New York State Court of Claims

New York State Court of Claims

SPANNAGEL v. THE STATE OF NEW YORK, #2003-015-582, Claim No. 100183


Based upon Appellate Division, Third Department apportionment of 50/50 liability claimant awarded $2,537.14 for post-medical expenses, $433.00 for lost wages, $3,000 for past pain and suffering and $9,510.00 for permanent limitation of use for 31.7 years in personal injury action for sprained ankle resulting from slip and fall for DOCS facility.

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:
Lewis & Stanzione, EsquiresBy: Ralph C. Lewis, Jr., Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 8, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

By decision dated September 24, 2001 this Court dismissed the claim herein finding that the claimant failed to establish the defendant's liability for injuries resulting from a slip and fall in the medical unit of the Coxsackie Correctional Facility in Greene County. In a memorandum and order entered on October 17, 2002 the Appellate Division, Third Department reversed the Court's decision, apportioning liability 50% against the defendant and 50% against claimant. The matter was remitted to this Court and the decision herein results from a trial on the issue of damages held on July 1, 2003.

The facts of claimant's accident and the basis of the defendant's liability are set forth in significant detail in the aforementioned decisions and need not be repeated here except to note that claimant, a certified nurse's aide, fell on a wet floor while responding to an emergency bell. Liability was predicated upon the defendant's failure to warn of a dangerous condition.

At trial the parties stipulated that the claimant incurred $5,074.27 in medical bills which were paid by a workers' compensation carrier subject to a lien on file. They further stipulated that claimant suffered a loss of wages for 2.8 weeks calculated as $866.25 (2.8 weeks x 37.5 hours x $8.25 per hour).

Claimant, a 50 year old female, was called as the first witness and testified that she had been employed as a certified nurse's aide at the Coxsackie Regional Medical Unit for 1 1/3
years prior to her accident on March 9, 1999. She related that on that day at approximately 10:00 a.m. she was crossing a lounge in response to an emergency bell when her feet went out from under her and she fell. She placed both hands out as she fell and felt pain in her right wrist and hip. A correction officer assisted claimant into a chair and ice was applied to her wrist. Claimant went to the X-ray department of the facility and films taken there of her wrist and ankle were negative. She thereafter returned to work in the facility's medical unit with her wrist wrapped in an ace bandage. She testified that her wrist continued to ache and her hand appeared to turn blue. After leaving work claimant's daughter took her to Columbia Memorial Hospital Emergency Room where she was treated and released. At Columbia she provided the X-rays of her wrist and ankle which had been taken earlier that day at the correctional facility. The films were reviewed by the physician on-site who confirmed the earlier negative findings (see, Claimant's Exhibit 4). A splint was applied to claimant's right wrist, a brace was applied to her left ankle and she was given crutches to use for a two week period. She visited Dr. Sundaram who referred her to Dr. DiGiovanni, an orthopedic surgeon. Claimant was examined at her first visit with Dr. DiGiovanni 2 ½ weeks post-accident and given a prescription for pain killers.
Claimant testified that on her second visit with Dr. DiGiovanni he referred her to Dr. French who prescribed a different pain reliever. She saw Dr. DiGiovanni several times during the six weeks immediately following her accident and during one of those visits was referred to a podiatrist (Dr. Page) who prescribed orthotics for both her shoes.

Claimant was also given a prescription for physical therapy and attended Five Mile Woods Road Physical Therapy two to three times per week for two to three weeks. Her therapy centered on her right hand [
sic] and her left foot [sic] and included hydrotank therapy and exercises for her foot [sic] and her wrist and hand. She received 17 treatments over a four month period from April to August 1999.
The claimant testified that she used a cane full time and that she sometimes also used crutches. She alleged that her use of the cane continued for approximately one year on a daily basis.

Claimant offered into evidence various hospital/medical records, a video and transcription of a deposition of claimant's treating orthopedic surgeon (Louis DiGiovanni, MD) and an earnings statement with cover letter from Correctional Medical Services. With the exception of a two page unsworn letter of Dr. Page (identified as Claimant's Exhibit 6) the proffered Exhibits 1, 4 and 7 were received in evidence.

The witness further testified that following her accident she continued to be employed at Coxsackie Correctional Facility through December 1999. While so employed she allegedly wore the wrist and ankle brace and experienced continued pain particularly in wet weather. She alleged that she experienced no improvement of her right wrist prior to December 1999 and that she continued use of the ankle brace until sometime after December 1999. She reportedly visited Dr. DiGiovanni again for pain in March and April of 2000 and alleged that she continues to experience pain, sometimes requiring use of a cane. Claimant testified that she did not return to work at Coxsackie after December 1999 and that she was hospitalized for mental illness on some unspecified date.

On cross-examination claimant acknowledged that X-rays of her injuries sustained on March 9, 1999 were negative, i.e., no fracture of either her wrist or ankle. She admitted that she did not use a cane while at work since canes are not allowed within the correctional facility. She generally worked a 7 ½ hour day without the aid and assistance of a cane, much of that time being required to walk and carry various items. She alleged that she left her employment at Coxsackie on a voluntary basis in December 1999.

The witness conceded that she sustained a hairline fracture to her right wrist in 1994 for which she was treated by Dr. DiGiovanni. She also admitted that she re-injured both her right wrist and her left ankle when she fell on ice in December 2002 and again in a similar fall on ice in January 2003. Claimant confirmed that she was discharged from physical therapy in June 1999 before exhausting all allowed physical therapy treatments. She concluded her cross-examination by reporting that on the date of the subject accident she remained at work until 2:30 p.m.

Claimant offered the videotape (Exhibit 2) and transcript of Dr. DiGiovanni's deposition (Exhibit 3) into evidence along with the claimant's earning statement and the transcript of a deposition of Harry S. Wilson, Jr., a correction officer at Coxsackie with specific reference to page 9, line 3 through page 12, line 1. Exhibits 2, 3, 5 and 8 were received without objection. Claimant rested after requesting the Court take judicial notice of claimant's life expectancy of 31.7 years as set forth in the Pattern Jury Instructions Table of Life Expectancy.

The defendant rested without calling any witnesses.

Once the liability of the defendant has been established claimant is entitled to recover a sum of money which in the fact finder's determination justly and fairly compensates him or her for any injury and conscious pain and suffering to date caused by the defendant (
see, Tate v Colabello, 58 NY2d 84; PJI 2:280). Where there is any evidence of permanence or future pain and suffering the fact finder may award damages for future pain, suffering, disability and loss of ability to enjoy life taking into account the claimant's life expectancy (see, Fenocchi v City of Syracuse, 216 AD2d 864; PJI 2:281). Claimant may also recover such sums as he or she expended for medical expenses resulting from the accident and is entitled to be reimbursed for any earnings lost as a result of his or her injuries caused by the defendant's negligence from the time of the accident to the date of the Court's decision (see, PJI 2:285; Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311, and PJI 2:290, Ehrgott v City of New York, 96 NY 264).
Based upon the Appellate Division's finding of 50% liability on the part of the defendant the claimant is entitled to damages for medical expenses in the amount of $2,537.14 (50% of $5,074.27) and for lost wages in the amount of $433.13 (50% of $866.25) as stipulated by the parties.

As to damages for pain and suffering, to the extent that Claimant's Exhibit 4 can be deciphered it indicates that claimant's wrist and ankle were found to be unremarkable upon examination in the Columbia Memorial Hospital Emergency Department at or about 4:10 p.m. on the afternoon of her fall. Similarly, her examination by Dr. DiGiovanni on March 31, 1999 revealed "absolutely no deformity, no swelling, no ecchymosis, no overt signs of injury to either the right wrist or left ankle." At that time claimant was said to have "full ROM of the wrist to supination, pronation, flexion and extension . . . On examination of the left ankle, there is a negative anterior drawer, no ecchymosis, no edema, no crepitus, no false motion." Dr. DiGiovanni reported his impression of claimant's injury as "Mild sprain, left ankle, Grade 1. Mild sprain, right wrist. I do not expect any sequelae or permanency" (Claimant's Exhibit 7). The notes attendant to claimant's subsequent visits to Dr. DiGiovanni are similarly remarkable for their lack of subjective findings of injury though replete with claimant's complaints of pain in varying degrees.

Of particular concern to the Court are the notes generated by claimant's final visit to Dr. DiGiovanni on May 23, 2000 (Exhibit 7). The doctor recorded claimant's complaints of pain and alleged limitation of activity including an alleged inability to walk, stand in the shower, etc. His report contains the following telling observations:
EXAMINATION: On physical examination there are no atrophic changes, no skin discolorization, no signs what-so-ever of reflex symptomatic dystrophy. She has a full ROM. The ankle moves smoothly, there is no crepitus, same thing with the subtaylor joint and the midtarsal joints.

X-RAYS: X-rays taken on May 18th agree that the division of the ankle and foot are absolutely normal. Bone mineralization is normal. There is no osteoporosis. According to the history of disuse that the patient gives me, if she is not able to stand on this I would expect to see diffuse osteoporosis and this is not evident. An orthopedic _______can not explain her pain. She had a mild injury a _______sprain, there is no instability. She is currently being treated for depression by a Psychologist and Psychiatrist Dr. Hanned. She has given us his number and given us permission to speak to him. I explained to her that she should also speak to him and give him the release to be able to talk to us and maybe we could put our heads together and try to help treat her. But I have no orthopedic basis to explain this. She will return for follow-up on a prn basis.

Dr. DiGiovanni's office notes (Exhibit 7) as well as his examination before trial testimony (Exhibits 2 and 3) present a difficult situation for the Court vis-a-vis an award of damages for claimant's injuries to date. Claimant's sprained ankle kept her out of work for only 2.8 weeks. She offered no testimony as to how the injury otherwise affected her life except for the alleged full-time use of a cane, although she admitted on cross-examination that she did not use a cane during work hours. Accordingly, the Court awards claimant the sum of $3,000.00 (50% of $6,000) for past pain and suffering.

As to damages for future pain and suffering the trial record contains little more than a passing reference to the permanency of claimant's ankle injury. Specifically, in his examination before trial Dr. DiGiovanni testified that he "followed the New York State Worker's [
sic] Compensation Medical Guidelines for the exam and determined that she had a zero percent loss of use of the right arm and a seven and a half percent loss of use of the left leg secondary to weakness of eversion of the left ankle muscles" (see, Claimant's Exhibit 3, p 17, lines 11-16). In response to counsel's inquiry as to whether the loss of use is temporary or permanent Dr. DiGiovanni testified "[t]hat was felt to be permanent at that point. She had reached maximum medical improvement, had plateaued and she was over a year post injury" (Claimant's Exhibit 3, p 17, lines 20-22). Since Dr. DiGiovanni's testimony stands uncontradicted on the record claimant is entitled to recover an appropriate sum for a permanent limitation of use determined by the Court to be $9,510.00 (50% of $19,020) or $300.00 per year for a period of 31.7 years.
No additional award attributable to future pain and suffering is made since no testimony was presented to demonstrate what if any physical pain and suffering claimant was likely to endure as a result of the limitation of use of her left ankle. No award for future pain and suffering is made with regard to the alleged wrist injury since Dr. DiGiovanni testified that she suffered no loss of use of the right arm. Claimant offered no evidence at trial related to a hip injury alleged in the claim and such claim is therefore deemed abandoned.

As set forth above claimant is awarded $2,537.14 for past medical expenses, $433.13 for past lost wages, $3,000.00 for past pain and suffering and $9,510.00 for future loss of use of claimant's left ankle for 31.7 years plus interest from the date on which the Appellate Division, Third Department determined liability to date of entry of final judgment (
see, CPLR 5002).
The Clerk shall enter judgment in accord with this decision.

September 8, 2003
Saratoga Springs, New York

Judge of the Court of Claims