New York State Court of Claims

New York State Court of Claims

KLIMOWICH v. THE CITY UNIVERSITY OF NEW YORK, #2002-016-090, Claim No. 99495


In damages trial -- following liability trial where defendant was found 70% liable for claimant's sidewalk fall -- claimant was awarded 70% of $200,450 and her co-claimant husband 70% of $30,000 where claimant suffered a torn rotator cuff in her shoulder.

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):

Alan C. Marin
Claimant's attorney:
Nassy, Hill, Langsam & Moin LLPBy: Elise Hagouel Langsam, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gail P. Pierce-Siponen, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 23, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the damages portion of Elaine Klimowich's lawsuit (and derivatively, that of her husband Joseph[1]
) arising from her fall on a walkway at Lehman College. In the liability phase, the City University of New York was found 70% liable for any damages resulting therefrom.
On direct examination, Mrs. Klimowich described her accident of Tuesday, February 3, 1998 as follows:
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] shoulder.

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."
- Claimant's 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 tear.
- 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 stated,
"[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 "straight out 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,
i.e., 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 surgery.
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 accident.
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 basketball.

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 (
PJI 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 $50,000.[2]
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 $150,000.

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 following surgery."
No other information was supplied.
When claimant was asked if her insurance paid "the remainder of the medical bills,"
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 charges.[3]
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 2:315). Consequently, I find Mr. Klimowich's damages to amount to $30,000.
* * *

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.[4]

September 23, 2002
New York, New York

Judge of the Court of Claims

  1. [1]References herein to "Klimowich" and "claimant" will mean Elaine Klimowich.
  2. [2]Mrs. Klimowich's date of birth is November 27, 1951. The life expectancy at the beginning of age interval 50-51 is 31.7 years, and at the beginning of age interval 51-52 is 30.8. PJI App A, Table 3.
  3. [3]At trial, claimant's exhibit 4, a summary of health care provider charges prepared by Healthcare Recoveries, Inc was admitted into evidence over the defendant's objection, which dispute I indicated I would revisit if necessary. It is not necessary. For example, the exhibit, which is dated May 25, 2000, contains Dr. Palmeri's March 16, 1998 surgical charges of $9,750, with $1,865 of that listed as paid. Mrs. Klimowich testified that she never paid such bill.
[4]The amount claimed has been amended sua sponte to conform to the proof.