My toe got caught, I tripped, and as I was lunging forward, I had put my
right arm out to break the fall. Q. . . And what was the ground made of? A.
Concrete or some kind of stone . . . Q . . . which part of your body hit the
concrete first...? A. . . The bottom of my palm and then my knee . . . as I
fell, I landed on my shoulder . . . I felt a snap . . . I heard a snap as I hit
the ground . . . [a]lmost like a popping sound . . . [f]rom the [right]
It was nearly 9 o'clock in the evening and claimant returned home. The
next day was
Wednesday and Klimowich went to her employment as the
secretary for a New York City elementary school. In pain, later in the day she
went to Throgs Neck Urgent Care, described as a walk-in emergency clinic, and
was given a sling for her arm and shoulder. On Thursday, Klimowich did not go
to work, but saw an orthopedic surgeon, Dr. Michael Palmeri, who took an x-ray
which revealed no broken bones. She was given a shot of cortisone and scheduled
for an MRI.
On February 19, 1998 Klimowich had an MRI which showed a tear of the distal
supraspinatus tendon – a torn rotator cuff.
There was also a lateral down-sloping of the acromion (see below), but such is a
chronic, degenerative condition that would not have been caused by a claimant's
fall. (Cl exh 3, the report of radiologist Jonathan E. Davis). Dr. Palmeri
performed surgery on claimant on March 16, 1998.
For two weeks after
surgery she wore a sling which held her arm uncomfortably against her torso.
In April, Klimowich was put on a regimen of physical therapy. Claimant
testified that she had 30 physical therapy sessions, which concluded in July or
August of 1998.
Defendant called to the stand a radiologist, Joseph Tuvia, who reviewed the MRI
taken in February, 1998. Each side called an orthopedic surgeon. Claimant's
expert was Dr. Howard Balensweig who examined Mrs. Klimowich on November 3,
2000. Defendant called orthopedist Edward Crane, who saw the claimant on
November 1, 2001.
According to the patient history elicited by Dr. Balensweig, claimant had no
prior history of shoulder problem or shoulder trauma. He described her general
health as good, noting only that Klimowich had surgery for an umbilical hernia.
In addition to the rotator cuff
tear that the MRI showed, Balensweig testified that the surgery also addressed a
torn "capsule" and a torn "labrum." Dr. Balensweig explained that the capsule
is the fibrous piece that surrounds the entire shoulder joint and extends to
about three inches from the underside of the upper arm; the labrum is the
cartilaginous part of the shoulder. Balensweig stated that claimant ended up
with a poor result: a limited range of motion.
For his part, Dr. Crane explained the surgery performed by Dr. Palmeri (see cl
exh 2) as follows:
- The rotator cuff tear was repaired, although Dr. Crane observed that Dr.
Palmeri did not describe its size in his operative notes and his description of
the location, according to Crane, was a "little confusing."
acromion, the bone which sits on top of the shoulder, was smoothed down so that
it would not press up against the rotator cuff - - a procedure known as an
acromioplasty. The hooked condition in the bone was a chronic condition not
caused by the fall but, given that there was already surgical invention, was
viewed as a helpful procedure done in a majority of such shoulder repairs.
Dr. Palmeri also repaired a lesion to the rim of cartilage around the socket of
the shoulder joint (the superior labrum anterior to posterior). The surgeon
repaired it with a metallic staple to hold the rim of cartilage in place. Dr.
Crane observed that a labrum tear can occur from trauma or from normal wear and
- Dr. Crane could find no reference in the operative notes to any
repair of the posterior capsule.
When asked whether the rotator cuff tear was, within a reasonable degree of
medical certainty, caused by the fall at Lehman College, claimant's orthopedist
"[i]t's probably from the fall, but I can't rule out that she may have had some
partial degeneration of the cuff." Dr. Balensweig found permanent diminution in
right arm strength and range of motion. As to loss of motion, Klimowich was
limited in two directions - - reaching behind and
perpendicular" overhead. However, elsewhere in his testimony, Dr. Balensweig
described her elevation restriction as "mild."
Defendant's orthopedist, Dr. Crane, had a different opinion as to claimant's
condition. When he saw her in the late fall of 2001, unlike Dr. Balensweig,
Dr. Crane found normal strength in both shoulders. Crane indicated that an
individual with a chronic problem or chronic pain would have atrophy. He found
none, comparing both the right upper arm and the mid-forearm. He accounted for
the fact Klimowich was right-handed, noting that in each case the right
measurement was slightly larger: 35.1 centimeters to 34.5 and 23.0 to 22.2
centimeters, respectively, although he did not have the pre-accident
measurements, when the differentials reflecting her right-hand dominance could
have been greater.
Dr. Crane found no swelling, discoloration or deformity in the shoulder. The
shoulder was not unstable, and there was no crepitation, which is a grinding or
crunching of joints when the shoulder is moved in a circular motion.
While Dr. Balensweig felt confident that there was no subjective component to
the range of motion as demonstrated by a patient:
"I don't believe that [I can be] faked", Dr. Crane was more
circumspect when asked what it means when a patient says, for example, that
"this is as far as I can lift my arm." In any event, when asked to move her arm
("active motion"), Dr. Crane observed: "[s]he had very good motion actively.
She had almost normal motion of her shoulder actively . . . [s]he had as much
motion actively as one would need to have to do almost everything in the . . .
course of normal activities and. . . activities of daily living."
With respect to claimant raising her arm up straight over her head,
, 180 degrees, her left arm was the full 180, and the right 160
degrees, with Klimowich complaining of some pain when going to 180 degrees.
What is known as external rotation was found by Crane to be limited in claimant,
which is to say the ability to reach behind the back - - on the right side she
could reach, using lumbar designations, to L-3 on the right and L-1 on the left,
which he characterized as "some . . . not much" loss of internal rotation.
Crane noted that, "there are different reasons why people, don't have full
motion and it may be . . . from the injury she had."
Dr. Crane added that claimant did not have Hawkin's impingement sign; she could
stretch her arm out parallel to the ground and rotate it internally without
pain. He also performed a test that measured sensation and found the same
result in both arms.
Crane also took an x-ray of the affected area.
Crane concluded that Klimowich had a "very good to excellent result" from her
Crane added that you cannot tell just what is causing the pain to the patient:
"there are a lot of people who have rotator cuff tears that are chronic and
painless, and they may have pain from the impingement syndrome, in which case
you want to do the acromioplasty."
In addition, when Dr. Balensweig saw claimant, he observed a short scar on her
upper right shoulder from the surgery. Dr. Crane testified that Klimowich had
three scars from the surgery, two were one inch in length; he did not describe
the third. One of the scars was from the acromion shaving.
Elaine and Joseph Klimowich testified to any number of limitations in Mrs.
Klimowich's activities of daily living. Immediately after the fall, Mr.
Klimowich had to help his wife bathe and dress.
At trial, almost four years after the accident, we heard testimony that Mrs.
Klimowich has difficulty blow drying her hair; attending to underarm hygiene;
sleeping on her right side and stomach; and lifting heavy pots when cooking.
She still has problems with certain sweaters and anything that buttons in the
back. Mrs. Klimowich testified to ongoing, decreased marital relations,
although the testimony of her husband implied that perhaps the greater
difficulty thereon occurred in the two or three months after the Lehman College
Mrs. Klimowich stated that in walking with her elderly mother, because of her
injury, she has to be careful which side she's on and that her mother have a
railing on the opposite side "in case she did stumble and I couldn't help her.
She could grab onto something." Claimant further testified as to her reduced
participation in a number of sports, covering jet skiing, swimming, bowling and
Claimant had been taking courses in sign language at a private school and at
Lehman. She testified that she discontinued the study because of the physical
demands it placed on her in light of the accident. However, no proof was offered
to support any damages arising therefrom.
I find that Elaine Klimowich's fall caused her torn
rotator cuff. Between the orthopedists, defendant's was the more credible of
the two; among other things, Dr. Crane's examination of the claimant was more
thorough than Dr. Balensweig's. (See PJI
1:90). The latter's insistence
that range of motion tests were completely objective and that a person in her
late 40's had little or no degenerative conditions in the affected area did not
persuade this trier of fact.
Dr. Crane is persuasive that by the time of trial there were no objective
indications of loss of strength and only a slight affect on range of motion,
mainly relating to reaching behind the back, although Crane did say that
Klimowich could raise her right arm 160 degrees overhead, short of the full 180
degrees obtaining when the arm is perpendicular to the ground. If there is any
existing loss of strength, it is a mild one that affects heavy lifting for which
alternate ways of performing these tasks are by and large available.
As to the difficulty in reaching behind the back, a permanent condition, some
adaption can be made in, for example, getting dressed. Claimant has not shown
by a fair preponderance of the credible evidence that her claimed lost
activities of daily living (
2:280.1) can be attributed to such limitation in reaching behind her.
For example on the swimming, claimant in her testimony coupled that with playing
volleyball in the pool. Perhaps the latter would be affected by her range of
motion loss, but not swimming or otherwise enjoying the pool.
Regarding bowling and basketball, even assuming claimant could make the
appropriate nexus between the loss of motion and the affect on the activity, a
fair reading of the evidence is that the two sports were not a frequent
activity. Claimant testified that she and her husband used to occasionally get
together with other couples and go bowling. On basketball, claimant said,
"[y]ou know, when the family barbecues you play basketball, and just have a good
time. A lot of that is taken away."
Perhaps she can no longer jet ski because of her fall at Lehman, but the
Klimowiches participated in the sport one week a year up at Lake George and we
"sometimes put the jet ski in the water" downstate in Long Island Sound in the
Throgs Neck area. Klimowich testified that the problem with jet skiing was her
fear that if she fell, getting up would be virtually impossible because she
lacked the necessary upper body strength.
At the time of trial, claimant was not seeing a doctor and was not undergoing
any physical therapy, and had not been doing so
for some time - - in fact, since late 1998. Moreover, she was not taking any
medication, for pain or otherwise. Except for two days that first week of the
injury and occasionally leaving the office early for her physical therapy
appointments in 1998, claimant did not miss work. Mrs. Klimowich is still
employed as a school secretary, and she still drives. Claimant did however
testify that she currently on a daily basis stretches her muscles out "with the
towel, like Dr. Palmeri had showed me." As previously described, claimant does
have slight scarring which will remain with her. Accordingly, in view of the
foregoing, I find that Mrs. Klimowich's future pain and suffering amounts to
The larger portion of Mrs. Klimowich's pain and suffering occurred in the past
when she went through the period prior to surgery, the surgery itself, the two
kinds of slings, numerous follow-up visits to her surgeon and physical therapy,
the painful condition of her shoulder and the effect on her daily life. I
therefore determine claimant's damages for past pain and suffering to be
Mrs. Klimowich testified, without challenge, that she paid $10 out-of-pocket in
co-payments for each visit to Dr. Palmeri (15 visits) and each physical therapy
session (30 visits), for a total of $450. As to medication, a figure cannot
credibly be extracted from claimant's testimony: "[t]here weren't really too
many prescriptions . . . it was something for pain and infection immediately
No other information was supplied.
When claimant was asked if her insurance paid "the remainder of the medical
Mrs. Klimowich responded, "I don't know." She added that she recalled getting
letters of delinquency on behalf of one or more health care providers, and
calling her health insurance company which told her they were beginning to make
payments. If she herself had written any checks, she would have remembered it.
For example, Klimowich testified that she never received a bill from Dr. Palmeri
in regard to his surgical
Joseph Klimowich, particularly in the months after the fall, had to help his
wife dress and he handled more chores around the house. The couple engaged in
marital relations less frequently
and participated together in fewer sporting activities. (See PJI
Consequently, I find Mr. Klimowich's damages to amount to
* * *
In sum, the damages amount to $200,450 for Mrs. Klimowich and $30,000 for Mr.
Klimowich, of which the defendant is responsible for 70%
. Therefore, Elaine Klimowich is awarded $140,315 and Joseph Klimowich $21,000,
interest to accrue upon each amount from February 28, 2001, the date the
liability decision was signed. LET
JUDGMENT BE ENTERED ACCORDINGLY