New York State Court of Claims

New York State Court of Claims

SMALIOS v. THE STATE OF NEW YORK, #2001-016-045, Claim No. 98524


Synopsis



Case Information

UID:
2001-016-045
Claimant(s):
NICHOLAS SMALIOS and ROSE SMALIOS
Claimant short name:
SMALIOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98524
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Friedman & SimonBy: Roger L. Simon, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Allen Johnson & Lonergan Michael J. Lonergan, Esq. of Counsel
Third-party defendant's attorney:

Signature date:
June 15, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 damages.
Claimant[1]
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 suffered.[2]

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.
At Smalios'
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, was a man who 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, 1997.

The Ankle
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. Vossough,
described the result from those X-rays as a "normal left ankle and foot."
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 test.

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 Psychological
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.[3]

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. (
PJI 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 severe 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 year. See
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
The overarching 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 years (
PJI App A, Table 2).
We heard from Rose Smalios a Job-like role of care for her husband whose persona
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 (see PJI 2:315) - - I find to be in the amount of $50,000.

Medical
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 $4,400.


Lost Earnings

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 (
PJI 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 $47.52[4]
.
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 percentage).[5]
As to hours worked, a longer history affords a better statistical picture and that is available in the unchallenged testimony of
Ovedovitz that 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 and 1996.
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.[6]
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 earnings
(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
7,977 Medical
180,042 Wages

(24,000) deduction for Work Expenses
25,200 Unemployment Insurance Total Past : $314,219
Future damages: $50,000 Pain & Suffering
(25-year life expectancy; 50,000 Mrs. Smalios' Loss of Services
9-year working life) 4,400 Medical
495,974 Wages

(54,000) deduction for Work Expenses
56,700 Unemployment Insurance
163,500 Pension

45,500 Social Security
Total Future: $812,074
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 deemed denied.






June 15, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] 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

[2] 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.

[3] For example in his deposition, Smalios volunteered that the actual residence of John Frangos, the job foreman, was in Ohio.
[4] 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 raise).

[5] 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 2009.

[6] Pre-1987 time may be treated somewhat differently.