At the time of her injuries, Ms. Stanton was employed as secretary/office
manager with the Research Foundation of the State of New York (Foundation). The
offices for the Foundation were located at SUNY Cortland. While in the course
of running an errand on behalf of the Foundation, Claimant fell and sustained
the injuries complained of herein. The Foundation is a separate and distinct
entity from the Defendant.
When Claimant fell on the steps of Van Hoesen Hall on the Cortland campus, she
attempted to break or slow her fall by holding on to the handrail. When she
landed at the bottom of the steps, she had turned in such a manner that she
ended up facing the steps. Her immediate complaints were buttock and left lower
back pain. Within a short period of time, however, she began to experience pain
in her right shoulder and cervical-thoracic area. She finished out the
remainder of that work day, but it is unclear if she returned to work the
following day. She went to see her family physician, William Boudreau, M.D., on
September 24, 1993. Dr. Boudreau determined that she had an acute strain of
her left hip. He recommended bed rest with the prospect of physical therapy
At Claimant's request, Dr. Boudreau referred her to Donna Lieberman, D.C. At
the time of the initial consultation with Dr. Lieberman, on October 5
, 1993, Claimant's primary complaints focused on low back, right shoulder and
neck pain. X-rays were taken which revealed muscle spasms. Palpation revealed
multiple trigger points in the suboccipital, trapezius, rhomboid, thoracic and
lumbar paraspinal muscles, and in the gluteal musculature. When pressure was
applied to these trigger points, Claimant reacted in pain. Ms. Stanton's
cervical range of motion in flexion was noted as being complete, but with
complaints of right medial scapula pain. Dr. Lieberman also noted that there
was some, albeit slight, restriction in the right cervical rotation. With
respect to Ms. Stanton's lumbar range of motion, Dr. Lieberman noted that it was
complete in flexion with lumbosacral pain at end range of motion only. Her
initial diagnosis was lumbosacral sprain/strain and cervical thoracic
sprain/strain. She prescribed a treatment plan of chiropractic adjustments to
the full spine, electrical muscle stimulation with hot moist packs, and a home
exercise program. Initially, Dr. Lieberman saw Ms. Stanton several times a
week. These visits tapered off as Claimant's symptoms abated.
Dr. Lieberman observed that Claimant's lower back pain responded well to
treatment, but that her cervical thoracic complaints persisted. In early
November of 1993, Dr. Lieberman noted for the first time that Claimant's right
scapula was "winging", indicating a weakness in her serratus anterior muscle.
At that time, Dr. Lieberman opined that Ms. Stanton was temporarily totally
disabled as a result of her fall and could not return to her job.
Dr. Lieberman stopped treating Claimant toward the end of January 1994 because
she felt that Claimant was not progressing under her care and because Claimant
had been experiencing muscle weakness that she did not have initially. She
referred Claimant to Jose Lopez, M. D., an orthopedic surgeon (Exhibit 10), who
in turn referred Claimant to Finger Lakes Physical Therapy (Exhibit 9), where
she treated until November 1994.
In her January 4, 1994 progress report, Dr. Lieberman opined that Ms. Stanton's
prognosis was fair to good. Later that month, however, when she transferred
Claimant to Dr. Lopez, Dr. Lieberman was beginning to believe that Claimant's
prognosis was poor (Exhibits 6 and 7).
Ms. Stanton's odyssey through the labyrinth of varying health care providers
and treatments continued thereafter without much progress made to alleviate her
pain. While Ms. Stanton was eventually able to return to work with the
Foundation in March of 1994 on a part-time basis, she continued to be examined
by physical therapists, orthopedic specialists, neurologists, acupuncturists and
chiropractors. These visits continued on a fairly regular basis in her vain
attempt to regain the life she enjoyed prior to her fall. Her medical history
is voluminous and is replete with treatments involving the application of
transcutaneous electrical nerve stimulation (TENS), acupuncture, chiropractic
manipulations, x-rays, massage therapy, and visits with every conceivable health
care specialist who might assist her recovery.
The record also illustrates that several of the doctors Ms. Stanton consulted
or treated with, and some of the tests conducted, found normal strength and
range of motion in her cervical/thoracic area. Nerve conduction studies and an
EMG referred to in the August 30,1994 report of neurologist, Jody Stackman,
M.D., were both normal. In his later report of November 22, 1994, Dr. Stackman
was unable to find any objective cause for Claimant's continuing complaints of
pain in the area of her neck and shoulder, and could not find any clear evidence
of cervical radiculopathy. When Dr. Stackman released Claimant from his care in
December of 1995, he noted that she was tolerating part-time work reasonably
well, but that increased activity caused increased discomfort in the right
shoulder. He further noted some localized tenderness in the right trapezius
muscle, but that strength in that area was normal. Dr. Stackman suspected that
Claimant was suffering from persistent trapezius strain and recommended that she
continue to restrict her activities and continue her exercise program (Exhibit
Each treatment Claimant undertook initially resulted in temporary relief,
but did not restore her to a condition that would permit her to return to her
once active life. She has been restricted not only in her activities, but also
ordered not to lift anything substantial. Such restrictions continue up to the
Ms. Stanton left her part-time job with the Foundation in July of 1997 and
eventually returned to her home in Connecticut to take care of her elderly
parents. In Connecticut, she came under the care of Joseph H. Kalk, D.C. She
was first seen by Dr. Kalk on April 13, 2000, at which time she gave a complete
history of her injuries and of the care she had received from various health
care providers. At that time, Claimant's primary complaints were the
right-sided cervical thoracic pain she had continued to experience, as well as a
lack of mobility in that area. In addition, Claimant complained of occipital
headaches which progressed from the back of the skull to the front of her head.
She suffered these once a day with varying degrees of intensity. Dr. Kalk's
physical examination revealed a weakness in Claimant's right shoulder abductors
and a reduction of 20% to 40% in her cervical spine range of motion. He also
noted an elevation in Claimant's right shoulder which he related to scar tissue
which had formed as a consequence of the soft tissue injury she sustained.
According to Dr. Kalk's deposition testimony (Exhibit 21), scar tissue contracts
when aggravated, elevating the shoulder. Palpation revealed several trigger
points which, according to Dr. Kalk, are focal muscle spasms or pockets of fluid
within the muscle body, resulting generally from fatigue.
Dr. Kalk's treatment consisted of stretching the pectoral and piriformis
muscles in an attempt to relieve pressure in the trapezius and rhomboid regions,
followed with deep massage to those areas. His treatment plan was to see Ms.
Stanton two to three times a week for four to six weeks. Throughout this
period, Claimant persistently complained that everyday life tasks involving
forward bending, such as laundry, vacuuming and cleaning, would cause flare-ups.
Eventually, Dr. Kalk, like Claimant's other health care providers, became
frustrated by the apparent lack of significant progress that Claimant was making
under his treatment, even with the introduction of non-traditional treatments
such as acupuncture, and by January of 2001 he concluded that her condition
appeared to be permanent.
Dr. Kalk testified that he curtailed Claimant's activities and advised her to
avoid any form of activity that resulted in the onset of pain and reduced her
lifting capacity to nothing over ten pounds. Even swinging a golf club, an
activity that Claimant was actively involved in prior to her fall, would,
according to Dr. Kalk, cause her great discomfort the following day. Dr. Kalk
diagnosed Claimant's condition as myofascial pain disorder secondary to cervical
strain/sprain. In his opinion, this condition was permanent and the prognosis
was poor, requiring ongoing treatment to biomechanically attempt to alter the
joints in the cervical spine and shoulder to help to normalize the joints which
degenerate more rapidly as a result of this type of injury (Exhibits 5 and 21).
Defendant's expert, John J. Cambareri, M.D., never treated Claimant, but did
examine her on December 11, 1997 after reviewing her records up to that date.
Dr. Cambareri, an orthopedic surgeon, testified that he took Claimant's history
and then looked at the affected parts of her body to see if there were any gross
deformities, masses, tumors or lacerations. He palpated these areas, tested
them for range of motion and conducted neurologic and vascular tests. He noted
that she could fully flex, extend and turn her neck from right to left, and that
she had full range of motion in her shoulders, elbows, hips and knees. Dr.
Cambareri further noted that Claimant had subjective tenderness over the right
neck musculature adjacent to the right scapula. He found no evidence of muscle
spasm or atrophy upon his examination. During his deposition (Exhibit F),
however, he acknowledged that it was not unusual not to find signs of atrophy
because Claimant had been in physical therapy. Forward flexion of her lower
back was to 60 degrees and there was no evidence of any impingement in either
shoulder. In addition, Dr. Cambareri found no evidence of a rotator cuff
injury during his exam. He concluded that there was no objective evidence to
support Claimant's subjective complaints of pain and, in his opinion, Claimant
suffered a mild strain of the shoulder musculature in her right shoulder and
neck. While Claimant spent approximately one-half hour with the doctor, the
actual physical examination took no more than ten minutes of that period. This
was the only time Dr. Cambareri saw Claimant (Exhibits A and F).
The medical history following the accident of September 20, 1993 establishes by
a fair preponderance of the credible evidence that Claimant has suffered and
still is suffering from a permanent injury to her right trapezius muscle which
has had the effect of limiting her ability to enjoy the life she once led. She
cannot sit for protracted periods of time without the onset of pain. She cannot
lift any weight over ten pounds. Working or driving a car any distance is
difficult and requires Claimant to take intermittent breaks. While she is able
to walk and swim, she has been unable to play golf, an activity she vigorously
pursued during the season. As she stated, if she tries to play golf, she is in
great pain the next day, requiring her to curtail other necessary activities.
Claimant has also been required to hire a housekeeper to maintain the home she
shares with her elderly mother.
Ms. Stanton left the Foundation in 1997 to take a job as a counselor with the
Tully Hill Drug and Alcohol Rehabilitation Center (Tully), which required a
minimum of paper work and permitted her to stand or take a respite in the event
of the onset of pain. At her prior employment, the daily task of doing reports
required her to bend her neck in a position which resulted in neck pain and
suboccipital headaches. Indeed, after the accident, Claimant was only able to
work part-time because of the resultant pain and was receiving only half pay.
This new job at Tully, a full-time job, allowed her to earn approximately as
much as she had earned at the Foundation prior to the accident.
Claimant left Tully in February of 2000 and shortly thereafter returned to
Connecticut to care for her elderly parents. Her father has since died and she
is responsible for the care of her mother only. She became employed by the
State of Connecticut in August of 2000 as a secretary at a correction facility
close to her home allowing her to walk to work. This job was tolerable because
she could stand when needed and was careful not to engage in any lifting over
her limitation. At the time of trial, Ms. Stanton was on a medical leave of
absence from the State of Connecticut due to the multiple myeloma unrelated to
her September, 1993 fall (Exhibit I).
Proof of lost earnings must be established with reasonable certainty, focusing
on Claimant's earning capacity (
Clanton v Agoglitta
, 206 AD2d 497; Walsh v State of New York
AD2d 939). It is Claimant's burden to establish her loss of actual past
earnings by submitting appropriate proof and documentation (Toscarelli v
, 217 AD2d 815).
The Claimant offered unrefuted and unchallenged evidence to establish her claim
for past lost wages at $42,466.00 (R). The evidence established that her
average wages during the period of total disability from September 20, 1993 to
March 18, 1994 was $416.00 per week. From March 18, 1994 until July 1997,
Claimant returned to work on a part-time basis, at which she earned 50% of the
average weekly wages noted above. Thus, the calculation of lost wages sustained
by Claimant for the entire period from September 20, 1993 until July 1997 totals
No claim for lost wages is made after July 1997, when Claimant accepted
full-time employment at Tully, and no claim is made for future lost
wages.Pain and Suffering
An award for pain and suffering is intended to compensate for non-economic
damages, including any effect the injury has had on the Claimant's ability to
lead a normal life (
McDougald v Garber
, 73 NY2d 246; Lamot v Gondek
, 163 AD2d 678).
There is no doubt that Claimant has suffered significant pain and limitation on
her ability to enjoy life as a result of the September 20, 1993 accident. The
credible evidence established that Claimant experiences some pain and discomfort
on an almost daily basis, and that she is unable to engage in many of her former
recreational and homemaking activities. To reasonably compensate her for these
non-economic damages, I award the sum of $195,500.00 for past pain and
suffering, which will be reduced by 15% representing Claimant's percentage of
At the time of the trial on damages, the Claimant was 61 years old with a
statistical life expectancy of 22.3
All of Claimant's care givers have agreed that her condition is chronic and will
continue to adversely affect her quality of life. Since the date of the
accident, Claimant has been diagnosed with multiple myeloma, a condition not
caused by any negligence of the Defendant, for which she is receiving treatment.
It is well settled that future damages are based on life expectancy, and I am
mindful that Claimant's cancer could
affect her life expectancy
, Davis v City of New York
, 273 AD2d 342;
Schneider v Memorial Hosp. for Cancer & Allied Diseases
, 100 AD2d
583). No proof, however, has been offered by the Defendant to establish that
Claimant will not survive a statistical life expectancy, and no proof was
offered from which I could conclude that the appropriate statistical table
should not be applied. Accordingly, I find that the Claimant is entitled to the
sum of $293,500.00 for future pain and suffering, to be reduced by Claimant's
percentage of culpable conduct.
The Court makes no award for past or future medical expenses or for future lost
wages, as there is no proof in this record to support any such award.
In sum, the following amounts are awarded to Ms. Stanton:
Past Lost Wages: $42,466.00 Less 15% $ 36,096.10
Past Pain and
Suffering: $195,500.00 Less 15% $166,175.00
Future Pain and
Suffering: $293,500.00 Less 15% $249,475.00
Interest shall run from December 12, 2000, the date the liability decision was
, Love v State of New York
, 78 NY2d 540). Any and all
motions not previously decided are hereby denied.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.