New York State Court of Claims

New York State Court of Claims

KWARTLER v. THE STATE OF NEW YORK, #2001-010-068, Claim No. 91739


Synopsis


Damages resulting from a fall in a broken chair.

Case Information

UID:
2001-010-068
Claimant(s):
JEANNE C. KWARTLER
Claimant short name:
KWARTLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91739
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
PATRICK H. BARTH, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In a Decision dated June 28, 2000 and filed July 13, 2000, this Court determined that defendant was 100 percent liable for the personal injuries sustained by claimant on February 13, 1995 at Bedford Correctional Facility, when she sat on her office chair and it collapsed. Claimant had been employed as a correction counselor at the facility. This Decision pertains to the issue of damages.
Claimant seeks damages for the time period from February 13, 1995 through April 27, 1999[1] (Claimant's Post-Trial Memorandum at pp. 1-2). Claimant's medical history prior to the accident is extensive. In 1981, she was diagnosed as having angioimmunoblastic lymphadenopathy ("AILD"), a rare form of lymphoma.[2] Since then, she took steroids daily and since 1983, she has been on a chemotherapy protocol. The high levels of these medications have resulted in atrophy in all of her extremities and thinning of her bones. This made claimant vulnerable to falls. In 1982, she required the continued use of Canadian crutches (Ex. 2, p. 2). While there have been periods of remission of the AILD, she has been hospitalized extensively in relation to the cancer.
Claimant has also had a significant history of lower back pain and had her first lumbar laminectomy in October 1976. After this initial surgery, she had another laminectomy in 1981 and two additional operations in 1983 (Ex. 5, p. 1). From 1986 to 1993, claimant fell a number of times and sustained injuries due to the fragility of her bones and tissues. She "sustained a broken leg, has severely sprained ligaments in both ankles in addition to numerous soft issue tears. Each of these injuries ha[d] required a fiberglass cast for 6 to 8 weeks" (Ex. 2, p. 2). Claimant suffered partial tears to both her right and left rotator cuff resulting in her need to replace her crutches with an electric wheel chair (Ex. 10, p. 153).
On January 5, 1994,
claimant slipped at work and sustained a partial tear of her left Achilles tendon. This fall also resulted in "a partial tear of her right rotator cuff and re-injured her lumbar spine" (Ex. 10, p. 153). The healing process for these injuries was impaired because of the high dose steroids used to treat claimant's other problems. Additionally, this fall tended to destabilize claimant's lumbar spine.
Dr. Edward J. Reich, a certified neurologist who has been treating
claimant for multiple neurological problems since 1976, testified on her behalf. Reich maintained that prior to the February 13, 1995 accident, claimant's back problems emanated from the L4-L5 level. On February 14, 1995, claimant's major complaint was pain to the left lumbar spine. She also had a headache and injuries to her left rib cage and right foot. Reich was concerned about a possible spinal compression fracture because claimant was on cortisone, which tends to thin bones. A CAT scan taken within the month revealed "DISC DEGENERATION WITH MARKED ANNULAR BULGE AT L2-3" (Ex. 10, p. 139). This was the first reference in any of claimant's medical records to a problem at the L2-3 level. Her previous difficulties involved the L4-5 region, which had already been fused.
Reich also testified that he administered an electromyography test on April 17, 1995. Reich explained that through this nerve conduction study, he can assess whether an injury is chronic or new. The April 1995 test revealed both old and new injuries at the L-5, S-1 roots on both sides and at L-4 on the left. He also noted new injuries to claimant's left calf muscle.[3]

Reich conceded that claimant had experienced back pain prior to the accident and described pain as a way of life for her. In the past, however, claimant's pain was managed by intermittent physical therapy and pain medication allowing her to walk with a cane and crutches (Ex. 2, p. 3). Reich described
claimant as a workaholic. After the accident, there were changes in the pain level she experienced and the treatment utilized.
On the day after the February 13, 1995 accident,
claimant was examined by Dr. Valery F. Lanyi, a rehabilitation specialist. Lanyi reported that claimant:
fell on her left side and injured her neck, shoulder and left lower extremity and foot. As the chair fell on her she twisted and additionally injured the right side of her shoulder and her foot.
***

On examination there were abrasions in her right lower 3rd of her right lower extremity and the lateral aspect of her right foot. Her chief complaint, at this time, was pain in the right shoulder on all motions, in the left thigh on flexion more than on the right and there was pain on motion of both ankles.
***

It is my impression that at this time there was a signaificant [sic] element of contusion in both lower extremities as well as the trunk and the shoulders.

(Ex. 5, pp. 1-2).
Despite her complaints of pain, surgery was avoided because of claimant's other ailments. Rather, a course of treatment including physical therapy, trigger point and facet joint injections was pursued.

In February 1996, Reich noted that
claimant had developed symptoms relating to the L2-L3 bulging disc that was first apparent on the MRI taken shortly after the fall. Claimant voiced complaints regarding her left groin area which Reich explained as emanating from the L2-L3 level. This pain was aggravated by standing and walking. Claimant's lower left extremities were weaker and she suffered from intermittent bowel and bladder incontinence. An MRI taken of the lumbar spine in February 1996 revealed:
EVALUATION AT L2-L3 SHOWS MARKED IRREGULARITY IN OUTLINE OF THE VERTEBRAL BODY OF L2 WITH BULGING ANNULUS SEEN AND IMPRESSION UPON THE DURAL SAC EXTENDING TO THE LEFT OF MIDLINE AS OUTLINED. FINDINGS ARE MOSTLY DUE TO OSTEOPHYTIC PROCESS. THE POSSIBILITY OF DISC HERNIATION, HOWEVER, CANNOT BE ENTIRELY EXCLUDED. NO ABNORMAL ENHANCEMENT IS SEEN ON THE POST GADOLINIUM EVALUATION, SUGGESTIVE AGAIN OF OSTEOPHYTIC, DEGENERATIVE ARTHRITIC PROCESS.

(Ex. 10, p. 164). Reich explained that this finding meant that the bulge had worsened and was now pushing on claimant's spinal sac. Claimant also exhibited weakness in her left hip and thigh which followed the L2-L3 root.
In an attempt to avoid surgery,
claimant was treated with two epidural injections wherein cortisone was injected directly into the spinal space. These produced a slight improvement, which Reich interpreted as evidence of an L2-L3 problem. In a further attempt to avoid surgery, a laser decompression procedure was tried. This was unsuccessful in alleviating claimant's pain.
Finally, all of claimant's doctors agreed that the situation was getting worse and that, despite the risks associated with AILD,
claimant should undergo surgery for a fusion at L2-L3. An MRI performed at Lenox Hill Hospital on May 4, 1996 showed a "large extruded disc migrating superiorly from L2-L3 with mass effect on the thecal sac, narrowing of the left neural foramen and displacement of the L2 nerve root. There is also mild spinal canal stenosis at this level" (Ex. 13, p. 14). Surgery for a fusion at L2-L3 was performed.
The L2-L3 discectomy improved claimant's back spasms, however, it did not improve her lower back or left leg.
On September 14, 1998, Dr. Thomas J. Errico, Associate Professor of Clinical Orthopaedic Surgery, recommended a total spinal fusion because claimant had two floating fusions and most of her problems were coming from the two levels in between(Ex. 14, p. 2). Fusion surgery was performed on January 13, 1999 and it improved claimant's back. However, Reich observed a change in claimant's mental state; she was hallucinating and was depressed. She gained 25 pounds and had blurred vision and ringing in her ears. Reich opined that the second spinal fusion was necessitated by the February 13, 1995 accident.
Dr. Seth Neubardt, an orthopedic surgeon, testified on behalf of defendant. He opined that
claimant suffered a vertical compression injury from the February 13, 1995 fall, but that all of claimant's post 1995 back problems were not attributable to the accident. In his view, claimant had preexisting problems at L2-L3 and that the accident may have aggravated her condition, it was not the cause of the degeneration of her spine. According to Neubardt, the tremendous amount of steroids taken by claimant resulted in a weakness of her bones and osteoporosis. He further stated that her vertical compression injury was not extreme enough to have caused a fracture or a herniated disc and the CAT scan taken one month after the accident did not show a "discrete herniation" (Ex. 10, p. 141). Rather, the problems at L2-L3 were the result of progressive arthritic degenerative disease unrelated to the accident. Any degenerative change attributable to the accident would not be evident for nine months to a year after the accident. He explained that the degeneration was not unique to the L2-L3 level and that, due to the problems claimant had at other levels, it was reasonable to expect claimant to develop problems at the L2-L3 level.
Neubardt maintained that, even if claimant had
sustained a L2-L3 injury from the fall, the initial surgery performed at L2-L3 corrected that problem. He maintained that the later surgery connecting the two floating fusions was unrelated to the fall. Neubardt concluded that, as a result of the fall, claimant sustained a trauma and a lumbar sprain and that the impact was not enough to compress her bones. He also noted that, despite the fact that claimant was on steroids, she sustained no fractures. According to Neubardt, the fall exasperated claimant's arthritic condition and her long history of problems.
Upon listening to the witnesses testify and evaluating all of the evidence, the Court finds that
claimant had a significant medical history prior to the accident and that all of her ailments subsequent to the accident were not causally related to the 1995 fall. Rather, the fall exasperated claimant's condition to the extent that she is entitled to an award of $85,000.00 for her past pain and suffering from February 13, 1995 through April 27, 1999 (see generally, DePasquale V Klenetsky, 255 AD2d 546) and is awarded $24,000.00 for that portion of her medical costs resulting from the 1995 fall, for a total of $109,000.00, with interest, from June 28, 2000 (see, Dingle v Prudential Property and Casualty Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).
LET JUDGMENT BE ENTERED ACCORDINGLY.


February 20, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] On April 27, 1999, claimant no longer experienced back pain and the radiating pain to her left leg had ceased (Claimant's Post-trial Memorandum at p. 2). There is no claim for future pain and suffering ("[n]o award for future pain and suffering is sought because the physicians cannot separate the pain she is suffering from the AILD from other pain" [Id. at p. 26]). There is also no claim for insurance premiums (Letter of Claimant's Attorney Dated October 4, 2001, but received December 10, 2001).
[2] At the time of the trial, claimant was hospitalized for the AILD and her examination before trial was received into evidence (Ex. 23). Counsel represented that her condition, in terms of the cancer, had deteriorated significantly.
[3] In regard to this nerve test, defendant's expert, an orthopedic surgeon deferred to claimant's treating neurologist.