This claim arose on May 14, 1998, when claimant was injured when he was struck
by a support beam while he was incarcerated at Auburn Correctional Facility.
The trial of this claim was bifurcated, and in a decision dated December 4,
2002, this Court determined that the State of New York was 100% liable for the
injuries sustained by claimant (
Knights v State of New York
, Ct Cl, December 4, 2002, Midey, J., Claim
No. 99939 [2002-009-109]).
A trial on the issue of damages was held on July 7, 2003, at which claimant
testified as to his injuries. Additionally, the testimony of Daniel L. Carr,
M.D., an orthopedic surgeon who conducted an independent medical examination of
claimant, was taken by videotape and was received into evidence, as well as the
videotaped testimony of Kenneth W. Reagles, Ph.D., a vocational rehabilitation
Claimant was injured on May 14, 1998 while he was working as an inmate
construction worker at Auburn Correctional Facility. He was working with
another inmate in removing cinder blocks located above a doorway in a concrete
block building under construction at the facility when a piece of angle iron
fell from the top of the doorway, striking claimant on his back.
Claimant was taken to Auburn Memorial Hospital where he received treatment for
his back injury. Shortly thereafter, claimant also began to experience pain in
his left shoulder, which he also contends was caused by the accident on May 14,
1998. Claimant then undertook physical therapy for his shoulder injury, and
received several injections of medication. This course of treatment continued
for approximately four years while Mr. Knights was incarcerated. Eventually,
Mr. Knights underwent shoulder surgery in April, 2002, in which claimant's
acromion was grinded back so that the shoulder joint could be visualized, which
was then decompressed and surgically repaired.
Mr. Knights testified that despite the surgery, he continues to experience pain
in his left shoulder, and he has been advised that a second surgery will be
required. He further testified that he still has difficulty and experiences
pain when he attempts to raise his arm, and that he is restricted from doing any
lifting or overhead work. Claimant testified that he has difficulty sleeping,
and that he is unable to engage in physical activities such as jogging,
weight-lifting, or basketball due to his injuries. He indicated that he has
taken numerous medications over time to reduce his pain.
As previously stated, Dr. Carr, although he did not medically treat claimant,
provided testimony after performing an independent medical examination of
claimant. He testified that claimant had suffered a severe lumbar contusion as
a result of being struck by the falling angle iron, but that there was no
objective evidence that claimant suffered any structural back injury, and he did
not find any residual disability to claimant's lower back resulting from this
With regard to claimant's shoulder injury, Dr. Carr testified that claimant has
suffered a tear of his rotator cuff in his left shoulder. He concluded that it
is probable that such tear occurred as a result of the accident, and he
therefore attributed the rotator cuff tear to this accident when evaluating
claimant's injuries. Dr. Carr indicated that claimant did have pre-existing AC
joint arthritis, resulting in a predisposition to impingement.
Dr. Carr concurred with claimant's testimony that a second operation would be
necessary, which would remove a piece of bone in the left shoulder. Assuming
that claimant does have this second operation, Dr. Carr opined that claimant
could experience possible improvement to his left shoulder. However, even with
this surgery, claimant would still be left with a mild impairment to the left
shoulder area, and that he would continue to have a difficult time with any
overhead lifting. Dr. Carr also stated that if claimant was to undergo the
second surgical procedure, such procedure would also entail both pre and
post-operative medical visits and examinations, as well as post-surgery physical
therapy and the necessity of prescription medications.
Dr. Carr therefore concluded that claimant can expect to experience permanent
pain in his left shoulder area, whether or not he undergoes the recommended
surgery, and that such pain is causally related to the accident which formed the
basis of this claim.
Dr. Kenneth Reagles, claimant's vocational rehabilitation specialist, testified
with regard to claimant's future lost wages and the cost of future health
related services. Since claimant was incarcerated at the time he suffered his
injuries, and remained incarcerated up to and through the date of the damages
trial, he has not made a claim for any past lost wages or past medical expenses.
Dr. Reagles, in making his computations with regard to the issue of future lost
wages, assumed that claimant would be released on parole in July, 2007, thereby
making him eligible to return to the workforce at that time. Utilizing this
assumption, Dr. Reagles determined that claimant would be 59 years of age upon
his release, with 5.5 years of remaining work-life
Based upon claimant's limited education, his incarceration and age, as well as
the economic climate, Dr. Reagles determined that claimant would be limited to
construction-type employment, and that he would be unable to engage in such work
because of his permanent shoulder injury. He therefore concluded that claimant
had no residual earning capacity and calculated his total potential lost wages
on this basis.
However, based on the testimony presented, it was claimant's expectation, and
his expectation only, that he will be released on parole on July, 2007, when he
first becomes eligible. However, the granting of parole is discretionary, with
no guarantee that an inmate will be considered for parole at any particular time
Matter of Russo v New York State Board of Parole
, 50 NY2d 69). The Board
of Parole may consider a variety of factors, including the severity of the crime
for which the inmate is incarcerated, in deciding whether to grant or deny
parole (Matter of Morales v Travis
, 260 AD2d 710). Accordingly, the
Court finds that the calculations of lost wages made by Dr. Reagles are
based upon a flawed assumption, and that such calculations cannot be credited.
Furthermore, since there is no guarantee that claimant will be approved for
parole at anytime during his remaining years of work-life expectancy, the Court
finds that any determination of lost future wages is highly speculative and
incapable of firm calculation. The Court is not convinced that even if healthy,
claimant would be able to find suitable employment in the construction field at
his age upon any such release. The Court therefore finds that claimant is not
entitled to any award for future lost wages.
Dr. Reagles also testified as to the cost of future health related services
expected to be borne by claimant. Again, this analysis is complicated by the
fact that the conclusions arrived at by Dr. Reagles were based on an
assumption that claimant would be released from incarceration in July, 2007.
Dr. Reagles determined that claimant has a present life expectancy from
July, 2007 of 17.1 years (see Exhibit 6, transcript of the trial testimony of
Kenneth W. Reagles, Ph.D., page 35) and that from that date, claimant would be
responsible for the cost of medical visits (both orthopedic and family
practice), radiology services, and medications, for the rest of his life. Dr.
Reagles also factored in the cost of the recommended second surgery on
claimant's left shoulder, as well as post-operative physical therapy.
Under cross-examination, Dr. Reagles admitted that the second surgery and
resulting physical therapy might by performed while claimant was still
incarcerated. Additionally, he stated that his calculations for the cost of
future health services such as radiology studies included expenses not only for
claimant's shoulder injury, but also for medical services related to claimant's
back, unrelated to the injury suffered by him in this accident.
The Court therefore finds that the computations made by Dr. Reagles include
certain medical expenses factored into his equation which could very possibly be
performed at no cost to claimant while he remains incarcerated. Furthermore,
since the Court has previously determined that claimant cannot be certain that
he will be released on parole in July, 2007, the total expenses for future
medical care set forth by Dr. Reagles are overstated. Unlike his claim for lost
future wages, however, it is certainly foreseeable that claimant will be
released from custody at some future, undetermined point in time, when he will
have to assume responsibility for payment of health related services. The Court
therefore awards claimant the sum of $20,000.00 for such future medical costs.
As for pain and suffering, and based upon the testimony and entire trial
record, the Court finds that an award should be made to claimant for the pain
and suffering endured by him with regard to both his back and left shoulder
injury. Based upon the testimony of Dr. Carr, the Court concludes that claimant
has not suffered any permanent residual disability to his lower back resulting
from this accident, but that he has suffered a permanent, yet mild, impairment
to his left shoulder.
Therefore, the Court finds that claimant is entitled to be awarded damages as