OBARA v. THE STATE OF NEW YORK, #2002-015-548, Claim No. 99572
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
The Gucciardo Law FirmBy: Brian W. Raum, Esquire
Honorable Eliot Spitzer, Attorney General
Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C.
John Dailey, Esquire
January 10, 2002
See also (multicaptioned
Claimant is a 35 year old male who was injured in a fall involving a moveable
scaffold and ladder while working as a sandblaster/painter at a State highway
bridge rehabilitation site in Albany County on the night of September 21, 1998.
By decision and order dated February 22, 2001 (filed February 26, 2001) the
Court determined that the State as owner of the construction site was liable
pursuant to Labor Law § 240 (1). This decision addresses the issue of
Claimant described himself as a 1984 high school graduate who went to work for
his father's industrial painting company following graduation. His father died
in 1985 and the company was managed by claimant's brother until 1989.
Thereafter, claimant joined Local 806 of the Bridge Painters Union and later
obtained work as a bridge painter for the City of New York Department of
Transportation. He remained employed by the City of New York until he was laid
off in 1998. Subsequent to being laid off and a short time prior to his
accident he obtained employment with Savoya Construction Corporation, the
company for which he was working at the time of the accident giving rise to this
Claimant's accident, which was unwitnessed, involved a fall of approximately
fifteen feet from a scaffold to the cement pavement below where he landed on
both feet sustaining injury. He was transported from the scene to Albany
Memorial Hospital where he was admitted complaining of pain in his feet, left
hip and groin. Claimant was examined and X rays were taken. Claimant was
prescribed medication for pain and was released from the hospital the following
day. Claimant then returned to his home in New Jersey where he remained during
his period of convalescence. He began treatment with Dr. Avrill Berkman, a
board certified orthopaedic surgeon licensed in New Jersey and Florida, on
October 2, 1998. Claimant testified that following his release from Albany
Memorial Hospital he was unable to walk (21)
experienced severe pain in his feet (21), took anti-inflammatory medication for
pain (24), had difficulty sleeping and was unable to assist his wife at home
during her final two months of pregnancy (31). He further testified that he
continues to experience what he described as "discomfort in my heel" (30, 32)
and noted that he cannot walk on a floor without socks (30), cannot carry his
daughter for long periods (32) and cannot return to work as a bridge painter
because of the physical demands inherent in the job. The witness testified
briefly regarding his earnings as a bridge painter and his unsuccessful attempt
to return to work in 1999 as an independent residential painting contractor
Claimant testified that during his six month course of treatment with Dr.
Berkman he was referred for physical therapy. He attended one physical therapy
session at Health South in January of 1999 (65) but discontinued treatment there
after being informed that his insurance would not pay for treatment at the
facility. He received physical therapy at a different facility, Clifton
Orthopedic Rehabilitation, on February 5, 8, 9, 10, 15 and 17, 1999 (66).
Claimant did not detail the program of physical therapy to which he was
subjected nor did he describe the pain , if any, experienced as part of the
therapy other than the brief description of generalized pain mentioned above.
On cross-examination claimant admitted that he saw Dr. Berkman on March 9, 1999
at which time the doctor recommended claimant undergo a three week work
conditioning regimen in anticipation of his return to work as a bridge painter
(68). Claimant's recollection of that recommendation was that it involved
exercises to be done at home (69). Claimant admitted that he did not return to
see Dr. Berkman at the end of that three week period (69-71). He acknowledged
that he did not thereafter return to work as a bridge painter. Claimant also
admitted that in relating his medical history he had not advised Dr. Berkman
that he had suffered a work related lower back injury in October 1997,
approximately one year prior to the incident giving rise to this claim (71).
Nor did claimant advise Dr. Berkman at a later visit on November 7, 2000 that
subsequent to his last treatment with Dr. Berkman in March 1999 claimant had
consulted Dr. Paul Post in May 1999 (76-77, 78-79, 85-86) and Dr. Howard Baruch
on June 10, 1999 regarding an alleged back injury for which claimant sought
Workers' Compensation benefits. Claimant does not allege that the accident
giving rise to this claim had any effect whatsoever on a pre-existing injury
sustained in October 1997 or was in any way connected to the back injury for
which he sought Workers' Compensation benefits in May 1999.
The defendant, however, argues that any pre-existing injury which was
determined to have resulted in a partial permanent disability for Workers'
Compensation purposes must be considered by the Court in its determination of
both past and future lost wages. For reasons which will be set forth below
defendant did not sustain its burden of proving what effect, if any, the alleged
disability has had upon the claimant's earning capacity.
The claimant at trial also offered the testimony of his wife Domenica Obara.
It is noted by the Court that the instant claim does not contain a derivative
cause of action for loss of consortium or other services. Mrs. Obara's brief
testimony established the date of her marriage to claimant (November 6, 1996),
the age of their daughter (2 ½) whose birth was expected at the time of
claimant's accident and the fact that they were expecting a second child at the
time of trial. She testified the claimant's feet were swollen and bruised for
several weeks and that he remained bedridden and unable to walk for two months
following his accident. During this period the claimant wore what the witness
described as boots (cam walkers) and ambulated first by using a wheelchair, then
a walker and later crutches. She testified that all of claimant's daily
activities were affected including walking and bathing (125). She described how
at the time of the birth of their first child in October 1998 claimant needed
the assistance of his brother to get to the hospital and once there used a
wheelchair to ambulate (126). Mrs. Obara testified that claimant subsequently
attempted to return to work as an interior painter but the work proved too
painful for him (128-129). She alleged that claimant unsuccessfully applied for
work as a truck driver and at a supermarket. This witness was not
The claimant called his treating physician Avrill Roy Berkman, M.D. who, as
noted above, is a board certified orthopaedic surgeon licensed to practice
medicine in both New Jersey and Florida. Dr. Berkman's testimony was received
over the objection of the defense attorney who alleged in a motion in
that claimant's responses to the defendant's expert disclosure
demands were legally insufficient
and that the
testimony of Dr. Berkman should be precluded. At the start of trial the Court
reserved on the motion which was addressed in a separate decision and order
dated August 16, 2001.
Dr. Berkman testified that he received his undergraduate and medical degrees
from Boston University and had completed an internship in general surgery and a
four year residency in orthopaedic medicine and surgery. Dr. Berkman testified
that he was an orthopaedic clinical associate professor at the University of
Medicine of New Jersey, a member diplomat of the American Board of Orthopaedic
Surgeons, was board certified in orthopaedic surgery and had authored several
published articles and scholarly papers. He testified that he specializes in
foot and ankle injuries.
Dr. Berkman first saw the claimant on October 2, 1998 at which time he took a
medical history in which claimant related details of his September 21, 1998
accident; reviewed X rays taken at Albany Memorial Hospital; took new X rays
and conducted a clinical examination of the claimant. From his examination and
review of the X rays taken that day Dr. Berkman initially diagnosed claimant's
injuries as including a fracture of the left heel bone, an avulsion fracture of
the left anterior ankle capsule involving ruptured ligaments and a fractured
fifth metatarsal of the right foot at or involving the cuboid joint. He
observed swelling, ecchymosis and fracture blisters on both feet coincident with
a high energy force (37, 50-51). Dr. Berkman speculated at that time, based
upon the fact that claimant fell a distance of approximately fifteen feet onto a
hard surface, that he might also have suffered additional occult fractures of
the foot and ankle and a possible hip fracture noting a visible contusion to
claimant's left hip. According to Dr. Berkman's testimony, although claimant's
skin and neurovascular systems were intact and no lacerations were visible
claimant complained of pain in the left hip and groin which he found to be
consistent with a possible hip or spinal fracture. As a result Dr. Berkman
ordered a bone scan to rule out further occult fractures ( 50, 52-53). No
additional fractures, however, were detected.
At trial, Dr. Berkman described claimant's injuries in some detail beginning
with the calcaneus fracture. He referred to Exhibits 3D and 3F as evidencing a
fracture line through the calcaneus heel (42) which was confirmed by the bone
scan (53). The avulsion fracture of the left ankle was described as a rupture
or shredding of the ligaments located on the fibular side of the left ankle
(33-34). The witness indicated that when the ligament tore it pulled off a
fleck of bone (45-46) and that although this is not what one normally thinks of
when referring to a fracture, it is properly described as an avulsion fracture.
Dr. Berkman further testified that a ligament injury can be very significant
since ligaments do not have reparative properties, i.e., it does not repair
itself but fills with scar tissue (46-47) which does not possess the same
biomechanical properties as a ligament. He stated that claimant had suffered a
grade three ligament sprain, the most severe type of sprain.
Dr. Berkman next described the injury to claimant's right foot. He indicated
that Exhibit "3C" shows the fracture at the base of the fifth metatarsal on the
outside of the foot as comminuted, containing many fracture lines extending into
and involving the cuboid /fifth metatarsal joint. When asked whether the X
rays, bone scans or his clinical examination of the claimant provided any basis
for concluding that the claimant had suffered prior injuries to his lower
extremities the witness responded in the negative stating that the fractures
were acute and not pre-existing. Dr. Berkman testified that upon his initial
examination of the claimant he concluded that claimant's injuries would involve
"some permanency" (56) based upon his years of experience in dealing with
injuries similar to those suffered by claimant (57). The fifth metatarsal
fracture was confirmed by the bone scan.
Dr. Berkman next examined the claimant on October 9, 1998 at which time he
noted that the swelling was diminishing as was the patient's tenderness. The
doctor observed that claimant appeared to be following his instructions against
weight bearing. His diagnosis formed on October 2, 1998 remained unchanged.
Claimant's next visit occurred on October 16, 1998 at which time he was
instructed to continue non-weight bearing, to stop smoking and to remove his
cam-walkers and begin a program of self-directed therapy to improve range of
motion (65). X rays were taken on claimant's next visit which occurred on
October 30, 1998. Dr. Berkman described those X rays as revealing a softening
of claimant's fracture lines indicative of healing. Notes of that visit relate
that Dr. Berkman anticipated the claimant would be able to return to work on a
full-time basis six months post injury, possibly sooner (68).
Dr. Berkman next examined the claimant on November 20, 1998 at which time X
rays were again taken (Exhibits 6, 6A, 6B). Those X rays demonstrated healing
and softening of the fracture lines of the right fifth metatarsal and left heel
consistent with interval healing (70-71). Claimant was advised to begin a
process of weaning himself off the cam-walkers as tolerated and to use
high-topped basketball sneakers for support. Claimant still had fracture site
tenderness and ankle ligament discomfort (73).
The claimant's next visit to Dr. Berkman occurred on January 5, 1999. X rays
taken at that time depicted progressive healing of the fracture lines on both
sides with trabeculation or healing of the bone extending across the fractures
(74). Dr. Berkman predicted in his office notes that claimant might be able to
return to work on March 1, 1999. Claimant returned to Dr. Berkman for further
examination on February 9, 1999 at which time Dr. Berkman observed that
claimant's skin was intact, without blisters, no abnormal callous formation,
temperature sensitivity was noted as was normal vascular supply and normal nerve
response and pulses. Claimant's last post-accident visit in the series took
place on March 9, 1999 at which time Dr. Berkman noted that claimant had full
range of motion bilaterally with no swelling, no erythema, no increased warmth,
no synovitis, no tenosynovitis. The doctor testified that claimant related
subjective endurance limitations and did not feel strong enough to return to
work as a laborer. X rays taken during this visit revealed continued healing
and trabeculation across the fracture lines. In response to claimant's
complaints of endurance limitations Dr. Berkman prescribed three weeks of work
conditioning to improve claimant's endurance and prepare him for a return to
work (78). Dr. Berkman did not specify where the work conditioning was to occur
or who, if anyone, was to supervise or direct it. Dr. Berkman, however,
described claimant as very compliant with regard to his prior
Dr. Berkman testified that he did not see or examine claimant following the
March 9, 1999 visit until November 7, 2000. On that occasion claimant presented
with the following complaints: throbbing, activity related pain bilaterally
with temperature sensitivity, discomfort with cold, damp weather, inability to
stand on his feet for long periods of time, and stiffness following periods of
immobility (79). An examination of claimant on November 7, 2000 produced
subjective complaints from the claimant regarding diffuse nonlocalizable
discomfort to palpation along the lateral aspect of the right foot and
discomfort over the anterior aspect of the right ankle (79). Dr. Berkman
testified that such complaints were indicative of post traumatic arthritis (80).
Examination of claimant's left foot revealed stiffness to subtalar motion and
subtalar stress consistent with the residuals of a calcaneal fracture;
tenderness to palpation of the plantar fat pad and soft tissue discomfort
diffusely about the posterior heel (81). These complaints were consistent with
the type of traumatic injury sustained by claimant. X rays were again taken
(Exhibits 9, 9A). According to the witness Exhibit 9 shows that the calcaneal
fracture was healing and that arthritic changes were occurring in the front
portion of the left ankle. Dr. Berkman testified that arthritic changes such as
those noted in claimant's left ankle cause pain and eventual limitation of
motion (84). In reviewing Exhibit 9A Dr. Berkman noted arthritic changes in
and around the fractured fifth metatarsal and the cuboid joint (84-85). He
offered an opinion based upon a reasonable degree of medical certainty that the
spurring conditions noted in the claimant's left ankle are permanent and will
progress with age in response to everyday activities, including walking, which
will cause premature degeneration. Dr. Berkman testified that based upon these
findings claimant is unable to resume work as a bridge painter (87) and he
opined that the arthritic conditions noted in claimant's left ankle and right
foot were, in fact, causally related to the injuries sustained by the claimant
as a result of his fall on September 21, 1998.
Dr. Berkman offered the following opinion based upon a reasonable degree of
medical certainty regarding claimant's restricted use of his lower extremities
Q. Okay, and to what degree is it your opinion that he's restricted?
A. To what degree? I'm not sure I understand your question. In other words
he's restricted in that he cannot work as a laborer. He cannot work in a job
which requires him to do prolonged walking over an irregular surface, climbing,
dangerous surface, stand for long periods of time. He can't work as a laborer.
In other words he couldn't work as a bridge painter, construction worker in a
job which requires prolonged climbing over dangerous surfaces and weight bearing
and walking over an irregular surface.
He further opined that as a result of the progression of claimant's post
traumatic arthritic conditions, claimant in the future would likely require
surgery to alleviate pain and improve function. He also noted that surgery
would not return the affected areas to their pre-accident condition (93). Dr.
Berkman estimated the cost of future surgical intervention at between
On cross-examination Dr. Berkman admitted that he was being paid a fee for his
testimony at trial. He testified that he did not recall reviewing the
radiologist's report from Albany Memorial Hospital (108) at claimant's initial
October 2, 1998 visit. He acknowledged a difference of opinion with the author
of that report regarding whether claimant's calcaneal fracture was nondisplaced
or minimally displaced (120 -121) and also disagreed with the radiologist's
suggestion that the fracture of claimant's right fifth metatarsal was an old,
incompletely healed injury (125-127). Later in the cross-examination Dr.
Berkman admitted that claimant had not revealed as part of his medical history
that he had sustained a back injury a year prior to the subject accident (135).
The witness also admitted that the Albany Memorial Hospital radiologist's report
noted spurring at the base of the fifth metatarsal of the left foot (143-144)
and that such a condition, if correctly noted, would indicate arthritic changes
in claimant's left metatarsal area (144). Dr. Berkman was asked to define
certain terms which he had used in his direct examination including "synovitis"
which he defined as an inflammation of the lining of the joint; "tenosynovitis"
defined as an inflammation of the lining of the tendon; and "trabeculation"
defined as bone growth across fracture lines (161). Dr. Berkman was asked to
review his office notes of claimant's March 9, 1999 visit and acknowledged that
on that date claimant had no significant objectively determined deficit (169)
and admitted that his notes failed to reveal whether claimant engaged in the
three week work conditioning program which he prescribed on March 9, 1999
(171-172). Cross-examination concluded with a recapitulation of Dr. Berkman's
notes of the March 9 visit.
Redirect examination centered on Dr. Berkman's disagreement with the Albany
Memorial Hospital's radiologist's report regarding the possibility that claimant
had sustained pre-existing injuries to his lower extremities (176-177). Dr.
Berkman also related the reasons why claimant's avulsion fracture would not have
been detected by the bone scan (178-179). The examination concluded with an
explanation by Dr. Berkman that his findings from the March 9, 1999 examination,
including claimant's full range of motion in both feet, did not rule out any
ongoing pathology (188).
Claimant next called Charles Kincaid, a vocational rehabilitation counselor
and evaluator since 1970. The witness' educational background includes an
undergraduate degree in psychology from the University of Wisconsin (Milwaukee),
a certificate in rehabilitation management from DePaul University, a Master's
Degree in Criminal Justice from the University of Wisconsin (Milwaukee) and a
Doctorate in Rehabilitation Counseling from Syracuse University. He testified
that he is licensed in the State of New Jersey as a rehabilitation counselor and
is certified both as a vocational expert and assistant technology practitioner
(98). His professional affiliations include the National Rehabilitation
Association, the National Association of Rehabilitation Professionals and the
American Board of Vocational Experts (99). He has taught graduate level
rehabilitation counseling students and indicated that he has testified as an
expert witness in the State of New York approximately six times (99).
Dr. Kincaid testified that he evaluated the claimant on September 6, 2000 to
determine his employability and potential earning capacity (99). His
evaluation included an interview of the claimant concerning his educational
background, work history and current functional abilities (100). The witness
stated that he learned that Mr. Obara was not working and that he was unable to
work because of injuries to his ankles and feet (100). He also learned that
claimant has a twelfth grade education with no training beyond high school. Dr.
Kincaid conducted two tests of the claimant; a wide range achievement test and
the Wonderlick Personnel Test which he described as a general intelligence test.
The first tested academic skills including reading and math while the second
involved problem solving (101). In the wide range achievement test claimant
performed at a high school level in reading but a fourth grade level in
arithmetic. The witness described these results as "marginal" (102). The
witness described claimant's performance on the Wonderlick Personnel Test as
poor, indicating that claimant's score placed him in the "lowest thirteen
percent of the population."
Dr. Kincaid testified that he drew conclusions from his evaluation regarding
the claimant's employability which he defined as "the extent to which a person
possesses skills and abilities that master the demands of jobs in the labor
market" (102). In forming his conclusion the witness used standard references
and a software program that allowed him to match the subject's pre-accident
capabilities to his post-injury capabilities in terms of employability (103).
The witness concluded that claimant's employability had diminished dramatically
(103) as a result of his injuries in that "he had transferrable skills for about
five hundred sixty jobs in his local labor market" and "after his injury with
his functional limitations there were only five, really only three types of jobs
. . . " (103) including bench assembly, machine operation of a sedentary nature
and inspector of finished products (103).
The witness testified that he based his determination of claimant's physical
disability primarily on the medical records of his treating physician, Dr.
Berkman (104). He also testified that jobs for which claimant was qualified
paid an average of $8.35 per hour as a starting wage. This figure was based on
McCresby's Transferrable Skills Program (105) which in turn is based upon
employment statistics gathered on a State-by-State basis.
On cross-examination Dr. Kincaid testified that the medical information
contained in his file was provided by claimant's attorney. The witness
reiterated that he evaluated claimant in September, 2000 and admitted that at
that time he would not have been in possession of Dr. Berkman's report of
November 7, 2000 (some two months after Kincaid's evaluation) (110). The
witness further testified that the last medical records provided him prior to
his evaluation of the claimant were those from Dr. Berkman's examination of
January 5, 1999. He acknowledged that he was not given a copy of Dr. Berkman's
office notes for claimant's visit on March 9, 1999 (110). The witness also
testified that in evaluating a person's functional limitations he would like to
have that person's full medical records available (111). The witness admitted
that he would like to have had information regarding the claimant's
participation or non-participation in the work conditioning program recommended
by Dr. Berkman on March 9, 1999. Dr. Kincaid also stated that he was unaware
that claimant had sustained a prior back injury. The witness indicated that he
tries to look at the full picture in forming his conclusions (119). He also
acknowledged that he was being compensated for his testimony.
Claimant's final witness was Anthony Riccardi, an economist and professor at
the American Institute of Banking in Albany, New York (134). Professor Riccardi
reported he has an undergraduate degree in economics and mathematics and a
Master's Degree in Quantitative Economics from the State University (not
otherwise identified) and a Master's of Business Administration with a
speciality in finance from Rensselaer Polytechnic Institute. He testified that
he has offered expert testimony sixteen times in the past forty-eight months and
that he has published articles on the subject of economic damages in the Journal
of Forensic Economics and the Journal of Litigation Economics, of which he is
the editor, as well as the Buffalo Law Review.
Mr. Riccardi testified that he was asked to measure claimant's lost wages and
fringe benefits (136-137). In order to do so the witness was provided with
copies of claimant's tax returns for the years 1995-2000 (Exhibits 11-17). In
calculating claimant's losses Professor Riccardi made certain assumptions based
on published statistically based tables, including that claimant could be
expected to live to approximately 78 years of age (138) and would have an
expected work life through the year 2025 when he would be 59 years of age (142).
According to Professor Riccardi's testimony these estimates were based on tables
published in the New York Pattern Jury Instructions and by the United States
Department of Labor, Bureau of Labor Statistics (138). The witness explained
that since claimant was injured in September 1998 he had to project earnings for
a full year in 1998 and in doing so estimated 1998 earnings at $37,146.00. He
also used the following yearly income figures in his calculations: 1997,
$48,026.00; 1996, $58, 714.00; 1995, $67,940.00. Riccardi projected a mean
figure of $52,956.50 for 1999 (141) to which he added two percent per year to
reflect future wage increases consistent with the current rate of inflation
(143). Projected earnings for 2000 were calculated as the $52,956.50 projected
earnings for 1999 plus 2% for a total of $54,016.00. Riccardi testified that he
also factored in fringe benefits based upon a rate of $2.65 per hour which he
obtained from claimant's pay stub with Savoya Construction Company and social
security payments made by claimant's employer (144-145). The witness stated
that he reduced the amount of projected wages and fringe benefits by the amount
of wages and fringe benefits earned since claimant's injury and those wages and
fringe benefits claimant is projected to earn over the remainder of his work
life (146). Riccardi testified that projected future earnings were based on an
"occupational opinion" provided by claimant's attorney (147) i.e., re-employment
of claimant at $8.35 per hour for forty hours weekly increased by two percent
annually over claimant's expected work life through age 59 (148) with a base
year figure of $17,374.68 starting in 2002 (148-149). The witness added to that
figure an hourly fringe benefit rate comparable to that which the claimant
received prior to the accident.
Professor Riccardi concluded that based upon a reasonable level of economic
certainty Mr. Obara's past economic loss to the date of trial was $157,103.00.
He estimated claimant's future economic loss to be $1,385,017.00.
On cross-examination the witness stated that he was retained to testify in
March 2001 (156). When asked what information was provided him he testified
that he was given Mr. Obara's income information, date of birth, date of
accident and the "opinion of the vocational assessment" (158). The witness
admitted that he assumed the information provided to him was accurate (164) and
further admitted that if the information was not accurate it would or could
impact his opinion. The witness admitted that he did not know what jobs
claimant had in 1998, 1999 or 2000 (166-167). He further admitted that
claimant's wages in fact declined from a high in 1995 through the date of his
accident (167) and acknowledged that he reviewed no studies regarding bridge
painting in New York State.
The State called no witnesses but offered the videotaped deposition of Howard
M. Baruch, M.D. which was taken on April 26, 2001. A transcript of that
deposition was offered and received in evidence as defendant's Exhibit
Dr. Baruch identified himself as a board certified orthopaedic surgeon licensed
to practice in New York, New Jersey and Connecticut. His educational background
included medical school at Georgetown University School of Medicine, an
internship and residency in orthopaedic surgery at Downstate Kings County
Hospital in New York City, a fellowship in adult reconstructive surgery and a
second fellowship in spinal surgery at Columbia Presbyterian Hospital. The
witness indicated that he is affiliated with the Hospital for Joint Diseases and
Cabrini Hospital in New York and is the Chief of the Department of Orthopaedic
Surgery at Bergen Regional Medical Center (New Jersey).
The witness testified that he examined claimant on two occasions. His first
examination of claimant occurred on November 18, 1998 (11) in relation to
complaints of pain to the patient's left calcaneus, right ankle and right foot
(14) related to a work site accident on September 21, 1998. X rays presented at
the examination revealed a comminuted, nondisplaced calcaneus fracture of the
left heel (19-20). Dr. Baruch explained the nature of a nondisplaced heel
fracture and the fact that such an injury would not require surgical
intervention but would heal over time and the patient would be directed to
engage in physical therapy and strengthening exercises (21). He likewise
described claimant's right fifth metatarsal fracture as nondisplaced (21). The
witness indicated that at the time of the examination claimant appeared wearing
fracture boots on both lower extremities and used a walker to ambulate (22).
Claimant provided a history of his September 21, 1998 accident. Dr. Baruch
offered an opinion that claimant's healing process was appropriate for the
length of time (two months) which had passed between the date of injury and the
date of the examination. The witness indicated that in giving his medical
history claimant denied any past medical or surgical history other than a hernia
(24). He also denied previous injuries (24-25). As a result of his examination
of the claimant the witness testified that he formed an opinion that on November
18, 1998 claimant was "moderately, partially disabled" (26) and recommended
physical therapy to help claimant recuperate. Dr. Baruch testified that he felt
claimant would recuperate from his injuries.
Dr. Baruch testified that he was later asked to and did conduct an independent
medical examination of claimant in June 1999 in relation to a back injury (27)
sustained in 1997 (29). At that examination the witness noted that claimant
walked into the examining room "normally" without a limp and without complaint
(30-31). The witness conducted a physical examination including range of
motion tests of the legs, knees, ankles and feet (31). Claimant did, however,
during the course of the witness' examination complain of pain in his heel when
asked to stand on his heels (31-32) and advised the witness that he had an
unrelated prior lower extremity injury. Dr. Baruch did not observe any
objective evidence of problems or difficulties with claimant's lower extremities
but noted claimant's subjective complaint of pain (32-33) regarding his lower
extremities. The witness observed that claimant had full range of motion of his
affected extremities (36). Dr. Baruch, when asked whether as a result of his
examinations of the claimant in November 1998 and again in June 1999 he had
formed an opinion with reasonable medical certainty as to whether the claimant
had any disabilities in either his lower left or right extremities, answered
that he believed that claimant is "not going to have any disabilities"
On cross-examination the witness admitted that at the time of the June 1999
examination he had no independent recollection of his prior examination of the
claimant which occurred in November of 1998 (39) and that he conducts
approximately 10 to 15 such independent medical examinations per week (40). The
witness acknowledged that Workers' Compensation examinations such as those he
conducted in November 1998 and June 1999 are limited in nature and that the
report generated from such an examination contains a disclaimer regarding its
scope (66). Dr. Baruch could not recall exactly which medical records he
reviewed prior to his November 1998 examination of the claimant (67) but stated
that his notes indicated that the X rays reviewed at the claimant's November
1998 examination were "not recent" (80-81). He acknowledged that ankle sprains
can be painful (91-92), may take months to heal, and that scar tissue can build
up in a sprain (92).
Dr. Baruch admitted that his November 1998 examination of claimant occurred two
and a half years prior to his testimony and that his diagnosis of claimant's
injury was based on information available at that time (95) some eight weeks
post injury. He could not recall having seen an avulsion fracture of claimant's
fibula (101); could not recall if he saw Dr. Berkman's radiology reports dated
October 2, 1998 (103-106); and admitted that without reference to Dr. Berkman's
report he might have missed the avulsion fracture of the fibula (107). The
witness also admitted that he had not "recently reviewed any X ray films" (107)
and had not seen a copy of Dr. Berkman's report dated November 7, 2000
(107-108). He also related that he did not examine claimant's feet and ankle at
the June 1999 examination as the focus on that day was the claimant's alleged
The witness acknowledged that as a result of his November 1998 examination he
found claimant to have a moderate (i.e., 50%) partial disability (122) but did
not form an opinion with regard to the permanency of claimant's injury at that
time because the injury producing event was close in time to the examination
(122-123, 129). He did, however, believe at that time that claimant's
prognosis was good (124). He also admitted that his report of the June 1999
examination regarding claimant's back injury contains no notations regarding
the range of motion of claimant's ankles and feet (130-131). Dr. Baruch also
admitted that his June 1999 notes contain a reference to claimant's earlier
visit which admittedly was not made contemporaneously with the other notes of
examination (133). The doctor further admitted with regard to claimant's
medical/surgical history that mistakes sometimes appear in his reports
Dr. Baruch testified that while fractures are painful and it is not uncommon
for a person to develop degenerative changes in the area of the fracture (153),
such changes are less likely with regard to nondisplaced fractures (153-154).
He indicated that it would have been helpful to have reviewed recent X rays to
determine whether degenerative changes were occurring with regard to claimant's
injuries (159) and that he does not now know whether claimant has degenerative
changes because he has not examined claimant in over two years (180). Dr.
Baruch admitted that he could not form an opinion based upon reasonable medical
certainty concerning claimant's alleged post-traumatic arthritis since he had
not conducted a recent examination or reviewed recent X rays of the claimant
(181). The witness testified that were post-traumatic arthritis present in the
claimant's feet and ankle it could affect his ability to climb, walk or stand
for long periods of time (181-182) and could require possible surgical
intervention at some point in the future (182). The witness stated that he
could neither agree nor disagree with Dr. Berkman's November 7, 2000 assessment
of claimant's current medical status including any alleged post traumatic
degenerative changes (187-188). He also retracted an earlier comment that the
bone scan ordered by Dr. Berkman indicated that the avulsion fracture of the
fibula was an old injury (189-192). He admitted that it would be improper for
him to form an opinion as to whether claimant could return to work as a bridge
On re-direct examination the witness reiterated his earlier opinion that
claimant's bone scan demonstrated new fractures of the calcaneus and metatarsal
bones but did not demonstrate an avulsion fracture of claimant's fibula (202)
since it was not mentioned in the scan report.
The State called neither a vocational rehabilitation expert nor an economist to
refute the contentions of claimant's experts regarding employability, work life
expectancy or past and future economic losses.
Claimant bears the burden of proving the damages required to restore the
aggrieved party to the position that he or she held prior to the injury (PJI 2:
277; McDougald v Garber, 73 NY2d 246). Restoration to pre-injury status
is accomplished by awarding a sum of money which reasonably compensates the
party for the actual loss sustained as well as those items that will be incurred
in the future (Id. CPLR 4213[b]).
Section 4213 (b) of the Civil Practice Law and Rules provides in part:
The decision of the court . . . shall state the facts it deems essential . . .
and in any other action brought to recover damages for personal injury . . .
shall specify the applicable elements of special and general damages upon which
the award is based and the amount assigned to each element, including but not
limited to medical expenses, dental expenses, podiatric expenses, loss of
earnings, impairment of earning ability, and pain and suffering . . . [E]ach
element shall be further itemized into amounts intended to compensate for
damages which have been incurred prior to the decision and amounts intended to
compensate for damages to be incurred in the future. In itemizing amounts
intended to compensate for future damages, the court shall set forth the period
of years over which such amounts are intended to provide compensation. In
computing said damages, the court shall award the full amount of future damages,
as calculated, without reduction to present value.
Addressing first the issue of damages awarded for claimant's pain and suffering
the Court notes a paucity of evidence related to this issue. Although the
parties' medical experts testified that fractures and even sprains can be
painful neither mentioned the claimant's complaints or reports of pain in any
significant detail. More significantly, although claimant himself described the
pain as severe immediately following the accident his testimony is particularly
lacking in any detail of the pain and difficulty in movement he endured in the
days and months following the accident and no details of present complaints
other than discomfort, being aware of climatic changes and being unable to carry
his child and stand or walk for long periods of time. He did not testify that
he regularly takes any prescribed or over-the-counter medication for pain and
described his heel pain as "discomfort"
the testimony of claimant's wife, Domenica Obara, offered little in support of
this item of damages.
Accordingly, the Court awards $30,000.00 for past pain and suffering with
interest at the legal rate from the date of the Court's determination of the
defendant's liability (see, order and decision dated February 22, 2001)
which was filed on February 26, 2001. In arriving at its determination the
court considered the fact that the fractures sustained by claimant involved
minimal displacement, if any, and that no surgery was required. While
claimant's recovery was difficult in the first few months following the
accident his healing process was by all accounts uneventful.
The Court further awards claimant the sum of $40,000.00 for future pain and
suffering based in part upon a life expectancy of 48 years and the unrefuted
testimony of claimant's treating orthopaedist that certain of claimant's
injuries will undergo degenerative changes which would be permanent and
moderately debilitating. Claimant offered only minimal, generally unpersuasive
testimony to support a claim for emotional distress and the instant award does
not include compensation for his alleged emotional injury. The record is
likewise bereft of any evidence of claimant's loss of enjoyment of life as an
element of pain and suffering (PJI 2: 280.1; Nussbaum v Gibstein, 73 NY2d
912; McDougald v Garber, supra) and claimant may not recover for
such loss in the absence of proof.
Claimant is, however, entitled to recover his past medical expenses to date in
the amount of $24,127.00 and the sum of $30,000.00 as projected future medical
expenses in treating the degenerative changes to claimant's right fifth
metatarsal and left ankle. Dr. Berkman's opinion that claimant will likely
require future surgery to relieve symptoms of post-traumatic degenerative
changes, particularly at the site of the fifth metatarsal/cuboid joint on
claimant's right foot, stands unrefuted. While it is somewhat speculative
whether claimant will elect to undergo surgery at a cost of between $15,000.00
and $30,000.00 with the additional pain and suffering that would initially
follow such a procedure (see, Caro v Skyline Terrace Cooperative,
Inc., 132 AD2d 512) the Court is inclined to allow the projected expense of
future surgical repairs as an item of damage.
The claimant is also entitled to be reimbursed for any earnings lost as a
result of his or her injuries from the date of the accident to the date of the
Court's decision based upon the proof presented at trial of his earning capacity
before the accident (Ordway v Columbia County Agric. Socy., 273 AD2d
635). The testimony of claimant's vocational rehabilitation expert and that of
claimant's economist outlined above stands uncontradicted in this record and
supports a finding that claimant sustained past lost wages and fringe benefits
in the amount of $157,103.34 based upon claimant's earnings as a bridge painter
for the four years preceding his accident at an average annual rate of pay of
$50,456.50 plus fringe benefits said to be worth $2.65 per hours.
Moreover, claimant may recover for the loss of future earnings (Keleher v
Fox Ford of Victor, Inc.
, 267 AD2d 646; PJI 2:290). Claimant's economist,
using figures of potential earnings provided by claimant's vocational
rehabilitation expert for a sedentary job paying $8.35 per
as opposed to the $32.35 plus $2.65 per
hour in fringe benefits straight time
$48.52 per hour for overtime
claimant as a bridge painter, estimated future lost wages and benefits in the
sum of $1,385,017.40 over the remaining 24 years of claimant's anticipated work
The defendant's attempt to cast doubt on the vocational rehabilitation expert's
testimony regarding claimant's potential future earnings is found to be
unpersuasive. While the expert may not have been privy to Dr. Berkman's report
of March 9, 1999 which anticipated claimant's return to work in a matter of
weeks, the facts demonstrate that claimant did not make a successful and
lasting return to his prior occupation or any other gainful employment.
Moreover, following his November 7, 2000 examination of claimant Dr. Berkman
concluded that claimant's return to bridge painting was not possible due to
objectively determined degenerative changes and claimant's subjective complaints
of continuing pain.
Although the defendant disputed the methods used by claimant's experts it
offered no expert testimony of its own. Thus, "[t]he only competent evidence at
trial regarding those items was offered by claimant" (Karagiannis v New York
State Thruway Auth., 187 AD2d 1009, 1010) and it appears to this Court that
the methods utilized by the claimant's experts in reaching their conclusions
"were not unreasonable and were fully supported" (Id.). Accordingly, the
Court finds that the claimant is entitled to the following damages based upon
the proof presented at trial:
January 10, 2002
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.References in parentheses are to page numbers
of the transcript of an individual's trial testimony unless otherwise
.The defendant unsuccessfully raised the same
argument with regard to the testimony of claimant's vocational rehabilitation
expert and claimant's economist whose testimony will be discussed
.Numerical references cited hereafter are to
.See Obara transcript p. 32.
.See Kincaid transcript p. 105.
.See Riccardi transcript p. 144.
.See Obara transcript p. 35.