SMALIOS v. THE STATE OF NEW YORK, #2001-016-045, Claim No. 98524
NICHOLAS SMALIOS and ROSE SMALIOS
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Friedman & SimonBy: Roger L. Simon, Esq.
Eliot Spitzer, Attorney General
By: Allen Johnson & Lonergan Michael J. Lonergan, Esq. of Counsel
June 15, 2001
See also (multicaptioned
Nicholas Smalios, a bridge painter, was working from a scaffold suspended below
an overpass spanning the Gowanus Expressway
approach to the Verrazano-Narrows Bridge in Brooklyn when he fell on August 9,
1997. By Order filed June 16, 2000, summary judgment was granted on liability
under §240 of the Labor Law. This is the decision from the trial on
maintains that the fall caused injury to his ankle and back, and within
approximately a year such precipitated a severe psychological deterioration.
Smalios testified as did his wife, Rose. Claimant called two psychiatrists and
a doctor specializing in physical medicine and rehabilitation. One orthopedic
surgeon took the stand - - Dr. Herbert Sherry, who was the defendant's sole
witness at trial. In addition, testimony was elicited from an expert in
rehabilitation and one in economics as to what work, if any, claimant, could do
and the resulting financial loss.The Back
The medical records essentially contemporaneous with the accident, subsequent
records and Mr. Smalios' deposition and trial testimony do not present a
consistent story as to the injury
At the time of the fall, only an injury to the foot or ankle was implicated.
The emergency room report at Western Queens Medical Center from late on the day
of the accident provides that claimant "twisted his left ankle." The left ankle
was immediately X-rayed at the Medical Center with the result that there was
"soft tissue swelling." The "[e]xamination of the foot reveals a small bony
density...which may represent [a] small chip fracture
of the talus." (Cl exh 2). The talus is a bone that helps form the joint
between the shin and the ankle.
Not until two and one-half months later, in an October 23, 1997 medical note,
was there any record of back pain, then reported as radiating down Smalios' left
leg towards his calf. The note was discussed during the testimony of Dr. Cyrus
Vossough, whose specialty is physical medicine and rehabilitation, but who is
not board certified therein. Vossough had recited the entry of another doctor,
who like Vossough, also worked at a facility known as
Sports Medicine and Orthopaedic Rehabilitation. But the records from claimant's
next two visits to Sports Medicine on November 25 and December 15, 1997 include
no mention of back complaints.
In addition, a course of physical therapy was begun that initially involved
only claimant's ankle, not his back (see cl exh 3).
An MRI of the back was not taken until May 28, 1999, which Dr. Vossough
said was interpreted by the radiologist to be a disc herniation at the level of
L-5, S-1. The explanation for the delay as a consequence of a time consuming
approval procedure is unpersuasive, particularly in the context of all the
evidence -- for example, a lumbar MRI was not requested until August, 1998.
deposition taken on January 12, 1999, almost a year and a half after the
accident, he stated that when he was placed in a car by his co-workers on the
job, he complained to them of back pain: "[m]y back but, you know, my lower
back" [def exh G, at p. 59, and see also p.65]. At trial, when asked what parts
of his body he fell on, he answered unsurely. "My feet, and I hurt my back."
He did not feel pain from his back right away, it began a "couple of days
later." But he then went on to say: "After I fell I have pains, but I thought
it was coming from my feet...And my back, I had a lot of pains in my feet."
Dr.Sherry, the defendant's orthopedic surgeon, agreed that claimant had a
problem at the L-5, S-1 level, but in his opinion, the disc was bulging, not
herniated. In any event, the condition is a common one even when no trauma
occurs. Without objection, Dr. Sherry pointed to a 1994 article in the New
England Journal of Medicine describing a study in which MRI's of the back were
taken of 99 healthy patients and sent to prominent radiologists around the
country. The result was a "52% [incidence] of bulging discs on these normal
patients, and a 27% [incidence] of herniated discs on these patients." Nicholas
Smalios, nearly 49 years old at the time of injury,
had done physical labor virtually his entire life and engaged in other strenuous
activities such as playing soccer "every time I had off from work I used to go
one hour, or two hours."
According to Dr. Vossough, Smalios' fall caused what, in his view, was a
herniated disc. But Vossough then went on to suggest
that claimant's left ankle affected his normal walk, and this antalgic gait
produced his back problems. Dr. Sherry's opinion, the more credible one, was
that such etiology was quite unlikely.
In view of the foregoing,
claimant has failed to prove by a fair preponderance of the credible evidence
that any back injury may be properly attributable to his fall of August 9,
Smalios did not fracture his ankle. As quoted above, the X-rays taken in a
hospital on the evening of the accident were interpreted to show the possibility
of a chip fracture. A month later on September 11,1997, X-rays were taken
preparatory to Smalios beginning physical therapy for the ankle; they
definitively showed no fracture. Claimant's own physiatrist, Dr.
described the result from those X-rays as a "normal left ankle and
Smalios did have swelling, pain and tenderness in his left foot and could not
put full weight on it, although by October of 1997 he denied any mechanical
difficulty such as leg locking. Claimant wore a cast for a few weeks,
and 3 cc's of fluid were drained from the ankle in December of 1997. Rose
Smalios testified that after the cast was removed, her husband was on crutches
for about three months. For the next six months, he used a cane. At some point
in the second year, according to his wife, claimant stopped using a cane, but
was still limping.
Mrs. Smalios described her husband's ability to perambulate at the time of
trial (December 2000) as follows:
"Well, he limps..if he goes two blocks he has to stop...he can't sit too long,
he complains of pain, you know, and he doesn't bend, I bend always, everything
that falls I bend, he doesn't bend at all." But claimant's physiatrist, Dr.
Vossough, a few months before in October 2000, found no swelling, that other
tests were negative and his gait stable; although on direct testimony he had a
more ambiguous view - - that the ankle was improved. Furthermore, Dr. Sherry
who examined claimant in November of 1999 observed a "normal gait and stride in
the hallway...at other times he walked with a stiff-leg gate on the left." The
thighs and calves of claimant's left and right leg measured exactly the same,
suggesting he had not favored one. The circumference of the right ankle - the
uninjured one - was an eighth of an inch less than the left ankle, but Dr.
Sherry drew no clinical conclusion therefrom, stating only that it was within
the measuring margin-of-error.
There was testimony from Dr. Vossough (again reading off of medical records not
generated by him) of a test that could indicate nerve damage - - a positive
Tinel sign. But such was based upon subjective information; Dr. Sherry's
opinion otherwise was the better grounded. Dr. Sherry's review of the MRI and
his clinical examination turned up no nerve damage; if nerve damage had been
suspected earlier, Sherry noted that the physician would have ordered an EMG
It must be borne in mind that Smalios' job entails standing all day and
carrying and positioning fairly heavy scaffolds, often at great heights. There
is not much margin for misstep working at the top of the Triborough Bridge. My
conclusion therefore regarding the ankle is that while fairly well recovered
after three years from an injury which was not a fracture, in view of the
difficulty, the demands and the danger of his job, he cannot resume such
activity. With that said however, the ankle injury by itself has a fairly
limited impact on claimant's future activities of daily living.The
As presented at trial, Nicholas Smalios had become a greatly diminished
individual. He withdrew from his wife, his friends and the activities that he
had enjoyed. However sympathetic a figure Mr. Smalios and Mrs. Smalios - on
whom much of the burden falls - may have become, nonetheless the threshold
issue must be confronted: was claimant's psychological condition or mental
state the legal responsibility of the defendant?
Claimant fell on August 9, 1997. Nowhere in claimant's case is the onset of
the mental deterioration placed at a time before the summer of the following
year. It may well have been later, although a later date would not affect my
conclusion on the issue. Smalios' deposition in January of 1999 - - seventeen
months after the accident - - was notable for his focus and good memory
compared to his trial testimony.
The trier of fact is not, of course, compelled to accept the conclusion of an
expert even where the opposing party calls no expert on that issue or otherwise
leaves the conclusion unchallenged. (
1:90). Here defendant put no psychiatrist on the stand and claimant
called two - - Dr. Theodore Yanos and Dr. Peter Aldin. Dr. Yanos was Smalios'
treating psychiatrist, but only since August 28, 2000.
The two men differed in their diagnoses. Dr. Aldin most definitely
did not share Dr.Yanos' diagnosis of post-traumatic stress disorder.
Dr. Yanos also diagnosed Smalios with a schizo-effective disorder, but as to the
nexus between injury and mental condition devoted his efforts to the
post-traumatic stress disorder (PTSD). Dr. Yanos was not persuasive. He
thought Smalios had broken his leg ("the lower part") and was, at best unsure
on whether claimant lost consciousness when he fell (as was Aldin).
Furthermore, Dr. Yanos proceeded from the assumption that Smalios became
frightened of sirens because they reminded him of the ambulance involved in his
injury - - but claimant was driven home by his job foreman, and to the hospital
later that day by his father-in-law. Dr. Yanos made an effort to place
claimant's situation in the same category as the other instances he cited of
PTSD: military combat, a violent assault, kidnapping or a
work-related accident ("sudden and life threatening"). When Dr. Yanos then
stated that a fall from 10 or 12 feet was comprehended by such category, he was
unconvincing, especially where the individual in question was experienced in
working at the heights of New York City's great bridges.
Dr. Aldin states that the fall of August 9, 1997 was the competent producing
cause of his diagnosis of severe depression and psychosis. I am not persuaded
by his well-meaning view that:
[I]f someone...finds himself...in pain and then unable to work, especially in a
culture where to be the head of the family...is very much a part of one's sense
of masculinity and worth...so, the depression, is a kind of thing that will
happen to someone who is not working, and who...finds himself worthless and not
functioning, and then as I said before, they start spiraling, especially after
an initial period where the person invariably hopes that maybe it will get
better...[a]nd little by little he finds out that, no, it doesn't get
better...[H]is life is in shambles, and the more it is in shambles, the more
depressed he becomes.
In view of the evidence, I cannot conclude by a preponderance of the evidence
that claimant's fall was the proximate cause of his psychological condition for
which defendant must bear responsibility. In addition, having reviewed the case
law, I find no precedent that would create liability in the situation found
here: no head trauma, no surgical intervention for the injury that did occur,
no immediate fright or terror and no psychological symptoms for at least one
e.g. Brewster v Prince Apartments Inc.,
264 AD2d 611, 695 NYS2d 315 (1st
Dept 1999); DeLeonibus v Scognamillo
, 238 AD2d 301, 656 NYS2d 275 (2d
Dept 1997); Leon v J & M Peppe Realty Corp.
, 190 AD2d 400, 596 NYS2d
380 (1st Dept 1993); Small v Zelin
, 152 AD2d 690, 544 NYS2d 27 (2d
Dept 1989)The Measure of Damages
conclusion from the above discussion is that damages flow only from claimant's
ankle injury. Pain & Suffering; Loss of Consortium.
Following the accident, claimant was in a cast, had fluid
drained from his ankle, and used a cane and crutches, but did not undergo
surgery. There was credible testimony of his love of playing soccer and that he
engaged in other physical activities that would have been impeded by his ankle
condition, including dancing, jogging and weightlifting. However, as noted
above, there was strong evidence that his ankle, which was never fractured, was
healed (re the equal circumferences of the various leg measurements) and that
nothing about the condition of his ankle prevents claimant from engaging in all
but the most strenuous activities.
Accordingly, for Nicholas Smalios' pain and suffering dating back to August 9,
1997, I find to be in the amount of $125,000 and for such future amount, I find
to be $50,000. Born September 6, 1948, Nicholas Smalios is currently 52 years
old, and I shall not vary from the life expectancy derived actuarially - - 25
App A, Table 2).
We heard from Rose Smalios a Job-like role of care for her husband whose
has changed so dramatically. But without the nexus between the August 9, 1997
injury and such condition, her loss of consortium must necessarily be of
different magnitude, and related only to her extra responsibilities and loss for
activities due to Mr. Smalios' injured ankle. For her loss -- past and future
2:315) - - I find to be in the amount of $50,000.
Smalios' prior treatment at Sports Medicine and Orthopedic Rehabilitation
generated costs of $7, 977 which went largely uncontested. For future
medicals, I would accept the testimony of $1,200 in orthopedic visits. However,
as to twice-a month pool therapy, a significant portion is clearly for his back
complaints, for which I have not found defendant responsible. Defendant is
liable then for one-third of those costs or $3,200 for a future medical total of
Wages and Fringes
Smalios is permanently disabled from his occupation as a bridge painter. The
claimant called Albert C. Ovedovitz, a Ph. D. in economics and statistics, who
assumed a working life of 13.4 years. Claimant was one month away from his
forty-ninth birthday when he fell. There are differing tables of work life
expectancy depending upon an individual's educational background. Matching
Smalios with such table would have him working until age 60 (
App B, table 2). More appropriate would be to assume he works 13.1
years - - or 13 years - - from the date of injury to age 62. Measuring the past
damages to the date of this verdict: we are within about a month of four years
from August 9, 1997. The past and future working periods thus break into four
and nine years.
Claimant's exhibit 7 is the collective bargaining agreement which shows wage
and benefit changes made from 1997 through 1999 (pp. 11-12). Defendant's
exhibit F contains page 10 from the successor agreement, including five years of
increases through 2004. Hourly wage rates for eight of the thirteen years at
issue are thus available. The first four hourly rates, which will determine
Smalios' past lost earnings, are: $34 (1997); $34.50 (1998); $35 (1999); and
$36 (2000). The next four rates from 2001 through 2004 are: $37; $38.75;
$40.25 and $42.
To extrapolate the five years of the Smalios 9-year lost future working life,
an increase of 2.5% annually is appropriate, resulting in annual hourly rates
from 2005 through 2009 as follows: $43.05; 44.13; 45.23; 46.36 and
The applicable fringe benefits are calculated as a percentage of hourly rate
and set forth in the contract. Not given as a percentage are the pension
contributions, but that will be excluded here to avoid double counting –
claimant's pension loss is separately detailed below
. The percentage of 47.5% of wages as the value of benefits for each of the 13
years of Smalios' lost employment shall be utilized. The figure is the total of
the percentages listed for 1999 (excluding the pension amount, which is
expressed in dollars, not a
As to hours worked, a longer history affords a better statistical picture and
that is available in the unchallenged testimony of
claimant earned a total of 69 units of pension
credit over a thirteen-year period from 1984 to 1997. It is appropriate to use
the 13-year pension history to project the number of hours claimant would have
worked for the 13 years after August 9, 1997. This is a better measure than
either: i) the material from defendant containing separate pages covering
earnings and hours with individual employers that may not be complete (def exh
F); or ii) the tax returns claimant submitted for two calendar years - - 1995
Under Smalios' pension plan, pension credits are a function of the hours of
work (cl exh 8, p.11). One unit of pension credit is earned for every 150 hours
of work in a calendar year.
Thus, 69 pension units was generated by 10,350 hours of creditable work (69 x
150), for an average over a 13-year period of 796 hours per year. However,
under the pension plan, no fractional units are awarded; there is no
year-to-year carryover. For example, 299 hours earns the same one unit as does
150 hours. The midpoint of 150 hours – 75 hours – is a logical
approximation of the number of leftover hours each year. Smalios' average
annual time worked amounts then to 796 plus 75 or 871 hours – the figure
of 875 hours will be the one we use.
The calculation for past earnings is the hourly rate for the first four years
times 1.475 (the value of fringes) times 875 hours -- yielding a past wage loss
of $180,042. The same methodology in which only the hourly rate varies over the
next nine years gives the future wage loss of $495,974.
Alternate Work and Employee Expenses
Defendant engaged in some cross-examination of claimant's rehabilitative
specialist (Richard Schuster, Ph.D.) on the possibility that claimant could, for
example, work as an indoor painter, but such was insufficiently focused or
weighty to accept as a likelihood which could then be used to offset his lost
earnings from bridge painting.
However, work-related expenses are properly deducted from potential lost
(see e.g., Lightfoot v State of New York
, Claim # 90848 at pp. 19-20
[Silverman, J., 1999]). Claimant's tax returns from 1995 and 1996 include a
Form 2106 listing employee business expenses of $6,742 for 1995 and $5,962 for
1996 (cl exhs 6 and 1, respectively). While the form (line 3) indicates that
most of the amounts were for employee travel expense away from home overnight,
which may be atypical, any further explanation was the burden of the claimant.
Moreover, Form 2106 permits the deduction from adjusted gross income of only
certain employee expenses. In any event, for our purposes, $6,000 is a fair
representation of Smalios' annual work-related expenses: subtract $24,000 from
past lost earnings ($6,000 x 4 years), and $54,000 from future lost earnings
over 9 years.
Unemployment Insurance; Pension; and Social Security
Smalios' work is seasonal and he thus annually qualifies for unemployment
insurance. The extant figure is $6,300 per year: $25,200 for the past and
$56,700 in the future. Ovedovitz testified that Smalios suffered a loss of
$163,500 in pension and $45,500 in social security, amounts not directly
challenged by the defendant.
In sum, the damages incurred by claimants are as follows:
Past damages: $125, 000 Pain & Suffering
(24,000) deduction for
Unemployment Insurance Total Past :
Future damages: $50,000 Pain & Suffering
(25-year life expectancy; 50,000 Mrs. Smalios' Loss of
9-year working life) 4,400 Medical
(54,000) deduction for
56,700 Unemployment Insurance
Total Past & Future: $1,126, 293
Judgment is to be held in abeyance pending a hearing under Article 50-B of the
CPLR, which the Court will schedule. Motions not previously ruled upon are
June 15, 2001
HON. ALAN C. MARIN
Judge of the Court of Claims
The claim of Rose Smalios derives from that
of her husband: except as is otherwise clear from the context, references
herein will be in the singular to "Smalios" and "claimant," which are intended
to refer to Nicholas Smalios
Accounts differed as to just how high up
Smalios was when he fell. At various times, claimant stated 15 feet, 12 to 15
feet or 2 to 3 meters (6 feet to 9 ½ feet; see def exh G, p.46).
Dr. Vossough was told 7 feet when taking his patient's history. (The emergency
room record from August 9 contained a reference to 5 feet, to which claimant
objected on hearsay grounds.). In any event at trial, the precise height had no
import for our purposes.
For example in his deposition, Smalios
volunteered that the actual residence of John Frangos, the job foreman, was in
Ovedovitz spoke of two models, one using
increases of 1.5% , the other 3%. A percentage of 2.5% strikes a fairer
balance. The initial increases – 1997 to 1998 and 1998 to 1999 -- were
1.5% and 1.4%, respectively, although from there out the hourly increases do
range from 2.8% (the October 2001 raise) to 4.7% (the October, 2002
Cl exh 7, p.12. Granted, the percentage for
1997 is 44.5 and for 1998, 46.5. Only one page of the successor contract is in
evidence, and the benefit table with its bottom two lines continue on the next
page. (Def exh F). The numbers we do have for 2000 to 2004 are unchanged from
1999: Health & welfare accounts for 17%; the annuity is 11% and 10%
represents vacation. My calculation assumes the last two lines of 1.5% and 8%
from 1999 also remain unchanged and that all such percentages continue through
Pre-1987 time may be treated somewhat