New York State Court of Claims

New York State Court of Claims

LASHBROOKS v. THE STATE OF NEW YORK, #2002-013-518, Claim No. 95687


Synopsis


Claimant, who suffered permanent back strain and limitation of movement, is entitled to an award of $125,000 for past and future pain and suffering, but no award for lost earnings can be made where the amount of such loss was not proven with reasonable certainty.

Case Information

UID:
2002-013-518
Claimant(s):
ERVIN LASHBROOKS
Claimant short name:
LASHBROOKS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95687
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
SETRIGHT & LONGSTREET, LLPBY: JOHN C. SETRIGHT, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 10, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

After trial on the issue of liability, and by Decision filed January 16, 2001, the State was held to be 100 percent responsible for physical injuries suffered by Claimant Ervin Lashbrooks in November 1996 when the truck that he was driving was struck from the rear by a Department of Correctional Services (DOCS) bus. This decision follows the second trial, which was held to determine whether Claimant sustained a "serious injury" or economic loss in excess of "basic economic loss" (
see, Insurance Law §5104) and to assess the amount of any recoverable damages.
Claimant testified that he was 53 years old at the time of the accident. After graduating from high school, he worked as a meat cutter for approximately nine years and then in area zinc and lead mines for almost eighteen years. The physical energy required for the mine work was extensive, he stated, sometimes requiring him to handle an eighty-pound drill for full days. He was injured occasionally during this time. On three occasions he was hit by hanging rocks, causing some problems with his neck. He was given some neck exercises to perform and, on one occasion, was out of work for three months, but he suffered no lasting effects. On another occasion he injured his thumb. Claimant stated that his back also would bother him from time to time but not consistently or significantly.

During the summer of 1985, when the miners went on strike, Claimant worked in construction, work that he found to be extremely difficult. He had suffered substantial "lung loss" as a result of working in the mines and did not return to that work after 1985. Instead, he went on partial disability, receiving monthly benefit checks, and became self-employed, working on his own to build, maintain and rent apartments.

At the time of his accident, Claimant owned seven apartments, two house trailers, and three buildings. About five years before the accident, Claimant had purchased a building in Pamelia, NY, that he intended to renovate and then use for a carpet/appliance store. He stated that he paid about $15,000.00 for the building, which was "literally worth nothing" (Transcript - p. 17) and that by November 1996, when he was injured, he was about six months away from completion, as the building lacked only the flooring and some wiring.

Claimant's normal routine prior to the 1996 injury was to perform maintenance on his rental apartments in the mornings for several hours and then spend the rest of the day on the building that was to house the carpet store. He estimated that his work day was normally between eight and ten hours. The work -- putting up walls and ceilings and Sheetrock, painting and laying carpet -- he described as heavy. He did most of the work alone, carried his own materials and building supplies, and engaged in a great deal of bending and stooping in order to install electrical and plumbing.



Physical Injury

When the accident occurred, Claimant's pickup truck was struck from the rear. The back of the truck, onto which a wooden box was bolted, was pushed forward, denting the cab and breaking the seat on which Claimant was sitting. He remained belted into the seat, but the seat itself was ripped away from the floorboard. The truck, for which he had paid $500.00 and put some money into fixing it up, was totaled. Claimant was helped from the truck and taken by ambulance to the emergency room of Samaritan Medical Center in Watertown, New York. There he was x-rayed and, after several hours, told that he could leave. He stated that as he rose from the table to go, he felt a "wicked sharp pain" (Transcript - p. 30). Although, they wanted to keep him in the hospital after that incident, he announced that he was leaving and did in fact leave.

The following day, Claimant went to Dr. Schwelnus, a chiropractor whom he had seen many years before when he had been hit on the head. Chiropractic treatment did not help and he then went to an orthopedic specialist, Dr. David VanEenenaam. Dr. VanEenenaam referred Claimant to the CANI Spine Center where he received physical therapy over the next several months, discontinuing in May 1997. The physical therapy provided marked improvement, but Claimant continued to have problems and to see Dr. VanEenenaam, even after his no-fault benefits ran out. He failed, however, to keep track of that expense. At that physician's recommendation, he also consulted with a neurosurgeon. At trial, Claimant testified that he continues to do the exercises recommended by the physical therapists and the physician.

For about three months after the accident, Claimant did little other than stay on his couch. After he began receiving physical therapy, he began what he described as "light duty": painting, carrying out light garbage bags and the like. For the first year after the accident, he was able to work two hours for three or four days, but then had to take a day off to rest. As an example of his present condition, Claimant stated that if he goes to Wal-Mart, he can just barely make it around the store once. His right hip begins to bother him; then both hips; and then his leg goes numb.

In caring for his properties, he began receiving help with the heavy work from some of his tenants in lieu of rent. Eventually, the amount of work he could perform leveled off at about two or three hours a day, but if he worked as much as four hours, he would be unable to work the following day. He stated that he can stand for only about fifteen or twenty minutes. His condition has not changed since then, although he may have noted a slight improvement recently. On the other hand, for four or five months prior to trial, he began to experience a symptom he had not previously had: falling down after getting up from a reclining position. In addition to the financial burden caused by his inability to work, Claimant testified that he is upset at the change in his life because "I enjoy doing work more than I do anything" (Transcript - p. 50).

Claimant also reported enjoying hunting and fishing in the past, activities that he has been unable to engage in as frequently since he was injured. He still hunts on occasion but does not go deep into the woods as he did before. When he legally shot a deer during the most recent hunting season, his brother had to transport it and cut it up for him. He could help only while sitting in a chair.

The deposition testimony of Dr. VanEenenaam (Exhibit 1) was introduced at trial. He stated that he first saw Claimant on February 3, 1997,[1]
for complaints of soreness in his back that the patient attributed to the November 1996 accident. Claimant told him that the primary impact had been from a wooden box that came through the back of the cab, breaking the seat in which Claimant was belted. X-rays taken immediately revealed no fracture. Despite seeking the services of a chiropractor in the meantime, his back continued to bother him. Although he complained of some problems with his neck and occasional numbness in his hands, the area of greatest soreness was his lower back, a discomfort that was aggravated by activity and relieved somewhat by rest.
Most of the doctor's clinical findings at that time were within normal limits, but he found slight limitation of neck motion and "pain at the extremes of both flexion and extension, which I felt was limited to about 50 to 75 percent of normal" (Exhibit 1, p. 9). Dr. VanEenenaam stated that the limitations in movement were objective findings that he could confirm himself. His assessment of the x-rays that had been taken immediately after the accident indicated some mild degenerative disc disease of the lower cervical spine and in the lumbosacral disc space in the lower back. His diagnosis was cervical and lumbosacral sprain with underlying, but asymptomatic, disc disease. According to Claimant's medical history, he had had no pain prior to the accident, either from the disc disease or from a work injury several years in the past. At the time of the initial examination, Dr. VanEenenaam prescribed an anti-inflammatory medication and physical therapy for Claimant's neck and back, and he directed Claimant to refrain from doing any heavy work or prolonged sitting, heavy lifting, bending or stooping.

In late March, Claimant reported that his neck had improved and that the pain in his lower back had possibly improved to some degree. He also reported that stressful activity such as bending or lifting seemed to aggravate the pain. At this visit, Claimant informed the doctor that he had been in the process of building a building on which he was no longer able to work.

In May 1997, around the time that Claimant completed physical therapy, he saw Dr. VanEenenaam again and reported that he had definitely benefitted from the therapy. He still experienced some soreness in his lower back after working four to six hours and still exhibited some limitation of motion. He was told that he could gradually increase his activities but to continue to avoid lifting, bending and stooping. In the physician's notes for March 27, 2000,[2]
Dr. VanEenenaam indicated that he considered Claimant to have a permanent partial disability, one that would continue to prevent him from doing work that required heavy lifting or prolonged standing or walking.
Claimant was again seen by Dr. VanEenenaam in July and September 2000, and he still had complaints of lower back pain. In addition, he had developed pseudoclaudication, which the doctor described as "pain in your legs when you walk" (Exhibit 1, p. 15). He stated this was possibly caused by pressure on nerve roots. An MRI of the lumbosacral spine was obtained, which showed degenerative disc disease from L2 to S1 and a cross section of the spinal canal that was "borderline to mildly stenotic at levels 2-3 and 3-4" (Exhibit 1, p. 18). Stenosis is a narrowing of the canal through which the spinal cord or nerve roots pass. He referred Claimant to a neurosurgeon at that time, in hopes that neurosurgical treatment, possibly including surgery, might be of help to him[3]
.
During the three-year period in which Claimant was seen regularly by Dr. VanEenenaam, his symptoms "certainly did not improve, in fact, became more of a problem, which necessitated a referral" (Exhibit 1, p. 21). The physician's conclusion is that Claimant had sustained a permanent limitation of the use of his lower back, which he now considers to be a significant limitation. This condition, he stated, was consistent with his history of gradually increasing pain and lower extremity problems following the November 1996 injury.

On cross-examination, Dr. VanEenenaam acknowledged that he had only Claimant's representations as to the condition of his back prior to the November 1996 accident. He also acknowledged that the reports he received from the CANI Spine Center in May 1997 showed that Claimant himself estimated that he was "95 percent better" at the conclusion of the physical therapy regimen (Exhibit 1, p. 31). Other than the anti-inflammatory medication in February 1997 and a prescription of Darvocet in February 1998, he prescribed no other medication for Claimant. A lumbosacral sprain, he testified, would not normally be a permanently disabling condition in a person of Claimant's age, but he stated that it could have that result depending on "the patient's body habitus, their age, any preexisting conditions that might be aggravated by a sprain that then could kick in and be a perpetuating problem" (Exhibit 1, p. 36). In this instance, he believed that Claimant had some preexisting conditions that were made worse by the trauma of the accident and resulted in a permanent limitation.

Dr. John J. Cambareri, an orthopedic surgeon who conducted an independent medical examination of Claimant on behalf of Defendant, testified at the trial. He saw Claimant on July 13, 2001 for approximately twenty-five minutes. At that time, Claimant was complaining of lower back pain going into both legs and causing pins and needle feelings and numbness in both legs. He also noted some radiating neck pain but stated that that was less severe than the back pain. The doctor found no objective signs of spasms, found that neck motion was within normal limits, and determined that the motion of the lower back was mildly limited, to sixty degrees of flexion (normal being ninety degrees). Results of leg raising tests were normal, and he had good movement in all other joints. Dr. Cambareri found no evidence of motor atrophy or fasciculation. He also reviewed the 1996 x-rays, which showed some diffuse bone spurs, and the MRI taken in 1998, noting some mild building in L3-4, L4-5, and L5-S1. These findings, he stated, were not consistent with traumatic injury to the lower spine but, rather, were "perfectly consistent with a gentleman of stated age" (Transcript - p. 98). He concluded, based on Claimant's history of subjective complaints, that he may have suffered a cervical and lumbosacral sprain (described as a tear of ligaments much like a twisted ankle) as a result of the 1996 accident but that this condition was, in his opinion, completely resolved within six months when Claimant concluded physical therapy. Claimant's continuing complaints of pain and limitation he attributed to degenerative disc disease, which he felt would be entirely unrelated to any injury caused by the accident. In addition, Dr. Cambareri found no evidence of continuing disability with respect to Claimant's back condition, although on cross-examination he explained that he did consider Claimant to have some element of permanent impairment related to the disc disease.

The record of Claimant's physical therapy at CANI Spine Center (Exhibit A) indicates that he was seen for a total of 15 visits. At the conclusion of these, in May 1997, the therapist stated that Claimant reported no pain and that his functional scores had reduced significantly. When asked about this on cross-examination, Claimant stated that the pain they wanted to know about was severe pain, not normal pain, and he compared the difference as talking about a headache as opposed to a migraine headache. During his earliest visits to the Spine Center, he reported shooting pains in his back when lifting and stated that his legs would "go out" if he stood too long. The therapist's examination found minimal loss of flexion and major loss of extension. In March 1997, Claimant expressed to the therapist concern about his ability to return to the work force, and in late April and May he reported hip or buttock pain after working four to six hours.

Mike Bodah, who stated that he had known Claimant for thirteen years, became a tenant of Claimant's some time after the accident. He testified that while Claimant assisted him on working on some needed repairs to the apartment, his efforts were very limited. It seemed to Bodah that Claimant is in pain much of the time, being unable to stand on his feet for any length of time or to bend over. Arnold Webb, another acquaintance, testified that he had known and worked with Claimant both before and after the 1996 accident. Webb described Claimant prior to the accident as being "in a little better shape" than he is now (Transcript - p. 126). Now Claimant "hangs on his hips a little bit," has to go down on his knees frequently, and cannot stay on his feet very long, often no more than fifteen minutes.

Economic Injury

When asked about the property that he owned at the time of the accident, Claimant stated that one building, designated as Building A and intended to be used for the storage of carpet, was eventually condemned and demolished after it suffered extensive rain and wind damage. The adjacent building, designated Building B, consisted of three apartments, two of which were completed prior to the accident and one that he had been in the process of finishing when he began work on the building that was to house the carpet/appliance store. This building also sustained roof damage, which Claimant has been unable to repair because of his physical condition. There was also apparently a third apartment building in which five rental units had been completed prior to Claimant's injury.[4]
Claimant kept no income records with respect to any of these properties.
When asked about his general finances, Claimant stated that he receives a monthly disability payment as a result of his work-related lung impairment. This was supplemented, prior to the accident, by the money that he took in for rent and that income, for the most part, was invested in the building that was to house the carpet/appliance store.

Claimant also offered the testimony of Steven Shrewsberry, an independent builder and journeyman bricklayer. Defense counsel objected strongly, arguing that the State had been given no notice of this witness or an opportunity to consider his proffered testimony until less than two weeks before trial. A ruling on that objection was reserved, but Shrewsberry was permitted to testify, with Defendant being granted the opportunity to come back at a later date for cross-examination and to present its own expert, if that was desired. There was no subsequent resumption of the trial.

Shrewsberry testified that he worked as a general contractor on many wooden and masonry structures, including apartment complexes and military installations. He was not, however, licensed to perform estimates and is not a general contractor. He received some training in estimating as part of his training for the bricklayers union. He prepared the reports after being asked by Claimant's counsel to estimate the cost of reconstruction and repair of two buildings owned by Claimant (Exhibit 2 [Building A], and Exhibit 3 [Building B]), as well as an estimate of the current cost if one were to construct the building in which Claimant had hoped to open a carpet/appliance store (Exhibit 4).

Building A had already been condemned when the estimate was prepared, and thus that estimate was based only on Claimant's description of the structure and its dimensions. Claimant had informed Shrewsberry that the building had sustained roof damage after his accident and that, if he had been able to perform the work himself, the needed repairs could have been made before the building deteriorated to the point that it had to be demolished by town authorities. Shrewsberry's estimate of the cost it would have required to rehabilitate that building, from the condition it was in prior to the roof damage, was $191,554.00.

The comparable cost to repair Building B, which Shrewsberry was able to physically investigate, was estimated to be $78,639.00. This building he described as a commercial building that had been turned over to residential use at one time. None of the residences were occupied at the time of his inspection. His instructions were to estimate the cost of getting the building structurally sound, without particular reference to its intended use.

With respect to the building that was to house the proposed carpet/appliance store, it had been purchased by Claimant for $15,000.00 and he performed considerable work on it. The building lacked primarily only hardwood flooring when it was viewed by Shrewsberry. He estimated that the cost to build a building such as the one that he examined in December 2001 would be $320,348.00. It should be noted that this evidence was not submitted as an item of damage but, rather, as evidence that Claimant "could do work and do work well before this accident" (Transcript - p. 151).

The State presented no witnesses on the issue of economic damages.


Damages

New York's no-fault law precludes recovery for non-economic loss arising out of negligence in the use or operation of an automobile unless the injured party has suffered a "serious injury" as defined by statute (Insurance Law §§ 5102 [d], 5104). Counsel for Defendant does not dispute that Claimant's injuries satisfy the "serious injury" threshold of this statute, and on the credible evidence presented at trial, I am convinced that Claimant was "curtailed from performing his usual activities to a great extent rather than some slight curtailment" during at least 90 of the 180 days immediately following the accident (
Licari v Elliott, 57 NY2d 230, 236).
I cannot agree with Defendant's position that any award for non-economic damages should be limited only to past pain and suffering. Certainly the most acute pain resulting from this injury was experienced in the beginning months, as indicated by Claimant's condition after the accident and his reported improvement with physical therapy, medication, and rest. At the same time, it is equally evident that there have been long-term effects of the accident, and I am persuaded that Claimant's physical condition at the time of trial was significantly more limited and uncomfortable than it would have if he had not suffered this injury.

Defendant's expert does not dispute that Claimant suffers some limitation in his back but attributes this to his unrelated and pre-existing degenerative disc disease. The fact that Claimant was asymptomatic before the injury and has never returned to that point since, as well as the recent pain and weakness he has been experiencing in his legs, strongly suggests that the trauma he suffered in the accident either caused continuing pain and/or aggravated his pre-existing condition. Aggravation of a pre-existing condition is an element of damages, and recovery may be had for that effect if such injury is specially pleaded and proven (
Behan v Data Probe Intl., 213 AD2d 439). Here, Claimant's counsel put the State on notice that recovery would be sought for "[c]ervical and lumbosacral sprain superimposed on underlying but essentially asymptomatic degenerative disc disease, spinalstenosis and degenerative arthritis secondary to trauma" (Claimant's Supplemental Verified Bill of Particulars).
The work that Claimant performed prior to the accident in contrast with the more limited amount of work he has been able to do since then, even after the initial stage of recovery, satisfies the Court that Claimant suffers from some long-term effect of the November 1996 injury. I find Claimant's testimony as to his condition to be credible, and in particular his testimony that he is quite unhappy that he is not able to work as much as he had in the past. This, and the fact that in the past he only sought medical attention when injured,[5]
convinces me that he would be working at his former pace if he were able to do so. Claimant's testimony and that of his colleagues is consistent with the medical conclusions of Dr. VanEenenaam that the accident caused a permanent limitation of the use of his lower back and that the progress of his previously asymptomatic disc disease has been significantly accelerated.
Awards for pain and suffering must necessarily be based to a large degree on subjective opinions "formulated without the guidance of precise and detailed guidelines" and, consequently, consideration of the awards given in comparable cases must be consulted to determine what is reasonable compensation (
Valentine v Lopez, 283 AD2d 739, 743). Claimant in this action is not actually "incapacitated" by his physical condition as much as he is continually limited by it. He can still perform many of his work and leisure activities -- just not as frequently and not for so long a time. In addition, because his chief pleasure came from work and active outdoor activity, he is now required to spend more sedentary time, which he does not enjoy. A claimant's "inability to enjoy life to its fullest" may be factored into the general award for non-pecuniary damages (McDougald v Garber, 73 NY2d 246, 255-56).
In consideration of these factors, the following award is made:

Past Pain and Suffering $ 55,500.00
Future Pain and Suffering $ 68,500.00
(cf., Deyo v Laidlaw Transit, 285 AD2d 853; Wendell v Supermarkets General Corp., 189 AD2d 1063; Obara v State of New York, Ct Cl, #2002-015-548 [Claim No. 99572], Jan. 10, 2002, Collins, J.[6]; Bogen v State of New York, Ct Cl, #2001-029-094 [Claim No. 92429], Aug. 23, 2001, Mignano, J.)
In most cases, calculation of an injured party's economic damages is much less subjective than determining reasonable compensation for non-economic losses. In this action, however, it is more difficult. In fact, it is impossibly difficult.[7]

Based on the finding that Claimant has suffered permanent physical limitation, it stands to reason that his ability to perform the work of managing and maintaining the rental apartments and renovation of the building planned for the carpet/appliance store has been hindered. What is missing, however, is any kind of concrete proof that realistically establishes the amount of income that he has lost as a result. Specifically, there was no evidence of the income Claimant derived from these activities prior to his injury or of what he is now able to. "The basic rule is that loss of earnings must be established with reasonable certainty, focusing, in part, on the plaintiff's earning capacity both before and after the accident" (
Johnston v Colvin, 145 AD2d 846, 848).
Claimant's counsel has carried out a truly excellent effort to use damage assessment methods appropriate for determining another type of loss -- damage to the property itself -- to quantify the value of, and therefore at least arguably the income to be derived from, Claimant's work. Shrewsberry's testimony about the cost to repair or the cost to construct the various buildings owned by Claimant simply is not probative evidence of the amount of income that Claimant lost or will lose as a result of his injury. As Claimant recognizes, the value of work that he performed in renovating the building intended to house the carpet/appliance store has not been lost. He still has an almost-renovated building, which he may sell or lease or decide to use himself, thereby benefitting from any increase in its value. In any event, the information provided at trial does not give a workable measure of that increase, since it compares the purchase price with a projected cost to construct. While there is no reason to believe that this is true of Claimant's building, the stark fact is that there are many structures in existence that would cost far more to build than they can ever be sold for on the open market. Comparing Claimant's testimony about the building's purchase price with the information contained in Exhibit 4 about what it would cost to construct the building is, in a sense, comparing apples to oranges.

The same is true for the cost to replace or renovate Building A, which was ultimately condemned. Furthermore, even if Claimant was unable to carry out the repairs or pay to have them performed, he had the alternative of selling it to someone who could have made the needed repairs rather than let its value diminish to nothing. Finally, while the Court credits testimony that at the time of the accident Claimant had paying tenants in some of his rental apartments, apparently primarily in Building B, and that after the accident he was unable to continue to rent them or at least to receive rent payments, this information does not produce any firm estimate of economic loss. There was simply no testimony or other evidence to indicate how much income he received from this activity in the past, so it would be impossible to judge the extent of its reduction.

In short, while it is logical to assume that there has been a diminution of Claimant's income as a result of his reduced ability to perform maintenance and renovation work, there is no probative evidence from which the Court can calculate the amount of that loss. Claimant must assume a significant portion of the responsibility for this situation, as he apparently chose not to keep, or at least share, any financial records that would have established his income level prior to and after the accident. An injured party's loss of earnings or other income "must be shown with reasonable certainty and not be speculative in character" (36 NY Jur 2d Damages §68;
see also, Galaz v Sobel & Kraus, 280 AD2d 427 [plaintiff's testimony regarding purported loss of future income from a proposed business he intended to open or from his purported future employment as a mechanic was too speculative to support an award]; Hughes v Nationwide Mut. Ins. Co., 98 Misc 2d 667 [award for loss of profit cannot be made in the absence of "specific and concrete proof" of such loss resulting from plaintiff's inability to work]).
Where there has been no testimony or relevant documentation to establish the amount of past earnings with "reasonable certainty," it is improper to make an award for their loss, even when it is clear that the individual performed compensated work during the period in question (
Papa v City of New York, 194 AD2d 527, lv denied 82 NY2d 918). In that case, an award of $140,000.00 for past lost earnings was vacated because, although it was clear that the injured attorney had worked as a solo practitioner during the years preceding the accident and had supported himself, he failed to present any tax returns or other evidence to establish his income during that period of time. An award of future damages was allowed, but only because it was based on testimony of his former employer that the plaintiff would have been rehired and documentation of the income he would have made if that occurred (see also, O'Connor v Rosenblatt, 276 AD2d 610 [vacating award for past loss of earnings because it was not established by relevant documentation]).
In the instant case, there was simply no reliable evidence -- either testimonial or documentary -- of Claimant's past loss of earnings. Furthermore, the only evidence of any sort regarding anticipated future economic loss is based on the assumption that the (unproven) past loss of earnings would continue. An award for past and future lost earnings that is "entirely speculative" cannot stand (
Razzaque v Krakow Taxi, 238 AD2d 161, 162). Accordingly, no award for loss of earnings will be made in this case. This is not a reflection upon Claimant's attorney's efforts on behalf of his client. His advocacy on behalf of Claimant and his dogged perseverance in what must be described as very difficult circumstances, considering his client's inability to produce documentary evidence of his purported economic loss, is to be commended. The Court, however, is left with no other choice on this record than to limit damages to past and future pain and suffering.
The Chief Clerk is directed to enter judgment in favor of Claimant in the following amount:

Past Pain and Suffering $ 55,500.00
Future Pain and Suffering $ 68,500.00
TOTAL AWARD $124,000.00
with appropriate interest from the date of the liability decision, December 29, 2000.
All motions not previously ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.



October 10, 2002
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




[1] Upon referring to his notes, Dr. VanEenenaam confirmed that he had seen Claimant some twenty years earlier, in November 1977, several months after he was struck in the forehead by a rock. At that time, Claimant had complaints of neck and shoulder pain and numbness in his left hand.
[2] Defendant objected to the introduction of any testimony from Dr. VanEenenaam for the period after March 2000, on the ground that the medical information provided to Defendant extended only until June 1998. Claimant's counsel pointed out, however, that Defendant had an authorization which would have allowed them access to have any subsequent records and reports or, alternatively, that defense counsel could have requested an updated authorization. I agree with Claimant's counsel that it would have been logical to assume that a patient with an ongoing medical condition would have had further treatment. While it might have been better if information about ongoing treatment had been voluntarily conveyed to Defendant, there was nothing to prevent Defendant from asking for an update. Consequently, information about the later visits will be considered.
[3] Neither attorney was previously aware of the neurosurgeon's report, which Dr. VanEenenaam had in his file and referenced at trial. The very limited content of that report on which there was testimony was not considered in rendering this decision. The fact that Dr. VanEenenaam referred Claimant to a specialist can be considered, however.
[4] It was not clear from the testimony whether Claimant owned this last mentioned building.
[5] Claimant's earlier injuries do not, in the Court's opinion, play any, or at least any significant, role in his current physical condition.
[6]This and other Court of Claims decisions may be found at www.nyscourtofclaims.state.ny.us/decisions.
[7] I note that under New York's no-fault law, a plaintiff seeking to recover damages for economic loss in an action arising from a motor vehicle accident must plead and prove economic loss greater than "basic economic loss" of $50,000.00 (Insurance Law §§ 5104[a], 5102[a]). For reasons explained below, this requirement is not an issue that must be dealt with in this case.