decades of experience and training, he is able to judge if a patient's physical examination does not match the description of the patient's pain. If he suspects a patient of malingering, he will document his observation. He did not see any indication in Claimant's chart or her examinations that led him to believe she might be malingering.
Dr. Ameduri recommended various types of therapy and treatment: physical therapy for muscular pain, electrical stimulation (TENS) to increase her range of motion, and medication for pain. He also recommended other specialists, specifically for injections, and a chiropractor. He observed that while Ms. Wade has tried most of these therapies over the years, they were "not terribly successful" and she was pretty much in the same condition as when she first came to see him in 2009. He stated that any of these therapies, if they are going to work, would cause one to see an improvement in the patient's condition within 18 months to two years after the treatment began. Here, after five and a half years, Ms. Wade is still at baseline. Dr. Ameduri even recommended she see a surgeon for an opinion on whether or not she could benefit from surgery. The surgeon concluded it was not likely to improve her condition.
Dr. Ameduri reviewed Claimant's x-rays and MRIs from 2008 and 2009. He found no fractures or disc herniations, but he did find evidence to support his initial impression that Claimant suffered from cervical spondylosis and arthritis of the back. The MRI taken of the cervical spine on September 5, 2009, showed "[n]ormal cervical and upper thoracic cord segments," but disc bulges as well (exhibit A, p. 130). On the lumbar spine, from an MRI taken on September 19, 2009, the doctor reported "[s]ome mild congenital stenosis" as well as a disc bulge and mild thickening of the ligaments (exhibit A, p. 133). According to Dr. Ameduri's testimony, the conditions documented on the MRIs were a result of the natural aging process.
In addition, in his July 27, 2012 examination, Dr. Ameduri observed that Claimant walked with a normal gait for her age, her motor strength was intact, she could "heel and toe walk" normally and he observed no muscle atrophy (exhibit A, p. 154). He also noted she sat "stiffly" and that she had limited range of motion in her neck (exhibit A, p. 153). Based on this examination, he determined Claimant suffered from unspecified back pain, cervicalgia, cervical disc degeneration, cervical disc displacement, lumbago and radiculitis (exhibit A, p. 154). She remained in the same condition when he examined her on October 30, 2014 (exhibit A, p. 180), except for the inclusion of carpal tunnel syndrome in the diagnosis.
Dr. Ameduri also explained that, while range of motion examinations help him understand whether or not her joints are functioning appropriately, a limited range of motion is not necessarily associated with pain. In other words, a patient can be in pain and have a normal range of motion. With regard to Ms. Wade, Dr. Ameduri opined that, as a result of the May 7, 2009 accident, Claimant had significant deficits. Those deficits included:
1) a 45° deficit of the right cervical spine;
2) a 25° deficit of the left cervical spine; and
3) a 50° deficit of the lumbosacral spine forward flexion (exhibit 3).
Defendant's expert witness, P. William Haake, M.D., has been licensed to practice in New York State since 1970 and orthopaedics is his specialty. He is an orthopaedic consultant with Riverfront Medical Services, Inc. The parties stipulated to Dr. Haake's qualifications to testify as an expert in this field. Dr. Haake conducted an Independent Medical Examination of Claimant on October 4, 2012, and reviewed the medical records from her treating physicians and reports from two other independent medical examinations.
Dr. Haake found Claimant's medical history from the date of the 2008 motor vehicle accident up until the date of the 2009 motor vehicle accident significant. Dr. Haake testified that, in his opinion, Claimant's complaints of pain during that time were similar to the complaints of pain she was experiencing after the 2009 accident. He also noted that even prior to the 2008 motor vehicle accident, she suffered from the same type of pain intermittently (exhibit B, pp. 3-4). Once he reviewed Claimant's medical history, Dr. Haake stated that his intent was to use his physical examination of Claimant to find an objective cause of her pain.
Dr. Haake rejected range of motion measurements as objective evidence of pain because, in his opinion, they constitute subjective evidence inasmuch as the patient is able to influence the results. As an example, he compared Claimant's range of motion results from an April 30, 2013 examination by Dr. Ameduri (exhibit A, p. 162) with the results of a May 25, 2013 examination (exhibit 3). These measurements were taken only one month apart, but showed a significant difference in the severity of the restriction of the cervical spine. His own examination of the cervical spine showed "slight weaknesses" on the left side, and that the lumbar spine was "essentially" within normal limits. He observed that it was the cervical spine that suffered the largest deficits with range of motion.
Dr. Haake detected no muscle weakness nor abnormalities of gait. Claimant was able to stand on one foot showing there was no nerve root abnormality at that level of the spine. Her reflexes were symmetrical and present in arms and legs and when he measured the circumference of her extremities, they were medically normal with a lack of muscular atrophy. He found no objective evidence of injury to the neck or back, meaning fractures, disk herniations or dislocations. He also noted that Dr. Pettee's nerve conduction tests failed to reveal any compression of the nerves coming from the spine. In his opinion, Claimant suffers from degenerative spondylosis, a congenital condition where the spinal cord narrows, putting pressure on the spinal cord and nerve roots. The MRIs showed this condition. It is a condition that existed from Claimant's birth and which will cause the joints of claimant's cervical spine to deteriorate from use over time. Congenital spondylosis will cause pain in the lower extremities, loss of sensation, weakness and atrophy.
On cross-examination, Claimant's counsel pressed Dr. Haake about the existence of soft tissue injuries and their ability to cause pain. Dr. Haake admitted a person could feel pain from a soft tissue injury. However, he opined that here, there was objective evidence of a condition that caused Claimant pain that was not a soft tissue injury.
The nature of a congenital degenerative condition is such that a person may have periods where they experience no pain; Dr. Haake referred to that time as "remission". The periods where they do experience pain are called "exacerbation". He testified that as we get older, the length of remissions shrink. When asked if the degenerative condition could have worsened with the accident, he responded that it could have worsened, but it also could have worsened without it. Symptoms can differ from week to week. These symptoms never disappear, this is a "progressive abnormality". The fact that Claimant still experiences pain over five years after the accident is because she is aging and her joints continue to deteriorate.
Dr. Haake's opinion is that Claimant suffered no permanent disability from the MVA in 2009 because: 1) Claimant showed no objective evidence of injury, 2) x-rays taken prior to the 2009 MVA showed degenerative spondylosis and 3) Claimant continued to work, a behavior consistent with patients suffering from a degenerative condition.
Significant Injury
I must determine whether or not Claimant's condition rises to the level of "serious injury" as defined by Insurance Law § 5102 (d), specifically, either a "permanent consequential limitation of use of a body organ or member," or a "significant limitation of use of a body function or system." Claimant must present objective proof of serious injury, subjective complaints of pain, alone, will not suffice (Fishburne v State of New York, UID No. 2014-032-016 [Ct Cl, Hard, J., Sept. 5, 2014], citing Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). At trial, Claimant presented expert testimony regarding restrictions in the range of motion in the cervical and lumbar areas of her back. This constitutes objective evidence of a limitation of use of a body part.
The Court of Appeals offered guidance on "serious injury" cases in the context of "soft-tissue injuries involving complaints of pain that may be difficult to observe or quantify" (Pommells v Perez, 4 NY3d 566 [2005]). A herniated disk, alone, is not sufficient objective evidence of a serious injury, but coupled with evidence of limitations in range of motion, could be (id. at 573-574).
Unlike the Plaintiff in Pommells, Claimant has not ceased treatment for her condition since the accident, even though she has continued to work.
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I found both expert witnesses to be highly credible and learned. They just do not agree on the nature and degree of Claimant's injuries. While Claimant's expert provided testimony upon which I could justifiably find that claimant sustained a serious injury, Defendant's expert provided quite sound testimony upon which I could find that Claimant did not sustain serious injury.
As the Court of Appeals has so clearly stated, the " 'legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries' " (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). Despite the guidance provided by the statute and the myriad of courts that have struggled with these issues, there have been and will always be cases that are "close calls." Cases such as this.
I do find problematic Claimant's diagnosis of congenital degenerative spondylosis, indicating that she very well could experience these symptoms even without having been in a car accident. Dr. Haake laid Claimant's current condition at the foot of this diagnosis, while Dr. Ameduri acknowledged the presence of these conditions but testified that, in his medical opinion, it was the car accident that has caused Claimant's pain and limitations.
I have already detailed the daily limitations and pain Claimant experiences. She testified that her physical therapy sessions provided little or no relief from the pain and neither did her sessions with the chiropractor. She has declined more invasive therapies like acupuncture and injections because of her fear of needles and high insurance co-pays. She declined surgery because the prognosis for success was not sufficiently certain. She stopped physical therapy over time because it was not helping her. Given the narrative Claimant has provided, these are all reasonable explanations and are not dispositive on the issue of serious injury (Pommells at p. 574).
After considering the totality of the evidence, the range of potentially causally related injuries as set forth by the experts, the credibility of Claimant and the narrative of her life following this accident, I find that Claimant has met her burden. In both his report and his testimony, Dr. Ameduri provided numeric percentages demonstrating Ms. Wade's loss of range of motion. He also provided a qualitative assessment of Claimant's condition (see exhibits 3 and A at 148). I find that his testimony is sufficient to support a finding that Claimant suffered both a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system as defined by the Insurance Law (Strong v ADF Constr. Corp., 41 AD3d 1209 [4th Dept 2007]; Moore v Gawel, 37 AD3d 1158 [4th Dept 2007]; Wilber v Breen, 25 AD3d 836 [3d Dept 2006]).
Prior to the 2009 motor vehicle accident, Claimant was able to perform daily life tasks and enjoy maintaining her home. I find that she has suffered serious injury pursuant to Insurance Law 5102 (d) and has proven to a degree of medical certainty that her pain is causally related to the accident. However, there are mitigating factors that have an impact on the amount of damages I will award, namely, the similar injuries sustained from the 2008 motor vehicle accident, the speculative nature of her need for future surgery, as well as the diagnosis of the congenital degenerative spondylosis present in Claimant's x-rays and MRIs. Based on the testimony and evidence at trial, I award Claimant $100,000.00 for past pain and suffering and $100,000.00 for future pain and suffering, for a total award of $200,000.00.
As no proof regarding property damage was presented at trial, I make no award in that regard.
To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
All trial motions not heretofore decided are now deemed denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
April 23, 2015
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims