New York State Court of Claims

New York State Court of Claims

ANARUMO v. THE STATE OF NEW YORK, #2002-016-076 , Claim No. 93045


Synopsis



Case Information

UID:
2002-016-076
Claimant(s):
JOHN ANARUMO, JR. At trial, on the record, the derivative claim of Nancy Anarumo was withdrawn.
Claimant short name:
ANARUMO
Footnote (claimant name) :
At trial, on the record, the derivative claim of Nancy Anarumo was withdrawn.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93045
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Jasper & JasperBy: Harvey Jasper, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mulholland, Minion & Roe, John A. Beyrer of counsel
Third-party defendant's attorney:

Signature date:
July 29, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 the basket.

Anarumo added that the steel plate weighed some 60 to 70 pounds, and since then he has suffered persistent pain in the right shoulder area.
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."[1]
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 accident. 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 adjustments.

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 as well?
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 twisting):


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).

2. 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).

3. 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 shoulder."

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 following history: "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, 1996 report of a muscle spasm and tenderness in the area of the right trapezius musculature - - the right neck region on top of the shoulder.
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.
Dr. Scott 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, 1995.
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 surgeon.
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 claimant,
"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 right."
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 arthritis.
***
Defendant's medical witnesses were highly credible and defendant's case is more persuasive than claimant's (see
PJI 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.[2]

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) percent.
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 per hour.
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 that basis. (Id., 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 8).
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


Total: $54,496


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
New York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims




[1] 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.
[2] 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