New York State Court of Claims

New York State Court of Claims

STANTON v. THE STATE OF NEW YORK, #2003-013-507, Claim No. 89940


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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New YorkBY: MICHAEL R. O'NEILL, ESQ.
Third-party defendant's attorney:

Signature date:
September 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

In my prior decision on the issue of liability[1]
, Defendant, State of New York, was held 85% negligent for the injuries sustained by Claimant, Florence Stanton, on September 20, 1993, when she slipped and fell on a broken step on the campus of SUNY Cortland. Claimant was held 15% responsible for her injuries. This decision results from the trial on the issue of damages where all the evidence was submitted to the Court through deposition testimony, medical and chiropractic records and Claimant's employment records. This was done in order to accommodate Claimant, who had moved from New York State and had been recently diagnosed with multiple myeloma, a type of cancer, which is not in any way related to the injuries she sustained in her September, 1993 fall.

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 (
Exhibit 12).
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 11).

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 present.

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).

Economic Loss

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, 232 AD2d 939). It is Claimant's burden to establish her loss of actual past earnings by submitting appropriate proof and documentation (Toscarelli v Purdy, 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 $42,466.00.[2]
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 culpable conduct.
At the time of the trial on damages, the Claimant was 61 years old with a statistical life expectancy of 22.3 years.[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 (see generally, 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

TOTAL DAMAGES $451,746.10
Interest shall run from December 12, 2000, the date the liability decision was signed (
see, 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.


September 30, 2003
Rochester, New York

Judge of the Court of Claims

See my Decision dated December 12, 2000 ( - MacLaw No. 2000-013-519), and the Interlocutory Judgment entered thereon dated January 4, 2001.
Claimant submitted evidence indicating that she was paid medical and lost wage Workers' Compensation benefits in the amount of $44,791.00 (R - Exhibit 3). From the evidence adduced, it is impossible to determine the amount of Workers' Compensation paid for medicals as opposed to lost wages. Besides evidence of the Workers' Compensation lien, Claimant offered no evidence to establish past or future medical expenses. As a result, nothing is being awarded the Claimant for past or future medical expenses.
1B NY PJI3d, Appendix A, p. 1498.