(DT-D 11-12). Dr. DeCamp recommended physical therapy for
claimant Powers' left elbow (claimants' exh. 1, Office Visit Note, dictated
07/29/96 and transcribed 08/02/96; claimants' exh. 3, p
On July 31, 1996, Dr. DeCamp operated on claimant Powers' right wrist,
performing an open reduction and internal fixation with a plate and screws under
general anesthesia at the Community Health Plan ("CHP")'s Ambulatory Surgery
Center (DT-D 12-13; claimants' exh. 3, pp 035-036).
On August 5, 1996, claimant Powers' right wrist was checked by a physician's
assistant who worked with Dr. DeCamp (DT-D 13-14). The physician's assistant's
notes indicate that claimant Powers was recovering nicely from the surgery and
had experienced "
no significant postoperative pain
" (emphasis added) (see
claimants' exh.1, Office Visit Note, dictated 08/05/96 and transcribed 08/11/96;
claimants' exh. 3, p 040). Claimant Powers apparently returned on August 13,
1996 for removal of sutures (id
.; claimants' exh. 3, p 041).
Dr. DeCamp next examined claimant Powers on September 13, 1996, at which time
he found the injuries to the left wrist and right clavicle completely healed.
The right wrist fracture was "completely healed on x-ray" and claimant Powers'
right wrist exhibited good range of motion, lacking only about 10 to 15 degrees
of dorsiflexion and palmar flexion as compared to his left wrist; however, he
complained about the sensitivity of his surgical scar (claimants' exh. 1, Office
Visit Note, dictated 09/13/96 and transcribed 09/18/96; claimants' exh. 3, p
044). Attributing claimant Powers' failure to report to therapy to "confusion,"
Dr. DeCamp stated that he "needs therapy. We will get that scheduled" and
directed "[f]ollow up in six weeks and get therapy. He will return to see me at
that time" (
id.; see also
, DT-D 14).
When claimant Powers next visited Dr. DeCamp on October 18, 1996, he exhibited
range of motion of the right wrist of 45
dorsiflexion and 60
palmar flexion, full turning ability of the right forearm and hand, and "[r]ight
wrist grip strength . . . grossly equal to the normal left side" (claimants'
exh. 1, Office Visit Note, dictated 10/18/96 and transcribed 10/21/96;
claimants' exh. 3, p 047). His collar bone fracture was "quite obviously
healed," but claimant Powers was quite sensitive to touch there and at the site
of the scar on his right wrist (DT-D 15-16).
Claimant Powers had been undergoing physical therapy at Hudson CHP but wished
referral to a more convenient location (claimants' exh. 1, Office Visit Note,
dictated 10/18/96 and transcribed 10/21/96; claimants' exh. 3, p 047), which Dr.
DeCamp accommodated by referring him to a facility in Greenville, New York
(claimants' exh. 7, undated Referral Form of CHP Hudson Health Center) described
by claimant Levenberg as located across from her son's school. Between November
13 and December 13, 1996, claimant Powers completed a course of six physical
therapy treatments apparently designed in part to "push" his right wrist's range
of motion (
, claimants' exh. 7).
When claimant Powers next visited Dr. DeCamp on December 18, 1996, the doctor
noted that "[p]hysical examination of the right wrist reveals
excellent full range of motion
. He has a very hypertrophic scar in the
palmar aspect of the right wrist (emphasis added)" (claimants' exh. 1, Office
Visit Note, dictated 12/18/96 and transcribed 12/19/96; claimants' exh. 3, p
049; DT-D 27). Further, claimant Powers "has intact hardware, some irritability
from the hardware. He wants the hardware removed," and so Dr. DeCamp scheduled
elective surgery for hardware removal to be followed by physical therapy
On January 29, 1997, Dr. DeCamp operated on claimant Powers to remove the plate
and screws from his right wrist. Surgery was again performed under general
anesthesia at the Community Health Plan's Ambulatory Surgery Center (claimants
exh. 3, pp 051-052, 055-56, 059, 062-065, 067-070, 073), and claimant Powers was
scheduled for post-operative appointments with Dr. DeCamp on February 3 and
February 10, 1997 (claimants' exh. 3, pp 053, 071). When claimant Powers did
not show up for either appointment, he was sent a postcard on March 4, 1997
(claimants' exh. 3, pp 066, 074-075).
Claimant Powers did not visit Dr. DeCcamp again until May 6, 1997, at which
time the doctor noted that his patient had been "lost to follow-up since his
surgery" and "has not had any physical therapy" (claimants' exh. 1, Office Visit
Note, dictated 05/06/97 and transcribed 05/07/97; claimants' Exh. 3, p 077;
, DT-D 17-18). Dr. DeCamp found the surgical wound to be well
healed, and a less hypertrophic but still quite a thick scar to have re-formed.
Claimant Powers' range of motion in the right wrist was "quite acceptable in
flexion but in extension he is missing about 20 or 30 degrees, it is very
tight," and "[h]is grip strength is a little diminished" (claimants' exh. 1,
Office Visit Note, dictated 05/06/97 and transcribed 05/07/97; claimants' exh.
3, p 077). Dr. DeCamp ordered physical therapy at the CHP-approved facility in
Greenville, New York where claimant Powers had been treated the previous fall
and directed his patient to see him again in six weeks.
Claimant Powers did not show up for his follow-up appointment with Dr. DeCamp
scheduled for June 23, 1997 (claimants' exh. 3, p 078) but instead next visited
Dr. DeCamp on December 15, 1997, "wondering if physical therapy can help him.
He states that the wrist hurts him some" (claimants' exh. 1, Office Visit Note,
dictated 12/15/97 and transcribed 12/16/97; claimants' exh. 3, p 080). Upon
physical examination, Dr. DeCamp found a "slight decreased range of motion and
dorsiflexion of about 10 degrees compared to his normal left wrist. Pronation
supination is full. Grip strength is almost 90% of his left side. Examination
of the right shoulder is normal" (
). Dr. DeCamp discharged claimant Powers from his care, commenting
that "I do not think therapy will benefit him at this time. He is many many
many months post injury" (id.
).II. Claimants' Damages
A. Claimant Powers' Testimony
Claimant Powers testified that when he struck the ramp's pavement he rolled
over on his back in pain and his arm felt loose "like it was not connected" and
his collarbone was "sticking out of his chest" and his right wrist
While in the ambulance and at Albany Medical Center, he experienced
pain and was administered pain medication once his mother, claimant Levenberg,
arrived at the hospital. Upon his discharge home, he felt "out of it" and spent
a painful, sleepless night.
After the surgery on July 31, 1996, claimant Powers' right wrist was sore and
throbbing, and he was nauseous from the anesthesia. He could "do nothing" with
his right arm and wrist, and little with his left once it was placed in a brace.
For some time, he depended on others to feed him and tend to his needs because
he "couldn't move [his] arms that well."
Claimant Powers returned to high school on schedule in September. He is
left-handed and could write when the brace was removed from his left wrist. He
was excused from physical education class.
In the summer of 1996, prior to his accident, claimant Powers worked as a caddy
at Shaker Ridge Country Club, earning $40 to $50 a weekend.
But for his accident, he would have continued caddying until high
school classes resumed in September. At the time of trial, claimant Powers was
enrolled at Hudson Valley Community College and worked part-time approximately
nineteen to twenty hours a week stocking store shelves.
Claimant Powers testified that his right wrist did not feel
"full speed" as compared to his left; specifically, he experiences some soreness
and cramping in the right wrist in cold weather or when the weather changes;
does not have full range of motion of his right wrist; can not push properly
with his right hand; and can not bend his right hand completely when he grasps
an object. He takes aspirin and rests his right hand awhile whenever he
experiences discomfort in the right wrist when using a computer to type school
papers or when playing video games or engaging in any activity requiring him to
move his hands.
Claimant Powers has a 2-inch scar at the site of the surgical incision on his
right wrist. His left wrist is non-symptomatic as is his right clavicle;
however, he has a visible, walnut-sized lump where the right clavicle fractured.
The lump is sensitive to touch or pressure and irritates him if he wears a
backpack or places the passenger-side seatbelt strap over his right
Claimant Powers testified that he does not play sports. He purchased a new
mountain bicycle in the summer of 1999; he swims and hits golf balls at the
B. Claimant Levenberg's Testimony
Claimant Levenberg testified that her son, claimant Powers, depended on her
nearly completely for approximately six to eight weeks after his accident. He
was heavily medicated for pain for awhile and so burdened with casts and slings
and straps that he could not feed himself, take his medication, walk up and down
stairs, go to the bathroom, reposition himself when lying down or even operate
the remote control on the television set without her assistance. He was
"uncomfortable" and "miserable" after his first surgery; after his second
surgery he was again sore and unwell, although his "mood was a little better"
because he knew that the hardware had been removed from his right wrist.
According to claimant Levenberg, her son has not been as athletically active
since his accident as he had been before, i.e., he has not picked up a baseball
bat; he has not gone tubing; he showed no interest in biking again until the
summer of 1999. Moreover, he remains self-conscious--perhaps "a little vain"--
about the 2-inch scar on his right wrist and the lump on his right clavicle and
so will not wear a short-sleeved shirt in public or swim without wearing a tee
shirt to cover his chest.
Claimant Levenberg and her family, which included claimant Powers and his three
siblings, moved to Hannacroix in Greene County, New York along with her
boyfriend and his two children approximately two weeks before claimant Powers'
accident. She had a job lined up at $7/hour for a 40-hour workweek, but she
delayed starting work in order to nurse her son.
C. Medical Testimony
Dr. DeCamp opined that the 10
deficits in claimant Powers' extension and flexion of the right wrist and his
10% loss of grip strength on the right side are likely permanent conditions, as
are the cosmetic deformity of the right clavicle, the internal and external
scarring of the right wrist and the achiness of the right wrist that claimant
Powers experiences in cold weather or with strenuous use of his right hand (DT-D
19-22). Dr. DeCamp acknowledged that a 10
deficit in range of motion was "pretty much back to normal" (DT-D 30).
Dr. DeCamp does not "think [claimant Powers'] wrist is going to loosen up much
further [because] he has quite a significant amount of injury there, scar tissue
from the injury, scar tissue from two surgeries. And . . . what you see is what
you'll get forever in that wrist" (DT-D 22-23). In his opinion, physical
therapy would not restore full range of motion to the right wrist because
"[u]sually you have a window of opportunity of three to four months after an
injury or some surgery before scar tissue really matures and thickens. So a lot
of people in the hand surgery field feel that you better get it moving as soon
as possible or else you're going to really lose that range of motion and develop
some pretty mature scar tissue" (DT-D 32-33).
While testifying that claimant Powers has "more chance of getting arthritis"
and has a "higher chance of developing carpal tunnel syndrome" in the right
wrist solely because he once fractured it (DT-D 23-24), on cross-examination Dr.
DeCamp characterized carpal tunnel syndrome as "a possibility. It's not a
definite, but it's certainly a possibility" (DT-D 24) and agreed that the risk
of arthritis is "speculative" (DT-D 25). In Dr. DeCamp's opinion, claimant
Powers' left wrist has healed fully with no residual symptoms, and his right
clavicle has healed fully with no residual symptoms except for the small bony
prominence at the fracture site (DT-D 25).
Dr. Louis J. Benton, Jr., who performed the independent medical examination of
claimant Powers and testified on behalf of the State, is Board-certified in
orthopedic surgery and held a fellowship in hand surgery at Baylor Medical
College (DT-B 4-5).
His testimony and Dr. DeCamp's were virtually congruous throughout. Dr. Benton,
however, did not consider claimant Powers at greater risk of developing
arthritis or carpal tunnel syndrome in his right wrist solely because he once
fractured it (DT-B 13-14) and opined that claimant Powers' range of motion in
the right wrist would likely improve, principally because of his youth: "He's
only 20;. . . . just the passage of time will cause further maturation of this
scar tissue. The passage of time and everyday use will loosen up this
[10Εof flexion and 15Ε of extension] range of motion
decrease . .
. approximately 80 per cent" (DT-B 13). III.
Based on a fair preponderance of the
credible evidence, the Court therefore makes the following findings and awards:
(1) As a result of his accident on July 22, 1996, claimant Powers fractured
his right wrist and right clavicle; suffered a small impaction fracture of one
of the small bones in the left wrist; left elbow contusion and effusion; and
sustained abrasions and bruises. These injuries had healed within approximately
eight weeks after the accident. The Court bases these findings on exh. 2
(medical records from Albany Medical Center), exh. 1 (Dr. DeCamp's office visit
notes); exh. 3 (claimant Powers' medical record at CHP/Kaiser Permanente); and
the testimony of Dr. DeCamp.
(2) Dr. DeCamp performed two surgeries on claimant Powers: on July 31, 1996,
he operated to insert a plate and screws in claimant Powers' right wrist; on
January 29, 1997, he operated to remove the plate and screws from Claimant
Powers' right wrist. Prior to the second surgery, claimant Powers had regained
"excellent full range of motion" of the right wrist. The Court principally
bases this finding on exhs. 1, 3 and 7.
(3) Claimant Powers' injuries proximately caused by his accident on July 22,
1996 and his surgery on July 31, 1996 and his surgery on January 29, 1997
produced past pain and suffering for which the Court finds $30,000.00 reasonable
(4) As a result of his accident on July 22, 1996, claimant Powers has a
permanent mild to moderate cosmetic deformity where the right clavicle fractured
and a permanent 2-inch scar where the surgical incision was made to insert and
later to remove the plate and screws from his right wrist, based on the
testimony of Drs. DeCamp and Benton. Claimant Powers also has a slight
) loss of range of motion in his right wrist, which Dr. DeCamp opines is no
longer susceptible to improvement by physical therapy and therefore is
permanent, and which Dr. Benton opines will essentially disappear with time.
Based upon claimant Powers' testimony, the Court also finds that he experiences
some achiness of his right wrist with exertion and in cold weather, which is
alleviated by aspirin and rest.
(5) While claimant Powers testified that he diligently followed a physical
therapy regimen to regain full range of motion of his right wrist subsequent to
his accident and surgeries, the Court finds that he did not undertake physical
therapy for his right wrist after his second surgery within the "window of
opportunity of three to four months after an injury or some surgery," when, in
Dr. DeCamp's opinion, physical therapy is efficacious (DT-D 32): (a) claimant
Powers missed his scheduled appointments with Dr. DeCamp to follow up the second
surgery on his right wrist (claimants' exh. 3, pp 053, 066, 071, 074-075); (b)
claimant Powers visited Dr. DeCamp three months after his second surgery but
failed to pursue the recommended physical therapy for his right wrist or to
appear for his next scheduled follow-up appointment (claimants' exh. 1, Office
Visit Note, dictated 05/06/97 and transcribed 05/07/97; claimants' exh. 3, p
077-078; claimants' exh. 7, CHP Referral Form, signed by Dr. DeCamp and dated
May 6, 1997); and (c) when claimant Powers visited Dr. DeCamp some seven months
later, "wondering if physical therapy [could] help him," Dr. DeCamp considered
too much time to have by then elapsed since the injury and discharged claimant
Powers from his care (claimants' exh. 1, Office Visit Note, dictated 12/15/97
and transcribed 12/16/97; claimants' exh. 3, p 080).
(6) The Court determines that claimant Powers, whose life expectancy at the
time of trial was 53.3 years (
, PJI vol 1A, app A), will experience future pain and suffering for
which $40,000.00 is reasonable compensation in consideration of the permanent
mild to moderate cosmetic deformity of the right clavicle and the 2-inch scar on
the right wrist; the slight loss of range of motion of the right wrist, for
which claimant Powers may be held in part accountable because of his failure to
undertake physical therapy after his second surgery and which may improve in any
event; and the mild discomfort he experiences in the right wrist in cold weather
and with exertion. The Court credits Dr. Benton's testimony that (a) he found
no evidence of traumatic arthritis in claimant Powers' right wrist, and (b)
claimant Powers' history of fracture of the right wrist does not place him at
greater risk of developing arthritis or carpal tunnel syndrome in the future
than would otherwise be the case.
(7) The Court finds that claimant Powers lost $270.00 ($45.00 x 6 weeks) in
past income, based on his testimony that he earned $40.00 to $50.00 caddying
weekends prior to his accident on July 22, 1996 and expected to continue
caddying weekends until the school term commenced in September, 1996.
(8) The Court awards claimant Powers $0 dollars for future lost income and $0
for future medical expenses, for both of which no proof was offered.
(9) The parties have stipulated to past medical expenses in the amount of
$98.00 (14 x $7.00, the co-payment made by claimant Levenberg for each of
claimant Powers' six visits to the physical therapist and his eight visits to
(10) The Court does not award claimant Levenberg any other expenses because she
offered no proof to support a claim for loss of services ( PJI 2: 317) and no
proof to support a claim for any recoverable expenses except past medical
expenses (PJI 2: 318); specifically, she offered no proof as to the reasonable
value of any nursing services she may have necessarily provided to claimant
Powers during his convalescence ( PJI 2: 318.1). While she offered proof that
she lost earnings because she postponed starting employment in order to care for
claimant Powers, any such lost earnings are not recoverable (
Barnes v Keene
, 132 NY 13; Syczhk v Szczerbaniewicz
, 233 App Div
Based on a fair preponderance of the credible evidence, in summary, the Court
therefore finds claimant Powers suffered damages on his claim as follows: