ANARUMO v. THE STATE OF NEW YORK, #2002-016-076 , Claim No. 93045
JOHN ANARUMO, JR. At trial, on the record, the derivative claim of Nancy Anarumo was withdrawn.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Jasper & JasperBy: Harvey Jasper, Esq.
Eliot Spitzer, Attorney GeneralBy: Mulholland, Minion & Roe, John A. Beyrer of counsel
July 29, 2002
See also (multicaptioned
This is the decision following the trial on damages of John Anarumo's claim for
the injuries he suffered on September 19, 1995 while working on the elevated
portion of the Van Wyck Expressway in Queens County. Claimant had prevailed on
liability under Labor Law §240 when his motion for summary judgment was
granted by my Order filed January 31, 2001.
Mr. Anarumo, an ironworker, testified as follows:
I was in a man lift basket. We were putting up steel plates under the Van Wyck
Expressway. I had the plate over my head ready to put it on the beam, and the
man lift dropped about a foot, causing me to twist to the right and the plate
hit my [right] shoulder. And I never let go of the plate, and it just rested on
Anarumo added that the steel plate weighed some 60 to 70
pounds, and since then he has suffered persistent pain in the right shoulder
At the time of his injury, John Anarumo had been an ironworker for some fifteen
years, a physically demanding job requiring great skill. The tools and
equipment he used on an everyday basis included wrenches, sledge hammers and
bolt up guns.
A bolt up gun used to tighten nuts on bolts could weigh 25 to 30 pounds and
often had to be held by Anarumo over his head. On the job, he also might have
had to lift above his head steel plates that weighed 100 pounds. Anarumo
returned to work the next day; and in fact missed no work until he had a hernia
operation four months later in January 1996.
Sometime after he returned to work, claimant testified that he became a
supervising foreman, and no longer worked alongside the ironworkers he had led
as a "working foreman."
However, it might be noted that James Cush, a field representative for
the ironworkers union locals in the New York metropolitan area, testified that
it is the size of the crew, not the title, that is determinative: "If it's a
small crew, usually the foreman is a part of the crew. He's working - - helping
to lift heavy steel, to erect heavy steel."
In any event, the
strenuous nature of claimant's fifteen years as an ironworker at the time of his
injury supports the statement of Dr. James Naidich, a radiologist called on
defendant's case, that Anarumo had a longstanding degenerative arthritis in the
subject area and bone spurs or osteopaths that long pre-existed the 1995
The twisting Anarumo described on his direct testimony would
not affect the pre-existing bone spurs. Dr. Naidich indicated that trauma
would not increase the rate of arthritic degeneration. An MRI of Anarumo was
taken less than two months after his accident on November 8, 1995, and was of
the cervical spine, not the shoulder (cl exh 2). Claimant had been under a
chiropractor's care dating back to at least April 9, 1994.
Anarumo's wife Nancy and a colleague from work, James McMahon, testified to
their direct knowledge of what he physically could and could not do as a
consequence of his 1995 accident. That said, Anarumo's case in this damages
trial consisted primarily of his own testimony and that of Dr. Scott Gray, an
orthopedic surgeon who examined claimant on May 3, 2000. The presentation of
the two was insufficiently credible to prove that the September 1995 accident
caused claimant permanent injury. Anarumo could not prove much beyond a strain
or sprain of relatively short duration. Anarumo presented no objective evidence
to show any condition caused or exacerbated by his man lift accident. To that
end, Dr. Kenneth Seslowe, an orthopedic surgeon called to the stand by
defendant, explained that reports of pain are subjective and "there are
gray areas that are both subjective and objective. When you're measuring range
of motion, the actual measurement is...objective, but the amount that the
patient moves an extremity is under his subjective control."
When asked to describe his right shoulder pain, claimant responded that it
starts there and "comes down my arm into a tingling sensation into my fingers...
I just can't grab sometimes."
Anarumo stated that he had suffered the shoulder pain almost every day. He did
not mention his neck in his direct testimony, until asked whether he had had any
neck injuries prior to the man lift basket injury. Claimant responded that he
never considered the condition of his neck,
pre-September 1995 to be an
injury, and it was not the result of his 1985 accident when he fell through two
floors. Anarumo testified that he had been seeing chiropractor Gary Stein, but
claimant was not very forthcoming:
Q...you had treatment for your neck
before the accident in September of ‘95, right?
A. I had
Q... And he was treating you up to the time of the accident
for your back and neck, right?
A. My back.
Q. Were you treating your neck
A. He said he was adjusting me.
Q. So he treated your neck?
A. It was also called well adjustment. You go there and to prevent anything
from happening, he would adjust you.
Q. Okay. But he was adjusting and
treating your neck then?
A. That's correct.
Q. And you don't know
what the medical condition of your neck was before the accident in September of
‘95, do you?
A. I don't.
Moreover, what claimant's doctors reported of the accident varies from his
trial testimony; they did not report that he described his injuries as including
contact between the metal plate and his right shoulder (nor perhaps his torso
1. Dr. Alice Murnane, a physiatrist, in her report dated August 22,
1996, recorded Anarumo's history as having lost his balance when the basket
dropped, but no
mention of being struck on the shoulder by the steel
plate or of his body twisting (cl exh 1, Murnane report at p1).
Chiropractor Cathleen Murphy, in her report dated May 1, 1996, recorded that the
"claimant stated while working on date of accident he was standing on a manlift
putting on a plate. He stated the manlift dropped approximately one foot and he
developed pain into the neck and right shoulder." There was no reference to the
steel plate striking him or any twisting of the torso. (cl. exh 1, Murphy
report at p1
Chiropractor Thomas Florio, in his May 7,
1997 report: "...lift dropped approximately one foot. He reports this caused
injury to his neck on the right side. He denies any other anatomical areas
involved in this accident." (Def Exh A, report at p 1).
4. At trial,
when asked whether he was given a history of the accident, Dr. Gray's entire
response was as follows: "That the patient was injured at work, he was
working on an elevated machine and carrying something heavy when the machine
gave way. The patient experienced buckling of the neck as well as right
5. Dr. Monette Basson, a neurologist who was
called as part of defendant's case and examined claimant in July of 2000,
testified that he told her that "he was in a man lift, which dropped a foot
while he was holding a metal plate, and he stated that it pulled his right side
of his neck and shoulder."
6. Dr. Seslowe testified claimant gave the
"He was lifting a heavy steel plate and was on what
you call a man lift when the man lift tilted and felt a sudden pain in his neck
and right shoulder."
Dr. Gray testified that Anarumo complained of persistent pain, numbness and
tingling down his right arm when he examined the claimant in May of 2000. Gray
found tenderness in the cervical spine and tenderness over his [right] shoulder,
concluding there was inflammation, that the bone was pressing on the rotator
cuff and that the nerves in the area would cause claimant to feel pain, numbness
and tingling. He also found diminished range of motion of the right shoulder,
as well as weakness and decreased sensation in the thumb and index finger due to
inflammation of the nerve root.
Dr. Gray stated that in a strength test of Anarumo's right elbow and right
hand, he scored four out of five, but did not explain such score, apparently
implying some diminishment because he had spoken of weakness in the fingers.
Gray concluded that Anarumo could not lift more than 50 pounds from a standing
position, carry over 30 pounds, hold more than 25 pounds over his head, or push
over 50 pounds.
Dr. Gray referred to the examination of Dr. Ali Guy, a physiatrist
, who found nerve irritation when he administered an electromyography test (EMG)
on claimant's right shoulder, and Gray referred to chiropractor Murphy's May,
report of a muscle spasm and tenderness in the area of the right
trapezius musculature - - the right neck region on top of the
Dr. Gray concluded that the pre-existing herniations in claimant's cervical
spine were "aggravated" by his accident of September 19, 1995. Gray maintained
that what happened on the man lift basket caused whatever pain and limitation of
motion he observed in claimant when he examined him in the year 2000 and which
claimant testified he continued to experience.
Finally, Dr. Gray expressed the opinion that the competent producing cause of
Anarumo's condition was the subject accident and that he expected claimant to
experience continued pain, numbness and tingling.
Gray's testimony, to this trier of fact, was not persuasive (se PJI
1:90). For one thing, he did not examine both sides of Anarumo, including both
shoulders. Dr. Basson termed it "unthinkable..[to have ] examined half a
patient." While Dr. Gray apparently knew that claimant had suffered a separated
left shoulder, he had very few other details of the 1985 injury, about which he
almost seemed uninterested, although he did concede that depending on the
specifics, it could change his opinion that the subject accident was the
competent producing cause of Anarumo's injuries.
The first of the
three physicians called by the defendant at trial was neurologist Dr. Basson,
who examined Anarumo two months after Dr. Gray did, and found that claimant
suffered no neurological injury as a result of the subject accident.
Dr. Basson found no weakness or diminished strength, and she noted that except
for Dr. Gray, nor did any other doctor, including physiatrists Guy and Murnane,
who saw the claimant within a few months of his accident.
The MRI taken within two months of the accident on November 8,
1995 by Dr. Steven Mendelsohn referenced a neuroforamenal narrowing (cl exh 2).
Dr. Basson explained that the neuroforamen is a bony bridge through which the
nerve root goes and such narrowing can lead to pressure on the nerve root, but
in any event this narrowing was present before the accident of September 19,
Physically, Anarumo's gait, balance, and the manner in which he held himself
were all normal. His eyes and cranial nerves were normal. Dr. Basson examined
his neck and found no tenderness and no muscle spasms in the area. Basson noted
normal range of motion in the neck and no objective evidence of any abnormality
there. She perceived no atrophy, or physical wasting, of the muscle in the
right shoulder or arm; nor was there any decreased muscle tone or "floppiness"
of the muscle. According to Basson, there was no diminished sensation anywhere,
and claimant's reflexes were normal.
Dr. Basson concluded that claimant suffered a strain or sprain in
September, 1995 which would heal in "[w]eeks, months." Nor, in her medical
opinion, did an exacerbation of any pre-existing condition, such as a herniated
disc, occur at the time. Dr. Basson pointed out that the terms strain and
sprain are interchangeable, as did Dr. Seslowe, the defendant's orthopedic
Dr. Seslowe said he found no atrophy in and around the right shoulder,
including the right shoulder joints, a finding that Seslowe indicated was
clinically significant because individuals who have chronic shoulder pain will
develop atrophy or a loss of muscle mass. Seslowe stated that when he saw
"he did not appear to be in any pain when I was interviewing him." However,
when Dr. Seslowe touched the patient, Anarumo said it hurt, which Seslowe
described in his consult notes as "claimed tenderness" in the cervical region
and "claimed some mild tenderness about the anterior shoulder joint on the
Seslowe observed that both shoulders had some range of motion restriction: "He
could not fully bring his arm out to the side of his body overhead." Anarumo's
other ranges of motion were excellent, and he had excellent strength in both
shoulder girdles. His right bicep was a centimeter and a half larger than his
left, and his right forearm a centimeter larger than the left, although such
could be accounted for by his prior left shoulder separation and the fact that
claimant is right-handed.
Dr. Seslowe determined Anarumo's motor
functions of his upper extremities to be entirely normal and observed no
weakness and no sensory loss in the area. Further, his reflexes at the elbow
and wrist were normal.
Dr. Seslowe concluded that claimant had a cervical strain or sprain which would
have healed in four to six weeks, and a right shoulder strain that should take
six weeks to resolve.
He did note that the cervical strain was "superimposed upon pre-existing
cervical dispathology and osteoarthritis," but the credible testimony of this
doctor, Dr. Basson and Dr. James Naidich concurred that such is a long time
developing and can occur without trauma, as could well be the result for an
individual who worked with heavy tools over his head and lifted and positioned
heavy steel beams. However, it is possible that trauma can aggravate
Defendant's medical witnesses were highly credible and defendant's case is more
persuasive than claimant's (see
1:90). I conclude Mr. Anarumo suffered a cervical strain and right
shoulder strain with no aggravation or exacerbations of any pre-existing
condition (see PJI
2:282). Dr. Seslowe concluded that both strains
would be healed within six weeks. Dr. Basson was less precise, saying it would
take "weeks, months" for him to heal.
Claimant's pain and discomfort was at its greatest in the first few months; and
on the evidence, I conclude that Mr. Anarumo had residual problems therefrom
that lasted somewhat longer. He was off from work for three months in mid-1996
and returned to work September 9, 1996, one year
after the subject injury: it is at such time that I conclude claimant was
fully recovered from the effects of his September 19, 1995 accident.
Mr. Anarumo had some diminishing of his customary activities, such as bowling.
As to other sports - - golf, basketball and baseball - - claimant's proof was
ambiguous. In his deposition testimony, he first answered that his only
restriction was bowling; only later in the deposition did he mention baseball
and basketball. In response to a question at the EBT as to whether he engaged
in any activities when vacationing like skiing or golf, claimant responded,
"whatever the kids want to do."
When Dr. Gray recited the patient's history as to what he could no longer do,
he only quoted Anarumo as to work-related limitations.
In view of the foregoing, I find claimant's past pain and suffering to be
$35,000. There is no future pain and suffering.
The parties have stipulated to medical expenses incurred by claimant in the
amount of $7,538.
As to lost wages and benefits, claimant seeks recovery for the work
he lost commencing nine months after his injury and several months after a
hernia injury from which he missed about two months. Given the passage of time
and the fact of his prior injuries and pre-existing condition, the entire amount
of wages and benefits cannot be attributed to the subject injury.
Necessarily imprecise, a reasonable attribution would be fifty (50)
Mr. Cush, the union field representative went unchallenged to the effect that
Anarumo was absent from work from Monday June 17, 1996 through Friday,
September 6, 1996, a total of twelve workweeks. Claimant earned $1,080 a week
the first two weeks, and $1,110 for the next ten weeks, for a total wage loss
of $13,260; the wage rate increasing by $0.75 per hour effective July 1, 1996
(cl exh 8)
The benefit package was valued at $28.45 for each hour of the entire period,
but the calculation therefor is more involved, because, for example, some
benefits are not a direct function of hours worked. Thus, there is no showing
that claimant lost health insurance, for which his employers contributed $6.25
Under the pension plan, an ironworker can only obtain a maximum of 1.00 credits
for a calendar year; Anarumo received 0.75 credits for 1996. Defendant argues
that all or part of that 0.25 credit deficit is due to the work lost in January
and February of 1996 because of claimant's hernia, but supplies insufficient
supporting documentation. (Id.
The fringe benefits for Annuity and Topping Out are hourly amounts that go to
funds therefor, but are credited to the ironworker's individual account
. The vacation benefit is generated on an hours worked basis; it is unclear
whether such is individually allocated, but defendant made no challenge to it on
, on the specifics of these three benefits, see
¶¶18, 20 and 21 of the collective bargaining agreements for 7/1/93 -
6/30/96 and 7/1/96 - 6/30/99 that are part of this exhibit, cl
On the benefits side, claimant lost $28.45 per hour less $6.25 for health
insurance or $22.20 an hour for the twelve 40-hour weeks, a total of $10,656.
Together with the $13,260 in lost wages, claimant was out $23,916 for the
12-week period in the summer of 1996. Inasmuch as 50% of that amount is
attributable to his accident of September 19, 1995, his loss for our purposes
here was $11,958.
In sum, the damages are as follows:
Past pain and suffering: $35,000
Future pain and suffering 0
Lost wages and benefits 11,958
Special medical 7,538
The Chief Clerk is directed to enter judgment for claimant John Anarumo in the
amount of fifty-four thousand, four hundred and ninety-six dollars ($54,496),
with interest from the January 16, 2001 date of the liability Decision and
Order. All motions not previously ruled upon are deemed denied.
July 29, 2002
HON. ALAN C. MARIN
Judge of the Court of Claims
Claimant at one point on cross-examination
implied that he became a working foreman when he returned from his hernia
operation in early 1996, but from the totality of the evidence, the timing
thereof remains somewhat unclear.
This is $7,537.52 rounded up; claimant's
counsel on the record gave the figure as $7,537.52, which was repeated at this
Court's request (tr p 451). In his Brief at page 5, claimant's counsel used the
amount of $7,740.27