New York State Court of Claims

New York State Court of Claims

OBARA v. THE STATE OF NEW YORK, #2002-015-548, Claim No. 99572


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
The Gucciardo Law FirmBy: Brian W. Raum, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C. John Dailey, Esquire
Third-party defendant’s attorney:

Signature date:
January 10, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 damages.

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 claim.

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)[1], 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 (41-43).

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 cross-examined.

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 limine that claimant's responses to the defendant's expert disclosure demands were legally insufficient[2] 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 instructions.

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 (91):
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 $15,000-$30,000 (93).

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 G-1[3].

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" (37).

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 back injury.

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 (136-137).

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 painter (199).

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"[4]. Even 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 hour[5] as opposed to the $32.35 plus $2.65 per hour in fringe benefits straight time[6] and $48.52 per hour for overtime[7] earned by 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 life.

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
Saratoga Springs, New York

Judge of the Court of Claims

[1].References in parentheses are to page numbers of the transcript of an individual's trial testimony unless otherwise noted.
[2].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 infra.
[3].Numerical references cited hereafter are to its pages.
[4].See Obara transcript p. 32.
[5].See Kincaid transcript p. 105.
[6].See Riccardi transcript p. 144.
[7].See Obara transcript p. 35.