New York State Court of Claims

New York State Court of Claims

WOODHOUSE v. THE STATE OF NEW YORK, #2001-005-003, Claim No. 95554


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Moran & Kufta
James J. Moran, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Walsh, Perley & Wilkins
Michael F. Perley, Esq.
Third-party defendant's attorney:

Signature date:
February 22, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Robert G. Woodhouse, Jr., alleges that the negligence of the Defendant caused him severe personal injury, which negligence consisted of violations of New York State Labor Law §§ 200, 240 and 241 and applicable provisions of the Industrial Code of the State of New York, which occurred on September 20, 1996. Claimant Noreen Woodhouse asserts a derivative claim for the loss of society, companionship and services.

By decision and order filed August 12, 1998,[1]
I granted a motion for partial summary judgment in favor of the Claimants based upon a violation of Labor Law § 240. In accordance with a so-ordered Stipulation dated October 2, 1998, the trial herein also considered proof with respect to Claimants' allegations of an alleged violation of Labor Law §241(6). To be successful in such a cause of action, Claimants must establish the violation of a specific, and not a general, violation of a regulation. Here Claimants contend that the Defendant violated 12 NYCRR § 23-6.1(j)(1), which states in relevant part:
"... Each manually-operated material hoist shall be equipped with an effective pawl and ratchet capable of holding the rated load capacity when such a load is suspended."

The decision herein addresses the alleged violations of Labor Laws §240(1) and §241(6), and the damages sustained by both Claimants.
Robert Woodhouse grew up in the Batavia, New York area, graduated from high school and started in the local construction industry in residential repairs and small construction projects for local contractors. He then went to Orlando, Florida to work at Disney World, beginning as a common laborer and ending five years later as a carpenter foreman. He returned to the Rochester area and worked for two years for a concrete company where he eventually was given his own crew. He then was employed by an Alabama construction company as a field superintendent, eventually overseeing 200 men in the construction of a Federal penitentiary, and then as a superintendent of an army barracks construction project where he supervised up to 260 men. When his father became ill he resigned his Alabama job and returned to the Rochester area where his wife and children were living. Claimant[2]
then joined the local carpenter union and began working for Sealand Contractors Corp., Inc. (Sealand) as a carpenter, welder and small crew foreman.
Prior to his injury, Claimant's hobbies were primarily outdoor activities such as archery, hunting, fishing, sporting clays, etc. He would lift weights three to five times a week to stay in shape for his construction duties. Prior to his injury he had "a great relationship with his wife and kids."

On September 20, 1996, Claimant, then 37 years old, was employed by Sealand and was working on a bridge construction project over Route 490 when he was injured. He was wearing his hard hat with a liner (Exhibit 14) which he had purchased for his own use as it was made of kevlar, which in his opinion was the best on the market. He did not wear the hard hats furnished by his employer as they were made of plastic. He wore his hat with the brim at the back of his head to protect his neck.

Between 8:00 and 9:00 a.m. on the day of the accident, Claimant was sitting on the guardrail of a bridge about 20 feet over Route 490 when he attached a two ton "come-along"[3]
to the guardrail by use of a choker (a half inch steel cable with loops at each end) to the "come-along" stationary hook. The other end of the "come-along" contained a steel cable with a hook at its end. He was using the "come-along" to lift a 300 pound steel form from the ground to the bridge. He stationed two workers to assist him, one on the ground and another on a scaffold about ten feet off the ground. He ran all the cable out of the "come-along," the ground worker secured it to the form, and Claimant then took up the slack in the cable. He was straddling the guardrail with his safety belt secured as he started to ratchet the form into the air on its journey to the bridge deck.
Claimant was leaning slightly over the guardrail watching the form as he continued to ratchet. When the form was 12 to 15 feet off the ground, and as he brought the handle down to start another pull, he "saw the cable coming out" and the form started to free-fall. He yelled "headache" to warn the workers below him that something was wrong. However, after falling a short distance, the "come-along" caught, the cable suddenly tightened and the approximately four-foot long iron pipe handle of the "come-along" snapped back and struck Claimant on his right temporal area near the temple with such force that it completely separated the composition of his kevlar safety helmet.[4]
He was rendered temporarily unconscious.
Claimant testified that the come-along was rated with a two-ton capacity, that a 300 pound weight was being suspended when the pawl and ratchet failed, then suddenly engaged, causing the handle to swing up and strike him. Claimant urges that his testimony in this regard is undisputed, and that it thus establishes sufficient evidence for this court to find the violation of the above-cited regulation. The Defendant has cogently addressed purported inconsistencies between Claimant's trial testimony in which he alleged that the come-along cable had slipped, and his deposition where he apparently didn't know how the accident happened. Defendant supplies yet another explanation of the circumstances from the records of one of Claimant's treating physicians, Dr. Andrew Hilburger, in which Claimant related a history that he was adjusting the come-along when the accident occurred (Exhibit 8). The Defendant hypothesizes that perhaps the "come-along" was inadvertently released by Claimant when his hand was returning the handle to its lower position. I do not so find, especially when the cable began to run freely to drop the form and then suddenly and without any reason engaged, causing the handle to strike the Claimant. I find that the pawl and ratchet assembly of the "come-along" was defective or not operating correctly, through no fault of the Claimant.

Accordingly, I find that liability here is predicated on violations of Labor Law §241(6), as well as §240(1). No culpable conduct by the Claimant was shown, and thus the Defendant is fully responsible and must answer in damages.

Claimant refused to go to the hospital and remained at the job site until the concrete pour he was engaged in was completed. He drove himself home, even though he had a headache and was nauseous. He stopped twice on the way to vomit. The next day he went to Genesee Memorial Hospital in Batavia where X-rays and a CAT scan were performed. He was referred to a neurologist, an MRI was done, and medications were prescribed. He was also referred to a chiropractor and his headaches stopped for the first time since the accident.

Then the headaches started again, and they have continued through the final date of this trial. The headaches are migraine in nature and eight out of ten include nauseous reactions, but all are incapacitating, so debilitating as to render Claimant unable to function.

In March 1998, Claimant found employment at Batavia Metal Products (Batavia) where he worked the second shift. As of December 1999, he had been absent 10 to 12 full days, and 6 to 8 part-days due to the severity of his headache attacks. His production manager noted that "He would go from a very, very strong worker – very, very good work ethic (and then as the result of the headaches and migraines) reduced to someone who could hardly get himself from the premises to his automobile." He observed that his "face would actually take on a dark color; he would have circles around his eyes, couldn't hold his head up – could hardly hold himself up." He testified that these symptoms became more frequent as his employment continued. Claimant's work performance appraisals at Batavia were all well above average except for attendance. However, as a result of the absences due to his headaches,[5]
his employment at Batavia was terminated.
Claimant acknowledges that due to his headache attacks he had to leave work at Batavia early and some days he couldn't go in to work at all. His headaches had increased to two a week and lasted from eight hours to two or more days. He was working at the wage of $13.22 per hour for 40 hours a week, with benefits, when he was fired from Batavia.

Claimant had been under the care of a neurologist for three years,[6]
but he became concerned with his course of treatment which he thought was too drug-treatment oriented. He was taking or had taken, among other medications, Neurontin, Zoloft, Efsexor, Inderel, Veramil, and Ellavil - all prophylactically; Imitrex - when a migraine started; Migranal nasal spray to abort migraines; Vicodan, Compazine, Stadol nasal spray, Lortab and Valium. As his neurologist stated when he prescribed Valium: "We had tried almost everything else I could think of." The CAT scans were always negative but ruled out any brain tumors.
Claimant then returned to his family physician who placed him on a slow detoxification program and further medical treatment as necessary.[7]
He is now seeking a non-drug alternative therapy for his headaches from the Cleveland Clinic, his doctor and his chiropractor. He continues to hunt geese and deer with a gun and a bow, and does housework when he can. He is looking for sedentary employment such as a retail sales clerk position where he is not exposed to the extremes of environment, climate and loud noises, but has not had any response to his applications. He expects to earn between six and seven dollars per hour.
Claimant no longer works out (exercises) as it causes a recurrence of headaches and he is limited to a 40 pound lifting restriction. He cannot work more than five feet off the ground; must avoid the extremes of climate, cold, heat and wind, and must avoid any type of severe physical exertion, loud noises and fumes. He cannot ice fish as the cold weather brings on headaches, and he limits his hunting and fishing. When he has a headache attack, his face changes color and his eyes have black rings around them (described at trial as "racoon eyes"). He has lost his ambition and drive for work and recreation. In the future he will need neurological consultations and chiropractic treatments, as well as a referral to a national headache clinic.

He has problems with his left jaw, which pops and becomes sore when eating. His symptoms have stabilized with the wearing of an orthodontic device. He now has a hard time remembering, reading, has a lack of ability to focus, and a lack of concentration. I find that Claimant is totally disabled from strenuous work, including construction and machine shop employment.

I find the Claimant to be direct, honest, forthright and unassuming. I find him to be a professional construction industry employee, who left a lucrative supervisory position in Alabama to return to upstate New York for personal reasons. Although while employed by Sealand he was classified as a journeyman carpenter by the local carpenter union, that classification does not do justice to his construction ability. Without this career-ending injury I find that he would have continued his higher progression in his chosen industry, at a minimum, in a position as a construction supervisor.

Claimant's wife, Noreen, is employed at the New York State Veteran's home in Batavia. She states that Claimant's personality is different after the accident; that he tires more easily; has a shortened attention span; that he is moody, and his self-esteem is low. He has a hard time with groups and becomes confused; that he used to have physical energy, but now has a low energy level; that he sleeps more often for shorter times and goes to bed earlier; has sporadic mood changes, and is physically smaller with a chest size loss of four to six inches. She states that he does not work out anymore, and that he does not think he is worth anything. He used to help around the house and do home repairs, but now does none of these.[8]
She testified about his physical reaction to the headaches with the darkening eyes condition.
Prior to his head injury, Claimant had no history of headaches or migraines. His headaches are migraine in nature and he takes a self-administered intravenous drug, Imitrex, when a headache starts. As of the last date of trial on November 6, 2000, the proof confirms that the migraine headaches continue to occur from two to three times per week, each for a duration of some 20 to 48 hours per episode, and some even longer. The frequency and duration were established through the Claimant who testified that occasionally one would last for two to three days, the medical history he provided to Dr. Medved, the Defendant's physician, which included a history of some thirteen migraines during the month preceding his examination on September 28, 2000, and consistent with, though perhaps slightly less frequent than the three to four days a week posited by Dr. Lorne Campbell (Exhibit N). The migraine headaches are preceded by an aura consisting of flashes of light in his vision. The actual headache is right-sided, throbbing, severe, and associated with nausea and vomiting. He has tried many other medications and the most effective now is Zoloft, which he takes prophylactically. When a headache starts he uses the nasal spray and a muscle relaxant medication. All scans, CAT and MRI, were unremarkable and contained no objective neurological findings. Dr. Campbell concludes that as of June 1, 2000 [9]
Since that time (September 20, 1996) he has suffered pains in his head and neck and has developed migraine headaches. We have sent him for opinions from local neurologists and from the Cleveland clinic. No improvement in his condition has occurred whatsoever. It is my considered medical opinion that at the present time Robert Woodhouse suffers from a permanent partial disability due to pain in his head and neck. Maximum medical improvement has occurred and further treatments will not change his present disability level. Mr. Woodhouse will suffer migraine headaches three to four days a week, neck pains on a daily basis and the ramifications of post-concussive syndrome for a permanent duration.

The Defendant's examining neurologist, Dr. Medved, agrees that Claimant suffered a traumatic head injury when he was struck and that it left him with a post-traumatic migraine disorder which will be permanent. However, he opines that Claimant also suffers from a "rebound headache" condition which he believes increases the number of headaches he suffers. He would wean Claimant from the drugs he is now prescribed and would introduce a different medication treatment plan. He admits that even if such a different plan was successful in eliminating his diagnosed "rebound headache" syndrome, the Claimant would still continue to have migraine headaches on a permanent basis, hopefully not as long-lasting or as often. He stated "... it is a matter of the degree and severity ..." of them. He further agrees that Claimant cannot work at this point, but he hopes the Claimant could return to work with height (elevation) restrictions. When he examined Claimant he personally observed the "racoon eyes" condition which he agrees is a consequence of a head injury.

I conclude that Claimant suffered a closed head injury with resulting cerebral concussion and a ligament sprain of the lumbar spine as the result of the injury of September 21, 1996. I concur with Dr. Campbell's and Dr. Medved's opinions concerning Claimant's permanent partial disability. However the question of the actual existence of rebound headaches, the introduction of a new and different medication plan, and the probability of any success in reducing the occurrence and severity of the migraines is one best left to the treating physicians of Claimant's choice. Claimant has, during the long course of this trial, demonstrated his very strong work ethic and the complete change from his former life style. It has been over four years since his injury with its devastating consequences and this Claimant, who endures these migraine attacks, is the person who must decide on his course of medical treatment after consultation with his physicians.

Professor Kenneth W. Reagles, Ph.D., a vocational rehabilitation counseling psychologist of 31 years experience, testified as an expert in vocational rehabilitation and economics as it relates to vocational rehabilitation. He has no formal degree in economics, but I found his testimony to be competent[10]
and forthright, and I received his opinion testimony as it relates to vocational rehabilitation and the economic results that occur when a worker is damaged to such an extent that vocational rehabilitation is necessary.[11]
Prof. Reagles testified as to his opinions regarding the consequences of Claimant's injury and his pre-injury earnings potential as based on the Claimant's testimony of his past job positions and salary. I find that Claimant had the ability, pre-injury, to be employed as a construction superintendent and not just as a journeyman carpenter or union carpenter, and that post-injury he is not capable of performing any of the three jobs based on his disability and medical restrictions (heights, lifting, balance and environmental conditions). I fully credit Reagles' economic analysis and employment opinions which I find are reasonable and most plausible in today's economic culture.

In evaluating Claimant's lost earnings capacity, Prof. Reagles posits two wage scenarios – a construction supervisor or a carpenter.[12]
Claimant's job when he was injured was with Sealand as an apprentice/journeyman carpenter, and the Defendant alleges that his last salary scale in western New York at the time of injury should be used as the base wage in determining his lost earnings capacity, and not his former wage in Alabama as a construction superintendent.
I find that his lifelong successful career in the construction industry, starting as a laborer and progressing to site superintendent, far outweighs his few months of employment as a union carpenter. He is a remarkable individual who has taught himself so many aspects of the construction industry, kept his body in shape to be capable of hard physical work, rejected the usual plastic hard hat and purchased his own kevlar hard hat, and learned to read and interpret blue prints, etc. I find that he would have quickly progressed to a construction superintendent in western New York.

In calculating his past lost wages, I will use his earnings as a carpenter, as I believe it would have taken up to two years for the local construction industry to recognize his ability and skills and hire him as a construction superintendent.

However, in evaluating his future lost wage capacity, I adopt as his wage that of a construction superintendent. He does possess some residual or post-injury earnings capacity and ability, but I will address that separately hereafter.

In determining his past lost wages, I agree with Reagles' Table 6, except for the period of September 21, 1996 to April 30, 1997, as it concerns Unemployment Insurance Benefits. I find that Claimant would not have accrued sufficient work periods to quality for Unemployment Insurance Benefits, and as such, his wage for that period would be $27,308, thus reducing the total past lost wages to $99,639. He also had an offsetting wage capacity as evidenced by his employment with Batavia Metal Products from March, 1998, to the date of trial, of $14,015 including fringe benefits. I find his past lost wages to be
In determining his future lost wages, I have found that his job would be as a construction superintendent, and that he would have a work life expectancy of 21.7 years. His starting wage base including fringe benefits is $61,203, which is then increased by 3% per year until 21.7 work years have elapsed. The 3% factor is the average increase in earnings in the construction industry over the past 20 years and I find it to be reasonable. I find the Claimant's future lost earnings to be
$1,834,786 before any residual earnings setoff.
Claimant's residual earnings articulated at the trial from November 30, 1998 to December 17, 1998, were calculated on his employment with Batavia Metal Products. However, by December 17, 1998, he had lost 10 to 12 full work days, and 6 to 8 part-time work days due to his headache attacks while at Batavia. At Batavia he was employed as a machinist at $13.00 per hour with 10½ % fringe benefits, for an annual base wage of $29,897, with a handicapped work life expectancy of 11 years due to his disabling condition classified as "all disabled." The calculation of residual wage capacity amounted to $382,684. Such an offset would have resulted in a total future wage loss of $1,452,102.

In August 1999, Claimant filed a motion to reopen proof on the future wage claim due to a change in employment at Batavia, alleging that the Claimant had been terminated on July 1, 1999, due to his inability to be available for work due to migraine headaches. The motion was granted, a new scheduling order entered and testimony was received on February 1, 2000, and November 6, 2000.

The production manager at Batavia testified that the Claimant started to work on March 5, 1998, on the second shift and over a period of time, he found that Claimant would "[G]o from a very, very strong worker – very, very good work ethic . . . reduced to someone who could hardly get himself from the premises to his automobile." He observed that Claimant's "face would actually take on a dark color; he would have circles around his eyes, couldn't hold his head up – could hardly hold himself up." He testified that these symptoms became more frequent as his employment continued.

Claimant's performance appraisals were all above average except for attendance. Finally, as a result of absences due to his headaches, Claimant was terminated on July 1, 1999, as Batavia needed "... a full time person in place of Mr. Woodhouse." His supervisor stated the he would rehire Claimant if his medical condition improved, as he was a "very good worker," and in fact his termination notice stated "would rehire in a minute – when healthy."

Claimant admitted that he had to leave work at Batavia early and some days he could not even go in to work and he saw his doctor who recommended that he leave the environment (noise, fumes, etc.) of Batavia. He now is looking for a job in the retail sales industry, where he could use his prior knowledge in the construction business, with chain stores such as Home Depot, Lowe's, Chase Pitkin and Central Tractor, but he has not had any response to his applications. He continues to hunt geese and deer with a gun and a bow, and now does housework when he can, while his wife works full-time.

Professor Reagles rendered new opinions based on the fact that Claimant was fired from Batavia on July 1, 1999, because of conditions relating to his injury. He found that in December 1998, Claimant received an additional hourly wage increase of fifty cents per hour bringing his wage rate to $13.50 per hour but that in March 1999, his weekly working hours were reduced from forty hours to thirty hours. As the result of these changes in his Batavia employment and his termination, at the reopened trial, Prof. Reagles reduced the residual wage ability in the future to a total of $123,221 from $382,684 because he found that the Claimant had now only the ability to work on a part-time basis of 20 to 25 hours per week at six to seven dollars per hour, as a project advisor in a home improvement store, etc. Accordingly, seven dollars per hour for 25 hours per week equals an annual income of $9,100, adding only mandated fringe benefits of 8½% for an annual wage of $9,874, with the same eleven year residual work life expectancy and adjusting for a growth rate of 2½% (Prof. Reagles used the term "depreciation rate"), amounted to $123,221. To that sum the monies that he earned from the date of the original trial of December 1998, to the date of his termination on July 1,1999, must be added. Hence the sum of approximately $12,000 (considering the hourly reduction in March 1999, of his work week from 40 hours to 30 hours) must be added to his final residual earning ability. During his deposition testimony at the reopened portion of the trial, Professor Reagles calculated his residual earning ability at a final total of $135,221.

However, at his earlier testimony before the trial was reopened, Prof. Reagles used a 3% growth rate, and if that rate was applied in this calculation, it would amount to
$144,169. I choose to use the 3% rate as originally proffered. Hence, the future lost wage claim is $1,834,786, less $144,169, for a total future lost wage of $1,690,617. The Court has, sua sponte, amended the claim and the ad damnum to conform to the proof (CPLR 3025[c]; also see Amended Bill of Particulars, Response 8, dated July 22, 1998).
With respect to past medical expenses incurred by Claimants, the parties have agreed that, to the date of trial, they had totaled
With respect to future medical expenses, while the Defendant has contested the necessity for future chiropractic care, I have determined that the same is necessary and reasonable. I have reviewed the estimated costs of such visits, perhaps four to six times a year, as well as those to a neurologist at three or four visits annually, and annual prescription drugs, after adjustment for inflation (Prof. Reagles utilized a 4.8% annual factor), and award the sum of
$125,000 for the reasonable and necessary future medical costs. Since this matter will be set down for a proceeding pursuant to CPLR article 50-B, at that time I will also hear testimony, if any, with respect to collateral sources as defined in CPLR 4545(c), preserved in the Defendant's Fifth Affirmative Defense.
In determining an award for pain and suffering for this injury, I am mindful of the devastating effect on Claimant's life. I have already described the effects on Claimant from the time of the accident through his testimony at trial, and for his past pain and suffering, I find that Claimant Robert G. Woodhouse, Jr. is entitled to
With respect to Claimant's future pain and suffering as a result of this accident, I note that Claimant, at the time of trial, had a life expectancy of some 36 years. Claimant must endure excruciating and debilitating migraine headaches averaging some three days a week, each lasting upwards of one full day, and occasionally more. He will get "raccoon eyes" and will be unable to function normally for the duration of each attack. These migraines will continue without stopping for the rest of his life. It is such a life-altering experience, affecting his work life, his family life, his sexual relations with his wife, his social life, his leisure time and hobbies. The basic enjoyment of life is forever impaired, as he awaits, like a Sword of Damacles, the inevitable and unrelenting migraine that incapacitates him almost every other day. It is difficult to measure or quantify in monetary terms a recovery for circumstances that have such a major impact on his daily activities. I find that he is entitled to an award for future pain and suffering, both mental and physical, of
$1,404,000. I find that Claimant, Noreen Woodhouse, for her derivative cause of action, is entitled to an award in the amount of $93,000.
In sum, the damage award is as follows:

Past Medical Expenses 24,368.23
Future Medical Expenses 125,000.00
Past Lost Income 85,624.00
Future Lost Income 1,690,617.00
Past Pain and Suffering 387,500.00
Future Pain and Suffering 1,404,000.00
Derivative Claim 93,000.00

All motions not heretofore ruled upon are now denied.

Judgment will be held in abeyance pending a hearing pursuant to CPLR article 50-B, which shall be scheduled upon application by Claimants.

February 22, 2001
Rochester, New York

Judge of the Court of Claims

[1]Motion Nos. M-56877 and CM-57003.
[2]For ease of reference, the term Claimant shall mean Robert G. Woodhouse, Jr., unless otherwise indicated.
[3]A "come-along" is a hand-operated lifting device which consists, inter alia, of a pawl and ratchet.
[4]See Exhibit 14, which shows the total break in the left side of the helmet, again remembering that Claimant was wearing it backwards so the brim could protect his neck.
[5]See Exhibit 21.
[6]See Exhibits 2, 8 and 23.
[7]See Exhibits 1 and 7.
[8]I attribute the contrast between Claimant's characterization of assisting with housework when he can and his wife's characterization that he now does not help out to perhaps stereotypical marital assessments of household responsibilities.
[9]Exhibit N.
[10]See Exhibit 22, pp 16-17 and 21-24.
[11]Exhibit 4.
[12]Exhibit 17.